LEGAL NEWS 10.01.2009

Legal action taken against Satyam chairman – police
Fri Jan 9, 2009 10:59pm IST

HYDERABAD (Reuters) – Legal action has been taken against the disgraced chairman of Satyam Computer Services, a state police chief said on Friday, two days after the executive resigned from the outsourcer.
“Legal action has been taken, follow up action will be taken soon,” S.S. Yadav, police chief of Andhra Pradesh, whose capital Hyderabad is home to Satyam, told Reuters.
Television channels earlier reported that Ramalinga Raju had surrendered before the police, but Yadav declined to confirm that.
Raju resigned on Wednesday after revealing years of accounting fraud, which has called into question the future of the outsourcing company. He will appear before the market regulator on Saturday.
© Thomson Reuters 2009 All rights reserved

system can be modified, if needed: ex-CJIs

New Delhi, Jan 9 (PTI) As voices opposing the present collegium-based system for appointing judges reach a higher pitch, two former Chief Justices of India have said that a rethink or a modification in the appointment process could be considered, if problems were being faced.The collegium system involves a panel of judges headed by the CJI which selects the judges. It has been in place for over a decade and in recent years it has started drawing flak for being a closed system in which the judiciary selects its own judges.Former CJI J S Verma, who created the collegium system with his 30-page judgement in 1993, said he had always said that some kind of modification can be made, if needed.But he maintained that there is nothing wrong with the system “if properly worked,” as it was created to replace nepotism and arbitrariness in the system in which judges were appointed by the Executive.”It all depends on the people who work it (collegium system)…They can spoil even the best of systems,” said ex-CJI J S Verma.He said the collegium system was applauded when it was introduced and it worked well for years. “It is only now that problems are being faced…(in that case) some kind of modifications can be made,” he said.While ex-CJI V N Khare backed exploring the possibility of involving the Executive in judicial postings, ex-CJI A M Ahmadi favoured having a system which is “workable,” including a possible reversion to the pre-collegium mechanism as there have been concerns in some quarters over the effectiveness of the existing system. PTI

High Court judge found guilty in bribery scam
Ashok Bagriya / CNN-IBN
Published on Fri, Jan 09, 2009 at 21:34, Updated on Fri, Jan 09, 2009 at 22:15 in Nation section
Chandigarh: A three member committee of high court judges have found justice Nirmal Yadav of Punjab and Haryana high court guilty of what’s being called cash at the door bribery scam.
Justice Nirmal Yadav of Punjab and Haryana high court has been on leave since August last year after her name figured in the cash at door bribery scam in Chandigarh.
However, she is not one to go down without a fight.
In a defiant letter to the Chief Justice of India (CJI), K G Balakrishnan, Justice Yadav has thrown muck at a supreme court judge and also leveled allegations of attempts to protect the real culprit.
Justice Yadav has said that she is being made a scapegoat because her first name is similar to the judge whom cash was delivered. The entire enquiry has been deflected in one direction to protect Justice Kaur at the behest of the supreme court Judge
Throwing more muck, justice Yadav further said that almost two decades old liaison between the judge of the supreme court and the judge at whose residence cash is delivered, has been the talk of town for all these years. It is on this ground that the Supreme court judge’s wife sought divorce. The Illicit relationship between the two reached scandalous proportions.
This scam came to light in August last year when a sum of Rs 15 lakh was taken by the clerk of a senior Haryana law officer allegedly to the residence of a judge of Punjab and Haryana High Court Justice Nirmaljit Singh Kaur.
Later, it turned out that the money was meant for another judge, Justice Nirmal Yadav of the same court last August, an enquiry was ordered.
It’s rare that fingers are raised at a sitting judge of the Supreme court in a corruption case and even rare when these allegations are made by a judge of a high court.
Now the difficult task for the CJI will be to control the damage that this letter has done to the institution of the supreme court of India.

HC fumes, says no to new deadline
10 Jan 2009, 0601 hrs IST, TNN
KOLKATA: Given a choice between protecting the city environment and the livelihood of auto operators, Calcutta High Court chose the former because it has a bearing on our future and turned down the government’s plea to extend the ban deadline to July 31. Stepping up the heat, the court said it wanted the government to submit a progress report on the auto ban every fortnight. The green Bench will scrutinize the progress and decide whether further extension is to be allowed. Licensed autorickshaws will be allowed to ply for now. “In this matter, there is a conflict of two fundamental rights. One grants citizens the right to livelihood while the other gives them the right to a clean environment. We are not concerned about the present generation. We are concerned about the future of Kolkata and West Bengal. We have to ask ourselves whether our children are entitled to free, unpolluted air. These autorickshaws have been banned in Delhi, Bangalore, Chennai and Mumbai. Why can’t they be banned from Kolkata?” Chief Justice S S Nijjar observed. The government went on the defensive the moment Chief Justice Nijjar asked what it had been doing to implement the ban since July 18, 2008, when the order was passed. The court also came down heavily on the state when told that auto operators had resorted to violence. It expressed displeasure when told that the state had not published the scheme for conversion of auto-rickshaws even once. “Were they unjustified in resort-ing to violence? You ban auto-rickshaws on the last day without giving them enough time to opt for an alternative. They are poor people looking for everyone’s co-operation. There’s bou-nd to be resistance. After all, it is the matter of their livelihood. The auto drivers ignore the health hazards they suffer from the pollution for the sake of their families. The state will have to take a proactive stand beyond party lines,” Chief Justice Nijjar said. The judges asked: “The state will have to be more proactive. Only force will not work. Give them alternatives. Where is the infrastructure for conversion? You have mentioned that there are only 15 LPG outlets in and around the city. Do you expect an autorickshaw driver to go all the way to Nadia to fill his tank? What did you do earlier? What steps were taken to increase the number of LPG outlets?” When advocate-general Balai Ray said the state had no role to play in opening more LPG outlets, Justice Ghosh said: “The matter of LPG outlets is in the hands of oil companies. The matter of law and order is in the hands of the Opposition. Then what is the state’s role?” Ray claimed the plan to provide an LPG auto worth Rs 1,26,000 for a down payment of Rs 10,000 was worked out well before December 31. Yet, nobody had applied till then. “Nothing is tangible in your affidavit. You did not take lessons from other cities where such bans have been imposed. Why was the scheme not published to attract more auto owners? Why was the court order not implemented phase-wise? You didn’t even choose to brief the court on the situation,” Chief Justice Nijjar observed. After Ray pleaded guilty to not publishing the scheme for the benefit of autorickshaw operators, the court directed him to do so immediately, not only in newspapers but also on television and radio.

Delhi HC declines stay on Sasan power project
10 Jan 2009, 0217 hrs IST, TNN
NEW DELHI: The Delhi High Court on Friday declined to put an interim stay on the Sasan ultra-mega power project, being executed by Anil Ambani’s Reliance Power, after the government pointed out that Tata Power has “suppressed” information while challenging the Centre’s decision to allow surplus coal from this project to be used by the company’s other plants. “There does not seem any reason to grant an interim stay at this stage,” a division Bench consisting of Justice Madan B Lokur and Justice Siddharth Mridul said and did not issue any notice to the government or RPower. The court said it will continue the hearing on February 24. Tata Power had filed the petition challenging a ministerial panel’s decision allowing Reliance Power to use surplus coal from the mines designated for the 4,000 mw Sasan project to its other coal-fired power plants. Representing the government, solicitor-general G A Vahanvati told the court, “There has been serious suppression of facts by Tata Power. It’s a serious issue and the Tatas should not have approached the court on this.” Explaining the petition, Tata Power’s cousel L Nageshwar Rao told the court, “Apart from the project, we are asking for level playing field and if the status quo is granted then it would not affect the project.” This was opposed by counsels of both Reliance Power and the government. On the issue of whether Tata Power was the bidder for the project, counsel for Reliance Power Mukul Rohatgi pointed out that “it was an admitted fact that the Tatas walked out of bidding process so there was no question of their being disqualified”. Rohatgi also said no notice was needed at this stage and Reliance Power will file its affidavit. He told the court that Sasan is a Rs 24,000-crore project and a lot of international funding has been tied up for it. “If the notice/stay is granted then it would affect the project,” he said adding that Reliance is executing a similar project at an investment of Rs 20,000 crore in Chitrangi in Madhya Pradesh.

HC lifts ban on screening ‘Deshdrohi’
10 Jan 2009, 0448 hrs IST, Swati Deshpande , TNN
MUMBAI: The Bombay high court on Friday lifted the Maharashtra government’s ban on the screening of Deshdrohi , a Hindi film about discrimination against north Indians in the city. The court held that ‘‘good governance demands not just rule by law, but rule by good law consistent with constitutional guarantees’’. The film will be released next Friday, said Ashok Sarogi, the film-maker’s lawyer. The state has not yet decided whether to appeal against the high court judgment. Chief Justice Swatanter Kumar called the state’s suspension order an ‘‘exercise of power which smacks of arbitrariness’’, and said the government could not trample on a citizen’s fundamental right to freedom of speech and expression for its ‘‘own convenience’’ and because of its ‘‘inability to handle law-and-order situations’’. The state can ban a film screening on grounds of ‘‘public order’’. However, the court held that there was ‘‘no material before the state to justify its claim that the film’s screening would lead to violence in parts of the city’’.

HC grants bail to 29 students
10 Jan 2009, 0334 hrs IST, TNN
CHENNAI: Granting bail to 29 law students arrested in connection with the clashes at the Dr Ambedkar Government Law College, the Madras high court on Friday set an interesting condition that they spend at least two hours of the next four weekends reading good books in a public library. “The petitioners (students) are directed to go to any public library and read good books on every Saturday and Sunday for two hours, for a period of four weeks,” Justice T Sudanthiram said. They shall submit a report about what they had read during the period, he added. A total of 40 students had been named in two cases filed in connection with the clash. In his order, Justice Sudanthiram said except one all injured students had been discharged from hospital. The one student, who has since been re-admitted in the hospital, figures as an accused in a counter case filed after the clash. The judge also pointed out that the parents and relatives of the arrested students have filed affidavits stating that they would take proper care of the students if they are released on bail. On November 12, two groups of students, divided on caste lines, attacked each other, unmindful of the full media presence. Meanwhile, lawyers fielded questions from fellow men in black before the Justice Shanmugam Commission of Inquiry which is probing into the circumstances leading to the clashes. In an unusual spectacle, senior counsels engaged by the police, law college authorities and two groups of students on Friday grilled two lawyers, one of them an eyewitness to the violence. Advocate N Prakasam, whose daughter Abirami is a second year student of the college, turned up before the commission to depose as an eyewitness. Prakasam had gone to the college on November 12 to drop his daughter for the examination. In his account, he gave a clean chit to the suspended principal K K Sridev saying that “he repeatedly called the police officers to enter the campus but the latter did not pay heed to his requests.” After Prakasam completed his deposition, senior counsel P N Prakash, who was defending Sridev, cross-examined him to extract answers, which in essence faulted the police for failing to prevent the violence on the campus. Then it was the turn of A Ramesh, counsel for the police, to grill Prakasam for over an hour. Later, senior lawyer Rubert J Barnabas, appearing for an injured students, grilled Prakasam.

