LEGAL NEWS 20.04.2009

Citizen’s Report on Governance: State of the Judiciary
http://brpbhaskar.blogspot.com/2009/04/citizens-report-on-governance-state-of.html
20 April, 2009
This is the second post based on the Citizen’s Rep[ort on Governance and Development 2008-09, produced by the National Social Watch Coalition:The review of the Indian Judiciary in the Citizen’s Report on Governance and Development 2008-09 focuses on the debate of courts venturing into the domain of the legislature and the executive. Locating the debate on judicial self-restraint and judicial intervention within the framework of ‘separation of powers’, the report examines the issue in the context of Justice Katju’s and Justice Sinha’sviewpoints. The report suggests a nuanced approach is needed to examine the question of where, why and how to draw the line between legitimate and improper judicial activism.An analysis of judicial response through the court verdicts covers the whole gamut of cases on constitutional governance and political accountability. Starting with the case of ‘cash for questions’, itclosely examines the question of legal wrong vs the moral wrong.The report cites another case of great significance, from the standpoint of constitutional law, a question arose as to whether legislations can be immunized from legal challenge (on the ground offundamental rights) by Parliament as a consequence of their insertion into the Ninth Schedule of the Constitution.Cases on environment, development rights and civil liberties are also examined. The section dealing with the cases on forced land acquisition, displacement, resettlement and rehabilitation issues cites the example of Nandigram where Kolkata High Court upheld the position of law and gave a range of directions to help the situation there, on the question of safeguarding the fundamental rights of the people of Nandigarm.A verdict of the Supreme Court last year on a petition filed by the Supreme Court Bar Association raised points of considerable importance. The Bar Association pointed out that appointment of a retired judge as chairman of the State Legal Service Authority in different States has the effect of inhibiting the effectiveness of the State Legal Service Authorities.The report calls for reforms that will reduce the numbers of pending cases. At present more than 40,000 cases are pending in the Supreme Court and 3.30,689 cases in high courts for more than ten years.
Posted by B.R.P.Bhaskar at 9:51 AM

School gets huge bill for banning Sikh bracelet
http://economictimes.indiatimes.com/News/News-By-Industry/ET-Cetera/School-gets-huge-bill-for-banning-Sikh-bracelet/articleshow/4424287.cms
20 Apr 2009, 1302 hrs IST, IANS
LONDON: A school in Wales that had banned a Sikh student from wearing a kara (bracelet) has lost a high court battle over the issue and has been asked to pay 2000,000 pounds ($293,000) in legal costs. Aberdare Girls School
had banned 15-year-old Sarika Watkins-Singh from wearing the bracelet that is one of the five symbols of the Sikh religion. Not only was the ban overturned in court, the school has now been landed with a huge legal bill, the Daily Express reported Monday. The school is reeling from the bill, which includes an invoice from human rights group Liberty, who brought the case on behalf of the student. The school’s own legal fees are 76,000 pounds. Early last year, Sarika was excluded from school for refusing to stop wearing the bangle, which she stated was fundamental to her religious belief. The school denied any racial discrimination. But the student spent nine weeks being taught in isolation because the bangle was against the school’s uniform policy. The school was originally given legal help from the local authority, Rhondda Cynon Taf Council, but when it refused to back down and instead opted to fight the case in the High Court, the free advice was withdrawn. Now campaigners say the school should never have taken the battle to the High Court. Sarika won the case after a three-day hearing last June, in which her exclusion was ruled to be ‘unlawful’. The school, with an annual budget of around 2.2 million pounds, has already paid 60,000 pounds to Liberty but disputes an extra bill of 80,000 pounds. on Sunday, critics slammed the massive cost of the case as “a waste of taxpayers’ money” and claimed pupils will “suffer” as a result. TaxPayers Alliance spokesman Mark Wallace said: “This case means a headache for the taxpayer who will ultimately be forced to stump up. This just emphasises the need for schools to be given full control of their rules and regimes without the risk of politically correct enforcement. The problem in this case arose because of interference from other parties.” Sarika’s case caused controversy last year when it emerged that she had been excluded from school. Last November, it was thought that the school would have to pay 76,000 pounds in legal costs. Chairman of the Campaign for Real Education, Nick Seaton, said: “This is 200,000 pounds which is likely to come out of the school’s budget
. It means that the students will suffer.”

Bare feet stand between favourites and Maval seat
http://www.expressindia.com/latest-news/bare-feet-stand-between-favourites-and-maval-seat/448977/
MANOJ MORE
Posted: Apr 20, 2009 at 0219 hrs IST
Pune Maruti bhapkar : Acknowledged as potential giant-killer by NCP and Sena candidates, never spends a paisa, campaigns on donations
Independent candidate Maruti Bhapkar has made both the NCP’s Azam Pansare and the Shiv Sena’s Gajanan Babar sit up and take notice. Neither of the leading contenders in Maval seat is taking Bhapkar lightly: each says the other will suffer because of the presence of the barefoot activist-turned-politician.
“I think Bhapkar will eat into Babar’s votes. I will gain,” says Pansare. Babar has a different take: “Bhapkar is campaigning against NCP’s wrong policies; I stand to gain.”
Bhapkar is a proven giant-killer, having defeated political giants in the 2007 Pimpri-Chinchwad municipal polls, which he contested as an Independent. And in the Lok Sabha polls, he says, neither Pansare nor Babar will be a match for him.
“What do they know about the Reliance SEZ? What have they done for farmers? Have they ever visited those evicted for the Pavana and Tata dams? I have relentlessly campaigned for all of these with hundreds of tireless activists,” says the diminutive, bearded politician.
In Pimpri-Chinchwad too, claims Bhapkar, he has fought for workers, including those of Garware Nylons and Bajaj Auto. “Be it workers, farmers, dam-evicted, SEZ hit or civic-conscious citizens, the support for me is wide,” says Bhapkar, contesting on behalf of the Lok Rajniti Manch.
Medha Patkar, Justice Rajendra Sacchar and Prof N D Patil of the Peasants and Workers Party have held huge public rallies for Bhapkar. Bhapkar also claims the support of social crusader Anna Hazare, actor Shriram Lagoo and other prominent activists.
Bhapkar says he is an activist first, then a politician. He is possibly the only candidate in the country contesting without spending money. “I am not spending a single paisa. I am fighting for citizens and they are funding my election.”
At every public rally, an appeal is made to citizens to donate money. “Every paisa taken from citizens is being accounted for. We give a receipt for donations taken. Medha Patkar donated Rs 501, crusader Baba Adhav Rs 1,001,” he says. So far, the Bhapkar camp has collected Rs 3 lakh and spent Rs 2 lakh on travel, food and campaign material.
Bhapkar walks barefoot in the scorching sun, unmindful of the blisters on his feet. “I walk 25 kilometres a day. So what if I blister my feet? I am ready to suffer the pain for citizens’ sake,” he says.
Bhapkar gave up wearing shoes as a mark of protest against eviction of slum-dwellers, farmer suicides and malnutrition deaths in 2003. He came into the limelight six years ago when he filed a PIL against corruption in the Pimpri-Chinchwad Municipal Corporation.
Ulka Mahajan, an anti-SEZ actvist from Panvel, says Bhapkar is getting support from farmers affected by Reliance SEZ, farm labourers, workers, dam-evicted people and several other organisations in Panvel, Uran and Karjat. “Bhapkar will put up a tough fight against Pansare and Babar. He might cause an upset,” says Domnic Lobo, campaign manager for Bhapkar.

‘Bring back money kept in Swiss banks’
http://timesofindia.indiatimes.com/Pune/Bring-back-money-kept-in-Swiss-banks/articleshow/4418998.cms
19 Apr 2009, 0012 hrs IST, TNN
PUNE: independent candidate Arun Bhatia, who is contesting for the Pune Lok Sabha seat on Saturday said that Indian money deposited in Swiss banks should be brought back to the country. However, he also criticised the BJP’s stand on the issue, asking why the party had not taken action on the matter when it was in power. Addressing a press conference, Bhatia said a detailed investigation must be carried out about the entire episode of Indian money in Swiss banks. Also, the information gathered during the investigation should be revealed to the general public. The money should be brought back to the country on a priority basis and used for public works, he said. Asking why the BJP was speaking of the issue at the time of elections he said, “Why did the BJP fail to initiate action in this regard when the party was ruling at the centre? This is a serious issue for the country, and should not be taken up only on the political front.” Speaking on local issues, Bhatia said a public interest litigation (PIL) had been filed at the high court over the city’s metro project. “It is possible to make use of Indian material in the construction of the metro project. It is not required that material be imported for the metro. This would save a large amount of money. The savings would help bring down the cost and the project will be available to the general public at cheaper fares.” He also stressed that the project be made underground.

