LEGAL NEWS 31.08.2009

Probe ordered into fire at AP High Court


Hyderabad, Aug 31 (PTI) An enquiry has been ordered into the fire incident at the Andhra Pradesh High Court today.

The fire, which broke out in the wee hours, gutted eight judge chambers and damaged a library and a conference hall following which a probe has been ordered into the incident, Fire Brigade DG Aruna Bahuguna told reporters after inspecting the site.

Preliminary investigations point out that the fire started with a short circuit, she said.

However, we will enquire into all angles, the DG said, adding, “We have to ascertain whether the fire was first noticed in the first or second floor.”

Meanwhile, official sources said the High Court would be closed for two days in view of the fire.

Supreme Court accepts CPI-M leader Vijayan’s plea (Lead)

New Delhi, Aug 31

The Supreme Court Monday admitted CPI-M Kerala state secretary Pinarayi Vijayan’s plea against the state governor’s approval to the Central Bureau of Investigation to prosecute him for his alleged role in a corruption case as a minister in 1997.

A bench of Justice R.V. Raveendran and Justice B.S. Reddy admitted Vijayan’s lawsuit directly for hearing, skipping preliminary formalities like issuing notices to various parties to the lawsuit and seeking their replies, as it involved some important questions of law.

The crucial questions that cropped up during the preliminary hearing included weather a government could be immune to the influences of the ruling party or its chief, and whether the CBI could directly approach the governor to seek sanction for prosecution of a former or sitting state minister without hurting the federal structure of the country.

“But what if the person is a general secretary, who controls the party? Can’t he influence the government?,” asked Justice Raveendran as senior counsel Fali S. Nariman, appearing for Vijayan, contended that as former minister Vijayan was in no position to influence the state’s council of ministers to impede sanction for the prosecution in the corruption case.

Nariman pointed out to the court that in the case of Vijayan, the CBI had directly written to the state governor seeking his approval under section 197 of the Criminal Procedure Code for prosecution for his alleged corrupt deeds as power minister in 1997.

Nariman told the court that after the state governor received the CBI request, he referred the matter to the state chief minister, who in turn got the legal opinion of the state’s advocate general.

The advocate general opined that there was no case of corruption made out against Vijayan and accordingly the state’s council of minister advised the governor not to grant sanction for Vijayan’s prosecution, said Nariman. Yet the governor granted his sanction to prosecute Vijayan, Nariman said.

Responding to the court’s query as to whether the governments could be deemed to be immune to the influence of the ruling party or its chief, Nariman sought to assert that the constitutional provisions of the country ensure that the government remain immune to the undue influences of the ruling party.

Appearing for the state government, senior counsel Harish Salve contended before the court that the CBI directly approaching the governor and seeking his sanction for Vijayan’s prosecution did not auger well for the federal structure of the country.

He pointed out to the court that if the state government had advised the governor against Vjayan’s prosecution, it was not a situation without remedy.

The state government’s action could have been challenged in the high court and the governor should not have directly come forward to grant his sanction for prosecution ignoring the advise of the council of ministers, which is constitutionally binding upon him, he said.

Appearing for the state governor, former union law minister Shanti Bhushan defended the decision to grant sanction to prosecute Vijayan, saying that the governor was empowered to utilize his discretion.

He said the governor had given his approval for prosecution after taking appropriate legal advise from a retired high court judge.

Vjayan is facing prosecution for his alleged role in awarding a contract in 1997 for renovation and modernization of three hydro-power plants in the state to a Canadian firm, SNC Lavalin, without any competitive bidding.

The government’s official auditor later had found that the award of the contract by the Kerala State Electricity Board to the firm at the behest of the minister had resulted in a loss of Rs.3.5 billion to the exchequer.

The contract had allegedly been given to the Canadian firm ignoring a Bharat Heavy Electrical Limited report, which had said that the renovation of three power plants could have been achieved at a cost of less than Rs.1 billion.

Last updated on Aug 31st, 2009 at 19:09 pm IST–IANS

Pinarayi case: SC notice to CBI, Kerala govt

Dhananjay Mahapatra, TNN 31 August 2009, 03:26pm IST

NEW DELHI: SC has issued notices to CBI & Kerala govt on Pinarayi Vijayan, the CPM politburo member petition challenging governor’s sanction for his prosecution in Supreme Court.

A bench of Justice R.V. Ravindran and Justice B.S. Sudarsan Reddy admitted Vijayan’s lawsuit directly for hearing saying that it involves several important questions of law.