Table records of Vasco Ravindra Bhavan: HC
10 Jan 2009, 0439 hrs IST, TNN
PANAJI: The high court of Bombay at Goa on Friday directed the government to produce records pertaining to all permissions granted for construction of a Ravindra Bhavan at Baina, Vasco. A division bench comprising justice P B Majmudar and justice N A Britto was hearing a PIL filed by Andrew Alvares and another challenging construction of the project in alleged violation of the CRZ notification and National Highways Authority of India Act. The petitioner’s advocate, V Tamba, argued that it was evident from records that plans for the project were developed after licenses were issued. “Everything is being done in a haphazard and illegal manner,” he pointed out. The court subsequently issued notices to the department of art and culture, the Goa Coastal Zone Management Authority (GCZMA) and added the National Highways Authority of India (NHAI) as a respondent to the petition. The matter will now be heard on February 9.

Goa HC against govt officials praising politicians in ads
10 Jan 2009, 0427 hrs IST, TNN
PANAJI: Government officials issuing advertisements praising a particular individual or his deeds and paying for it out of public funds will face strict action. Giving directions for the proper use of public funds, the high court of Bombay at Goa directed that no advertisement appreciating the work of an individual, including a politician

, should be released using public money. A division bench comprising justice P B Majmudar and justice N A Britto held, “If any officer of the department/authority commits any breach, the state shall take strict action against him by recovering the amount from the salary of such officer. An attempt should be made to see that public funds are not wasted in any manner in this behalf.” In 2001, the court had taken suo motu cognizance about an advertisement released by the board of directors, management and staff of Goa Constructions Housing and Finance Corporation wishing the chairman on his birthday and wedding anniversary. The court was of the opinion that the advertisement could not have been issued and paid for by the public sector undertaking. It had also taken cognizance of a public interest litigation filed by one Siddharth Kuncalienkar on a similar issue. State advocate general Subodh Kantak, however, clarified that the corporation had not contributed towards the advertisement, but that the amount was shared by the individuals. Referring to a policy decision taken by the government, Kantak assured the court that no amount would be spent from the state exchequer in connection with advertisements concerning individuals. Advertisements will be in connection with educating people or highlighting works carried out by the government or by its corporations, he said. Amicus curiae Mahesh Sonak pointed out that guidelines did not prescribe what type of official duties could be be advertised. The court, however, felt that the government’s policy decision was clear, but observed that the government should see that departments and agencies strictly comply with the decision. The court directed that “as per the policy framed by the state government

, the concerned departments of the state or public bodies shall give advertisements in connection with the work relating to any official matter of a particular department or body and no advertisement should be given appreciating the work of a particular individual.”

Disproportionate assets case filed against former ECIL director
10 Jan 2009, 1437 hrs IST, PTI
HYDERABAD: Central Bureau of Investigation (CBI) on Saturday registered a disproportionate assets case against a retired Electronics Corporation of India (ECIL) official, GNV Satyanarayana. CBI officials conducted a raid at the residence of Satyanarayan, who was ECIL Director (Technical) and found him to be in possession of disproportionate assets to his known sources of income, to the tune of over Rs 48 lakh, a CBI official said. During the raid, CBI personnel recovered several incriminating documents pertaining to possession of immovable properties, several bank accounts, besides gold and silver ornaments.

FIR against Raje in land scam case
10 Jan 2009, 0233 hrs IST, Abhinav Sharma, TNN
JAIPUR: A local court here on Friday directed the police to register a case against former Rajasthan chief minister Vasundhara Raje and five others in the controversial Pandit Deendayal Upadhyay Trust land scam. Others against whom the FIR has been registered are former Jaipur mayor and MLA Ashok Parnami, former Rajasthan BJP president Lalit Kishore Chaturvedi, former minister Pratap Singh Singhvi, former housing board chairman Ajaypal Singh and then Jaipur Development Authority commissioner D P Gupta. The court passed this order on a complaint filed by Shriprakash Kukkar seeking investigation into the case and seizure of bank accounts of the alleged trust. One of Congress state government’s first job was to appoint a special public prosecutor to replace the one during the BJP regime who had absolved Raje and others of all charges against them. After the land scam was highlighted by the media, chief minister Ashok Gehlot appointed a special public prosecutor who, on Friday, asserted that whatever directions will be passed by the court would be carried out in toto. The complainant’s lawyer A K Jain argued that as SHO Gandhi Nagar Jahanghir Khan did not pursue the case, he was promoted to the post of DSP. Despite the court orders to pursue the investigation and register the case, Khan only made an entry in the diary and in his report said no case could be made out. The court directed the Jaipur range IGP to take action against Khan for not taking appropriate action on the court’s order of November 10, 2006. Later the case was transferred from the court of Jaipur additional chief judicial magistrate No 2 to AJCM No 5 by the Rajasthan High Court. The HC also directed the court to dispose of the case.

Cabinet okays ordinance to set up 12 new central varsities
10 Jan 2009, 0447 hrs IST, TNN
NEW DELHI: The Union Cabinet on Friday approved the decision to bring an ordinance to set up new central universities in 12 states and upgrade four existing universities to that level. The new central universities would be set up in Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Karnataka, Kerala, Orissa, Punjab, Rajasthan and Tamil Nadu. The four universities to be taken over into central universities are Harisingh Gour Vishwavidyalaya in Madhya Pradesh, Guru Ghasidas Vishwavidyalaya in Chhattisgarh, Hemvati Nandan Bahuguna Garhwal University in Uttarakhand and Goa University. Yet another decision taken by the Cabinet was on addressing the problems faced by minority educational institutions. It decided to amend the relevant law to give more powers to the National Commission for Minorities Educational Institutions (NCMEI). The amendment to the NCMEI Act would increase the number of members in the commission, barring the chairman, from two to three to enable it to deal with the increasing number of issues before it. Home minister P Chidambaram said the Cabinet decided to amend four sections of the Act relating to grant of `No Objection Certificates’ to establish and administer educational institutions.

Speedy trials for VIPs? SC doesn’t think so
10 Jan 2009, 0232 hrs IST, TNN
NEW DELHI: Supreme Court feels the rich and powerful who may exploit legal loopholes to delay trial in criminal cases cannot be bracketed as “influential” persons for fast track trials but has nonetheless sought the Centre’s response on a PIL seeking such a segregation. The SC on Friday sought the government’s response on suggestions given by advocate V K Ohri through counsel Prashant Bhushan, who alleged that though criminal cases against politicians and rich people were pending for years, these had proved no deterrent from the accused enjoying power. A Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam asked Centre’s counsel Gaurav Agrawal to file the response in four weeks to the suggestion whether a cell could be set up in each state under the Director-General of Police (DGP) to identify such cases and fast track them. Ohri’s PIL had expressed serious reservation against the delayed trial in criminal cases involving influential persons and said unless something drastic was done to overhaul the justice delivery system, people would lose faith in it. But, the Bench did not agree with Bhushan’s suggestion to classify politicians and rich people as an “influentuial class” warranting fast tracked trial in each criminal case pending against them. It said: “The trial courts can decide which case proceedings needed to be fast tracked. The trial court judge can take appropriate steps when he finds there is a delay in investigation or delay in trial. Why should there be a separate procedure for a section of persons whom the petitioner categorises as influential? It will be very difficult to define who is an influential person.” “Find out the reasons for delay in trial. It could be because the witnesses are not appearing, the prosecution is not up to the mark and then approach the high court which could direct corrective measure,” the Bench said.

PIL against truckers strike

Press Trust of India / New Delhi January 9, 2009, 17:24 IST
A petition challenging the on-going nation-wide strike by truckers was filed in the Supreme Court today. A Bench headed by Chief Justice K G Balakrishnan fixed January 12 to hear the petition which sought a direction to declare the strike as “illegal”.
The PIL filed by Sunder Khatri, an advocate, contended that the strike by the transporters was illegal under the Essential Commodities Act.
He said that the strike by the All-India Motor Transport Congress and various other bodies of the transporters was causing difficulties to the common man as it had led to disruption supply of essential commodities.
Truckers are on indefinite strike since Sunday midnight to press for their demands including a reduction in diesel prices by Rs 10 per litre, exemption in service and toll taxes and a single permit for nationwide transportation.

Truckers next in line, seized vehicles to be plied
10 Jan 2009, 0219 hrs IST, TNN
NEW DELHI: A day after the Centre asked states to initiate action against the agitating truckers who have been on strike for five days, the government unveiled a bold action plan to ensure uninterrupted supply of essential commodities across the country — it said it would appoint drivers to ply the impounded trucks of transporters and could also allow other private vehicles to ferry supplies without permits. The government hopes to ply more than 15 lakh vehicles till the stir ends.New Delhi: With the nationwide struckers’ stir driving prices of vegetables and essential commodities on an upward trend, the Supreme Court on Friday fast tracked the hearing of a PIL, which wants slapping of the Essential Services Maintenance Act (ESMA) against the truck owners and cancellation of their permits. A Bench headed by Chief Justice K G Balakrishnan advanced the scheduled hearing of the PIL filed by advocate Sunder Khatri and posted it in Monday’s list of business. “The initial impact of the strike may not be much, but with such strikes serving as a convenient excuse to hike the prices of essential commodities, the average household is likely to feel the pinch very soon,” the PIL said requesting the court to direct the government to invoke ESMA as well as the National Security Act (NSA) and take coercive action against the striking truckers like cancellation of their permits. The truckers are seeking a cut in diesel prices, rationalisation of toll tax and a reduction in tyre prices.

PIL on govt staff strike
10 Jan 2009, 0235 hrs IST, TNN
PATNA: A PIL has been filed in Patna High Court by Jan Chowkidar through Suman Lal, Vidya Kumari and a lawyer Manish Shankar seeking direction to the state government not to allow the strike of non-gazetted employees (NGEs) who have sought a salary hike on the basis of the recommendations of the Sixth Pay Commission. The PIL submitted that millions of people in Bihar were malnourished and go without medicare for lack of resources and in such a situation it would be unjust for the government to hike salary. The strike is also contemptuous of a Patna High Court judgement delivered in 1999 holding such a strike illegal, the PIL submitted adding that the ongoing strike would paralyse the normal life, thereby infringing on the right to life of people as granted under Article 21 of the Constitution.

Mad rush at petrol pumps
10 Jan 2009, 0246 hrs IST, TNN
PATNA: People continued panic buying of petrol for the second consecutive day on Friday as the nationwide strike by officers of oil companies entered the third day. Several petrol pumps, where petrol was available, resorted to rationing of fuel. One Mukesh Kumar, a resident of Digha, said that he had come to a petrol pump on Boring Canal Road. “I had to wait for over two hours to get petrol worth Rs 100 only,” he said. Anupama Singh, a resident of Pataliputra Colony, had to be content with petrol worth Rs 500 only. “After such a long wait, we were told that four-wheelers would be given petrol worth Rs 500 only,” she said. Policemen had a tough time controlling vehicle-owners at different petrol pumps. Amit Mukherjee, former secretary of Bihar Petroleum Dealers’ Association who owns a petrol pump on Boring Road, kept supervising the services at his petrol pump. “It was near impossible to control the mob. Everyone wanted petrol, so the police had to be called,” he said. “We are trying to give petrol to everybody waiting in the long queue. Two-wheelers would get petrol worth Rs 100 and four-wheelers worth Rs 500,” Mukherjee said. “Not a single oil tanker reached Patna on Friday,” said an employee of a petrol pump on Bailey Road. Most of the petrol pumps in Patna had gone dry late on Thursday evening itself due to panic buying. Some of the outlets even put up a board “No fuel”. The office of Indian Oil Corporation Limited located on the fourth floor of Jayaprakash Narayan Bhawan on Fraser Road wore a deserted look on Friday with most of the officials not reporting to duty. “All of them are on strike,” said a security guard. A senior IOC official, on condition of anonymity, admitted that the petrol crisis had deepened in the state capital. “Out of 50 petrol pumps of IOC in Patna district, only 12 had sufficient fuel. The condition might worsen if the stalemate continued,” he said. Meanwhile, Arvind Kumar, convenor of Jan Chowkidar, filed a PIL in Patna High Court on Friday challenging the strike by officials of oil PSUs.