People’s power saves a park
http://bangalorebuzz.blogspot.com/2009/04/peoples-power-saves-park.html
BBMP stops work on building a bangaloreone centre in high street parkSunitha Rao R. Bangalore.Protagonists out to save Lalbagh can take a leaf out of the successful struggle waged by residents of Milton Road in Sarvajnanagar to save the High Street Park in their locality. Faced with the might of people’s power, the Bruhat Bangalore Mahanagara Palike (BBMP) has recently stopped the construction of a proposed BangaloreOne centre inside the park.The residents of the area were waging a relentless battle against the BBMP decision to build the BangaloreOne centre inside the park. They mounted a signature campaign and lobbied hard with the BBMP to get the civic body abort its plans.As the civic body refused to budge, they filed a Public Interest Litigation in the High Court of Karnataka and obtained a stay order on the BBMP construction work inside the park.Spread over an area of 12,000 square feet, the High Street Park is used by more than 600-700 people everyday. The users come from areas like Cooke Town, Hutchinson Road, Jaibharat Nagar, and Lloyd’s Road.Mary Chitra Matthew, a resident, said the BBMP never took the residents into confidence when taking up developmental activities inside the park.In January last, the BBMP began work on the centre in the park on the High Street Road entrance side. “Residents staged protest marches and met BBMP officials. The work was stopped forthwith,” a resident of Prestige Milton Garden apartments recalled.But in March, the BBMP workers were back in the park redoing the lawn and taking up other development work. The residents were under the impression that the BBMP was up to some routine maintenance work. But the BBMPworkers soon started digging up the park and even laid the foundation. The aghast residents were on the warpath again.”We approached the BBMP officials about the inconvenience the BangaloreOne centre would cause to regular park users. But they did not listen to our pleas and the construction work continued. We got together and filed a PIL petition in High Court of Karnataka. The petition was signed by 200 residents of the area,” said the resident of Prestige Milton Garden apartments.The PIL was filed on behalf of the Prestige Milton Garden apartment residents’ association.On April 6, a division bench comprising Chief Justice PD Dinakaran and Justice VG Sabahit issued a stay order directing the BBMP to stop forthwith the construction of any help centre inside the park.According to the residents, Sarvajnanagar MLA KJ George too came out in support of their campaign.George said, “Some residents wanted a helpline in their area. But when the construction began for the BangaloreOne centre, there were many others who were against this. If the construction causes disturbance to residents, then there is no point in building anything.”According to the residents who filed the PIL, the BBMP took a unilateral and arbitrary decision to build the help centre inside the park.”The BBMP said that some residents had asked that the help centre be built here. But the civic body should have consulted other residents, at least those who stay immediately next to the park. Nothing of this kind was done,” another angry resident said.”Once any commercial activity starts inside the park, we have no control over the inflow of people. This will gradually affect the ambience of the park and eventually ruin it,” said another resident of Prestige Milton Garden apartments.”BangaloreOne is really helpful, but that can be built at any other convenient place and not inside the park. The BBMP too did not help by not being open on the issue,” said Shiv Rao, a resident of the area.When DNA spoke to BBMP officials, Nanjaiah, Assistant Executive Engineer of Sarvajnanagar, said, “A set of residents wanted the helpline and we started construction, but when the other residents went to the High Court we stopped the construction work on a temporary basis. At the next hearing in the court, we will produce records to justify why we started the construction and on the plea from locals for a BangaloreOne centre in the locality.”
posted by The Bangalorean @ 4/20/2009 09:25:00 AM

PIL filed against parties using Lankan issue as poll plank
http://www.dailymirror.lk/DM_BLOG/Sections/frmNewsDetailView.aspx?ARTID=46531

Madurai, April 18. A petition, seeking direction to various political parties against use of “sensitive Sri Lankan Tamils issue” as a poll plank, has been filed in the Madurai bench of Madras High Court.
The Public Interest Litigation (PIL) was filed by advocate Kannan and a division bench, comprising Justices S.K.Krishnan and T.Raja, posted the case for hearing after 10 days.
The petitioner argued that the majority of the political parties were using caste and religion as a political issue to gain advantage during the polls.
“Now various political parties are using the Sri Lankan Tamils issue in a big way. They are using a sad issue to gain votes. This is condemnable,” he said.
“It is wrong to politicise the issue to gain votes,” he said and sought a court directive to the Election Commission to ask political parties not to use the Tamils issue as an election plank.
(PTI)

SC admits I-T dept appeal against HC’s relief to SET
http://economictimes.indiatimes.com/News/News-By-Industry/Media–Entertainment-/SC-admits-I-T-dept-appeal–against-HCs-relief-to-SET/articleshow/4422360.cms
20 Apr 2009, 0133 hrs IST, M Padmakshan, ET Bureau
MUMBAI: The Supreme Court on Friday admitted an appeal by the Income Tax department against the relief given to Sony Entertainment Television by the Bombay High Court. The apex court’s move keeps alive the debate on taxing profits from Indian operations of a foreign entity which does business in India through a dependent agent. The Supreme Court’s final decision on this issue will have a bearing on similar cases pending at various stages of litigation — the total disputed tax liability in such cases could be over Rs 5,000 crore. The division bench of the Supreme Court headed by Justice SH Kapadia and Justice Aftab Alam observed that the Income Tax department’s appeal raises significant legal questions which need to be answered by the Supreme Court. The department was represented by lawyers Parag Tripathi and Persi Pardiwala, while lawyers Harish Salve and Beni Chatterjee appeared for Sony Entertainment Television. The origin of the debate was with a ruling by the Income Tax Appellate Tribunal (ITAT), Mumbai. The ITAT bench comprising Pramod Kumar and Madhavi Devi held that revenue generated in India by the foreign company is taxable in India even if they operate through an agent. The question before the tribunal was this: When a foreign company operates in India through a dependent agent and when the agent is paid for the services at fair market value, can further profits of the foreign company be taxed in India. Sony Entertainment Television did not dispute that they had a ‘dependent agent’ in India and that the business was carried out through this agent. But, it contended that once an agent has been paid an arm’s length price, no further profits can be taxed in India. The ITAT rejected this plea and held that whether the foreign company operates in India or not, the fee earned by the agent in India has to be subjected to taxation in India. The ITAT further held that the payment made to the company’s agent in India, SET India, can at best be described as the expenditure incurred by the foreign company and this amount may be deducted for the purpose of taxing Sony Entertainment Television. However, the Bombay High Court reversed the ITAT order. The order by division bench comprising Justice FI Rebello and Justice RS Mohite virtually set aside the rationale of the ITAT on the ground that the apellate tribunal did not consider the impact of a circular issued by CBDT.

