LEGAL NEWS 13.07.2009

All-India permit


Posted: Friday , Jul 10, 2009 at 0015 hrs

In the Naz Foundation case, the Delhi High Court partially struck down as being unconstitutional, Section 377 of the Indian Penal Code. Does this judgment have force in the whole of India? In practical terms, the question translates to whether the Delhi High Court’s judgment prevents police officials in the rest of India, from acting on Section 377.

The extent of a High Court’s powers is to be found in Article 226 of the Constitution. Article 226(1) provides that the writ of a High Court ordinarily runs only within the territory of the state. Article 226(2) provides that the High Court has extra-territorial reach over persons and authorities outside the state territory where the cause of action upon which the writ issues, arises within its state territory.

One line of thinking about the issue has it that when a High Court strikes down a Central statute, it is unconstitutional for the whole of India. One inclined to think in this fashion would turn to Article 226(2) for support — as did the Supreme Court in a 2004 judgment Kusum Ingots — arguing that any High Court is competent to declare the statute unconstitutional and that would be binding on all legal officials, throughout India. The other line of thinking about the issue has it that the High Court can exercise jurisdiction only over authorities within its territories. This seems to be the view of the Supreme Court in two subsequent judgments: Ambika Industries (2007) and Durgesh Sharma (2008).





SC: PIL filed on EVM controversy


With the leader of the Opposition in the Lok Sabha L K Advani recently questioning the accuracy of the Electronic Voting Machines (EVMs), a PIL has been filed in the Supreme Court seeking directions to the government to appoint a committee of technical experts to ascertain whether EVMs can be tempered with or not to rig an election.

The petition, filed yesterday by a Hyderabad-based election watch group activist V V Rao and two engineers A Kalkipati and Y Vasya, has contended that the EVMs were not fully tamper-proof and could be easily manipulated.

According to the petitioner, several expert organisations had expressed similar apprehensions that the EVMs used in the elections were not immune from being interfered with.

Senior BJP leader Mr Advani, who was a Prime Ministerial candidate during the recent Lok Sabha polls, had demanded that the election should be held through a manual process as the EVMs were not tamper-proof and the possibility of the election being rigged through the misuse of EVMs could not be ruled out.

The petition is likely to be taken up for hearing before the court next week.





Bombay HC asks state Govt on action against striking doctors


The Nagpur bench of the Bombay High Court directed the state government to furnish details by Monday on the action it has proposed to initiate against striking doctors of Maharashtra Association of Resident Doctors (MARD) in accordance with government’s undertaking before the same court, a few years ago.

Responding to a Public Interest Litigation (PIL) filed by Jan Manch, a non-government organisation (NGO), a division bench consisting of Justices Dilip Sinha and A P Bhangale asked the additional government pleader to make a statement on the resident doctors’ strike by July 13.

In the PIL, Jan Manch has pointed out that the strike by resident doctors badly affected patients all over the state. “Most patients who come from far-flung areas and hail from economically poor sections are now made to run from pillar to post to get affordable treatment”, the petitioner stated.

It said the government had given an undertaking before the High Court a few years ago that if the doctors again went oN a strike in this fashion, it would take stern action against them. The doctors could have adopted other means to press their demands, it contended, adding “While taking membership of the Medical Council of India (MCI), doctors give an undertaking that patient’s care and treatment would be their top priority”.

The petitioner said the state had given an undertaking before the High Court bench in 2006 during the MARD strike that if resident doctors again resorted to a strike without permission, it would take stern action, when a petition on the same lines was filed by the Jan Manch.

“The resident doctors are misusing strike as a weapon and because of such move thousands of innocent patients have suffered and many died as they could not get the necessary medical help in time”, it said.

The petitioner insisted that striking doctors should be expelled as the agitation was against the interest of patients as most of them coming to government medical college and hospitals were from the lower strata and they could not afford the expenses of private hospitals. It urged the court to direct the state for declaring the strike as illegal and take stern action against the striking doctors.

Over 4,5000 resident doctors across the government run medical colleges and hospitals in the state went on an indefinite strike from Tuesday evening, demanding an increase in their stipend, better working conditions and security.





PIL to include neo-Buddhists in SC/ST category filed in HC

Mayura Janwalkar / DNA

Monday, July 13, 2009 2:31 IST

Mumbai: A Public Interest Litigation (PIL) filed before the Bombay High Court has sought the inclusion of neo-Buddhists among Scheduled Castes (SC) and Scheduled Tribes (ST) and accordingly increase the number of Lok Sabha and Legislative Assembly seats reserved for backward classes.

Pointing out that by counting out 6.03% Buddhists in the state, the registrar general and census commissioner of India (RGCC) and the director of census operation (DCO), Maharashtra, have acted in a “blind-folded” manner and have erroneously counted the SC and ST population of the state to be 10.20%.

The PIL has been filed by Swwapnil Bhingardevay, 39, an industrialist who belongs to the SC community. Bhingardevay has stated that by leaving out the 6.03% of the neo-Buddhists, the Centre, state, the Delimitation Commission, GRCC and the DCO have all denied three Member of Parliament (MP) seats and 18 Member of Legislative Assembly (MLA) seats to the SC and ST community.

Bhingardevay’s advocate Pradeep Havnur said that the petition is likely to be heard by a division bench in the coming week. Bhingardevay has contended that the current number of reserved MP seats should be raised from 5 to 8 and MLA seats should be raised from 29 to 47. Calling it a “systematic denial of rights”, he has urged the court to restrain the government from announcing the date of the forthcoming assembly elections until neo-Buddhists are also given recognition as SCs and STs.

He added that if the government continues to hold that the population of SCs and STs in the state is 10.20% against the actual 16.23%, it would mean that the government and its agencies “deliberately” do not want to adhere to the rights provided to SCs and STs in Article 330 of the Constitution.