Salman, Ajay fined 5 times for smoking in public
10 Jan 2009, 1653 hrs IST, IANS
CHANDIGARH: Bollywood stars Salman Khan and Ajay Devgan have been figuring in the news for all the wrong reasons by consistently breaking the no-smoking law in the first smoke-free city of the country. Both actors have been served five penalty notices for smoking at public places in the last three days in Chandigarh and in neighboring Punjab. The first one to hit the list was Devgan who immediately lit a cigarette at the airport on reaching Chandigarh on Monday, and was immediately caught on camera by a photo journalist. The police issued a notice to him after receiving a complaint from a non-government organization. Besides, both the stars were also slapped with two fines each Wednesday and Thursday at Kurali in Mohali, around 35 km from here, for allegedly smoking at a railway station. “Both the actors have violated the provisions of section 4 of the Cigarettes and Other Tobacco Products Act 2003. We have also written to the Indian railways to cancel the permission to shoot on the railway premises as the crew members have violated the section 167 of the Railways Act 1989,” said Hemant Goswami, chairperson, Burning Brain Society. Salman and Devgan came to Chandigarh Monday for the shooting of a Bollywood film. Chandigarh became the first smoke-free city of India July 15, 2007 while a ban on smoking in public places was imposed all across the country on Oct 2, 2008.

Shakti Kapoor’s son cleared
10 Jan 2009, 0436 hrs IST, Bharati Dubey, TNN
MUMBAI: Actor Shakti Kapoor’s son Siddhanth, who will be making his acting debut soon, has been cleared of drug charges in the rave party at Juhu discotheque Bombay 72 degree East. Shakti Kapoor said, “We are celebrating after the results were given to us. Although we were sure that Siddhanth was telling us the truth but still there was tension in the house till the reports came to us.” Kapoor added, ” I am so proud to know that my son happens to be one of the fewwho tested negative.” The last two months have been very difficult for the Kapoor family. Said Kapoor,”We were sure of the fact that Siddhanth had not consumed drugs on that fateful night. But media reports flashing my son’s name scared the entire family. Siddhanth did tell me that he was the DJ till 11 pm and the raid happened at 11.30 pm. I did question him but he said,” Dad the only thing I love is music and I have not touched drugs’. Siddhanth has a Maharashtrian upbringing and Shivangi is a fantastic mother. Drugs are completely out of question for my kids.” As many as 227 of the 246 revellers comprising students, fashion designers , businessmen and models- tested positive for drugs. However all the girls arrested in connection with the case have been tested positive. The forensic laboratory submitted reports in three stages. In the first two stages, 146 people out of 163 tested positive. In the third stage, 81 of 83 people- tested positive.

High court seeks report on old taxis
10 Jan 2009, 0506 hrs IST, Shibu Thomas, TNN
MUMBAI: The Bombay high court on Friday sought a progress report on the talks between taxi unions, the state government and car manufacturers on phasing out of taxis older than 25 years. Government pleader Dhayryasheel Nalawade informed the court that Maruti and the Tatas had agreed to manufacture around 10,000 vehicles which could be used as taxis. The current owners of such taxis would be provided loans with interest rates reduced by 2% to 3% for buying new vehicles. They would also be given a discount of up to Rs 40,000 on their old taxis and would also be able to use existing CNG kits in the new vehicles. While the meeting is scheduled for January 24, the HC has asked for the progress report in the next hearing on January 19. Meanwhile, another bench of the HC allowed taxis and autorickshaws running on CNG to use petrol till the strike is called off. However, it clarified that the order would not be applicable to taxis which are over 25 years old.

Lawyers to strike work again
10 Jan 2009, 2348 hrs IST, TNN
NEW DELHI: Unmindful of recent criticism levelled against them, Bar Associations of district courts in the Capital have decided to go on strike again. Lawyers will boycott courts on January 14 as part of their protest against the amendments in CrPC, which give greater leeway to the police while making an arrest. In a meeting held on Saturday all Bar Associations of Delhi took the decision to abstain from work on January 14 “to observe one day token strike in protest of anti public amendments to Code of Criminal procedure whereby provisions of mandatory arrest for offences punishable up to 7 years has been taken away by the parliament.” President of Tis Hazari based Delhi Bar Association Rajiv Khosla said, “Once this amendment is notified, accused in grave cases like DDA scam may not be arrested as it will be up to the police. The legal fraternity strongly disapproves of this amendment as also the one where a court is empowered to examine witnesses even if the lawyer is not available.”

Bail plea hearing adjourned
Staff Reporter
MADURAI: The Madras High Court Bench here on Friday adjourned to Monday the hearing on a bail petition filed by Melur MLA R. Samy and 51 other All India Anna Dravida Munnetra Kazhagam workers in an attempt to murder case registered against them. Justice S. Tamilvanan deferred the hearing after the prosecution sought time to file a counter affidavit.

Lok Adalat in Cheyyar today
VELLORE: The Bharat Sanchar Nigam Limited, Vellore, will be conducting a Lok Adalat on the premises of the Sub Court in Cheyyar at 10 a.m. on Saturday.
Steps will be taken to settle the arrears of subscribers through compromise. Those who have been sent letters should participate in the Lok Adalat without fail and pay the arrears in cash to avoid legal action, a release from the Public Relations Officer of the BSNL, Vellore, said.

SC green signals India’s first night safari at Greater Noida
10 Jan 2009, 0618 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: The inability of office-going parents to take their children on a wild animal familiarity trip to biological parks would soon be over as the Supreme Court on Friday green signalled a night safari project at Greater Noida, the first of its kind in India and fourth in the world. The project, hanging fire since 2005 after emerging from the drawing boards of the Greater Noida Authority, had got the clearance from the Central Zoo Authority (CZA) and was awaiting the all important clearance from the Supreme Court, which had banned setting up of fresh zoos taking into account the pathetic condition of the existing ones. The clearance to the night safari project was given by a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam, which allowed the GNOIDA’s application. This night safari, if set up early to introduce the `zoo by night’ concept in India, would be the fourth of its kind in the world after those at Singapore, China and Thailand. To be set up on a 102-acre plot of land at Mursheedpur reserve forest adjoining the Taj Expressway, now named as Yamuna expressway, it is expected to be a major tourist attraction. The GNOIDA authority has already tied up with Singapore-based Bernard Harrison, who was instrumental in setting up night safari parks in the Asian countries. The Bench also okayed setting up of the Ambardi Wildlife Interpretation Park in Amreli district, Gujarat, after state counsel Hemantika Wahi said the in-principle approval of the CZA for the park had been obtained. She said the project would include a safari, an orientation centre and natural education facilities while keeping wild animals in natural conditions. But, the most important function of the park would be to help in the ongoing captive conservation breeding of Asiatic lions. The Greater Noida night safari, which is planned to be kept open from evening till midnight, would be home to mostly nocturnal animals like leopards, hyenas and owls sourced from within India. It also plans to import big cats from South Africa and South American countries to make it a major tourist attraction for those living in the National Capital Region. Visitors to the night safari would be taken on a battery-operated special noiseless, pollution-free and a no-headlights train around the enclosures, which would be lit up through specialised lights giving the feel of a moonlit night. The lighting arrangement would be such that visitors would get the impression of watching the animals in natural surroundings with no fencing, the GNOIDA said in its application, which was allowed by the apex court.

Petition delays NH widening
Special Correspondent
HYDERABAD: The proposed widening of the Hyderabad-Vijayawada stretch of National Highway 9, which was expected to start this month, is once again delayed by a petition pending in Supreme Court challenging selection of bidders for the BOT project.
Union Minister of State for Surface Transport K. H. Muniappa told media persons here on Friday that as per norms and guidelines, the NHAI short-listed top six companies from among those who evinced interest in taking up work on widening of the high density 182-km-long stretch from Hyderabad to Vijayawada into four lane under PPP mode an year ago.
But Madhucon Constructions which was not in the list that was finalised following a high level committee’s decision went to High Court questioning the selection of bidders for technical evaluation.
As per the Court direction, the list was revised with inclusion of Madhucon. Meanwhile other companies went to Supreme Court challenging their exclusion. The hearing is scheduled for January 20. Until the case was resolved, work could not be started, the Minister said.
The Minister however stated that once the petition was disposed of, Hyderabad-Vijayawada stretch would be completed in 24 months to 30 months.

Satyam bosses booked under non-bailable sections
Special Correspondent
Punishment could go up to 10 years, says V.S.K. Kaumudi
HYDERABAD: Inspector-General of Police (Economic Offences Wing) of CID V. S. K. Kaumudi said the Satyam bosses were booked under non-bailable sections and they would be produced before a magistrate within 24 hours. The punishment could go up to 10 years, he said.
Meanwhile, the office of the Director-General of Police was besieged by media personnel on Friday night as word spread that former Satyam Computers chairman B. Ramalinga Raju was brought there following his surrender to the police.
Not anticipating the arrival of the media and press corps, security staff at the office initially kept the gates open even after four cars with the VIP detenus drove inside. They got the hunch about the shape of things to come when a few journalists enquired from them whether Mr. Raju was shifted by car. Expressing ignorance, they closed the gates immediately.
Take positions
Within no time, the outside broadcasting (OB) vans of various TV channels arrived and took positions in front of the gate. The accompanying crew and reporters gathered in front of the gates in large numbers though nothing was heard about the goings on inside.
They discussed among themselves that Mr. Raju was taken to the third floor of the building where the CID wing functioned.
Move welcomed
Meanwhile, Satyam Computer Services has welcomed the decision of the Centre to appoint 10 nominees as directors of the company to replace the current board.
“We welcome this decision which will ensure uninterrupted operations and restore the confidence of all employees, customers and shareholders across the globe,” the company said.
In view of this decision, the board meeting originally scheduled for January 10, 2009, has been cancelled.
Board to meet in 7 days
The new board is expected to meet within 7 days of its constitution.
The company added that Interim CEO Ram Mynampati had earlier written to the Securities and Exchange Board of India; the Company Law Board; the IT Secretary, Government of Andhra Pradesh; NASSCOM; and the Confederation of Indian Industry for recommendations to nominate independent directors.

CBI chargesheet against CGHS doc
10 Jan 2009, 0605 hrs IST, Smriti Singh, TNN
NEW DELHI: The CBI has filed a chargesheet against a former chief medical officer of CGHS for allegedly issuing false medical slips prescribing expensive medical drugs under the names of various CGHS cardholders. Dr Suresh Kumar Jain, who was working as the CMO and in-charge of CGHS at Pusa Road from 2003 to 2007, has been accused of fraudulently gaining monetary benefits by forging emergency slips during his tenure. In the chargesheet filed before a special CBI court, the probe agency alleged that Jain entered into a criminal conspiracy with other people and issued false emergency slips prescribing costly medicines in the name of CGHS card holders “to generate false demands and also prescribing expensive drugs by issuing false and exaggerated indents”. As per procedure, those medicines which are not available in the stock of the dispensary are prescribed through the emergency slips. “Emergency slips from March 2005 to December 206 were collected from the patients to whom these medicines were prescribed,” the CBI said. The agency added that in 11 cases, the patients in whose names the authorization was given, refused to receive the medicines. The probe agency has also submitted the statements of the patients under whose names the medicines were prescribed. The CBI investigation revealed that fake emergency slips remained with the CMO and the acknowledgement was also given by him. Jain has been booked under various provisions under Indian Penal Code including Section 420 (cheating), Section 120(B) (criminal Conspiracy) and Section 13(2), Section 13(1)(d) of the Prevention of Corruption Act.