Man in custody battle lands in contempt case
http://timesofindia.indiatimes.com/Ahmedabad/Man-in-custody-battle-lands-in-contempt-case/articleshow/4418827.cms
19 Apr 2009, 0005 hrs IST, TNN
Ahmedabad : If you suggest judicial authorities are likely to be influenced by anybody, you’re courting disaster. Sujit Munshi of Vadodara is facing the music for doing just this. Gujarat High Court has initiated contempt proceedings against him. HC is hearing a case on custody issues related to his daughter. Munshi, now remarried, has alleged that his second wife’s father, an IAS officer of Gujarat cadre, is influencing the custody proceedings. When Munshi and his first wife Shilpa Shinde got divorced, as per the decree their eight-year-old daughter Akshada would stay with her father for five days and spend weekends with her mother. But, when Shilpa went to Tanzania on a visit, Munshi admitted their daughter to a boarding school near Bharuch. When she returned, the school forbade her from meeting Akshada. She moved HC claiming that admitting the girl in boarding school was a breach of the decree. Shilpa also urged the court to direct the school to allow her to meet her daughter. This was permitted, but she was not content with the duration of the meeting. The court asked the school to arrange another meeting. Meanwhile, Shilpa wrote a letter to the court. In February, Justice CK Buch warned the parties not to do this. Despite this, Munshi also wrote to the court on February 12 and complained against his father-in-law. Munshi didn’t even intimate his lawyer Shalin Mehta about the letter and the latter withdrew from the case. Justice Buch observed that the letters were an attempt to hamper proceedings and all accusations were indirect allegations at the court. The court also noted that Munshi shifted the child to boarding school to prevent her from meeting her mother. Justice Buch observed that the court could ask Munshi to shift Akshada to Vadodara which would make it easier for mother and daughter to meet. Contempt proceedings against Munshi have been initiated in a division bench of Justices RP Dholakia and HB Antani. Munshi is permitted to defend himself. Further hearing on Shilpa’s application is scheduled for April 24.

Judgments prevail over excise department circulars: SC
http://www.business-standard.com/india/news/judgments-prevail-over-excise-department-circulars-sc/355616/
BS Reporter / New Delhi April 20, 2009, 0:40 IST
The Supreme Court last week emphasised that circulars and instructions issued by the customs and excise boards are no doubt binding on the authorities but when the Supreme Court or a high court declares the law on a disputed question, the courts’ view shall prevail.
The court reiterated the view last week in the case, Commissioner of Central Excise vs Hindoostan Spinning & Weaving Mills Ltd. The authorities had sought clarifications in some earlier judgments. Therefore, the Supreme Court once again asserted that the circulars represented only the understanding of the law by the officials. But they are not binding on the courts.
Baidyanath plea on toothpaste rejected
The SC last week dismissed the appeal of Baidyanath Ayurvedic Bhawan Ltd, maker of ‘Dant Manjan Lal’, rejecting its contention the product was a medicament according to the Central Excise Tariff Act, and not a cosmetic/toiletry preparation/tooth powder.
The classification of the product had created some difference of opinion in the excise tribunals. Baidyanath resisted show cause notices on diverse grounds; that the product is an Ayurvedic Medicine, that it manufactures it under a drug licence, that its ingredients are mentioned in the authoritative book of Ayurved System of Medicine, and that the product is an Ayurvedic medicine in the trade and common parlance. Baidyanath, thus, claimed it was eligible for the benefit in excise. The SC stated that what is important to be seen is how the consumer looks at a product. Higher damages than in the schedule can be awarded
The SC ruled last week in the case, Rani Gupta vs United India Insurance Co Ltd, that motor accident claims tribunals can award compensation which are higher than those prescribed in the second schedule to the Motor Vehicles Act. Parliament had thought Rs 50,000 should be the minimum compensation payable to legal representatives of persons whose annual income is Rs 3,000 per month.
In the present case, the businessman earning Rs 2 lakh a year was awarded Rs 17.4 lakh by the tribunal, which was reduced by the Delhi high court to Rs 12.5 lakh. The SC stated in view of the age of the businessman (46) he would have earned for ten more years and therefore the compensation was fair. SC not bound to hear international arbitration appeals bypassing HCs: The Supreme Court has dismissed the appeal of Shin-Etsu Chemical Co Ltd in its dispute with Vindhya Telelinks Ltd and stated that the foreign company could move the Madhya Pradesh high court for international arbitration.
The district judge in Rewa had rejected the foreign company’s plea for referring the dispute to arbitration under Section 45 of the Arbitration and Conciliation Act. The company directly approached the Supreme Court in appeal. The Indian company opposed the appeal, arguing that the foreign company could not approach the Supreme Court, bypassing the high court.
This argument was accepted by the Supreme Court. It emphasised that no one had a right to appeal to the apex court, and the latter will grant special leave to hear appeals only if the parties had exhausted all other remedies available to them. Power tariff dispute remitted to tribunal: In the dispute between DLF Power Ltd and Central Coalfields, the Supreme Court has asked the parties to approach the appellate tribunal for electricity in New Delhi again to determine the tariff. In 2007 the court had directed M/s Ernst & Young to determine the actual capital cost for Rajrappa and Giddi plants based on the formula in the power purchase agreement between CCL and DLF.
It had also directed that the copy of the report of the cost accounts be given to the parties and to the Jharkhand State Electricity Regulatory Commission. CCL’s complaint is that the report was made only on the basis of the documents submitted by DLF. Accepting this complaint, the court stated that as the process of evaluation involved in fixing the tariff is complex, the tribunal shall hear CCL view on tariff if it raises the issue before it. Cheque bounce punishment diluted : The Supreme Court has ruled that a person cannot be sentenced for each dishonoured cheque he had sent in the same transaction. In this case, State of Punjab vs Madan Lal, three cheques were issued by the accused person which were dishonoured.
The sessions court convicted him under Section 138 of the Negotiable Instruments Act and sentenced him to jail. The sentence for all the cheques was to run concurrently, not consecutively. The Punjab and Haryana high court upheld the sentence. But the state government appealed to the Supreme Court arguing that the accused should suffer sentence for each cheque one after the other, and not together, as ordered by the courts below. The Supreme Court dismissed the government’s appeal.

EC rejects plea on Sonia’s disqualification
http://www.tribuneindia.com/2009/20090420/main6.htm
New Delhi, April 19The Election Commission by a majority opinion has rejected the demand for disqualification of Sonia Gandhi as a Member of Parliament for receiving a foreign award.
By a 2-1 vote, the Election Commissioners, Navin Chawla, who would succeed N Gopalaswami on Tuesday, and SY Quraishi have overturned the incumbent CEC’s view that an enquiry was necessary to go into the complaint against Gandhi receiving the ‘Order of Leopold’, the second highest civilian honour in Belgium, given to her during a visit to that country in November 2006, highly placed sources said today.
The Commission’s view has been sent to President Pratibha Patil for her final decision. The controversy arose out of a petition from a Kerala advocate who had sought the disqualification of Gandhi for accepting the Belgian honour.
Under the conduct of business rules in the Election Commission, in case of difference of opinion among the three commissioners, the majority view will prevail. In this Belgian honour case, the view of the two Election Commissioners may prevail over the CEC’s view.
Gopalaswami is believed to have taken the view that there was need for further inquiry into Gandhi receiving the award, the sources said. Chawla and Quraishi are understood to have recommended that the enquiry was complete and no further action was called for, they said.
Gopalaswami refused to divulge the stand taken by him or the two Commissioners but confirmed the issue was before the President.
“I do not want to say anything on this because this is a case on which the decision will be taken by the President. So until the decision is taken, there can be no discussion on this,” he said.
Asked as to at what stage the case was now, the CEC said, “The point is that the President has not taken a decision yet. The matter will be finally decided at the appropriate time.”
The petition cited Article 102(1)(d) of the Constitution, which states that anybody who owes allegiance to the Constitution of another country should be disqualified from the membership of Parliament.
The petitioner alleged that accepting the award amounted to owing allegiance to the Constitution of that country.
Acting on a reference from the then President, APJ Abdul Kalam, the Commission had earlier issued a notice to Gandhi and also sought details from the Ministry of External Affairs. The Commission was split 2:1 even at the time of issuing notice to Gandhi. — PTI

Another child diesImplement ban on corporal punishment
http://www.tribuneindia.com/2009/20090420/edit.htm#2
YET another student has succumbed to ill-treatment by a teacher. This time it is in Delhi, which is supposed to have implemented the Supreme Court ban on corporal punishment. The death of 11-year-old Shanno Khan has understandably outraged society. Like ragging in the recent past, corporal punishment too should be viewed as barbaric and banished from every educational institution, and not just on paper. If it is medically established that the child died due to the harrowing experience she had in school, the teacher must be booked for culpable homicide not amounting to murder.
A strong message needs to be sent across the country that the abuse of a child’s rights and dignity cannot be tolerated, least of all in a school where he or she is expected to be in safe hands. What is particularly disturbing is that this is not an isolated incident. Last month a six-year-old girl in Tiruchi died after she was hit by a teacher, locked up in a steel cupboard and later thrown into a water tank. A teacher in a village near Lucknow tied five-year-old Alok Gupta with a rope and dragged him 50 metres for not attending school regularly. If such criminals are let off lightly only because they are teachers, parents would no longer think it safe to send their tiny tots to school.
Teachers have their own reasons for meting our corporal punishment. These include securing a student’s presence for private tuition. Some perverts actually think thrashing is for the good of a child, believing in the outdated saying: “Spare the rod and spoil the child”. There are black sheep in every profession and they need to be weeded out. Children already study under tremendous pressure, including high parental expectations. Poor eating habits and mental stress do not let them fully experience the joys of childhood. They need love and tender care, not indiscriminate use of the rod.