The questions included how much influence a ruling political party or its chief can impose upon its government.

Vijayan is accused of wrongfully awarding a contract to the Canadian company SNC Lavalin for renovating three power plants when he was the state power minister in 1997.

The charges against Vijayan were filed in the special court after Kerala Governor R.S. Gavai in June gave the go-ahead to the CBI to prosecute the Marxist leader.

The CBI had asked Vijayan to appear before the CBI court at Kochi Sep 24 in the Rs.374-crore SNC Lavalin scam, in which he is the seventh accused.

J&K HC to hear bail application in Shopian case today


The Jammu and Kashmir High Court will resume hearing on the bail application of two police officers in Shopian double rape and murder case today.

The case came up for hearing before the single bench of Justice Sunil Hali on August 28.

However, after hearing the arguments from both sides, Justice Hali listed the case for Monday for further arguments.

The counsel for the accused Aseem Mehrotra pleaded that since there was no material evidence against both police officers, they should be released on bail.

He informed the court that there was no evidence which suggest their direct or indirect involvement in the crime.

However, counsel for the state opposed the bail and said that despite violence marks on the bodies of two women — Neelofar and Asiya — the police officers failed to register an FIR. An FIR was registered after a delay of six days during which period vital evidence in the case had been destroyed.

One-man commission of inquiry headed by Justice (retd) Muzaffar Jan, appointed to probe the rape and murder, in his report has said that involvement of a state police agency could not be ruled out completely.

Later, Matoo and Rohit were arrested alongwith two other police officers on the direction of the High Court.

The Special Investigation Team (SIT) is now probing the case.

The SIT had announced a reward of Rs 20 lakh for any one who would provide any clue leading to arrest of the culprits.


Patna HC confirms provisional bail of JD(U) MLA in Brij Bihari murder case


Patna High Court confirmed the provisional bail earlier granted to JD(U) MLA Shashi Kumar Rai in connection with the murder of former minister Brij Bihari Prasad.

A division bench of the court comprising Justice Navin Sinha and Justice Dharni Dhar Jha confirmed the provisional bail, earlier granted to Mr Shashi Kumar Rai and accepted the appeal filed by him challenging the judgment of a lower court which had sentenced the JD(U) MLA to two years rigorous life imprisonment.

Earlier, Mr Rai was awarded two years of life imprisonment by Additional District and Sessions Judge V P Mishra on August 12, 2009 in connection with the murder of Brij Bihari Prasad.

Mr Prasad was shot dead on June 13, 1998, and was admitted in Indira Gandhi Institute of Medical Sciences, Patna.

The JD(U) MLA was released by the lower court on provisional bail after he was awarded two years of rigorous imprisonment. The provisional bail of Mr Rai was required to be confirmed by Patna High Court, as per provision of the law.


HC holds couple’s marriage legal, orders protection

DNA Correspondent

Monday, August 31, 2009 8:31 IST

Ahmedabad: Justice HN Devani of the Gujarat high court has ordered the Jamnagar police to protect a couple who solemnized love marriage against the wishes of their family members. The court issued order to protect the couple after the girl, Jalpa Kanani, herself moved petition against her father and local police, who allegedly harassed the couple’s siblings.

The row started after 21-year-old Jalpa, who belongs to the Patel community, married one Jaideep Parmar, of another community, with whom she was having an affair. Jalpa’s father lodged a complaint against Jaideep and other persons who supported them while registration of the marriage. Under the influence of the community leaders, the Jodia town police of Jamnagar district started harassing the friends and siblings of the couple.

It was then that Jalpa filed a petition before the Gujarat high court against her father, police sub inspector of Jodia town police and district superintendent of Jamnagar police.
Kandarp Dholakia and Tushar Sheth, Jalpa’s counsels, submitted to the court that the police are unnecessary harassing the couple and their supporters at the behest of Jalpa’s father. The court, however, ruled that the marriage is legal since the two are adults. In its order to the police the court has also directed that the police should avoid taking any coercive action against the couple and protect them.

HC dismisses plea for recognition to city nursing institute

Parimal Dabhi

Posted: Aug 31, 2009 at 0043 hrs IST

Ahmedabad In what could be an eye-opener for the students opting for professional courses without checking the credibility of the institutions, the Gujarat High Court has refused to entertain a petition by a student, who had enrolled in a private ‘nursing’ institution unrecognised by the Indian Nursing Council.

The student had prayed to quash a decision by the Employment and Training Department that she cannot be given the certificate of passing an examination of nursing.