Service rules books in Telugu
HYDERABAD: Chief Secretary P. Ramakantha Reddy here on Friday released a set of about 20 books brought out in Telugu by the State Official Languages Commission on service rules dealing with various categories of government employees.
–Special Correspondent

Man gets lifer for patricide
Special Correspondent
ONGOLE: District and Sessions Judge, B. Sivasankara Rao, here on Friday convicted a person for patricide and sentenced him to undergo life imprisonment.
According to prosecution, the accused, Malyadri (25), a vagabond, belonged to Venkatapuram village of Pamuru mandal.
He pestered his father, Kakumanu Malakondaiah (57), a shepherd for money.
As his father refused to meet his demands, he bore grudge against him and decided to do away with him.
The accused attacked his parents sleeping in their farm house with an axe in the wee hours of April 4 this year. While his father died on the spot, his mother sustained serious injuries and fell unconscious.
After committing the crime, Malyadri went and slept in their house.
Accompanied by his sister, he went to the farm house in the morning feigning ignorance about their fate.
They lodged a complaint with police.
The mother was shifted to Pamur and later to Nellore where she recovered.
Investigation revealed that Malyadri had committee the murder and went home after throwing away the axe in the bushes near the farm house.
The public prosecutor, Mallikarjuna Reddy examined 10 witnesses.
The judge convicted Malyadri for attempting to kill his mother also and sentenced him to undergo life imprisonment.

Invoking NSA not so easy
10 Jan 2009, 2350 hrs IST, TNN
Bangalore: For four years, the Karnataka government failed to revive the Essential Services Maintenance Act (ESMA), but threatened to invoke whenever doctors or teachers went on strike. Handicapped during the past week by the truckers’ strike and even as other states invoked ESMA to ensure movement of commodities for daily use, the government decided to empower district administrations, police commissioners of Bangalore, Mysore and Hubli-Dharwad with provisions of the National Security Act (NSA). However, it cannot be invoked immediately as that process involves cumbersome procedures. To impose the NSA, an advisory board has to be constituted. The board should consist of three persons who are, or have been, or are qualified to be appointed as high court judges. Sources told STOI here that the government would write to the high court chief justice on Monday or Tuesday to constitute the committee. “Fortunately, the oil strike has been called off and truckers have exempted movement of essential commodities such as milk, vegetables and fruits from their protest. It’s the movement of raw materials such as cement, steel and textiles which has been affected. For essential items, the government will deploy its vehicles, if necessary,” they added. The truckers could even off the strike by the time NSA can be invoked. Sources said: “We need to equip ourselves as more such protests might happen.” NSA’s stipulations * If the Centre or a state government is satisfied that a person is “acting in any manner prejudicial to the maintenance of supplies and services essential to the community”, he can be detained * The detained person will not be entitled to have an advocate and proceedings of the advisory board and its report, excepting that part of the report in which the latter’s opinion is specified, shall be confidential * The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under the relevant rules shall be a year from the date of detention.

‘RTI Act is the best gift after Constitution’
Staff Correspondent
‘There will be one rascal less, if a man transforms himself’
DHARWAD: The former Principal Secretary, State Legislature, Robinson D’souza, has said that the “Right to Information Act is the best gift to the people after the Constitution of India.”
Delivering a special lecture on the Right to Information Act at the University College of Law, Dharwad, on Wednesday, Mr. D’souza said the Act was the best instrument to check corruption.
“Democracy requires an informed citizenry. It is difficult to eradicate corruption. It is to be contained. If each individual transforms himself, there will be one rascal less in the country,” he said.
Tracing the history of the Act, Mr. D’souza said that there was a limited right to information under the Evidence Act earlier. But now provision had been made for providing the affected party even the reasons for administrative decisions.
Elaborating on the mode of filing applications under the Act and the duties of the Information Officer, he said if there was default or delay in furnishing information, there was provision for imposing penalty of Rs. 250 a day subject to a maximum of Rs. 25,000.
Even for rejecting applications, the reasons should be given by the officer concerned, he said.
Principal Chidananda Reddy S. Patil welcomed the gathering. He also proposed a vote of thanks.

Advocates protest against attack
Staff Correspondent
MANGALORE: Advocates boycotted the courts here on Friday in protest against the attack on advocate Dinesh Hegade Ulepady. Dinesh Hegde Ulepady, advocate, had been attacked with a sharp weapon at Kodialbail here at about 8.30 p.m. on Wednesday while he was going to his house.
He had lodged a complaint with the Mangalore North police. Mr. Ulepady had stated that a person had first hit him from behind and later, when he tried to retaliate, the attacker used a sharp weapon and caused injuries on his neck, left shoulder, left thigh and right palm.
Claiming to have seen the attacker a month ago near his office, Mr. Ulepady said that he could identify the person if he were to be seen or shown anytime. Mr. Ulepady told The Hindu that he suspected three people, including a mine-owner and a Dalit Sangarsha Samiti member, for the attack.

Peripheral road and toll fee challenged
10 Jan 2009, 0634 hrs IST, TNN
Bangalore : Barely a month after the collection of toll fee by NICE company on the peripheral road, things have again run into rough weather. First it was the rate structure and now the road itself under challenge. V Nagaraj, state coordinator of DSS, in his PIL not only challenged the December 18 notification issued by the state government, permitting NICE company to collect toll fee from motorists for using the road, but also claimed that the road alignment is not as per the original framework agreement. “The 41-km road which NICE company claims as the peripheral road is in fact a BDA road. They cannot claim toll on the road belonging to BDA. The road should have started from Km 17 on Hosur Road and would have passed through Bettadasapura, Gottigere, Nagegowda Palya, Sompura, Kariobanahalli and Km 15 on Tumkur Road. But the present road has a 2-km deviation and passes through Km 15 Hosur Road, Begur, Hammadevanahalli, B M Kaval reserve forest, Chodenapura, Srikantapura and Km 17 on Tumkur Road. They have usurped the road belonging to BDA. The petitioners couldn’t lay hands on these notifications as the government was not forthcoming. All these have been now obtained under RTI,” Nalini Chidambaram, counsel for the petitioner, told the court. “We cannot restrain NICE company from collecting toll fee at this stage. If the BDA had not permitted them then it would be rank trespass. If it was permitted, then there must be an alternative road for other public. Those who want better facilities, let them use this road. But the question is, how didn’t anybody notice all these for years? What were they doing?” the bench headed by Chief Justice P D Dinakaran asked the petitioner. The Bench told them to implead the BDA as a party and adjourned the hearing to Monday. Apart from seeking a restraint on collection of toll fee, the petitioners also sought restriction of movement of traffic on the peripheral road and link road.

High Court directive to TDB
The Kerala High Court has directed the TDB to file its response to a writ plea seeking to introduce a crowd-management system at Sabarimala.

HC grants bail to 29 students
10 Jan 2009, 0334 hrs IST, TNN
CHENNAI: Granting bail to 29 law students arrested in connection with the clashes at the Dr Ambedkar Government Law College, the Madras high court on Friday set an interesting condition that they spend at least two hours of the next four weekends reading good books in a public library. “The petitioners (students) are directed to go to any public library and read good books on every Saturday and Sunday for two hours, for a period of four weeks,” Justice T Sudanthiram said. They shall submit a report about what they had read during the period, he added. A total of 40 students had been named in two cases filed in connection with the clash. In his order, Justice Sudanthiram said except one all injured students had been discharged from hospital. The one student, who has since been re-admitted in the hospital, figures as an accused in a counter case filed after the clash. The judge also pointed out that the parents and relatives of the arrested students have filed affidavits stating that they would take proper care of the students if they are released on bail. On November 12, two groups of students, divided on caste lines, attacked each other, unmindful of the full media presence. Meanwhile, lawyers fielded questions from fellow men in black before the Justice Shanmugam Commission of Inquiry which is probing into the circumstances leading to the clashes. In an unusual spectacle, senior counsels engaged by the police, law college authorities and two groups of students on Friday grilled two lawyers, one of them an eyewitness to the violence. Advocate N Prakasam, whose daughter Abirami is a second year student of the college, turned up before the commission to depose as an eyewitness. Prakasam had gone to the college on November 12 to drop his daughter for the examination. In his account, he gave a clean chit to the suspended principal K K Sridev saying that “he repeatedly called the police officers to enter the campus but the latter did not pay heed to his requests.” After Prakasam completed his deposition, senior counsel P N Prakash, who was defending Sridev, cross-examined him to extract answers, which in essence faulted the police for failing to prevent the violence on the campus. Then it was the turn of A Ramesh, counsel for the police, to grill Prakasam for over an hour. Later, senior lawyer Rubert J Barnabas, appearing for an injured students, grilled Prakasam.

Court rejects bail plea in ISI conspiracy case
10 Jan 2009, 0014 hrs IST, TNN
AHMEDABAD: City sessions court on Friday rejected the bail plea moved by four accused in the ISI conspiracy case. They are Abdul Rahim CS Ramsundaram, Mohammed Abdul Bari, Saiyed Ifteqar-ul-Hasan Hashmi and Mohammed Shafiuddin Sunni, all from Andhra Pradesh. Recently, terror charges have been withdrawn from their case after SC ordered implementation of Pota Review Committee’s recommendations. Additional sessions judge PR Patel denied bail to them holding that withdrawal of Pota does not lessen the gravity of their charges. Moreover, they have been booked under various provisions of IPC and their confessional statements were recorded under the provisions of CrPC too. Hence, removal of Pota doesn’t make their case stronger, the court observed while rejecting the bail plea. Besides facing charges of terror conspiracy, Bari, Hashmi and Sunni are accused in Haren Pandya murder case, while Ramsundaram was considered a witness in the same case by CBI, the investigating agency. Trial against Bari and Hashmi is still pending, while Sunni was convicted by the special Pota court for seven years. His punishment is over, as the rest of his term is reduced following his good conduct in jail. But, facing the conspiracy charges, he is still languishing in jail. The judge didn’t accept arguments by lawyers that these accused are facing trial in Pandya murder case, and they have been charged by city crime branch for conspiracy of the same. Therefore, as per Section 300 of the CrPC, two trials cannot take place for one charge.

Woman gets life term for killing sister-in-law
10 Jan 2009, 0411 hrs IST, TNN
CHANDIGARH: Additional district and sessions judge SK Aggarwal on Friday sentenced Kamlesh to life imprisonment after she was found guilty of killing her sister-in-law Vidyawati, 24, in 2006. However, the victims husband Rakesh Kumar and mother-in-law Shyam Kali were awarded a seven-month imprisonment term. The deceased was a resident of Sector 7 and was often harassed by her husband and in-laws for want of more dowry. However, after she failed to meet their unending demands, Kamlesh in a fit of rage poured kerosene and set her ablaze on June 6, 2006. She sustained 80% burn injuries. Later, in her dying declaration, the victim revealed the horrendous act committed by her in-laws. A case under Sections 498A (dowry), 302 (murder) and 120B (criminal conspiracy), IPC, was registered against the three accused.