SC directive
http://www.thestatesman.net/page.news.php?clid=2&theme=&usrsess=1&id=251575
New Delhi, April 19: The Supreme Court has ruled that custody of a minor can be given even to a maternal grandmother if the father, who is a natural guardian, is incapable of taking adequate care of the child.The Supreme Court said though the law mandates that the father is the natural guardian of a child, the right at the same time is not absolute.“Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child,” a bench of Justices Mr Tarun Chatterjee and Mr H L Dattu said. n PTI

Study to find out reasons for police-lawyer rift
http://www.hindu.com/2009/04/20/stories/2009042059030800.htm
Special Correspondent
Tamil Nadu State Council for Higher Education to sponsor research
Researchers will be asked to make an in-depth study on court boycotts in the past 10 years
Study will be done across in several districts by analysing different incidents
MADURAI: A study on the reasons for ‘continuing conflict’ between police and lawyers in the State will be sponsored by the Tamil Nadu State Council for Higher Education (TANSCHE).
Candidates selected for the study would ascertain “where the fault lies” and come out with suggestions for a permanent solution to the problem, A. Ramasamy, Vice-Chairman, TANSCHE said here on Sunday.
Speaking to The Hindu, he said that 15 applications had been received by the Council and the study would be done across the State in several districts including Madurai and Tiruchi by analysing different incidents.
He said that the researchers would be asked to make an in-depth study on the court boycotts in the past 10 years and especially focus on instances where lawyers boycotted because of police-related issues.
“The recent attack in Madras High Court premises had particularly created bad blood between lawyers and police. Research must find a solution for the benefit of public who are affected by frequent boycott of courts by lawyers,” Dr. Ramasamy said. Researchers selected for the purpose would have to study the past incidents, meet people from top to bottom in both police department and courts, interact with the Chief Justice and others, he said.
“In the West, there will be academic committees to look into socio-economic problems. So, we thought that such a thing could be tried in the case of police-lawyer friction in Tamil Nadu also,” Dr. Ramasamy added.
While the objective was to find ways for bringing about a good relationship between police and lawyers, the proposed study will be done like the usual Ph.D.
About five candidates would be selected to undertake this research which should be completed within a stipulated timeframe. Interested persons can contact the Council office at Chennai, he said.
Dr. Ramasamy was in the city to attend various meetings convened in the Madurai Kamaraj University by its Vice-Chancellor R. Karpaga Kumaravel.

Law to protect trees being considered: Forest department
http://www.hindu.com/2009/04/20/stories/2009042059810300.htm
Staff Reporter
Preparation of people’s biodiversity registry mooted
Plea to undertake tree census in State
Landowners should be encouraged to protect mangroves
KOCHI: The Forest department is exploring the possibility of bringing in a legislation for the protection of trees located in public places in urban areas, said T.M. Manoharan, Principal Chief Conservator of Forest.
Mr. Manoharan was replying to a discussion organised by the State Forest Department in Mangalavanam on Sunday.
A tree protection Act is in force in Maharashtra and an authority has been formed under the act. Any cutting of trees in public places needs to get the approval of the Authority, pointed out C.M. Joy of the Aluva Paristhithi Samrakshna Samity.
Taking part in the discussion, E. M. Sunilkumar, chairman of the Town Planning Committee of the Kochi Corporation said that the civic bodies could not intervene effectively in cases of cutting of trees in the absence of a law for the protection of trees.
A provision should be made in the law making the planting of saplings mandatory while constructing buildings. Presently, most of the civic bodies in the State do not have any statistics regarding trees in their area. A tree census should be undertaken in all the civic bodies of the State, Mr. Sunilkumar suggested.
In his reply, Mr. Manoharan said that the preparation of the people’s biodiversity registry in each panchayat will help in generating a database of trees. The Kerala State Biodiversity Board will be approached with this proposal, he said.
The onus of implementing the tree protection act would be on civic bodies. The provisions of the Tree Protection Act would be studied and the scope of bringing in such a legislation in the State would be explored, he said.
U.K. Gopalan, noted environmentalist, suggested that steps for the protection of tidal forest ecosystem should be undertaken.
Valanthakaad Island in Kochi backwaters is home to over 16 varieties of mangroves and it is one of the few surviving mangrove areas in Kochi, pointed out delegates.
On a suggestion regarding the protection of Ramsar sites, Mr. Manoharan explained that the management of the sites was the mandate of the Irrigation and Water Resources Ministry. The exploitation of sand that has accumulated in the dams has not come as financially feasible proposal before the government, he said.
The government is in the process of charting out a programme for the protection of mangroves and sacred groves in the State. Most of the mangroves and sacred groves are located in private holdings. The government is of the view that incentives should be given to the landowners for protecting them, he said.

“Treat corporal punishment as criminal offence”
http://www.hindu.com/2009/04/20/stories/2009042060240300.htm
Staff Reporter
NEW DELHI: Centre for Social Research Director Ranjana Dr. Kumari has stressed the need to treat corporal punishment as a criminal offence with severe punishment for the teacher as well as the school.
Referring to 11-year-old Shanno Khan’s death in the Capital this past week after a teacher allegedly forced her to stand in a crouching position in the hot sun, Dr. Kumari said the incident was a wake-up call for policymakers to introduce a strong legislation that protects children from all sorts of violence.
Shocked over the brutality, Dr. Kumari said: “It is hard to believe that we have a law to prevent different types of cruelty against animals, but still don’t have any legislation to protect our children whom we call our future. A young girl dying after being punished in a school is a national shame.”
Judgment
To stress her point further, Dr. Kumari explained: “The Delhi High Court delivered a judgement in 2000 when it directed the States to ensure that children are not subjected to corporal punishment in schools and they receive education in an environment of freedom and dignity, free from fear. In 2007, the National Commission for Protection of Child Rights (NCPCR) directed the State Governments to take effective steps to check incidents of corporal punishment in school.”
Pointing out that this was not the first time that an incident of this kind had taken place, Dr. Kumari said children in our country were often disciplined with the rod. “Children are now becoming used to it and are accepting it as a normal way of life. Do we want them to become silent recipients of violence in their tender years that may hamper their physical and mental wellbeing in future? Should we wait for some more incidents like these to finally wake up to a realisation?” said Dr. Kumari, adding that there was a need for a proper law on corporal punishment to be strictly followed by all schools, parents, and caregivers across the country.

Notices issued under Defacement Act
http://www.hindu.com/2009/04/20/stories/2009042055860500.htm
Special Correspondent
CHANDIGARH: Some political parties and 21 people have been issued notice by District Electoral Officer, Bhiwani under the Defacement of Property Act, 1989.
Bhiwani District Electoral Officer Vikas Gupta said that these notices have been issued following a survey conducted by Tehsildar and Executive Officer, Municipal Council, Bhiwani to check defacement of public property by displaying political messages, hoardings, wall paintings and posters.