The PIL also states that if the neo-Buddhists would have been counted among the SC, ST population in 2001 census, it would add to 58,38,710 to the existing 98,81,656 population of SCs and STs.

The PIL has also urged the court to direct the concerned authorities of reserve a seat for backward classes in the Karad constituency which has SC and ST population of 43,224 instead of Phaltan which has a greater population of 53,071.





PIL for rights of kids battling HIV

Shimona Kanwar, TNN 13 July 2009, 02:47am IST

CHANDIGARH: Crippled by disease and penury, 171 children who are either infected by HIV or have lost a parent to the deadly disease have nobody who could look after their day-to-day survival. Residing in this prosperous city, these kids don’t know where the next meal would come from or who would pay their medical bills.

Coming to their aid, an NGO, Human Rights Law Network (Chandigarh chapter) is on the verge of filing a public interest litigation in the court. Strongly advocating the rights for these children, students of law at Panjab University and Amritsar-based Guru Nanak Dev University have volunteered to be a part of the campaign and work with the NGO in this direction.

Veena Sharma, under whose supervision students would outline the PIL, said, “These children need special care as their nutritional and medical needs are different. However, they are met with hurdles everywhere, be it at hospitals or schools.”

The NGO is working along with Chandigarh network of People Living With HIV and AIDS. “According to data provided by the network, of the total 171 kids, 113 have been infected with the deadly virus,” added Sharma.

According to UNAIDS 2006 report, approximately 7,00,000 children contracted HIV, with 95% of them getting the infection from their mothers.

Presently, neither National AIDS Control Society nor UT administration provide any special monetary help to these youngsters. “We had sent an estimate to the administration for providing pension to widows and children who have lost husband/family members to HIV. However, we are yet to receive complete information about these people. Hence, the process is stuck,” said Kavita Chavan, the officiating director of UT State Aids Control Society.

“Taking a cue from HP government, we suggested UT officials to start special monthly scheme entailing a grant of Rs 700 to children and Rs 1,000 to widows. But it has been hanging fire for past two years,” said Pooja Thakur, president of People Living with HIV and AIDS, Chandigarh network.

Stressing that these kids need help, Sharma said, “There is a nine-year-old HIV positive patient who has no means to getting admitted to PGI as his teenaged elder brother – a rickshaw puller is his only family.”




Sabharwal’s son to approach SC against Nagpur court’s order

PTI 13 July 2009, 07:15pm IST

BHOPAL: After a Nagpur court acquitted all six ABVP activists, accused of beating to death Prof H S Sabharwal in Ujjain, the slain teacher’s son on

Monday said he will file an appeal against the judgement in Supreme Court.

“I will appeal against the Nagpur court judgement within four days in the Supreme Court,” Himanshu said over phone.

Professor Sabharwal, head of Political Science Department at Madhav College, died, three years ago, after he was allegedly beaten up by Akhil Bhartiya Vidhyarthi Parishad activists amidst a fracas over student union elections in the college. He had later succumbed to his injuries in a hospital.

The Supreme Court had transferred the case to Nagpur following an appeal by Himanshu to transfer the case to a non-BJP-ruled state as all the accused belong to student wing of the ruling BJP in Madhya Pradesh.

“It was Supreme Court’s decision that police cannot go back on its statement during the trial but in this case, they have retracted from their earlier statements,” he said.

“Secondly, if the ABVP members were not guilty then why they were kept in the prison for so long in a BJP-ruled state,” he asked?




All accused Professor Sabharwal murder case acquitted

PTI 13 July 2009, 04:51pm IST

NAGPUR: Nearly three years after he was allegedly beaten to death, six ABVP activists accused in the case of murder of Prof H S Sabharwal in Ujjain in Madhya Pradesh, were on Monday acquitted by a court here for lack of evidence.

The accused were Vimal Tomar, Pankaj Mishra, Vimal Rajoria, Shashi Ranjan Akela, Hemant Dubey and Sudhir Yadav, all activists of the sangh parivar affliated-Akhil Bhartiya Vidhyarthi Parishad (ABVP), who were charged with murder and rioting by an unlawful assembly.

Additional District and Sessions Judge Nitin Dalvi, who tried the case after the Supreme Court ordered transfer of trial from the BJP-ruled Madhya Pradesh, observed that the prosecution has “miserably failed” to prove the case against the accused.

The professor’s son, Himanshu, who successfully petitioned the Supreme Court for transfer of the case, claimed that the Sessions judge has noted in his judgement that the accused might be guilty he could not convict them because of lack of evidence. His family would challenge today’s judgement in a higher court, he said.

Prof. Sabharwal, Head of the Political Science Department of Madhav College, Ujjain, died in August, 2009, after a fracas in the college over student union elections when he was allegedly beaten up by the ABVP activists. Later, he succumbed in a hospital.





NTPC threatening to escalate & move SC over RIL’s latest petition

13 Jul 2009, 1200 hrs IST, Soma Banerjee , ET Bureau

The ongoing legal battle between NTPC, the country’s largest power generating company, and Reliance Industries Ltd (RIL), is now likely to shift to the Supreme court with NTPC challenging RIL’s decision to amend the written submission in light of the EGOM decision.

NTPC has petitioned against RIL’s latest stand in the division bench at the Bombay High Court alleging that RIL’s change in stance at this juncture is a “delaying tactic” to avoid an early solution. This comes even as a similar battle over gas supplies between RIL and RNRL enters the final phase in the Supreme Court and is due for a hearing on July 20.

The NTPC vs RIL case has serious implications for the RIL vs RNRL case as gas supplies to RNRL were to be based on the same terms as NTPC’s gas contract with RIL. RIL had bid a price of $2.34 per mmbtu (million British Thermal unit) for supplying 12 million metric standard cubic metre of gas to NTPC’s Gandhar and Kawas plants (2600 mw). The Bombay High Court order directing RIL to sell 28 mmscmd of gas to RNRL at $2.34 per mmbtu was seen to come as a boost to the NTPC case as the ruling had upheld the price of $2.34 even though the government had approved a price $4.2 for other fertilizer and power consumers in 2008.