Examination of witnesses ordered
PUDUCHERRY: Puducherry Principal District and Sessions Judge D. Krishnaraja on Friday ordered examination of all the 31 witnesses in the Sankararaman murder case on February 26 and 27.
When the case came up for hearing, the Judge, after consulting counsel for the accused and the Special Public Prosecutor, ordered the examination. Summons have been issued to ten witnesses to appear on the 26th and the remaining 21, on the 27th. Of the 24 accused, only 10 appeared. — Staff Reporter

CrPC amendment in rape case trial opposed by lawyers
10 Jan 2009, 0603 hrs IST, TNN
LUCKNOW: The recent amendment in section 309, CrPC by the Parliament has started drawing opposition from a large section of lawyers. The amendment provides that the trial of rape cases be preferably completed within two months and for this to ensure speedy trial, the court shall not adjourn the case on the ground of engagement of the lawyer in another court or inability of the lawyer to attend the case on account of his illness. The section of lawyers believes that the provisions are against the interest of lawyers as well as the litigants both. In protest against the said amendments, the Oudh Bar Association (OBA) of the high court on Friday went on strike. A confusion, however, was seen amongst the lawyers and litigants in regard to the strike, as the President of the OBA, Raghvendra Singh stressed that there was no boycott call of the bar. The joint secretary, Sanjai Mishra, on January 7 has released a press note that the OBA will abstain from judicial work on Friday in protest against the recent amendments in Section 309, CrPC. An emergent meeting of the OBA was convened on Friday noon, and it was resolved that the OBA will decide the future course of action following the action of the Bar Council of India (BCI) and the Bar Council of Uttar Pradesh. Former OBA president, Virendra Bhatia also condemned the amendments and called upon the said apex bodies to resent against the amendments. On Friday, the OBA also resolved that it would request the chief justice and senior judge of the Lucknow bench to transfer two of its judges — Justices VD Chaturvedi and SC Chaurasia to the Allahabad bench, owing to resentment of the lawyers against the duo.

Complaints piling up against ICs
10 Jan 2009, 0544 hrs IST, Neha Shukla, TNN
LUCKNOW: The growing dissatisfaction over the implementation of the Right To Information (RTI) Act has now extended to the information commissioners (ICs) responsible for attending to the complaints. The two and a half year long ineffective existence of the Act in the state has now led to fingers being pointed at them. The governor office has received 67 complaints till September 2008 against the ICs. This has been revealed by the public information officer (PIO) of the governor office in response to a RTI query by Ram Sharan Sharma in October 2008. In case of complaints received against ICs, the governor under section 17(1) of the RTI Act can make a reference to the supreme court for an inquiry into the complaint. Once the SC allows the inquiry, governor can prohibit the IC from attending the office under section 17(2) of the Act. But, in this matter, the PIO added that not even a single complaint deserved action. “It is ridiculous that not even a single complaint was found worthy of action,” said Sharma, a retired engineer and a member of right to information awareness forum. If this is the case why the PIO did not reveal the details about the nature of complaints which I had asked for, he said. He had asked for the list of complainants, nature of complaints and action taken on them. Sharma had submitted a 9-points application which asked for a set of information regarding the academic and professional background of the commissioners, their appointment, salary, age etc. But, he was denied this information on the ground that it is `personal’ and hence, can not be disclosed. In fact, such an information about ICs is a part of pro-active disclosure under the RTI Act and should have been displayed on the website of the commission much on the lines of Central Information Commission in New Delhi. In particular, his query related to all the ICs, who have served or are still serving at the commission, including the chief information commissioners (CICs). Currently, Uttar Pradesh State Information Commission (UPSIC) has nine ICs including the officiating CIC. “I only wanted to know if the CIC and the ICs confirm to the criteria specified in section 15(5) of RTI Act which says that they should be persons of eminence in public life,” said Sharma. He has written again to the PIO of the governor’s office and is hopeful he will get the right information this time. “If not I will meet the governor and bring the issue to his notice,” he said.

“People still have very high confidence in the judiciary”
J. Venkatesan
“I don’t think that the general image is seriously dented,” notwithstanding certain alleged episodes, says Chief Justice of India K.G. Balakrishnan.
“I hope that I have done reasonably well in the matter of appointments, and in other areas. I have got satisfaction,” Chief Justice of India K.G. Balakrishnan says with sober humility and confidence, as he goes on to complete two years in office on January 13. In a special interview granted to The Hindu in New Delhi on January 8, he also spoke on a wide range of issues relating to the state of the judiciary. Excerpts from the hour-long interview:
During the two years you have been in office, have you achieved what you wanted to achieve? There is a perception that the image of the judiciary at large is at a low ebb due to alleged episodes of corruption.
People have a very high level of confidence in the judiciary. I don’t think that the general image is seriously dented. People still have very high confidence in the judiciary. The incidents will not have any impact on the people. And these two incidents [the Ghaziabad Provident Fund scam and the Rs. 15-lakh scandal involving a Judge of the Punjab and Haryana High Court], especially the PF scam, has nothing to do with the decision-making process of the court. It is fully on the administrative side. [The] real incident is [that] from 2000-2008 for the last seven-eight years applications for the refund of provident fund [accumulations] has been filed and the money was taken out of the treasury. The involvement of district judges is under investigation. I don’t think any High Court judge is directly involved.
In the Punjab scandal, you issued a notice to the judge concerned. What is the follow-up action?
The follow-up action is, the judge has been asked to reply. As per the in-house procedure, depending on the seriousness of the case, we can either ask the judge to resign or work will not be allotted to her.
The Judges (Inquiry) Bill is pending before Parliament. Is there any reservation over the Chief Justice of India being brought under the ambit of the Bill?
[There is] nothing wrong if the Chief Justice of India is covered under the ambit of the National Judicial Council. This is up to the parliamentarians. They are the best people to decide on that.
But will it affect the image of the Chief Justice of India if he is subjected to enquiry?
At least some people have got a grievance about how decisions are made. At least there will be a forum so that they can make a complaint instead of simply scandal-mongering. In some cases people should have an outlet… for their complaints.
There is a suggestion that the National Judicial Council should be made broad-based as a composite authority having representatives of the Prime Minister, the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha. Do you welcome such intervention by the executive?
[It is] better not to involve the executive. The Chief Justice or some senior judges can be there. Ultimately if it is found that there is something serious in the complaint, then the Speaker of the Lok Sabha or others can be involved. Even if the entire work is entrusted to the judges it will serve the purpose.
You recommended action against Calcutta High Court Judge Soumitra Sen, but no further action has been taken. Do you intend to write to the Prime Minister again on this?
Why should we write? They are all very, very responsible persons. They know what to do. See, our work is over, they have to take a decision. If the case is not fit for impeachment then they can take a decision. They may feel that it [impeachment] may not go through Parliament.
What action have you taken to weed out corrupt elements from the subordinate judiciary?
Several judicial officers were compulsorily retired in Rajasthan, Uttar Pradesh and Madhya Pradesh in the last one or two years. That will have an impact. We don’t condone any corruption and whenever there is a serious allegation, action is taken. Several officers were removed. Tell me which department has so far removed any officer on the basis of corruption… we take immediate action.
But in respect of the higher judiciary?
Occasionally I receive some complaints but they are not very serious. They are mostly by disgruntled litigants.
Why is the Supreme Court refusing to concede the demand for setting up Supreme Court benches, particularly in Chennai? When we have so many High Court benches, has not the time come for Supreme Court benches also?
I think most of the judges subscribe to the resolution passed in 1999 by the Full Court of the Supreme Court that locating regional Benches, whether in Chennai or Kolkata or Mumbai, will affect the unity and integrity of the judiciary. The Supreme Court is a national court and it should be in the [national] capital, which is in the central part of India.
About judicial appointments, there is a view that in the collegium system of appointments, there is no transparency.
We are bound by the Supreme Court judgments for the time being. We are strictly following the procedures laid down by the Supreme Court. Unless that decision is changed and the modus of appointment is changed we can’t do anything. Open discussion about judges is not possible here.
For the last two and half years there is no woman judge in the Supreme Court.
We don’t appoint judges just for the sake of representation. Even some States are not represented in the Supreme Court. Some candidates are still being considered. Soon we will see this and something will come in the near future. I hope for that.
There was this recent tiff with the executive on the elevation of three judges…
It was not a tiff. They wanted a further review and asked whether some of the senior judges were also considered. We said they were considered and that is it. I have not felt it that it was a serious objection.
You have started strict scrutiny of initial appointments. Will it have the desired effect?
We are asking for more particulars about candidates so that we will gather a better idea about the candidate. That is the purpose that is being achieved at the recommendation stage itself.
Do you have any comments on the controversy over the Central Information Commission seeking details on disclosure of assets of judges?
The Central Information Commission says any information [that is] with the Chief Justice of India would be with the Registry also. No Chief Justice, whether [it is the] Chief Justice of India or the Chief Justices of the High Courts, shares information on judges with the Registry. The information about declaration of assets by judges is personally kept with the Chief Justice of India and the [High Court] Chief Justices. The public will have a right to know these details if there is a legislative mandate. But at present there is no such legislation.
We don’t share most of the information, whether it is related to appointments or declaration of assets, with the Registry as we want to maintain strict confidentiality. We don’t agree with the CIC’s order and we may have to file an appeal.
Do you welcome the setting up of an all-India judicial service, like the civil service?
There is one serious problem with an all-India judicial service. Unlike the IAS or the IPS, there is no all-India cadre for subordinate judges. There can be an all-India examination and candidates can opt for the State of their choice. This much is possible to attract talent to the judiciary.
Is there a proposal for a new pay panel for judicial officers?
In the judges’ case, the Centre and the States are parties. We want to take their consent and I hope they will consider a second pay commission for judicial officers.
What are your comments on making Hindi, Tamil or other regional languages court language? The Tamil Nadu Assembly passed a resolution…
In the district courts there is no problem in arguing in Tamil or Hindi. In the High Court, the Chief Justice is from a different State. If it is the Madras High Court, if it is in Tamil, then all documents are to be translated when it comes to the Supreme Court. We follow the English system in all High Courts, all textbooks are in English. I feel it will be difficult to implement. The present system is working well. We can love our language and extend it in cultural areas.
Do we need tougher laws to tackle terrorism?
I have not studied the recent law. A terrorist act is done in a clandestine manner and it will be difficult to gather evidence. Terrorists are powerful people and witnesses are afraid to give evidence. Strict laws may be necessary. While implementing them, they should see that the police or the investigators do not misuse it.
There has been a debate on providing legal aid to Ajmal Kasab, one of the terrorists in the Mumbai attacks, caught alive.
Under our system the accused should be provided the aid of counsel. If not, the court has to engage counsel at the expense of the state. Fairness demands that whatever may be the heinous crime he has committed, whether he is a Pakistani or a foreigner, he is entitled to get legal aid.
What is your perception at the end of two years?
That is for you people to say. I hope that I have done reasonably well in the matter of appointments and in other areas. I have got satisfaction, I am getting good support from my colleagues and the collegium. I will continue to do what I want to do.