The torturers’ manifesto
http://www.hindu.com/2009/04/20/stories/2009042051680900.htm
It was written to provide legal immunity for acts that are clearly illegal and immoral.
To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity.
Their language is the precise bureaucratese favoured by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.
In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the CIA for having doctors ready to perform an emergency tracheotomy if necessary.
These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.
It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the CIA and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the Defence Secretary, the Attorney-General, the Intelligence Director and, most likely, President Bush and Vice President Dick Cheney.
The American Civil Liberties Union deserves credit for suing for the memos’ release. And President Barack Obama deserves credit for overruling his own CIA director and ordering that the memos be made public. It is hard to think of another case in which documents stamped “Top Secret” were released with hardly any deletions. But this cannot be the end of the scrutiny for these and other decisions by the Bush administration.
Until Americans and their leaders fully understand the rules the Bush administration concocted to justify such abuses — and who set the rules and who approved them — there is no hope of fixing a profoundly broken system of justice and ensuring that that these acts are never repeated.
The abuses and the dangers do not end with the torture memos. Americans still know far too little about Bush’s decision to illegally eavesdrop on Americans — a program that has since been given legal cover by Congress.
Recently, The Times reported that the nation’s intelligence agencies have been collecting private e-mail messages and phone calls of Americans on a scale that went beyond the broad limits established in legislation last year. The article quoted the Justice Department as saying there had been problems in the surveillance programme that had been resolved. But Justice did not say what those problems were or what the resolution was.
That is the heart of the matter: Nobody really knows what any of the rules were. Mr. Bush never offered the slightest explanation of what he found lacking in the 1978 Foreign Intelligence Surveillance Act when he decided to ignore the law after 9/11 and ordered the warrantless wiretapping of Americans’ overseas calls and e-mail. He said he was president and could do what he wanted.
The Bush administration also never explained how it interpreted laws that were later passed to expand the government’s powers to eavesdrop. And the Obama administration argued in a recent court filing that everything associated with electronic eavesdropping, including what is allowed and what is not, is a state secret.
We do not think Mr. Obama will violate Americans’ rights as Mr. Bush did. But if Americans do not know the rules, they cannot judge whether this government or any one that follows is abiding by the rules. In the case of detainee abuse, Mr. Obama assured CIA operatives that they would not be prosecuted for actions that their superiors told them were legal. We have never been comfortable with the “only following orders” excuse, especially because Americans still do not know what was actually done or who was giving the orders. After all, as far as Bush’s lawyers were concerned, it was not really torture unless it involved breaking bones, burning flesh or pulling teeth. That, Mr. Bybee kept noting, was what the Libyan secret police did to one prisoner. The standard for American behaviour should be a lot higher than that of the Libyan secret police.
At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.
That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Bush rewarded him with.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it. After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability. — © 2009 The New York Times News Service

Teaching without torture
http://www.hindu.com/2009/04/20/stories/2009042051640800.htm
It is now widely accepted round the world that the deliberate humiliation of children, either through corporal punishment or otherwise, is antithetical to learning as well as the well-being of children. The heart-rending death of 11-year-old Delhi schoolgirl Shanno Khan following brutal punishment by her teacher for failing to recite the full English alphabet string is a stark reminder of the torture that sometimes goes on in the name of pedagogy in several Indian schools. Shanno, according to her older sister, was made to stand in a murga position [a common form of punishment where the victim is forced to hold her or his ears with hands passed under the legs] for over two hours in the hot sun and even placed seven bricks on her back. When the girl asked for water, the teacher kicked her and her head hit a wall and she began to bleed from the nose. Shanno lost consciousness on returning home, and died two days later in hospital after slipping into a coma. This may seem an extreme case of punishment gone horribly wrong but it does highlight a fairly widespread practice in Indian schools.
In 2000 the Supreme Court of India banned corporal punishment for children and directed the state to ensure that they received education in an environment of freedom and dignity, free from fear. In the same year, the Delhi High Court struck down the provision for corporal punishment in the Delhi School Education Rules, noting that such punishment went against a child’s dignity and was not in tune with the United Nations Convention on the Rights of the Child, to which India was a signatory. The National Policy on Education states that corporal punishment would be firmly excluded from the educational systems. Following incidents of suicide by students terrorised by teachers, States such as Goa and Tamil Nadu outlawed corporal punishment. The rule providing for such punishment in Tamil Nadu was replaced by a section that recommended that children should be given an opportunity to learn from their errors through corrective measures such as imposition and suspension from class. However, enforcement is weak and instances of corporal punishment continue to be reported from across India. In fact, many schools practise a variety of methods of physical and emotional punishment. Occasionally, when teachers find mild forms of punishment ineffective, they resort to third degree methods of the kind that caused Shanno’s death. It is time authorities as well as parents and the public mobilised to make it absolutely clear that corporal punishment or any form of deliberate infliction of pain and humiliation on schoolchildren, supposedly for their own good, would not be tolerated any longer.

SC asks IT dept why Bachchan was allowed to withdraw claim
http://timesofindia.indiatimes.com/Why_was_Bachchan_given_tax_rebate_asks_SC/articleshow/4426669.cms
20 Apr 2009, 2048 hrs IST, PTI
NEW DELHI: The Supreme Court on Monday asked the Income-Tax department to explain why actor Amitabh Bachchan was allowed to withdraw his security expense claim amounting to 30% of around Rs 6.90 crore, the actor’s income from popular TV game show ‘Kaun Banega Crorepati’ in 2001-02. A bench headed by Justice S H Kapadia pulled up the tax authorities for allowing Bachchan to withdraw his security expense claim saying that it has happened for the first time in his experience. It gave two weeks to the department to clarify the matter. The I-T department alleged that Bachchan’s representative before the authorities had earlier claimed having incurred 30 per cent estimated expenses on security to protect the assessee from extortion, something the actor had himself later withdrawn. Additional Solicitor General Gopal Subramanium said that he will clarify the point within two weeks after taking instructions. The question arose in an appeal filed by the Income-Tax department challenging a Bombay High Court judgment of August 7, 2008, which dismissed its plea and upheld the sectoral tribunal order that quashed the Commissioner of Income-Tax’s order. The department said while Bachchan had in his original income tax return for 2001-02 declared total income of around Rs 4.61 crore, he had filed revised returns on October 31, 2002, declaring total income of around Rs 6.08 crore. In his second revised returns on March 31, 2003, he declared total income of Rs 3.23 crore approximately while his receipts from KBC were at Rs 6.90 crore and an additional expenditure of Rs 3.17 crore (30 per cent of professional receipts) was shown. According to the department, after the second revised returns, the authorities had issued showcause notice to the actor on November 7, 2005, under Section 263 of the Income-Tax Act on the grounds that the returns were erroneous and prejudicial to the interests of the revenue. However, the department said the actor had withdrawn its re-revised returns that had 30% estimated expenses claim, on March 13, 2004. Bachchan had subsequently retracted by stating that the earlier explanation was given by his representative without cross-checking facts with him, the department added. It said that Bachchan had submitted before the authorities that the 30% expenses claim was made under the mistaken belief that it was available as a standard deduction and thus had withdrawn it later. The Commissioner of Income Tax, while setting aside the assessment, had held that despite the withdrawal of the claim the assessing officer was under duty to make further enquiries about whether these security expenses were made from any undisclosed income. However, the Income Tax Appellate Tribunal on May 18, 2005, while allowing Bachchan to withdraw the claim had quashed the CIT’s order saying that the Commissioner’s order travelled beyond the grounds in the show cause notice and thus was violative of natural justice.