The petition by NTPC that has been accepted by the division bench and a decision is expected shortly. Senior NTPC officials, ET spoke to, confirmed that the company is now looking for an early solution and will escalate the matter to the apex court if the division bench rules against their petition.

RIL on its part has held that the company needs to take into account the government’s petition based on the EGOM decision. “We think it is important to take into account the government position on price and allocation as it has implications on this case as well,” a RIL official said.

“RIL’s decision to amend its petition just before the cross examination were to begin raises questions about the intent behind the move,” a senior NTPC official said. The case has been going on almost three years, almost in parallel along with the RIL vs RNRL case and any decision on either of the case is expected to have an implication for the other.

NTPC had gone to court against RIL once talks failed in converting their MOU on gas supplies to a final supply contract. NTPC had included a clause in the agreement by which the fuel supplier would have to pay the price difference (delta) between the gas price and any other fuel price which NTPC would have to buy if gas was not supplied. This could mean anywhere between $12 to $14 per mmbtu if NTPC had to buy or LNG.
RIL claimed that this could mean unlimited liability for RIL as the difference in price could be huge and was therefore unacceptable. NTPC, on the other hand argued that this clause was a part of the bidding document and it should have been factored into the bid price at the time of quoting a price.

Senior RIL officials who were working on the bid said that they had raised their reservations about this clause at the time of the bidding but the then management had said that it would be addressed during the signing of the contract. However, the matter was left unresolved and it reached the courts.






Honest tax payers must not suffer: SC judge

Express News Service Posted: Monday , Jul 13, 2009 at 0335 hrs Chandigarh:

Advising tax administrators to adopt a liberal attitude towards honest tax payers and penalise tax evaders, Supreme Court Judge, Justice D K Jain, on Sunday asked administrators to ensure that tax evasion is under complete check.

Justice Jain was the chief guest for the National Tax Conference conducted by the All-India Federation of Tax Practitioners in association with Chandigarh Judicial Academy. The conference, attended by High Court judges of Punjab & Haryana, Kerala and Gujarat, apart from a large number of advocates and judicial officers from various part of India was presided over by Supreme Court judge, Justice PSathasivam. Chief Justice of the Punjab & Haryana High Court Tirath Singh Thakur was the guest of honour at the conference.

Addressing the gathering, Justice D K Jain, requesting tax collectors not to indulge in unnecessary litigation, said: “A change in mindset is needed on both sides. A majority of tax administrators feel whenever a tax payer enters their room, he is not a clean man. Health of an economy is known by its fiscal surplus or deficit. Procedures should not be made very lengthy as they harass the tax payer.”

Justice P Sathasivam, Supreme Court Judge added: “The tax administrators should ensure that the common man should not be made to pay extra on account of tax evasion by tax evaders.”

Making a significant observation, Justice Sathasivam requested lawyers to pay no matter how meager the professional tax may be.

On the other hand Chief Justice Tirath Singh Thakur said, “The fiscal laws score over other laws like civil and criminal laws as they assist in the development of the country. No country can progress unless it has a sound economy and the economy cannot progress unless it has a sound fiscal regime.”

Most speakers were of the view that high tax evasion generally results in increase in rate of taxation. Good governance requires sound economy. It is the duty of every tax administrator to ensure that tax is paid by everyone. Tax evasion by few becomes a burden on honest tax payers and also results in huge tax rates, the experts observed.





HC on temple land


Cuttack, July 12: Amrutamonohi land of Lord Jagannath cannot be resettled in favour of the Puri temple administration, Orissa High Court has ruled.

The court, however, made it clear that the Amrutamonohi land — extensive properties endowed to Lord Jagannath and in possession of matths and other religious institutions connected with the Puri temple as trustees — can only be put up for sale with the temple administration as one of the executants of the sale deed.

The verdict assumes significance as nearly 44,535 acres of land in Puri were recorded as Amrutamonohi land, but were vested in the government in 1974. In Cuttack, nearly 4,577 acres and another 3,544 acres in Balasore were recorded as Amrutamonohi land.

The land were endowed in the nature of Amrutamonohi with the avowed purpose that the usufructs (profits) from the property should be used as a food offering (bhog) to Lord Jagannath in Puri.

“In case any alienation of Amrutamonohi land is made 75 per cent of the consideration money as per the market value obtained on account of such alienation shall be deposited with the temple administration for being used as ‘food offering’ to Lord Jagannath”, Justice B.P. Das and Justice M.M. Das ruled.

“The balance 25 per cent will be taken by the marfatdar/mahanta of the matth or religious institution as one-time measure so that the purchaser will not have to render the service attached to the property any further,” the division bench said on Friday, while clarifying that the observations and directions would operative prospectively.

The court was ruling on petitions filed on behalf of Sri Sidha Matha represented by Mahanta Satyanarayan Ramanuj Das and two others challenging applications filed by the Puri Jagannath Temple Administration for re-settlement of Amrutamonohi land under their possession.





Muslim sub-sects’ row lands in HC

DNA Correspondent

Monday, July 13, 2009 9:17 IST

Ahmedabad: A dispute between two sub-sects of Sunnis in Bhuj of Kutch district over sacrifice of sheep has landed in the Gujarat High Court.

The court wa`s moved after Ahl-e-Sunnat-Val-Jamat lodged an FIR against Lajatul-u-Ulema-Ahl-e-Hadish and its religious leader.

The whole issue is centred over the interpretation of sayings of Quran and Hadish during rituals at the time of sacrifice of sheep for different religious purposes. The issue cropped up in January this year when a religious leader of Ahl-e-Hadish wrote a letter to the religious leader of Sunnat Jamat, alleging that they were following the ritual of Niyaz ki Zibh (slaughtering of sheep for some purpose) contrary to tenets of Islam.