HC seeks BPSC reply
10 Jan 2009, 0234 hrs IST, TNN
PATNA: The Patna High Court on Friday directed the Bihar Public Service Commission (BPSC) to state on an affidavit the corrective steps taken with regard to publication of the result of the objective type test conducted by it for Bihar Administrative Service (BAS). A single bench presided over by Justice Navin Sinha adjourned to January 16 the hearing of the writ petitions of the aspirants for BAS posts, whose names were not published in the list of successful candidates. They had alleged that the examination concerned had some wrong questions and answers. The plea of BPSC was that a fresh result would be published by omitting the wrong questions and answers.

Baathe case: Witness identifies killers
10 Jan 2009, 0236 hrs IST, TNN
PATNA: Deposition of prosecution witnesses in Baathe massacre case continued on Friday in the court of the additional district and sessions judge III, Patna. Prosecuton witness number V Surendra Rajvanshi was examined by prosecution counsels. Rajvanshi, in his deposition, said that he was an eye witness to the massacre. He said that armed Ranvir Sena marauders forcibly entered his house and shot dead his mother, Jaimurthy Devi, sister Prabha Devi and wife Manti Devi. Like other four earlier prosecution witnesses, he said that in torchlight, he identified Dwarika Singh, Nawal Singh, Kewal Singh and Awadhesh Singh as killers. Rajvanshi identified Nawal Singh, who was present in the court room, as one of those involved in the killing of his family members. He also said that he could also identify the other accused as well. He said that the killing was the result of ongoing dispute between the farmers and the agricultural labourers at the village. The case relates to killing of 58 dalits at Baathe village in Arwal district on December 1, 1997, late night. The marauders had forcibly entered 14 houses of the village at gun point and gunned down the victims inside their houses.

Court turns down plea on Vijit’s bail
10 Jan 2009, 0322 hrs IST, Abhinav Sharma, TNN
JAIPUR: A local court on Friday turned down the application filed by police to cancel the bail of Vijit Singh, who was involved in the hit-and-run case in which a girl student, Babita Chaudhary, was killed. District judge, Jaipur city, Sharad Chandra Shrotriya dismissed the application saying there were no grounds on which Vijit’s bail may have to be cancelled. The court said that the accused had neither violated the terms of bail, nor was prima facie found to be involved in tampering with evidence or influencing witnesses. Babita’s advocate appeared on behalf of the bereaved family to plea for the cancellation of bail. In his reply filed on Friday, Vijit argued that he had been booked under stringent provisions of law only due to political pressure. On the day when an FIR was lodged against him, he was booked under a bailable offence, he mentioned. He said he had not breached any of the conditions of the bail bond. Vijit was earlier booked under Section 304 A of IPC, which was later converted to Section 304 part II (Culpable homicide not amounting to murder). The provision contained in Section 304-II amounts to a heinous crime against the society and has a prescribed maximum punishment of 10 years’ rigrious imprisonment, whereas the maximum punishment under 304 A is 2 years imprisonment.

‘Why are you shielding criminals?’
10 Jan 2009, 0303 hrs IST, Vaibhav Ganjapure, TNN
NAGPUR: Finally, the governor of Maharashtra and chancellor of Nagpur University has taken cognizance of numerous complaints about alleged shielding of the accused in the infamous fake marksheet and revaluation scam. He has summoned university’s top bosses, prime accused Sunil Mishra, as well as the whistle blower Prakash Bansod, to Mumbai on Monday. A senior university official said chancellor S C Jamir’s office wrote to vice-chancellor S N Pathan, pro VC Gauri Shankar Parasher and Sunil Mishra, one of the prime accused in the scam, asking them come to Mumbai with a clarification on why “criminals are being protected”. Despite being convicted in the case, the VC and Pro-VC failed to remove Mishra’s ‘university teacher’ status and affiliation of Central India Institute of Mass Communication (CIIMC) that he used to run. Prakash Bansod, who exposed the entire episode, has been called by Jamir on the same day at 11 am. Parasher has already left for Mumbai on Friday, while Pathan will be reaching on Saturday. Both VC and pro-VC could not be contacted, but Bansod confirmed that he had received a letter from deputy secretary at governor’s office C M Alegaon asking him to be present in the meeting called by Jamir. He, however, declined to give further details. In January 14 last year, the chancellor’s office had issued a letter to Pathan and Parasher asking them to come up with clarification on allegations raised by Bansod. The letter directed the top brass to furnish details on Mishra, who was sentenced to 12 and half years of rigorous imprisonment by the special court. Presently, he is out on bail pending appeal. Alegaon’s letter had sought clarification on nine questions regarding discrepancies in mass communication faculty, Mishra’s role in entire affair, and why he was being shielded despite being convicted. The letter asked for copies of relevant statutes for constituting the ad-hoc boards, eligibility criteria for appointing chairman and other members of board of studies of mass communication, details of qualification of former chairmen of this board, reasons for withdrawing prohibition on Mishra from entering into university premises, and whether the university had initiated an enquiry against him. The letter also asked for a copy of appellate court’s orders setting aside the Mishra’s punishment and fine of Rs 1,000 in another case along with a copy of special court’s orders convicting him. The letter sought explanation from Pathan and Parasher on whether they had examined allegations of malpractices in Mishra’s CIIMC and what action they had taken against him. The university’s bosses’ failure to reply to this letter for over a year may have resulted in them being summoned by the chancellor, the official claimed.

SC clears Amreli lion park
10 Jan 2009, 2255 hrs IST, TNN
NEW DELHI: A Supreme Court bench of Chief Justice K G Balakrishnan and Justice P Sathasivam okayed setting up of Ambardi Wildlife Interpretation Park in Amreli district, Gujarat, after state counsel Hemantika Wahi said the in-principle approval of Central Zoo Authority (CZA) for the park had been obtained. She said, “The project would include a safari, an orientation centre and natural education facilities while keeping wild animals in natural conditions. But, the most important function of the park would be to help in the ongoing captive conservation breeding of Asiatic lions. Because of a shrinking prey base and growing lion population, many lions were found straying into Amreli district.”

UGC for uniform affiliation norms
9 Jan 2009, 0010 hrs IST, TNN
MANGALORE: University Grants Commission (UGC) is working towards evolving uniform affiliation norms for colleges seeking affiliation with their respective universities. At present, each university in the country has its own norm to provide affiliation to colleges and the period that colleges have to wait to receive their affiliation varies, S Jelani, joint secretary and head, UGC, south western region, Bangalore said here on Thursday. Jelani told TOI that a committee has been constituted to evolve uniform norms for the process. This committee is meeting vice-chancellors of various universities across India and has completed the process in various parts of India. Stating that the committee is taking the feedback from the vice-chancellors on the issue, Jelani said the committee in all likelihood would give its recommendations to the UGC in the next couple of months.

PwC has a chequered past with taxmen

Prashant K Sahu / New Delhi January 09, 2009, 0:02 IST

PricewaterhouseCoopers (PwC), an advisory and consulting firm whose sister company audited the accounts of Hyderabad-based Satyam Computer Services, has a chequered past with Indian tax authorities, having admitted its “mistake” in at least two cases of tax evasion.
The Income Tax department as well as the service tax department had detected tax evasions by Price Waterhouse, the audit firm. PwC had to settle the cases with both the departments after it admitted to making the mistake and paid the dues — with interest and penalty.
“The question is not the amount of evasion, but the fact a top accounting firm, which provides tax advisory and audits the accounts, had involved in tax evasion is a matter of concern,” said a revenue department official.
The first case relates to writing back of gratuity provision and not paying tax liable on the same. The tax loss in this case was Rs 9.13 lakh.
Basically, any expenditure towards providing for gratuity is allowed as tax deduction under the Income Tax rules. However, when the same deducted amount was not utilised and written back, it would be counted as income and tax is payable on the same.
PwC, according to revenue department, did not enter the written back amount in the tax return for 2000-01 and therefore paid less tax.
The department had imposed 300 per cent fine on the said tax amount, which PwC had contested in the Appellate Tribunal. The Tribunal had lowered the penalty to 100 per cent of the tax amount.
In April 2007, PricewaterhouseCoopers had petitioned the department for compounding of offences for filing incomplete income-tax return for 2000-01.
When the department was contemplating to initiate further legal proceedings against the firm, PwC, in order to avoid any litigation and buy peace, moved an application for compounding offences, which means acceptance of offence and willingness to pay fine to avoid any legal prosecution.
A spokesperson for the firm had said then that “It was a human error, as even clearly held by Tribunal. Though negligible when compared to our total tax payments, we regret it.”
In the second case, the Delhi branch of the Service Tax department had detected a tax evasion by the firm in 2007. The firm had shown a huge amount under miscellaneous expenditures in the balance sheet. It was found that the firm had repatriated some money to its parent company overseas for certain services. But service tax was not deducted.
“The firm admitted guilt and paid taxes with interest and penalty running into crores,” said a senior revenue department official.

Human rights violations by paramilitary forces almost double
Posted: 4:27p.m IST, January 9, 2009
New Delhi, Jan 9 (IANS) Human rights violations by paramilitary forces have almost doubled in the last five years, the home ministry has acknowledged in response to a Right to Information (RTI) Act query.
In response to queries filed under the RTI Act, it was revealed that the total number of human rights violations in 2003-04 were 95 which increased to 180 by 2007-08.
Providing the information, an official of the National Human Rights Commission (NHRC) told IANS: ‘The data is not maintained force wise (in the paramilitary) or gender wise. But there has been an increase in the violations. In 2006-07 there were 173 violations, which increased to 180 as recorded on Jan 1, 2008’.
The violations have been of various kinds. Arbitrary use of power, abduction or kidnapping, rape, abuse of power, custodial death, custodial rape, custodial torture, death in shootout, fake shootout and illegal detention are some of them.
As per the latest data, the maximum number of violations, 52, have been of arbitrary use of power. Twenty one cases of death in firing and 10 cases of fake shootouts are the other two most often committed violations in 2007-08.
‘In all there have been 591 cases of human rights violations by the paramilitary forces in the last five years. NHRC has taken cognizance of five cases and has recommended a compensation amount of Rs.750,000,’ the NHRC official said.
On their part, in 2007-08 the paramilitary forces have disposed of 56 complaints alleging human rights violations. They closed 15 cases after considering reports received from the concerned authorities and rejected 68 more.
In all, over the past five years, the paramilitary forces have disposed of 93 cases after considering reports from concerned authorities, 228 with direction; 196 cases were dismissed without consideration and one has been transferred to the state human rights commission.

Look out notice for Chandramathi issued
Thiruvananthapuram, Saturday, January 10, 2009: The Crime Branch investigation team has issued a look out notice for third accused in the Total4U money swindling case and former SIDCO employee Chandramathi, who is on the run ever since, the Total4U case surfaced.
The Crime Branch had notified the Vigilance and Anti-Corruption Bureau (VACB) that Chandramathi, who is being investigated along with financial fraud suspect Sabarinath and others on the charge of defrauding more than Rs.100 crore from the public by promising them high dividends in a short time on their investments, had amassed wealth beyond her known sources of income.
The suspect was working as Assistant Manager at the Small Industries Development Corporation
(SIDCO), a State government undertaking, when the Crime Branch arraigned her as one of the main suspects in the cheating case. The SIDCO later placed Chandramathi under suspension Chandramathi who was a member of the Censor Board and had contacts with influential people in all walks of society had induced many investors to deposit huge amounts in Sabarinath’s now defunct commodity and share trading companies, Inest and Total4U.
Chandramathi had obtained huge amounts as commission from the “fake” companies for inducing people to invest in them.