PW auditors knowingly falsified Satyam data: CBI report
http://timesofindia.indiatimes.com/PW_auditors_knowingly_falsified_Satyam_data_CBI_report/articleshow/4421827.cms
20 Apr 2009, 0341 hrs IST, Kingshuk Nag, TNN
HYDERABAD: Contrary to earlier perceptions that the Price Waterhouse auditors were taken in by the false fixed deposit receipts (FDRs) shown to them by Satyam’s accountants, the detailed chargesheet filed by the CBI says that both S Gopalakrishnan and Srinivas Talluri had obtained independent confirmations from banks about the balances in the books of the IT company.
But when they were at great variance with the data provided by Satyam, both Gopalakrishnan and Talluri at different points of time chose to ignore the bank data and “knowingly certified the inflated and forged balance sheets prepared based on forged FDRs and other data..” The CBI chargesheet says that both the auditors after facilitating projection of falsified data made “misleading” presentations to the audit commmittee of Satyam about the financial health of the company. As consideration for this act of “accomodation” they received exorbitant audit fees from Satyam over and above the market rate “which reflects a quid-pro-quo arrangement,” the CBI has charged. What is more interesting is that these two auditors ignored the findings of even their internal checking team. The Head of Information Systems Audit of Price Waterhouse in the course of an ‘information technology general check’ found a staggering 180 deficiencies. This was communicated to the audit team who were told that the IT systems in existence in Satyam were “not fully integrated and subject to manipulation,” the chargesheet says.
Gopalakrishnan and Talluri were told that “in the light of the above deficiencies substantial and elaborate examinations of the financials should be conducted.” But the two at different points of time did not make any change in their audit plans. The CBI has also charged that the two had wrongly signed the balance sheets of Satyam as partners of Price Waterhouse, though they were not partners in this audit firm. As per records of the Institute of Chartered Accountants (ICAI), the two were partners of Price Waterhouse, Bangalore which is a separate entity.
The statutory audit had been given to Price Waterhouse and not Price Waterhouse, Bangalore. This act of the two chartered accountants were violative of the Auditing and Assurance Standards (AAS) 28 and invalidates the annual financial statement of the company. Curiously enough the two auditors had letters generated on the pads of Price Waterhouse from the computer systems of Satyam. These letters were addressed to the banks and directed them ( the banks) to directly inform the auditors about the bank balances. About Gopalakrishna who signed the audit report of Satyam from 2001 to 2007, the CBI chargesheet says that “but for his active cooperation and disregarding the crucial evidence available with him, this fraud would not have taken for so many years.”
Similarly Talluri is charged for allowing this fraud from 2007 onwards, the year from which he started signing the audit report. Both of have been charged for violation of various sections of the IPC. Both are in judicial custody for long and inspite of lawyers flying in from Chennai have not been able to secure bail.

Undertrial killed in Bhondsi Jail
http://timesofindia.indiatimes.com/Delhi/Undertrial_killed_in_Bhondsi_Jail/articleshow/4421864.cms
20 Apr 2009, 0700 hrs IST, TNN
GURGAON: An undertrial lodged in Bhondsi Jail in Haryana was allegedly stabbed to death by a murder convict. The incident comes close on heels of a bloody brawl in Tihar that left several inmates injured. The accused, Harjeet, has a couple of murder cases lodged against him. The victim, Ali Bashir, was an undertrial in a theft case. In another incident at Paharganj in central Delhi, an Australian tourist was found dead inside his hotel room. The deceased was unwell for the past two days and had not left his room in Express Hotel. The police have ruled out foul play. The Australian Embassy has been contacted in this regard.

GIC hears Samirkhan encounter case
http://timesofindia.indiatimes.com/Ahmedabad/GIC_hears_Samirkhan_encounter_case/articleshow/4422000.cms
20 Apr 2009, 0000 hrs IST, TNN
Ahmedabad : On October 22, 2002, city crime branch gunned down his son claiming that he was a Lashkar-e-Taiba operative on a mission to kill Chief Minister Narendra Modi. But, he believes this was a fake encounter. Sarfarazkhan Pathan’s attempt to get to the bottom of son Samirkhan’s encounter through Right To Information (RTI), hit a roadblock when he was told that CID was exempted from disclosing information under this act. However, putting the ball squarely in the court of Gujarat Information Commission (GIC), Pathan has not only sought access to information, he wants blanket exemption being enjoyed by CID to be removed. Moreover, Pathan has reminded GIC of its statutory obligation of guaranteeing constitutional right of information and preventing frustration of this fundamental right by misuse of power. Pathan had sought the report made by state to National Human Rights Commission (NHRC) on Samirkhan’s death, and video recording of his postmortem under RTI besides investigation papers by crime branch (DCB), Gaekwad Haveli, Ahmedabad. He also asked for the report prepared by the then human rights and social justice IG, Tirth Raj inquiring into the alleged misconduct of deputy superintendent of police IK Yadav, the first investigation officer (IO). Pathan argued before GIC that only intelligence and security organisations’ have been exempted under RTI. And as CID (criminal investigation department) can’t be termed as either, it cant be exempted. If CID were involved in intelligence and security gathering, then upto that extent it can be exempted, but not when it comes to criminal investigation. Also, when local police investigate an offence they are not exempt from RTI, but if the same offence once transferred for further investigation, then investigation stands to be exempt from RTI. This Pathan argued violated Article 14 of the Constitution of India. Pathan argued further that even in case of exempt organisations under RTI, information pertaining to human rights violations had to be provided. Hence Samirkhan’s encounter being fake was a case of human rights violation of the worst kind and information needs to be provided. CASES PENDING * Information pertaining to 2002 riots from Nanavati-Shah Commission * Sohrabuddin encounter issue * Patan gangrape case

Repeal amendments of TCP Act: Orlim villagers
http://timesofindia.indiatimes.com/Goa/Repeal_amendments_of_TCP_Act_Orlim_villagers/articleshow/4422066.cms
20 Apr 2009, 0607 hrs IST, TNN
MARGAO: The resolute determination of the villagers to assert their rights in the participatory planning process was manifested at the gram sabha of the Orlim village panchayat held on Sunday. Demand to repeal the amendments 16 and 16A of the town and country planning (TCP) Act was one of the major resolutions adopted by the gram sabha after a lengthy debate over the issue. Expressing apprehension that the amendments would allow the government to override the regional plan as and when it fancies, the gram sabha members demanded that the government withdraw the amendments forthwith. The gram sabha also adopted a resolution demanding that the 73rd and 74th amendments to the constitution be implemented by the government in letter and spirit. “The participatory planning process of the regional plan 2021 would have no legal standing unless necessary powers are devolved to the local self government bodies like the panchayat, as envisaged in the 73rd and 74th amendments to the constitution,” a gram sabha member pointed out. The villagers expressed their disapproval over the fact that over 60% of the village was classified as settlement zone. Charging the authorities with drafting the plan in an arbitrary manner, the gram sabha demanded that a fresh survey be undertaken to determine the actual land use pattern of the village. The villagers adopted a stand that under no circumstances should the original land use pattern be altered. The gram sabha further also adopted a resolution demanding that the proposed bill seeking to grant overriding powers to the director of panchayats be withdrawn forthwith.

Saji case: NCB allowed re-sampling of seized heroin
http://timesofindia.indiatimes.com/Chandigarh/Saji_case_NCB_allowed_re-sampling_of_seized_heroin/articleshow/4422169.cms
20 Apr 2009, 0356 hrs IST, TNN
CHANDIGARH: In a significant development, the special NDPS court has allowed Narcotics Control Bureau (NCB) re-sampling of seized heroin, which was seized during tenure of Saji Mohan, in another chemical examination. The agency has again taken 13 samples and sent these to Central Revenue Central Laboratory (CRCL), Delhi, for chemical examination. Notably, before Chandigarh, NCB officials had taken re-samples of heroin in Jammu and Ludhiana for a chemical examination. Sources said while the court has not fixed any timeframe for conducting the examination, the result would be sent by CRCL within a month. Re-sampling of heroin is part of an internal probe, which was initiated by NCB after arrest of ex-NCB zonal director Saji Mohan in Mumbai on January 27. It may be recalled that after Saji Mohan?s arrest in Mumbai, relatives of several drug-peddlers, arrested during the Saji’s tenure, started filing applications alleging they were implicated by NCB and demanded re-examination of seized contraband. Sources in NCB said a case under various sections of NDPS Act, in which superintendent Balwinder Kumar and two gunmen were arrested, was registered after an internal probe and Saji is an accused in this case.

HC dismisses doctor’s plea
http://timesofindia.indiatimes.com/Allahabad/HC_dismisses_doctors_plea/articleshow/4426823.cms
20 Apr 2009, 2209 hrs IST, TNN
ALLAHABAD: A division bench of the Allahabad High Court, on Monday, dismissed a writ petition of a doctor with costs. He had failed to join at the transferred place despite court order . The order was passed by the bench comprising Justice Amitava Lala and Justice DK Arora, on a writ petition filed by Dr Ram Singhasan Singh Yadav, who had been posted as surgeon at upgraded primary health Centre, Bilariyaganj, Azamgarh. The petitioner had challenged an order passed by the state government on February 2, 2009, whereby it had directed the petitioner to join at district hospital, Bhadohi as senior consultant with immediate effect. The petitioner had stated in the petition that since he was not relieved by the officer concerned of Azamgarh, therefore, he failed to join the transferred place. The court dismissed the petition of the doctor with cost, as he failed to obey the command of the court. It might be recalled that the high court, on the earlier writ petition filed by the petitioner against the transfer order, had passed an order on September 8, 2008 that subject to joining of the petitioner at the transferred place, the authorities concerned shall consider the representation of the petitioner sympathetically and take a decision within two months by passing a reasoned order. The court dismissed the petition and imposed a cost of Rs 1,020 on the doctor as he did not join at the transferred place and again had filed a writ petition for the same cause.