Ahl-e-Hadish said in the letter that one can’t name anyone other than Allah, as per the sayings of Quran, while performing the ritual. It suggested that the Sunnat Jamat change its interpretation of Quran during the ritual. The letter asked if the way Sunnat Jamat was making sacrifices in the name of Pir and Wali had been mandated by Allah.

After receiving a reply from the religious leader of Sunnat Jamat, saying that they were following and performing the ritual as per their ownbeliefs, Ahl-e-Hadish wrote again another letter to them. Leaders of the Sunnat Jamat took exception to the contents of the second letter and lodged a complaint against Ahl-e-Hadis and its religious leader, Maulana Suleiman, for trying to hurt religious sentiments by asking questions that can flare up passions between different communities.

After the FIR was lodged, a leader of Ahl-e-Hadish approached the Gujarat high court to quash the police complaint. Hashim Qureshi, counsel for Hadish, made his submission during the two-day-long hearing before the high court which concluded on Wednesday.





HC upholds conviction of rapist; reduces sentence

Published: July 12,2009

New Delhi, July 12 The Delhi High Court has upheld the conviction of a man for raping a girl on the pretext of providing her a job five years ago.

However, observing that the girl had accompanied the rapist of her own choice to get some favour from him on the day of incident, the court reduced the sentence awarded to the convict from 10 to 7 year Rigorous Imprisonment (RI).

Justice Mool Chand Garg in a judgement recently said,”the conviction of the accused does not suffer any illegality or infirmity and therefore needs to be confirmed.

“The victim had accompanied the accused of her own volition for seeking some favour.,”the Judge said and reduced the sentence against Harish Chand from 10 to 7 year RI.

In the judgement, the court directed the jail authorities to release the accused after completion of seven year as the sentence was modified by this court.

According to the prosecution, in August 2004, Harish had picked up the girl in his car from her Wazirpur house on pretext of providing a job and raped her in a forest area near Surajkund.

The trial court, after examining the evidence on record, had sentenced Harish to 10 years RI on January 23, 2007.

He had filed an appeal against the conviction in the High Court.

Source: PTI






The EVM debate
More petitions in Madras HC

Azhagiri and Baalu’s entry to Lok Sabha challenged in High Court

The Election Commission has declared them winners in the recently concluded Lok Sabha elections. But the opponents are not ready to take things that easy.

Petitions challenging the election of Union Minister M K Azhagiri, former Union Minister and leader of DMK Parliamentary party T R Baalu and AIADMK MP P Kumar were filed in the Madras High Court on June 29, seeking to declare the elections as null and void.

Charging Azhagiri, son of Chief Minister M Karunanidhi, with bribing voters of Madurai Lok Sabha constituency, losing CPI(M) candidate P Mohan, in his petition, sought a direction to declare him elected instead.

Stating that police had registered a case based on complaints that Azhagiri had distributed money to bribe voters, Mohan alleged that about 70 per cent of voters in the constituency had been induced by the Minister through persons acting as his agents with his consent and knowledge.

Mohan also accused the State government PRO of abusing his official position and acting as an agent for Azhagiri. Challenging the election of Baalu from Sriperumbudur Parliamentary constituency, PMK candidate A K Moorthy claimed there was a contradiction in the total number of votes polled in EVMs and official details of Assembly segment-wise votes polled.

Claiming that votes polled in EVMs of six assembly segments comprising the constituency were 7,96,461, he said the official document of Assembly segment-wise total of EVMs showed only 7,93,597 votes had been registered, indicating a difference of 2,864 votes.

Moorthy also contended that there were numerous contradictions in details on dispatch of EVMs and their actual use. He claimed that EVMs used were found to be either doctored or defective as they never showed correct particulars. ‘This has materially affected the result of the election in so far as the returned candidates is concerned,’ he said.

Moorthy further alleged that Baalu had printed over 11.92 lakh booklets at a cost of over Rs 2.38 crore, containing glossy pictures of DMK leaders and a voters-slip with the voters name, thus violating section 77 of RPA. Moorthy had lost by a margin of 25,024 votes. An independent candidate P Nagarajan also challenged the election of Baalu.

Alleging improper inclusion of votes by wrong statements prepared from EVMs, Sarubala R Thondaiman, the losing Congress candidate from Tiruchi Parliamentary constituency, sought to declare election of AIADMK’s P Kumar as ‘illegal, null and void’.

Sarubala claimed that she had led in all segments as per official details furnished for each Assembly segment making up the Lok Sabha constituency but the final tally showed that Kumar had secured 70,949 votes in Srirangam segment as against 50,767 polled by her.

She said her election agent had drawn the attention of poll officials of the ‘discrepancies’ in votes polled in the segment and had requested the Returning Officer to recount and re-total the votes. However, the request was ignored.

So far, the election of six of the 39 victorious candidates have been challenged with the filing of as many election petitions in the Madras High Court. This includes top guns like Union Home Minister P Chidambaram and Union Minister for Chemicals and Fertilizers MK Azhagiri, the elder son of Chief Minister M Karunanidhi.

Others, who face a challenge to their election, are Union Minister of State for Information and Broadcasting Jagathrakshakan (Arakkonam), former Union Minister T R Baalu (DMK) and film actor J K Ritheesh (DMK). The election of P Kumar from Tiruchi constituency on an AIADMK ticket too has been questioned by former mayor of Tiruchi and losing candidate Sarubala R Thondaiman (Congress).

Three separate election petitions challeging the election of Azhagiri, Baalu and Kumar were filed on June 29. “More petitions are expected, as the mandatory 45-day limitation period expires,” said a court official. Section 81 of the Representation of the People Act mandates that any election could be challenged if a petition is filed within 45 days of the declaration of results. The petitions, which are yet to be admitted, are likely to be posted before separate benches.