JM Lyngdoh on Electoral Reforms in India
January 10, 2009 in Uncategorized Tags: Constitution, Democracy, india, Law, Politics by Aditya
Below are my notes of Mr Lyngdoh’s lecture on ‘Electoral Reforms in India’. Mr Lyngdoh gives a good insight into the working system and most of his recommendations are noteworthy and would do a great good if implemented. Please watch out for the one- on- one interview of The Social Blog with Mr. Lyngdoh coming soon on the Blog.
Sixth Shri Gutta Rama Rao Lecture
10th Jan 2009
JM Lyngdoh on ‘Electoral Reforms in India’
We are a nation of sorts; created out of the fundamentalist and acrimonious partition of the continent’ Against this backdrop, India chose a democracy and have everyone participate in governance.
In the last 60 years, the constitution has had remarkable success. Significant is the involvement of the underprivileged in politics.
Off late, the middle class that won India’s independence has abdicated electoral politics considering it rough and dirty. It is not the politics of the upper class but the middle class that has to participate. Too much education weakens a stomach for politics and legislatice business.
We need reforms that would secure socially responsible and ethical parties. Electoral reforms normally refer to the laws made by the EC such as the Goswami and Inderjit Gupta committees. The recommendations and reforms that I propose to address are;
– Debarring until cleared by the court, persons charge sheeted for offences of 5 years or more
– Restronign sec 77 of the rep of people act, 1971 so as to disallow the extent of the expenditure spent by the candidate
– – auditing of accounts of political parties
– Defections
– Regulating by law the process of democratization in the internal working of political parites
– Surrogate advertisements after elections have been announced
– Restrictions on opinion polls so as to prevent an influence in voting
– 50% of votes + 1 to be made a requirement to declare a candidate a winner
a) In 2004 elections, 18% of the winners to the lok sabha carried a criminal law. In the 2006 bihar and 2007 UP elections the figures go upwards of 39%. To disqualify a person, he or she has to be convicted which is very rare. The disqualification does not apply to anyone who is already a sitting MP and allows him to file an appeal or a revision petition and will not apply unless it has travelled through all the levels of the courts and all remedies are exhausted. This is wrong as the MO then gets a life time of reprieve. The mockery of the law by the politicians has been expressed by the media by people like Pappu Yadav running campaigns from Jail and then winning the elections.
The EC is now trying to make is difficult for the candidate to suppress information by asking him to disclose all his assets and charges so as to inform the general public of his misdeeds and misgivings. Even now though, some politicians show assets of merely thousands even though they own crores of rupees. The assumption is that the voter would now not vote for a candidate with a dubious record but the patterns in Tamil Nadu and Andhra Pradesh do not bear any such assumption.
b) The Expenditure limit for a candidate for the Lok Sabha is now 25 lakhs but we know that each of them spends crores on their elections. It is becoming tough to track down these expenditures and I confess that the measures to keep track of them haven’t been that effective.
The EC has also decided to keep the candidate’s expeditures records with itself and even put it up on the web. One may ask as to why we emphasise on this when Obama and the US spends millions of dollars. (No answer given to that)
In Britain, the Electoral Commission has nothing to do with running elections like we do; it only monitors the donations made to political parties. Here in India, we do not do anything like that and even allow tax exemptions on donations made to political parties.
The Representation of People Act needs to be amended to allow the EC to question the paries and candidates on their expenses and to take action on the deregistration of a party/ candidate when any mismanagement or violation is found.
c) It is imperative to have the EC and not the Speaker of the House to decide on the consequence of defections. The law on defections is still in the grey area and the movement of a leader from one party to the other is still allowed. What is allowed is the formation of a new party by a split. The Law needs to the amended to address the former concern too.
The Election Commission cannot withdraw the registration or deregister a party by virtue of previous performance or mal practices. The EC then passed an order that allowed it to do so. However the irony is that the moment a party is deregistered, it can reregister itself the next day. I propose that the order be amended so as to allow the EC to declare a time period during which that party can be barred from contesting in the elections.
d) As regards surrogate advertisements and government sponsored advertisements, the EC has its own code of conduct to regulate such acts. This also includes exit and opinion polls and we do take measures so as to take note that they do not influence the voters.
e) Proportional Representation and the idea of Majority voting
the bane of the present system, is that even if he has secured one more vote than his rival, gets elected. The rivals and voters go unrepresented. The idea of proportional representation would then ensure representation to important groups and factions. This would then benefit a pluralist society such as ours. It is to be noted that Nepal has actually achieved success in this manner. By proposing for more than 50% of the votes plus one, this requirement would then forever through vote back politics out of India.
It is in the practice of democracy that everybody must be given a chance to participate in the system of governance. By allowing for proportional representation, this practice may be secured. It is a wonder that this country is still holding on to itself, despite religious, ethnic and communal strife. This change would contribute to making the political parties better human beings.
The Constitution and Rep of People’s Act (Section 29A) till 1989 did not recognize the existence of a political party. One cannot think of a democracy without them and the EC stepped in to bring in this change and frame rules in this regard.
(Mr Lyngdoh also took at dig at Mr. TN Seshan on his idea of reforms and the need for the bringing in of military forces in the conduct of elections. I couldn’t get the exact statement of what he said; would try to get the transcript)
f) Technological innovations; The EC now brought in electronic voting machines that are the most effective in the world and now has done away with the mass amounts of paper that are used in elections.
Voter identity cards: the voter identity cards are a revolutionary concept in order to check the practice of illegal voting.
– End of lecture
1) Is the present model code of conduct sufficient to control the idea of vote bank politics. Examples; the idea of social engineering as perpetrated by Mayawati ?
– Mayawati’s party today is very similar to the components of the Congress party at one time. There is still a representation of all the castes and im not so sure is the caste politics that you talk of is evident in the party structure now.
2) How agreeable are you to the fact that the Supreme Court is interfering in the working of the election commission considering that the Constitution mandates it to be an independent working body. Two instances: the SC ruling on the right to information of a voter in 2002 and the background of the candidate two years ago
– These reforms are good reforms and it must be understood that the Supreme Court is the final arbiter in the Country and its law is the law of the land. The election commission is welcome to any suggestions and mandate of the Supreme Court.
3) Re: Anti-defection law. Collective defections seem to be legitimate today. What is the solution ?
– It is the decision of the speaker today and I propose that the election commission and the president or the governor should make the final decision based on the recommendation of the election commission.