7/11 case: ATS wants Indian Mujahideen man released
http://timesofindia.indiatimes.com/India/711_case_ATS_wants_Indian_Mujahideen_man_released/articleshow/4421451.cms
20 Apr 2009, 0000 hrs IST, Mateen Hafeez, TNN
MUMBAI: This may come as a jolt for the Mumbai crime branch. The anti-terrorism squad (ATS) will be filing an application next week in the court, seeking the release of Indian Mujahideen (IM) operative Sadiq Shaikh from the 7/11 Mumbai train bombing case. The ATS has arrested Sadiq (32), in the blast case on February 28. ATS officials said that they questioned Sadiq thoroughly and even subjected him to brain mapping and polygraph tests but did not find his involvement in the train blast case. “We will be filing the application in the Maharashtra Control of Organised Crime Act court to discharge Sadiq from the train blast case. This application will be filed before April 28,” said ATS additional commissioner of police, Param Bir Singh. The ATS statement comes a week after Sadiq’s confessional statement (given in a crime branch case) was opened in the court in an another case. Sadiq, a Trombay resident, along with 20 others was caught by the city crime branch last year for sending email threats to news channels and claiming responsibility for a series of blasts across the country. The crime branch had said that IM had engineered the 7/11 train blasts and Sadiq had helped in assembling and planting the bombs in the trains. However, Sadiq told the ATS that he was in Azamgarh at the time of 7/11 train blast case which his family members had also confirmed earlier. The crime branch probe indicating IM’s hand in the train blasts had come as a shock to the ATS since it had already arrested 13 suspected SIMI members in the case and filed a 11,000-page chargesheet against them. “We had interrogated Sadiq from all angles and found that he was not involved in the 7/11. Even the forensic test reports including brain mapping test, which is an admissible evidence in the court, did not suggest Sadiq’s involvement in the train blast case,” said an ATS officer. The crime branch had claimed that the bombs for the blasts were manufactured in a Sewree flat and the RDX was procured by a wanted accused, Riyaz Bhatkal. On the other hand, the ATS is sticking to its old theory that the bombs were assembled at Govandi and not at Sewree. Moreover, the ATS said that the RDX was procured by a Pakistani, Ehsanullah, who had illegally entered India along with 10 other Pakistani accomplices.

12 cops quizzed for 26/11 info leak
http://timesofindia.indiatimes.com/India/12_cops_quizzed_for_2611_info_leak/articleshow/4421391.cms
20 Apr 2009, 0103 hrs IST, Mateen Hafeez , TNN
MUMBAI: Twelve cops, including two IPS officers, were questioned for the leakage of details of police control room conversation and a log book on the night of 26/11. The questioning is being done by the crime branch under the Official Secrets Act (OSA). Three private news channels had aired the conversation between the police officers on the field and those monitoring the main control room activities in the midnight of November 26, 2008. A group of 10 Pakistani terrorists killed over 170 people, including anti-terrorism squad chief Hemant Karkare, in the attack. Inspector Dattatrey Bhargude of the city crime branch on March 2 lodged an FIR with the Azad Maidan police station against unidentified persons for stealing the details of the conversation and the log book. The case was registered under sections 3 (penalties for spying), 5 (wrongful communication, etc., of information) and 7 (interfering with officers of the police or members of the Armed Forces of Union) of the Official Secrets Act, 1923. The Official Secrets Act is India’s anti-espionage act held over from British colonisation. “The process of questioning is still on. So far we have questioned 12 police personnel, including two IPS officers, and trying to establish the source of leaked information. We are nearing the person who could be responsible for leakage of such a sensitive information,” said ATS chief Rakesh Maria who is supervising the investigation. It is learnt that one more IPS officer is likely to be questioned in the case. Some of the statements were recorded by additional commissioner of police (detection), Deven Bharti. Besides, 15 correspondents and four heads of the departments in different news channels were also called in for questioning. “We have recorded their statement and the matter is subject to verification and corroboration. Once the motive is ascertained, the reason for leaking this information will also come to light. We are sure to reach to the source which has leaked these details,” said Maria. The log book contained details of senior policemen’s movements on 26/11. When asked if there was any chance of some cops themselves being responsible for leaking the information, Maria said, “We will arrest the culprit irrespective of who they are. You will see the result soon.”

26/11, Naxal attack: Is there a difference?
http://timesofindia.indiatimes.com/India/2611_Naxal_attack_Is_there_a_difference/articleshow/4421516.cms
20 Apr 2009, 0000 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: On 26/11 evening, fidayeen fired their way into Mumbai before entrenching themselves in some of Mumbai’s landmark buildings. Black Cat commandos, despite outnumbering the ultras and trained to neutralise such elements, found the going tough against a band of 10 terrorists. After the last ultra was flushed out and the tired Black Cats trooped out after a three-day-long operation, people stood up to salute them. They had saved Mumbai of major casualties and the country of blushes. Every Indian had caught a choking patriotic feeling. Just a week back, on 9/4 evening, 200 armed naxalites stormed Asia’s biggest bauxite mine in Damanjodi, Orissa. They wanted to plunder explosives stacked at the mining centre. They had taken 150 hostages. A posse of Central Industrial Security Force (CISF) jawans, who neither had the weaponry nor the training of the Black Cats, stood between the naxals and the explosive depot. A gun battle ensued in the dark night, which was illuminated by the never say die attitude of the small band of CISF jawans. They lost 10 of their men but ensured the safety of hostages. They grieved over their felled colleagues but did not let the naxals run away with the explosives, which, they knew, would have been used to bleed the country. There was no 24×7 coverage of this brave saga. No cheers and no salutes for the bravehearts, who like their colleagues wage a daily battle to keep the marauding naxals at bay. Not a word from politicians, who are too busy in the electoral battlefield worrying for their seats, returning fire at opponents, making opportunistic alliances and dishing out promises to poor voters. But have the establishment, opposition and human rights activists ever bothered about the lives of men in uniform and their rights? Police reforms ordered by the Supreme Court three years ago (September 22, 2006, Prakash Singh vs Union of India) have stayed on paper in many states. The police continue to remain ill-trained, ill-equipped, ill-paid and ill-treated, yet we expect them to risk their lives every time in the line of duty. Human rights activists cry foul when a ‘Salwa Judum’ or a village defence force is set up to aid the beleaguered and outnumbered police force against naxals, who showed their prowess on April 16 through strikes orchestrated over a vast stretch of land. There is no condoning the excesses committed by Salwa Judum activists, errant among whom have to be dealt with. But at the same time, would there ever be a word of praise, or much less comfort, for the families of policemen killed in cold blood by naxals? The Supreme Court, in D K Basu vs State of West Bengal [1997 (1) SCC 416], had said, “We are conscious of the fact that police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities and among other things the increasing number of underworld and armed gangs and criminals.” Referring to a section of society approving third-degree methods against hardened criminals, the apex court had said, “It is felt in those quarters that if we lay too much emphasis on protection of their fundamental rights and human rights, such criminals may go scot free without exposing any element or iota of criminality, with the result, the crime would go unpunished and in the ultimate analysis, society would suffer. The concern is genuine and the problem is real.” The SC could not have been swayed by a fundamentalist approach towards criminals, howsoever hardened they might be. It had said, “To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worse than the disease itself.” But, the moot question is — does it mean the disease should continue to get the better of the cure? dhananjay.mahapatra@timesgroup.com