In his election petition, P Mohan, CPM candidate from Madurai, alleged that Azhagiri and his men had bribed or sought to woo at least 70 per cent of the electorate with financial inducements. “Besides bribing voters, DMK cadres paid Rs 500 each to women who performed aarathi for Azhagiri,” he said. “Free dhotis and sarees too were distributed in many villages,” he claimed.






HC seeks DGCA opinion on six-month notice period for pilots

New Delhi (PTI) The Delhi High Court has directed the Directorate General of Civil Aviation to give its views on the requirement that pilots have to give six-month notice to an airline before leaving.

A Division Bench headed by Chief Justice A P Shah has directed India’s aviation regulatory body DGCA to clarify its stand on the circular issued by it in September 2005, directing the pilots to give the mandatory six-month notice.

“What is your stand (on) this … There is (an) assumption that a large number of pilots are going to be affected,” the Bench said.

The court’s direction came in response to a petition filed by Jet Airways, which challenged the order of a single-member bench, which had in May 2009 allowed pilot Captain Randeep Pratap Singh Panag to leave the company.

During the proceedings, senior counsel Harish Salve, appearing for Jet Airways, opposed and submitted that according to the civil aviation requirement, pilots cannot leave their company without serving for six months unless the airline issues a no-objection certificate.





SC notice to Amar Singh in LDA plot allotment irregularities

New Delhi (PTI) The Supreme Court on Monday sought a reply from Samajwadi Party General Secretary Amar Singh on a plea by Uttar Pradesh government seeking to take necessary action against him for alleged irregularities in allotment of plots at Lucknow by previous Mulayam Singh Yadav government.

The Mayawati government had in November last moved an application in the apex court contending that an inquiry report has held Singh guilty of misusing his power during the previous rule for allotment of plots kept for economically weaker sections.

A Bench headed by Chief Justice K.G. Balakrishnan issued a notice to the Samajawadi leader for a reply in four weeks.

The court also took on record the fresh affidavit filed by Lucknow Development Authority (LDA) alleging gross irregularities in allotment of 28 plots at Vipul Khand in Gomti Nagar which caused a loss of over Rs 2.88 crores to the state exchequer and sought cancellation of the allotment.

Mr. Singh’s counsel Mukul Rohatgi alleged a political battle was being played out in courts and it has been happening ever since the Mayawati government came to power.

“When there is a change in government, there is a change in the affidavit,” he said.





‘Article 370 should be scrapped’

Washington (PTI): Kashmiri Pundits living in the United States have demanded that the Article 370, that provides special status to the state of Jammu and Kashmir, be scrapped as it is no longer relevant.

The demand was made at a recently held second annual National Camp of Kashmiri Pundits at South Lake Tahoe in California. Some 85 families from various parts of the US participated in the meet.

In his key note address, the former Union Minister, Subramanian Swamy, said Article 370 could be repealed by a simple cabinet decision and a recommendation to the President of India.

Participants of the camp felt that Article 370 has been continuously relegated to the background and has been used against Kashmiri Hindus. They felt it is no longer relevant and be scrapped as soon as possible.

The two day event – with the theme of “Connect Kashmir” — held on the weekend of July 4 was marked with a series of cultural events including music.

The highlights included a very enjoyable and entertaining musical performance from the most celebrated artist from Kashmir also known as Nightingale of Kashmir, Kailash Mehra Sadhu. She regaled the audience with some well known folk songs and ghazals.

It was a trip down the memory lane for everyone who has lived in Kashmir. Another highlight of the event was a book release of one of the much awaited and highly acclaimed book on Traditional Kashmiri Pundit Cuisine written by Chandramukhi Ganju titled ‘Koshur Saal’.

This book has been long awaited as there has been a real dearth of a cookery book that would accurately describe authentic Kashmiri Pundit cuisine.





HC adjourns plea against Madhani’s acquittal

Chennai (PTI): The Madras High Court on Monday adjourned to August 3 the hearing of a criminal revision petition seeking capital punishment for Kerala-based People’s Democratic Party leader Abdul Nazar Madhani and six others acquitted in the Coimbatore serial blast cases.

The petitioner, K Vellingiri, father of one of the blast victims, had also sought enhancement of the life sentence of 43 accused, including S.A. Basha of banned Al-Umma, in the cases relating to the blasts that rocked Coimbatore in February 1998 killing over 50 people and injuring around 200.

When the petition, filed in April last, came up for hearing today, a Division Bench comprising Justice S Prabhasridevan and Justice M Satyanarayana adjourned it to August 3.

The petitioner had submitted that the special blast cases Judge, Coimbatore, had erred in acquitting the accused by magnifying minor infirmities, resulting in grave injustice.

The trial court had failed to take note of the entire circumstances of the case to fix the culpability of each accused since the case was one concerning conspiracy hatched among the accused.

On the 43 accused, the petitioner said the trial court, without any basis and without considering the circumstances of the case, awarded the sentence though they were found guilty of major charges of conspiracy and murder exclusive of other offences.






Orissa HC expresses concern over waste disposal

Published: July 12,2009

Cuttack , July 12 The Orissa High Court has expressed concern over the”unscientific”manner in which the bio-medical wastes generated from the hospitals are disposed.

Hearing a PIL filed by a Cuttack -based voluntary organisation,&apos Maitree Sansad&aposand after going through the report of the State Pollution Control Board (SPCB), Justice Laxmikanta Mohapatra and Justice Indrajit Mohanty yesterday issued show-cause notices to the government and private teaching hospitals in the state.

The SPCB in its recent report mentioned that the provisions of the statutory rules are”violated by the teaching hospitals as well as private hospitals of the twin city.”