Regulatory & Legal Framework – Do We Need a Franchising Law in India?
Article Source:Legal Expert ON-LINE
Mater Franchising arrangements are the flavor of the day as it provides the franchisor the benefit of the franchisee’s knowledge of the local environment; provides access to local sales and marketing expertise and channels; reduces investment; requires negligible government approvals; provides freedom from recruitment of local workforce and consequently lowers the financial risk of the franchisor. The current regulatory restrictions on retail trading by foreign companies coupled with sustained economic growth; ever expanding market with a thriving class of urban consumers; quality consciousness amongst India consumers are some of the factors contribution to franchising being increasingly used as a model by foreign companies for entering India for the first time. A typical master franchise arrangement enables the master franchisee to develop the business in a given territory under the franchisor’s brand name and trademark with or without the right to manufacture the products in accordance with the franchisors’ operating guidelines coupled with assured financial returns to the franchisor.
Legal Expert ON-LINE
There is a lot of discussion on the requirement of enacting a specialized law to regulate this growing sector in India. Before I proceed with my thoughts on the subject, I would like to quote a few lines from a report presented by the International Institute for the Unification of Private Law (UNIDROIT, an independent intergovernmental organization of which India is a member) which states that “the foundation of a successful franchising industry in any country lies in the existence of a “healthy commercial law environment” which has been defined as one with a ‘general legislation on commercial contracts, with an adequate company law, where there are sufficient notions of joint ventures, where intellectual property rights are in place and enforced and where companies can rely on ownership of trademarks and know-how as well as on confidentiality agreements’. The Indian legal environment is characterized by all these key attributes, a fact established by ever expanding international franchise relationships with India.
Legal Expert ON-LINE
To evaluate the need for a new legislation, let us first understand some of the keys issues/concerns involving a franchising arrangement that generally leads to potential disputes or disconnects between the parties and how they are protected or can be protected within the realm of current Indian legislation:
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(1) Licensing and Use of Intellectual Property Rights: IP rights are an integral part of all franchising arrangements and every franchising agreement involves transfer of some form of IP right, either as a license of a trademark/service mark/trade name, or a copyright, or a patent, invention, design or a trade secrets. The manner of use of the IP rights and their protection against misuse is one of the most important concerns of the Franchisor. Some of the disputes that arise during implementation of the franchise agreement relate to the scope and purpose of the trademark license, exclusivity of use and geographical scope, protection of confidentiality, extent of transfer of the know-how, misuse and damage caused to the brand and goodwill of the franchisor, etc. Similarly, post termination related issues include unauthorized use of the trademarks post termination, limited right to use the trademarks for the purposes of disposal of pending inventory (in the absence of which the inventory may go waste), destruction of stationary containing trademarks/trade names, return and ceassation of use of IP rights. India already has a host of IPR related laws including the Trademark Act of 1940, Copyright Act, 1957, the Patent Act, etc that provide for extensive protection and enforcement mechanism for the intellectual property rights including permanent and mandatory injunctions against infringement and passing off. India is also a signatory to the international conventions on intellectual property rights including the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), thereby offering protection to trademarks or brand names, as well as copyright and designs of the foreign franchisor. Recognition and protection is also extended to service marks in India enabling the foreign franchisor to license its mark to a franchisee to provide the services synonymous with him to the consumers in India. IPR laws have also been recently amended to make them compliant with exclusive right obligations under TRIPS and accordingly, the laws meet international standards for IPR protection. Even the Indian courts are quite sensitive and proactive with regard to enforcement of infringement actions. It is therefore evident it is not the absence of IPR laws or its enforcement that lead to potential disputes but lack of carefully drafted and negotiated agreements between the franchisor and the franchisee related to IPR issues that lead to potential IP related litigations.
Legal Expert ON-LINE
(2) Obligations of Franchisor and Franchisee: Another crucial issue that lead to potential disputes amongst the parties relate to implementation of the obligations of a franchisee such as the duties and services to be rendered by the franchisee, the investment and infrastructure of the franchise, adherence to specific operating guidelines or manual to maintain uniformity, reporting requirements, quality maintenance of the product or services delivered; creation of an agency between franchisor and franchisee, appointment of sub-contractors to manufacture and sub-franchisee to sell the products and franchisor and franchisee’s liability owing to their acts/omissions; meeting of annual market penetration targets; minimum stock purchase/import obligations; financial returns to the franchisor, including royalty and fee. Similarly, obligations of the franchisor related to periodic training as to the conduct of business, upgrading the franchisee with new methods and technologies, ongoing support, recommendations on general operational, management, accounting and administrative practices, joint marketing and advertising campaigns, sharing of advertising costs generally cause heart burns to the franchisee.
Legal Expert ON-LINE
The Indian Contract Act, 1872 is applicable to all the franchise arrangements and provides for specific parameters for legally enforceable agreements, lawful object and purpose of an agreement, lawful consideration for an agreement, performance of an agreement, statutory interventions in unfair or unconscionable transactions, consequences of fraud, misrepresentation and undue influence, voidability and rescission/repudiation of agreement, contracts in restraint of trade, contingent and conditional contracts, performance of reciprocal promises, discharge and frustration of contracts, consequences of breach and rights related to liquidated damages, enforcement of indemnification rights, agents and principal relationship and obligations thereto. It is not the lack of commercial law but lack of carefully drafted agreements that generally fail the parties. It is therefore important that a franchisee tries to bridge all potential gaps by identifying and analyzing “what if?” situations keeping in perspective the franchisee’s financial, technical, manufacturing, marketing, human resource, sales and business planning capabilities.
Legal Expert ON-LINE
All of this does not require a specialized law which is already in existence in the form of the Indian Contract Act but a fairly detailed and well negotiated contract. In any case even a specialized law can only provide a broad frame work, the details and the nitty-gritty of the relationship has to be always contractually agreed.
Legal Expert ON-LINE
(3) Payment Terms: Delay in payment or non-payment of license and/or royalty payments could be another area of concern for the franchisor. Therefore the manner in which and the times at which such payments are to be made must be carefully addressed. In the event the franchisor is a foreign entity, applicability of prior approvals and terms and conditions for foreign remittance should be informed to the foreign party. The Foreign Exchange Management Act, 1999 and the Regulations made there under specifically address the outbound payment related issues. For instance, an Indian franchisee can remit royalty towards license of trademark upto the amount of 1% of domestic sales and 2% of exports without prior government approval. If the licensor also provides technical know how to the Indian licensee, the Indian company can remit royalty upto 5% of domestic sales and 8% of exports and lump sum payment of upto US$ 2 million without prior government approval. Payment of royalty above the percentages specified above would need prior government approval. Detailed tax laws are already in place to deal with the withholding tax liability on such payments which may get reduced depending upon the provisions in the applicable double taxation avoidance agreement. The key issue is that both the franchisor and franchisee should be made aware before hand on the payment and taxation related regulations.
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(4) Duration, Renewal and Termination and its Consequences: Another serious concern of a franchisee is the extendibility of the term of the franchising and licensing agreement. Typically, extension of the term is within the sole discretion of the franchisor based on annual sales turnovers and performance of the franchisee. Quite often a franchisee struggles with the franchisor for renewal of the term especially when the franchisor is lined up with many other franchisees offering higher royalties. The other possible scenario is when a franchisee is suddenly informed of an abrupt termination of the franchise agreement leaving the franchisee with costs of salaries, infrastructure and interest on working capital and other debts. Now do we need a law to tackle with this abrupt termination or non-renewal situations. First of all, it should be clearly understood that all agreements entered into between private parties (whether under franchise domain or any other commercial arrangements) are terminable in nature. This is regardless of the terms in the franchise agreement that the contract is interminable. The Indian Contract Act 1872 and the Specific Relief Act, 1963 supported by various Supreme Court judgments are clear that even in the absence of specific clause authorizing and enabling either party to terminate the agreement, from the very nature of the agreement, which is private commercial transaction, the same could be terminated even without assigning any reason by serving a reasonable notice.
Legal Expert ON-LINE
Keeping this in perspective, it is advisable to negotiate for an open ended term (i.e., no fixed term) agreement with suitable termination clauses on breach with adequate notice period for rectification of breach/default. Though non-provision of the agreed notice will render the franchisor liable for damages under the Indian Contract Act, it is advisable to stipulate liquidated damages or substantial termination fees payable by the franchisor on breach of express termination provisions. Suitable exit options should also be provided if both parties are not willing to continue. Some of the key post termination issues that lead to potential dispute and are adequately protected by the existing Indian laws include:
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(i) Misuse of IPR rights and Confidential Information post termination is generally a mater of concern for the franchisor. While there are adequate IPR protection laws against misuse and consequent infringement/passing off actions coupled with rights for permanent and mandatory injunctions under the Specific Relief Act, it is important to provide provisions constraining the franchisee from using the IP rights of the franchisor and return of all confidential information obtained during the term of the agreement.
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(ii) Protection of franchisees against negative covenants particularly relating to non-competition post termination. It should be understood that a negative covenant restraining the franchisee from directly or indirectly undertaking business competing with the business of the franchisor during the subsistence of the agreement may not be violative of section 27 of the Contract Act, but post termination negative covenants may not be enforceable under Indian laws. This in turn protects the franchisee against unreasonable negative covenants imposed by the franchisor post termination.
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(iii) Inventory handling: Inventory handling is a definite pain area issue post termination. Provisions related to re-purchase of the unsold inventory/raw material post termination, destruction of sub-standard products or extension of the trade mark license to enable the franchisee sell the products with in an agreed time period are essential. Vague clauses such as inventory shall be disposed as per mutually agreed terms and conditions should be strictly avoided.
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(5) Governing laws and implementation of laws: Choice of governing law and place of jurisdiction is another crucial issue that should be carefully thought upon before being documented. Often jurisdictional hardships deter the parties from taking corrective actions against breach of the franchisee agreement. Indian Code of Civil Procedure confers authority to a court to adjudicate upon a dispute either based on territorial jurisdiction; personal jurisdiction; subject-matter jurisdiction, etc. Detailed provisions supported by judicial precedents are already available to correctly guide the parties to deal with the jurisdiction issues and it is pointless to consolidate all the available laws under a specialized law.
Legal Expert ON-LINE
In nutshell, most of the crucial issues that are matter of concern to the franchisee and franchisor can be dealt under a carefully drafted and negotiated franchise agreement.
Legal Expert ON-LINE
I am aware that there would be certain concerns with regard to the bargaining power of the franchisee to firmly negotiate the agreement against an established franchisor. In this regard, associations such as Franchising Association of India can play an important role. For example, FAI can prepare and introduce a code of conduct for franchise arrangement wherein the franchisors should provide comprehensive disclosures to each prospective franchisee, so that each prospective franchise can make a well informed decision. For e.g., the Uniform Franchise Offering Circular (UFOC) format in the USA, approved by the Federal Trade Commission includes 23 categories of information that must be provided by the franchisor to a prospective franchisee at least 10 business days before it makes any payment to the franchisor or signs the contract. As stated above, this does not require legislation of a new law but implementation of a code of conduct by Franchising Association of India. The Association can prepare and require Franchisors to mandatory provide information such as corporate history and financial statements of the franchisor, the litigation it faces, intellectual property and proprietary information, etc. Similarly, members of FAI should be able to guide the small franchisees about the potential exposure in the given franchise arrangement and if required negotiate on behalf of the franchisee.
Legal Expert ON-LINE
If you are looking from the consumer stand point, we have consumer protection laws that enable a consumer to file complaints with the consumer forums for unfair or restrictive trade practices adopted by franchisee in supply of goods or services by the franchisee. Similarly, antitrust or restrictive trade practices promoted by the franchise arrangement can be addressed through Monopolies and Restrictive Trade Practices Act, 1969 and to be implemented proposed Competition Act. The franchisor and the franchisee would need to ensure that their practices do not classify as monopolistic or restrictive or else the Commission under the MRTP Act can grant injunction to prevent such trade practices and may award compensation for any losses or damage suffered thereby. Tortious liability could also arise out a franchise relationship in the event of negligence leading to loss or damages to third parties or in the event of principal-agent relationship between the franchisor and the franchisee. In such cases the franchisor could be held liable for any torts committed by the franchisee during the course of his business.
Legal Expert ON-LINE
Cons of a New Law: Having a host of laws, I personally feel that introduction of specialized law at this stage will rather have a negative impact on the growth on the franchise industry:
Legal Expert ON-LINE
– Most developed countries do not have franchise specific law or was introduced much later: The United States of America which is the inventor of all types of franchise arrangements did not have any franchise specific law for good 50 years. Since the time of development of the concept during 1938 till 1993, there was no attempt made to regulate franchising in the U.S. It was only in 1993 that the Uniform Franchising Offering Circular (”UFOC”) Guidelines were adopted in USA as the recommended format for franchise disclosure documents at the State level. By 1995, the new UFOC Guidelines were adopted by each of the state franchise regulatory authorities that required registration of franchise offerings.
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United Kingdom does not have any specific legislation or regulation, which regulates franchising or foreign franchising companies. The European Franchise Federation has however prescribed “European Code of Ethics for Franchising” that facilitates prospective franchisee to enter into any binding franchise relationship with full prior knowledge. Similarly, UNIDROIT has in September 2002 adopted a Model Franchise Disclosure Law requiring the franchisors to provide extensive written disclosures to prospective franchisees at a pre-contractual stage.
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Even Singapore which is home to many franchises from around the world, there does not exist any specific legislation on franchising in Singapore.
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Even in the countries where there are franchise specific laws, the purpose is to require extensive disclosures to the prospective franchisees which in my opinion can be introduced through an association like Franchising Association of India, whereby the franchisor and franchisee adhere to the code of conduct specified by the Association.
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– Will hamper the growth of the industry: Given the fact that the franchising sector is still in the nascent stage of evolution and development, we are still not ceased with most of the practical issues involved in implementing and managing a franchise relationship. Therefore, introduction of a specific law may not only fail to address all the issues but may even have an adverse effect by unnecessarily burdening the franchisor and franchises with regulatory and reporting compliance/requirements and may also deter the prospective international franchisor to come to India. It may prove a very theoretical legislation without any practical implementation background of the situations and may need frequent modifications and amendments.
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– Most issues can be contractually negotiated and taken care off by contractual arrangement: As already discussed, most of the concerns of the parties can be mutually discussed and agreed upon a negotiated contract. Even otherwise, no single law can deal with the complex nature of issues involved in a franchise arrangement which ranges from protection of IP rights to product liability, exchange control issues, labour laws, enforcement of contractual rights, etc. Further, enforcement issues between the parties to the agreement i.e. the franchisor and the franchisee would be governed by the substantive law of the territory and dispute resolution mechanism agreed between the parties, would take care of the enforcement of such rights. Compulsory resolution of dispute through a self imposed regulator may not be healthy for rapid growth of this sector. I feel that the day and time for a specialized franchise law is yet to come and it may even be pre-mature to enact such a law.
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In view of the foregoing, the time has as yet not arrived to have a franchise specific legislation. It would be in the interest of the franchise industry, which is still evolving and is miles away from reaching its highest potential, that instead of advocating a need for a new legislation to regulate the franchise industry, it would be advisable to let the industry breath, feel, learn, grow and develop in an environment of freedom and competitiveness (though regulated by the present legislation).
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Seema Jhingan is a partner at LexCounsel, Law Offices. LexCounsel is headquartered in Delhi and advises in practice areas including Mergers and Acquisitions, Private Equity and Venture Capital, Projects, Telecommunications, Software/Information Technology, Media %26 Entertainment, Taxation, Retail, Licensing and Franchising, Insurance, General Corporate and Commercial and International Arbitration. Seema Jhingan can be reached at
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Areas of Practice:
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Infrastructure, Telecommunications, Power, Mergers/Acquisition, Software/Information Technology, Business Process Outsourcing, Media %26 Entertainment, Private Equity and Venture Capital, General Corporate and Commercial, International Arbitration.
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Professional Summary:
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Seema Ahluwalia Jhingan’s practice spans over fourteen years during which she has acquired substantial expertise in representing developers, sponsors/lenders, venture capital investors, international corporations, financial institutions, and other strategic investors involved in the establishment, development and financing of major infrastructure and IT projects in India.
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Seema is a Partner with a Delhi Based Law Firm LexCounsel Law Offices and regularly contributes to journals and publications and often takes up speaking engagements.
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