Out of jail, BJP candidate Sahu says Chawla biased
http://timesofindia.indiatimes.com/India/Out_of_jail_BJP_candidate_Sahu_says_Chawla_biased/articleshow/4422541.cms
20 Apr 2009, 0316 hrs IST, Sandeep Mishra, TNN
BHUBANESWAR: After his release from jail, Kandhmal BJP candidate Ashok Sahu on Sunday spewed venom on Naveen Chawla, who takes over as the Chief Election Commissioner on Monday, saying that he would move Supreme Court against Chawla for behaving in a “partisan manner”. “Chawla behaved as a party to the partisan manner in which the EC acted against me,” Sahu alleged. Sahu alleged that the EC’s instructions to state election officials to book him under two additional sections — 295 and 505 of IPC, which are cognizable and non-bailable — were in contravention of law. “It is the job of the officer in-charge of the concerned police station to decide under what section a case is to be registered. The EC has no business to decide the sections,” Sahu, a retired additional DGP, said. “I’m an educated person and have an understanding of law. I was an IPS officer. I know the consequences of making such charges against the EC. But I won’t budge from speaking the truth,” he said, adding, “The EC is not above the law. He derives his powers from the law and should function within its ambit.” Sahu, who was jailed on charges of delivering a speech inciting communal hatred in riot-hit Kandhmal, said the EC show-cause notice was served on him only after he was arrested and jailed. “I should have been served a showcause before the case was registered and not after being incarcerated,” he said.

TOP ARTICLE It’s Short On Quality
http://timesofindia.indiatimes.com/Editorial/TOP_ARTICLE__Its_Short_On_Quality/articleshow/4420713.cms
20 Apr 2009, 0000 hrs IST, Ronojoy Sen
Indian elections are rightly seen as a one-of-a-kind carnival of democracy. With 4,617 candidates competing for the attention of 714 million voters casting their votes in over eight lakh polling stations, this is the world’s largest democratic exercise. Few countries in the developing world can match India’s record of holding regular and largely fair elections over a sustained period of nearly six decades. But this must not blind us to the many imperfections of our electoral system. Over the years, the reputation of India’s political parties and MPs has taken a battering. Politicians and political parties generally rank low in terms of trust in most countries. But it seems that this distrust has hit a worrying low in India. In a survey conducted by the Centre for the Study of Developing Societies in 2004, of the 10 institutions polled, political parties scored the lowest with only 45.8 per cent of the respondents saying they trusted them. This was even lower than the police. A more recent survey on the state of democracy in South Asia puts the citizen’s faith in political parties at 48 per cent compared to 78 for the Election Commission (EC), 72 for the courts and 56 for the bureaucracy. Lack of trust is reflected in India’s ratings in democracy surveys. In the Democracy Index 2008, compiled by The Economist, India was ranked at a fairly respectable 35th position, but was categorised as a “flawed democracy”. This was primarily because it scored poorly on “political participation”, which must not be confused with merely showing up to vote, and “political culture”. MPs’ profile gives a clue to the reasons behind popular disenchantment with political culture. Until recently, the personal wealth of elected representatives could only be guessed at. Following a Supreme Court judgment in 2002, it is mandatory for candidates contesting elections in both Lok Sabha and state legislatures to declare information about themselves, including their financial assets. While there are no institutional mechanisms to cross-check the declarations, the information available is revealing. A study of the affidavits filed by MPs elected to the last Lok Sabha revealed that on an average an MP had assets worth Rs 1.6 crore. Over 50 per cent of the MPs had assets of Rs 50 lakh or more and 27 per cent were worth Rs 1 crore or more. While wealthy MPs are by themselves not a problem, it reflects the barriers to running for elections and getting elected. Another startling feature of the last Lok Sabha was the number of MPs with criminal charges against them. Nearly a quarter had criminal cases registered against them or pending in court. Over half the MPs charged with criminal cases were accused of crimes that could attract imprisonment of five years or more. This has led to cynicism about politicians. The high cost of campaigning and the opaque system of election finance in India have meant that only the very rich or the corrupt can win elections. Though the EC caps expenditure on each Lok Sabha seat at Rs 25 lakh, candidates spend way more than the mandated limit. Election candidates dole out cash and other sops to woo voters. A 2008 study says that over the last decade at least one-fifth of India’s electorate was paid cash for votes. One reason why this is possible is a section in the Representation of the People Act, which states that expenditure by a candidate’s political party, friends or relatives will not be considered a part of a candidate’s election spending. Then there is the way candidates are selected by parties. It is a paradox that while Indian democracy has deepened and the electoral process has become more free and fair, there has been a decline in inner-party democracy. No party none more so than the Congress has a transparent system of choosing candidates. While for the Congress it’s still a coterie around the Gandhi family that has the final say, for other parties it’s a small group of central leaders who wield power. Most of the regional parties revolve around one personality. The quality of India’s elected representatives has deeply undermined democratic norms. This is visible in the functioning of Parliament, no longer a forum for debating legislation and public policy. The number of Lok Sabha sittings has come down from an annual average of 124.2 in 1952-61 to 81 in 1992-2001. The annual average number of Bills passed by Parliament has come down in the same period from 68 to 49.9. In the last Lok Sabha, 21 per cent of the time was lost due to disruptions. And last year, we had the unseemly spectacle of MPs waving wads of cash inside the House. It’s not all doom and gloom however. There have been some encouraging trends in the current elections. One, the emergence of new outfits and a handful of successful professionals and entrepreneurs running for elections. Two, interest among the youth and first-time voters to make their vote count. It is unlikely that any of the new organisations like Loksatta or Jago are going to win seats. It is also likely that political mobilisation among urban youth, using platforms like Facebook and YouTube, might peter out. But even if these nascent movements lead to some introspection and a debate over political culture and democratic norms in India, it would have served some purpose. The writer is currently a visiting fellow at the National Endowment for Democracy, Washington, DC

EDITORIAL COMMENT Watch The Watchmen
http://timesofindia.indiatimes.com/Editorial/EDITORIAL_COMMENT__Watch_The_Watchmen/articleshow/4426115.cms
21 Apr 2009, 0000 hrs IST
The Satyam saga continues with the Pricewaterhouse (PW) auditors’ claim of being taken in by the false records shown to them coming under attack in the Central Bureau of Investigation’s (CBI) chargesheet. The auditors’ defence, always on shaky ground, has become even more so with the CBI’s list of charges. It is, if not entirely unexpected, an unwelcome reminder of just how far the ripple effect of the Satyam fraud has spread. But it is also an opportunity for us to examine the system’s shortcomings. Increasingly these days, the leaders of India Inc are lionised and called the architects of India’s rising global profile. But the Satyam debacle has revealed how shaky the foundation of the corporate governance structure is. The problems of transparency, accountability and governing culture that allowed the Satyam fraud to happen are endemic to large sections of India’s private sector. This has been mostly overlooked so far with the corporate governance model being held up as an example to be emulated in even public administration. But as N R Narayana Murthy of Infosys puts it in an interview with our sister daily, The Economic Times, the current corporate management paradigm is a form of feudalism, with opacity and centralised authority creating an environment where best practices are subordinated to quick profits and dissent becomes an impossibility. At a time when the Indian economy is hard-pressed to attract investment, this model is unsustainable. For Brand India to retain value, there must be seen to be checks and balances. This is where auditing firms form an integral part of the system. When a corporate entity falls foul of these, there must be a transparent process of accountability. No system is without flaws witness Enron but it is only when transgressors are seen to be the exception and punitive action meticulously taken against them that credibility can be retained. Resolving this issue must go beyond subjecting those directors suspected to be involved in the Satyam fraud to the due process of law. Auditing firms are the watchmen of the entire system, and must in turn be watched. The Institute of Chartered Accountants of India’s move to have all companies audited only by peer review certified firms is a good step in this regard. Further, an auditor’s association with a particular company must be for a limited period of time, reducing opportunities for long-term mutually beneficial relationships. Uncomfortable questions should also be asked of PW regarding the lack of follow-up when their auditors ignored recommendations regarding Satyam made by other PW teams. The current situation has handed the Indian corporate structure a reason to clean up its act. The opportunity must be seized.

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One Response

  1. Great, wrong wrong, specially from the major news corperations with the big slants to the left or right. Did you see last nights O’Rielly factor? haha, that was rediculous! Sorry, I am rambling on once more. Have a Great day!

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