“No effective measure had been taken by the hospitals to prevent pollution and infectious diseases from spreading due to poor disposal of biomedical wastes,”the report said.

Shocked over such a report, the bench issued show-cause notices to all the hospitals and fixed August 21 the date for next hearing.

The petitioner had alleged that”the government is not adhering to the norms and methods of disposal of these wastes as enshrined in the provisions of the biomedical waste (management and handling) rules, 1998, thereby posing a threat not only to the patients of the hospitals but to all others too.

Source: PTI






No HC relief for youth who stabbed 15-yr-old schoolgirl

Shibu Thomas, TNN 12 July 2009, 12:22am IST

MUMBAI: A Bhandup youth will have to pay dearly for his brazen act of stabbing a 15-year-old schoolgirl on the Bhandup railway FOB in broad daylight in 2001. The Bombay high court recently ruled there was no question of showing leniency to Nitin Taloskar (28) and refused to reduce the 10-year prison term awarded by a trial court for his crime.

The act he committed in broad daylight in the presence of so many people showed he had absolutely no fear of the law, Justice A R Joshi said, adding that the court would not reduce his term.

The assault took place around 1:30 pm in front of passers-by on a crowded FOB. “Such an act should definitely be condemned,” the court said.

The incident dates back to November 29, 2001. Taloskar was infuriated as the girl__a student of Std X__had complained to her mother about being teased by him. So he confronted her when she was returning home from school. Taloskar whipped out a knife and stabbed her on the neck, head, elbow and left forearm.

Eleven witnesses, including the victim’s classmate who was accompanying her and was the prime witness, gave testimony in court. The sessions court held him guilty of attempted murder and sentenced Taloskar to 10 years’ rigorous imprisonment.

Taloskar, in his appeal in the high court, said someone else had assaulted the victim and also contended that the victim’s injuries were not serious enough to attract the serious attempt-to-murder charge.

The court did not accept this and pointed to the girl’s medical record. She had to be transfused with six bottles of blood and was in hospital for over a month. “She was operated upon to bring back mobility to her fingers on the left hand. The injury on her neck exposed the carotid artery. The victim would have died if the artery was damaged,” the court said.

Taloskar’s lawyers, as a last-ditch attempt to save him, contended that he was barely 23 when he committed the crime and had been in jail since 2003, when the trial court convicted him.

They also said he was the only male member of his family__his father had died a few years ago. His lawyers urged the court to consider his age and reduce the jail term to seven years, the time he had already served in prison. But considering the “deadly assault perpetrated on the victim,” the court said a firm “no.”





‘Government and judiciary are threats to RTI Act’

TNN 12 July 2009, 11:55pm IST

PUNE: Central Information Commissioner Shailesh Gandhi on Saturday said the government and the judicial system are threats to the Right to Information Act (RTI).

Gandhi urged the common people to unite and save the Act which guards their sovereignty and ensures that participatory democracy prevails. He was delivering the second Prakash Kardaley memorial lecture, 2009, on Bad governance hinders RTI’.

“The government, which can amend the law and make the RTI Act weak, is a threat to the Act, as is the judicial system where in the garb of writs, appeals are filed frequently and stays are obtained on decisions, which then get stuck in the legal web. Also, the process to appoint information commissioners should be impartial and RTI activists, as opposed to retired bureaucrats, should be appointed as commissioners”.

He said the RTI Act was a promise of participatory democracy for all citizens. It is a tool in the hands of the citizens which safeguards their interests and brings to light discrepancies. “The system of governance is not proper. We are talking of e-governance and government employees cannot even operate computers. In the name of public private partnerships, frauds are taking place. The police are virtually under orders not to register crimes, so that the total number of crimes looks less on the records.” He urged citizens to engage bureaucrats and politicians in dialogues and seek clarifications from them. “We need to protect the RTI Act as it is the only way to keep an individual’s sovereignty intact.”

Senior journalist Arun Tikekar spoke on Editor, as citizen’s journalist’ as he elaborated the role of newspapers and editors in activism. RTI activist Vivek Velankar proposed a vote of thanks





Centre seeks details of CBI probe on former CJI

Nagendar Sharma and Manish Tiwari, Hindustan Times

Email Author

New Delhi, July 12, 2009

For the first time, the government has asked the Central Bureau of Investigation (CBI) to provide details on the status of its probe into the serious allegations of corruption against former Chief Justice of India (CJI) Y.K. Sabharwal.

The government move comes ahead of its expected reply in the Rajya Sabha on Monday, where Law Minister M. Veerappa Moily is ikely inform the House on the outcome of the complaints forwarded to his ministry by the Central Vigilance Commission (CVC).

The CVC, acting on a set of complaints filed by Supreme Court lawyer Prashant Bhushan, after it found merit in his complaints supported by documentary evidence, had last year “forwarded it to the CBI and the Department of Justice for necessary action”.

Bhushan, in his complaint, had alleged that Justice Sabharwal had misused his official position to “financially benefit the business interests of his sons, while delivering judgements on sealing of commercial establishments in Delhi”.

The former CJI, who has consistently denied the allegations, and termed them “absurd,” was not available for comments on Sunday.

It is understood that the Income Tax Department is looking into the purchase of a 1,150 square metres property by the two sons of the former CJI at a cost of Rs 15.43 crore, and the CBI is probing the allotment of a plot to his daughter-in-law in Noida, adjoining Delhi on the east.

The CVC says its role is over and the ball is now in the court of the government and CBI.

Contacted for his response, Central Vigilance Commissioner, Pratyush Sinha, told Hindustan Times : “CBI told us that all allegations relate to judicial pronouncements because of his sons’ activity. Since judicial decisions are involved, they told us that they (CBI) can’t look into it.”

It remains to be seen what stand does the new law minister take on the issue. The UPA government, in its first term, had refused to initiate any probe against the former CJI, citing “legal immunity”.