The petitioner has been identified as Jully Patel from Shahibaug. Jully had enrolled for the Certificate Course in Health and Social Nursing Care in 2007 offered by the Ahmedabad Institute of Medical Sciences (AIMS). It is run by the Maharana Pratap Health Care Foundation in the Satellite area of Ahmedabad.

The course duration was two years. And when Jully inquired about the schedule of the examination after two years, AIMS officials intimated her about the letter they got from the office of the Employment and Training Department in August 2009.

The department had asked the institute to delete the word

‘nursing’ from the name of the course and certificate since they did not take the mandatory permission from the Indian Nursing Council and the Gujarat Nursing Council.

Shocked by the revelation, Jully moved the HC through her counsel, Pradeep Patel.

There are two more such institutions in the state, one each in Visnagar and Mehsana, and students of which will not get the certificate of nursing as per the decision of the Employment and Training Department.

Dismissing the petition, Justice R R Tripathi observed, “If a particular course requires recognition from the apex body like Indian Nursing Council or Gujarat Nursing Council, the court cannot waive and direct the apex body to give recognition or to give post-facto recognition.”

The court further observed, “…grant of any relief in this petition will give a boost to the persons running such institutes without obtaining necessary recognition from the body authorised to give under law.”

As regards the the petitioner’s grievances against the institute, the court left it open for the petitioner to file any civil suit for file for damages against the institute.

Unlicensed quarries come under HC fire

Swati Deshpande, TNN 31 August 2009, 12:42am IST

MUMBAI: The Bombay high court has stepped in to stem the largescale illegal quarrying and resultant environmental and ecological damage in Thane district and in Navi Mumbai. The HC recently directed that quarrying by any unlicensed operator at nine locations be stopped immediately till further orders.

A PIL filed before the HC stated that according to the Thane collectorate, there was no quarrying lease granted for nine sites and yet hills were being razed illegally.

The HC ordered government officials to ensure that its direction was”scrupulously observed” and called for detailed affidavits from the Thane and Navi Mumbai municipal corporations, Thane collector, state environment & forest department and the Maharashtra Pollution Control Board on the extent of environmental damage and status of quarrying activities.

The order comes as a breather for those fighting against the powerful quarrying operators’ lobby and more importantly, the unquantifiable and irreversible environmental damage that the unrestricted quarrying is causing to the scenic hill area of Thane and Navi Mumbai.

The PIL was filed by Pradip Indulkar, a local businessman-activist after answers to his queries under the Right to Information (RTI) Act led him to believe that the civic authorities were finding ways to modify licence terms to enable continued quarrying by some operators. He also relied on several news reports, including one that appeared in TOI, to point out that not just the hills in Thane, but lakes and reservations for public play parks were being destroyed due to the rampant greed of stone quarry operators.

Indulkar’s lawyer Madhav Jamdar said preservation of ecology is a legal obligation of the government authorities. But he pointed out that a survey of a few sites in Thane around Ghodbunder road showed that illegal quarrying was taking place in the surrounding forest

in village Ovale. Elsewhere in Bhayandarpada village, quarrying was permitted by authorities beyond permissible limits.

Use of explosives was going on unabated in an area reserved as a picnic spot in Thane, said the petitioner, wondering how quarrying permission was granted by the Thane collector for that site to begin with. Permission was granted for five years under the Mumbai Minor Minerals excavation rules to Dynasty Engineering and Construction Company in 2007 with a condition that it had to validate the approval in 2008 from the civic body. The PIL claimed that the company had furnished an undertaking that it would stop quarrying activities when the Thane municipal corporation decides to develop the land as a picnic spot. Jamdar said there might be no hill or green cover left soon for the picnic spot to ever come up.

Similar modifications to leases held by some quarry owners have also been made, the PIL said. None of the quarry owners or even Dynasty has been made a respondent to the PIL and Indulkar said they would be added if the court so directs.

HC cancels results of PCS (prelims), orders fresh test–prelims—orders-fresh-test


Allahabad, Aug 30 (PTI) The Allahabad High Court has cancelled the results of Uttar Pradesh Provincial Civil Service (Preliminary) Examinations-2007 and asked the state Public Service Commission to hold the test afresh within a month.

A division bench of Justices Amitav Lala and Uma Nath Singh on Wednesday passed the order while allowing a writ petition filed by Dhananjay Singh, who had appeared for the examinations held on September 30, 2007, results for which were declared on February 1 this year.