In response to a Right to Information (RTI) query by a Delhi resident, Subhash Chandra Aggarwal, seeking to know what the government proposed to do on the complaint sent by the CVC,  the Department of Justice replied that judges were provided safety “under the Judges (Protection) Act, 1985”.

“No specific provisions have been made in the Constitution for dealing with allegations against retired judges of the Supreme Court and high courts. There is no designated authority which has competence to look into the charges levelled against retired judges,” the Department said.

Legal experts, however, say there was a need to set-up a procedure to initiate probe against a retired judge of the Supreme Court.

“It is time to devise a mechanism for an inquiry to be made, if a case is made out, as in the present context,”  said former Supreme Court judge Justice P.B. Sawant.





Action, my Lord!

“Legal frater-nity should get rid of its black sheep.”

Some incidents of intimidation of judges and interference in the working of the judiciary, which have recently come to light, need to be viewed seriously. It is not enough to condemn them but necessary remedial and punitive action should be taken to ensure that they do not occur again. A trial court judge in Delhi was reportedly manhandled by some lawyers, who also obstructed court proceedings and attacked the court room staff. The provocation was that the judge was making an inquiry into a fictitious petition filed in the court. It is unfortunate that lawyers, who are part of the judicial system, themselves are party to subverting it. The lawyers’ community should take action against the black sheep in their fraternity and live up to their role as professionals assisting the judges in the discharge of their duties. The errant men should also be legally proceeded against.

The second incident, which was reported last week, is more serious. A Madras high court judge, Justice R Raghupathi, disclosed in the court that a union minister tried to influence him in a case related to the granting of anticipatory bail to two persons. It is still not clear whether the minister spoke directly to the minister or through the lawyer representing the accused. Either way it is a serious offence. Chief Justice of India K G Balakrishan has taken note of the incident, describing it as an act of gross impropriety. The identity of the minister has not been revealed. There have been cases of political interference in the judiciary in the past too. Supreme court judge S N Variava had disclosed some years ago that a request was made to him to shift the judge who was hearing the fodder scam case. Such requests should not be ignored and action, including contempt of court proceedings, should be initiated against those involved.

Judicial and political action should be taken against the minister who directly or indirectly tried to influence Justice Raghupathi. The CJI and the prime minister should take the initiative. Coalition manners should not stand in the way of the prime minister taking action in the matter which involves the independence of the judiciary and the image of the government. There may also be other cases which do not come out into the open. Ignoring them will send out a wrong message and encourage politicians or others to resort to such improper actions.






CJI K.G.Balakrishan today hinted that Bihar may have 3 to 4 more CBI special courts. He was speaking on centenary celebration of Patna Law College in Patna yesterday,the 11th July. The occasion was conspicuous by presence of Governor of Bihar Devender Konawar, CM Nitish kumar and ACJ of Patna High court B.K.Singh. While laying down foundation stone of Auditorium cum seminar hall, Nitish kumar reiterated his commitment to fight corruption in Bihar. He enlisted his government’s initiatives vis-à-vis corruption. He also highlighted his government’s much talked ‘speedy trial experiment’ which has earned nation wide appreciation in legal luminaries.

Highlighting the problem of huge pendency of Cases, the CJI said that the PM has positively responded to his letter in which he has requested to set up more courts. Sharing his experience, he said in Delhi alone, about 350 murder cases are filed per annum out of which only 250 could be disposed off, leaving a pending of 100 cases, thus over a period of time this results in huge pending.

The governor said that economic disparities among poor and rich have to be abridged otherwise the violence and Naxalism would go unabated and would not be checked merely by courts and police.

Hopefully setting of new CBI courts, which is only two at present in the state, the pace of disposal of cases related to especially corruption, would increase.

Interestingly reforms in Judiciary have taken a front seat in the UPA-II and many Bills are on anvil to weed out corruption in Judiciary and overhaul this premiere institution. The Judiciary has also sensed the mood of govt and public and has responded reluctantly positively about this move. The recent cases of corruption in higher judiciary have taken a heavy toll in terms of image of judiciary. Recent judgments in Courts sound critical to judicial system itself and rebuff judges against whom serious charges of corruption have been leveled.The CJI also hinted to go tougher on cases of corruption in judiciary also.

Posted by Om Prakash Yadav at 7:18 AM





But 7 stars are spared

Mayura Janwalkar / DNA

Sunday, July 12, 2009 3:35 IST

Mumbai: A Public Interest Litigation (PIL) filed in the Bombay High Court on Friday has urged the court to disconnect the water supply to hotel Imperial Palace, an alleged illegal construction, in the Royal Palms premises in the Aarey Milk Colony.

The PIL filed by activist Rajendra Thacker has stated that he was “shocked” to read about the inauguration of seven-star hotel, Imperial Palace, by CM Ashok Chavan last month. The PIL, a copy of which is with DNA, mentions that the state government has given “undue privileges” to palatial hotels, while depriving citizens of regular water supply. “The PIL has been mentioned before the court on Friday and will be heard by a bench presided over by the Chief Justice on Monday,” said Thacker’s advocate Sumedha Rao.

“As per the BMC’s policy, no new water connections are granted from April till the end of the monsoon every year. However, the sprawling hotelhas been made an exception to this rule,” Rao said.

According to the PIL, the construction in the Royal Palms premises, although a luxury hotel, has been sanctioned by the Slum Rehabilitation Authority and is illegal. The state government and the CM, the PIL says, were aware of the scarcity of water but still went ahead with the inauguration of the seven star.





State justifies chopper expenses


Ranchi, July 11: The state has once again tried to justify its stand on the use of government chopper by filing an affidavit in the high court.

Civil aviation deputy-general manager Amal Krishna Satyajit has stated in an affidavit filed today that the government has not misused public money for using the chopper against the norms.

The matter had come up in a PIL filed by Koderma-based social worker Bindu Bhushan Dubey, who had sought information from the government regarding the use of the helicopter. Dubey, based on official documents, levelled allegations of swindling of about Rs 34 crore between April 2005 and March 2008.

Refuting allegations, Krishna said that the government had spent money on buying Dhruv — a helicopter procured for the home department to counter Naxalite operations. Krishna gave details of expenditure incurred on maintenance of Dhruv, which was not the subject matter of the PIL filed by Dubey.

He accused the government of being misleading. While the petition has been filed seeking details of the chopper’s expenditure, the state was trying to cover up by giving details of Dhruv, Dubey added. The government, despite several court proddings, has still not furnished the required data and records of flights undertaken in the helicopter hired from private companies by the state during the relevant period.

The office of the accountant-general has also found gross irregularities in accounts maintained by the civil aviation department for the use of the chopper, he said.

Dubey promised to move the high court seeking a probe and request for initiation of CBI investigation.





Mainstream, Vol XLVII, No 30, July 11, 2009


Historic Delhi High Court Judgement flows from Nehruvian Vision of ‘Equality’

Saturday 11 July 2009, by Shohini Ghosh

In a historic judgement, a two-judge Delhi High Court Bench comprising Chief Justice A.P. Shah and Justice Murlidharan has on July 2 decriminalised non-heterosexual sex between consenting adults. In an eloquently argued judgement of 150 pages, the Bench has struck down Section 377 of the Indian Penal Code (IPC), a colonial legislation drafted by Lord Macaulay in 1860, that criminalised “carnal intercourse against the order of nature” punishable by imprisonment extending up to ten years. India was one of the few countries left in the world that criminalised and discriminated on the basis of sexual orientation. By overturning Section 377, the Delhi High Court has foregrounded the importance of sexual rights, lent dignity to people of different sexualities and upheld the constitutional values of democracy and equality.

Arguing that Section 377 is violative of Article 21 (right to life and personal liberty), Article 14 (equality before law and equal protection from law) and Article 15 (prohibiting discrimination on several grounds including sex), the judgement holds that if there is one “constitutional tenet” that can be considered an “underlying theme” of the Indian Constitution, it is “inclusiveness”. Nurtured over many years, “inclusiveness” recognises “a role in society for everyone” where “those perceived by the majority as ‘deviants’ or ‘different’ are not excluded or ostracised”. It argues that “Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the Lesbian, Gay, Bisexual and Transgender (LGBT) are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

However, it retains the provisions of Section 377 to govern “non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors” thereby allowing child sexual offenders to be prosecuted under it. However, it is now being strongly argued that child rights are best protected, not by the provisions of 377, but an entirely separate law.


This visionary judgement is the culmination of a ten-year legal battle. In 2001 Naz Foundation (an NGO related to HIV/Aids issues) filed a petition in the Delhi High Court asking for Section 377 to be ‘read down’ by decriminalising consensual sex among adults. In September 2003, the government insisted on retaining Section 377 on the grounds that ‘Indian society’s disapproval of homosexuality was strong enough to justify it being treated as a criminal offence even where adults indulge in it in private.;

In February 2006, the Supreme Court ordered the High Court to reconsider the constitutional validity of Section 377. The Naz Foundation’s petition was supported by Voices Against 377, comprising 12 organisations across the country while it was being opposed by the Government of Delhi and others. The position of the government (represented by the Ministries of Health and Law) has been conflicted while many of its affiliates demanded decriminalisation. Naco (National Aids Control Organisation) demanded the scrapping of Section 377 as it was obstructing effective health interventions. The 172nd report of the Law Commission of India and the recommendations of the National Planning Commission for the 11th Five Year Plan also demanded decriminalisation of homosexuality.

In the last two decades, LGBT activism played a major role in creating awareness on the issue. In 2006 writer Vikram Seth released a public letter demanding that the “cruel” law be struck down. The letter was supported by a large number of signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli Sorabjee, Shyam Benegal, Shubha Mudgal, Arundhati Roy, Aparna Sen, Mrinalini Sarabhai and demanded the scrapping of the “brutal law” that “punitively criminalises romantic love and private, consensual sexual acts between adults of the same sex” while being used to “systematically persecute, blackmail, arrest and terrorise sexual minorities”. Amartya Sen also asked for an abolition of the “colonial era monstrosity” that ran contrary to “the enhancement of human freedom” and India’s commitment to “democracy and human rights.”

Like all laws, Section 377 was used both inside and outside the courtroom. In 2001, activists of Bharosa Trust, Lucknow were arrested under Section 377 for running a ‘gay racket’ and conspiring to “promote homosexuality” through advocating safe sex practices among homosexual and bisexual men. In 2006, the Lucknow Police entrapped five gay men by tracking them over the internet and then arresting them under Section 377. For years, police have used Section 377 to extort, threaten, intimidate and harass LGBT people. Commenting on how law-enforcers can misuse such penalisable offences, Amartya Sen observed that the harm done by such an “an unjust law” can, therefore, “be far larger than would be indicated by cases of actual prosecution”.

It remains to be seen how the UPA Government responds to a judgement that derives its inspiration from a Nehruvian vision of ‘Equality’. While moving the ‘Objective Resolution’ on December 13, 1946, Jawaharlal Nehru said (and the judgement quotes): “Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion. [The Resolution] seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.”

These words no doubt echo the feelings and aspirations of all LGBT people and their friends and family.

(Courtesy: Hindustan Times)

Shohini Ghosh is Sajjad Zaheer Professor at the A.J.K. Mass Communication Research Centre, Jamia Millia Islamia, New Delhi.


2 Responses

  1. Your sites is very informative and resourceful

    • Kindly keep me up to date in legal matters because I am law graduate but unfortunately I can not plead because I got the job in BSNL COMPANY , BUT I am eagre to learned legal matter . Please keep me inform regarding legal matters.

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