The petitioner contended that while he could not make it, candidates who scored less than he did were declared successful as separate cut-offs had been set for those belonging to the general category, OBCs, SCs and STs.

SC refuses to stay HC order that decriminalizes gay sex- so now homosexuality is legal across India (for now)

It’s kind of old but im excited to read about this.

NEW DELHI: The Supreme Court on Monday refused to stay the Delhi High Court judgment decriminalizing homosexuality. The ruling is now applicable all

over India.

The apex court also pulled up the government and asked it to speed up its response on the issue.

The Delhi High Court verdict decriminalizing consensual gay sex has put the government in a fix as it remains undecided about its stand in the Supreme Court, 11 days after a response was sought from it on the vexed issue.

“No affidavit has been filed in the court as yet. It has to be seen what happens in the court,” Attorney General G E Vahanvati, had told PTI on Sunday. “You have to wait and watch what happens in the court tomorrow,” he had said.

While the Centre remained non-committal about its stand on the high court verdict which has been opposed by different sections of society, including religious leaders of all communities and a child rights body, gay rights activists have drawn up a detailed strategy to defend the verdict.

“We will file our response to the appeals after it is admitted by the apex court,” said Shivangi Rai, the lawyer actively associated with the NGO Naz Foundation on whose PIL the High Court on July 2 had declared the penal provision (under Section 377 of Indian Penal Code) for gay sex among consenting adults in private as unconstitutional.

The apex court had issued notice to the Centre seeking its response on the petition filed by a Delhi astrologer challenging the high court verdict.

Taking note of sentiments expressed by different sections of the society, the Centre said on Sunday it would not take a hasty decision on legalising homosexuality.

“We have taken note of sentiments expressed by cross sections of people and that is why the government is not hasty to form its opinion to be submitted to Supreme Court,” union law and justice minister M Veerappa Moily told reporters on Sunday.

DUSU polls: ABVP to approach HC, NSUI for structural reforms

Updated on Sunday, August 30, 2009, 17:51 IST

‘-1-mrg-rb7-j align=””> New Delhi: With Delhi University firm on its decision to disqualify six DUSU poll candidates, ABVP on Sunday said it will approach the High Court here for stay order, while NSUI asked for “structural reforms” in these elections.

The two student bodies said they will continue with their decision to protest the “unwarranted” decision by the varsity authorities.

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“The hasty decision should have been avoided as penalty and some other punishment have yielded results. Even if the authorities are ready to set a precedent, they should bring structural reforms in the student union polls,” NSUI national secretary Anand Pandey said here.

He said the student outfit will continue with its protest against the decision which is violative of students rights, but keeping in mind “high moral standards” of NSUI, “we will not invite any independent to contest on our ticket”.

ABVP media coordinator Niharika said, “we have decided to approach the Delhi High Court tomorrow to seek a stay order on the DU decision to disqualify three of the four ABVP nominees for the polls.”

With the disqualification of six candidates, including three from ABVP and two from NSUI, the two rival student outfits are devoid of their presidential candidates.

The NSUI, with only two nominees left in its panel, is likely to face another jolt as a notice has been served to its joint secretary Rahul Mathur for violating code of conduct. A decision in the matter will come by tomorrow evening.

Meanwhile, chief election officer Gurmeet Singh said, “we are implementing the Supreme Court guidelines on DUSU elections. This time a tough decision has been taken to send a clear message that law should not be violated. Earlier, they did not bother and follow any of our decisions.”

Asked about the demands of structural reforms by the student bodies, he said: “If they want something, they should give it to us in writing or knock the doors of the Supreme Court for guidelines.”

On the “structural changes”, the ABVP activist supported the NSUI demand saying “there should be some proposal from DU on the reforms which are needed as some of the Lyngdoh Committee recommendations are impractical to follow.”

The NSUI opposes the Lyngdoh Committee recommendations in totality, while the ABVP oppose some of it.

With all the candidates disqualified, ABVP has lone nominee in its panel — Kriti Wadhera for vice-president post.

Asked if the HC rejects the outfit’s petition, Niharika said, “we have options and we will fight the elections”, indicating that ABVP may invite some independents to contest polls from its platform.

Meanwhile, campaigning has remained a low-key affair in the University and the outfits like SFI, INSO and AISA are seen canvassing.

In wake of the protests, security

has been tightened around the campus.

Bureau Report

Shah Rukh turns a lawyer to expose Indian judiciary in ‘Jolly LLB’

Updated on Sunday, August 30, 2009, 20:22 IST

Spicezee Bureau

Mumbai: Shah Rukh Khan will soon portray a role that he has never done so far. The actor is set to play a lawyer in his forthcoming film ‘Jolly LLB’.

According to reports, SRK is planning ‘Jolly LLB’ under his banner ‘Red Chillies Entertainment’, in association with Rakesh Upadhyay. The film is said to based upon
a lawyer`s life and will try to expose the Indian judiciary.

“Jolly LLB would take on the pros and cons of the judicial system. The discussion on the film with Shah Rukh went beyond two hours though the actor gave just 45 minutes. Shah Rukh felt in love with the script of the film”, adds a source.

Give priority to eyewitness accounts: CJI

Manohar Lal, TNN 30 August 2009, 10:42pm IST

RANCHI: Chief Justice of India K G Balakrishnan said here on Sunday that eyewitness accounts in criminal cases must be examined properly for speedy disposal of cases.

“In some states, eyewitnesses are not heard. On the basis of my personal experience, I suggest you to hear eyewitnesses properly. This will give you a clear picture of the case, thus paving the way for speedy trial,” Balakrishnan said while addressing the First Eastern Zone Judicial Conference on “Enhancing Timely Justice and Strengthening Criminal Justice Administration”.

The CJI also outlined three points for judicial officers and said judges should have a sense of justice, they should be independent and should shun prejudices. “We are living in a society and circumstances in our house and environment may force us to become partial. But then when we are judges, we should be impartial while deciding the cases,” Balakrishnan said.

This apart, self-introspection and discipline enables you to be impartial, he remarked.

Balakrishnan advised judicial officers to be courteous and kind to understand the feeling of the victims.

The criminal justice system is getting delayed for various reasons and judges should be independent enough to avoid any such delay. There are cases in which Section 498(A) of the Indian Penal Code (IPC) is being grossly misused and warrants and notices are being issued providing a platform for unwanted harassment by the police, the CJI said.

He also hailed the new amendment to the CrPC law and said these are very useful but people will have to wait for some more time before it is notified. He advised the judges to write clear judgments in criminal cases and advised them to study Indian Evidence Act, IPC and Criminal Procedure Code.

“Every day you should go through these laws which provides you enough knowledge in dealing with criminal justice system. The Indian Evidence Act does not give any liberty to defence counsel to question the witnesses unnecessarily and seek adjournments,” he added.

He further advised the judges to be punctual and have control over the bar.

In his address, Justice (retired) S B Sinha of Supreme Court said that judicial officers should be aware of petty cases, white-collar crimes and cyber crimes. In a country where there are 73% criminal cases pending in different courts, of which 70% are petty offence, people suffer a lot due to unnecessary delay because of the criminal justice system, Sinha said.

Backlogs: Increasing judges only half the solution
Sukumar Mukhopadhyay / New Delhi August 31, 2009, 0:24 IST

Thirty three years ago I had made a seizure in a customs case and now I had to appear for the eighth time in the Court as a witness. The prosecution case is pending for thirty two years. Seven times I was cross examined as witness before the fra-ming of charges. That was fifteen years ago. Eighth time was now. After my retirement I went to places like Bangalore, Goa, Delhi many times for appearing as witness. All these are not true for me alone but all who appear as witness. I am highlighting all these facts not usually known to others who recommend solutions but are not exactly aware of the ground realities. The reality is far grimmer than what people can imagine from outside.

Recently the Prime Minister told a conference of Chief Ministers and Chief Justices of High Courts that the apex court should be the catalyst, organiser, mentor and umpire in tackling this issue of massive backlog of cases pending disposal in courts (Four million cases pending before the high courts and thirty million before the lower courts). As a solution it has been suggested by many that filling up the vacancies of judges and increasing the strength of the Bench would solve the problem largely.

My considered view is that increasing the number of judges is only half the solution. What is needed is a thorough procedural overhaul and attitudinal change in the judicial system.

I may be allowed to present several suggestions from the experience I have gathered over several decades in conducting litigation in different courts in India. This is in continuation of the discussion the Prime Minister has initiated for clearing the backlog. It does not cast any aspersion on any class of people in the system.

i) Easy adjournments should neither be asked for nor allowed. If a person is to be cross-examined as a witness, it should not be done over a period of several years but in quick succes-sion and preferably on a day to day basis.

ii) Delaying tactics by one party (who has vested interest in delay), mostly the one prosecuted, should not be allowed.

They usually ask for irrelevant papers and go to hig-her court for a stay of proceedings on the ground of denial of natural justice. It is easy to detect their intention and scotch such move.

iii) Frivolous appeals from the government side particularly in the fiscal cases has become quite common. There is a very large percentage of cases which are rejected at higher courts. The tendency to file appeal in higher courts even when the issue is settled against the Government is quite common.

A task force should be created to analyse in how many unmerited cases appeals were filed. There is no point in saying that the senior lawyer approved of it.

iv) Admitting writ petiti-ons and giving interim injunctions rather easily in so many cases is one aspect which has to be conside-red with due attention. The principle of alternative remedy should get due consideration. In a very large number of cases, writ petitions are admitted and after a few hearings they are sent back to the department for adju-dication or for decision in appeal.

v) For deciding old cases (which are more than five years old) separate judges may be earmarked so that greater attention can be paid to such files which are usually very bulky and have got dozens of statements and documents in them.

The conclusion is that the massive backlog in courts can be reduced not by a qua-ntitative approach but a qualitative change in the approach on the part of all stakeholders.


MRTP panel dissolution by Sept 1: Khurshid
BS Reporter / New Delhi August 30, 2009, 0:11 IST

Section 66 of the Competition Act for repealing the Monopolies and Restrictive Trade Practices (MRTP) Act and dissolution of the MRTP Commission would be notified by Tuesday, said Salman Khurshid, minister of state for corporate affairs. This move would end the problem of concurrent jurisdiction between the two laws.

The Competition Commision of India (CCI), established in 2003 as an advisory body, got statutory powers in 2007 by an Act of Parliament. Thus, this had necessitated repealment of the MRTP Act.

The minister also said in an interaction with members of PHD Chamber of Commerce, an industry body, that the government was open to a dialogue with the industry to know its apprehension and concerns relating to notification of Section 5 of the Competition Act. The Section related to mergers and amalgamations.

He also said that issues relating to prosecution will be addressed in the New Companies Bill.

In the new Bill, many routine defaults will be made compoundable offenses and not treated as criminal offenses.

Need for separate code to deal with terrorists’

TNN 31 August 2009, 03:26am IST

LUCKNOW: Criminologist have suggested the necessity of a separate terrorist code rather than amendment in the existing legislations, to tackle the act of terror.

Prof N R Madhava Menon, a leading criminologist and a member of commission on centre-state relations, who was here in the state capital to attend a two-day national seminar on `Recent anti-terror legislative changes in criminal justice administration: perceptions and perspectives of criminal justice professionals’ at Ram Manohar Lohia National Law University (RMLNLU), said that the act of terror needs to be taken altogether separately. “Simple modifications in existing legislations would not help. In fact, issues of national interest should not be given a backseat fearing the misuse of those laws,” he said.

Menon, a founder director of National Law School of India University (NLSIU), Bangalore emphasised on the need of scientific methods for procuring evidence. A guest of honour on the occasion, Menon also made participants aware of a machine called `mobilis’ which captures the video and audio images at the site of the crime that cannot be tampered with.

Dr Ram Manohar Lohia National Law University, Lucknow is leaving no stone unturned in exposing the eager young minds of today’s India to the most intricate details of law.

Prof B B Pande, former professor of law and consultant, National Human Rights Commission (NHRC), presented the theme paper `Re-orienting criminal justice policies’ for dealing with crimes like terrorism and extremism in which he raised three issues — rationalising distinct criminal justice policies and enactment of special legislations, justifying special legislations in the light of greater and graver harm potential of certain deviant conducts and creation of distinct and exclusive investigatory agencies.

Earlier in the day, vice-chancellor of the university, Prof Balraj Chauhan welcomed the guests which included former chief justice of Supreme Court of India, justice J S Verma and senior judge of the Lucknow bench of Allahabad high court, justice Pradeep Kant.

Experts also gave their inputs to check the growing menace of cyber crime, which were brought to light by cyber expert, K Rama.

Former judge of SCI and now chairperson, competition appellate tribunal, justice Arijit Pasayat; senior judge of Lucknow bench of Allahabad high court, justice D P Singh, criminologist, Prof K D Rao, director school of Law, IGNOU and Prof Zakaria Siddiqui, former dean, faculty of Law, AMU, are likely to be present on the second day of the seminar.

Rules flouted in Neelankarai case

A Subramani, TNN 31 August 2009, 02:57am IST

CHENNAI: The unexplained custodial death of Rajan, a prime suspect in the Panaiyur double murder, and the manner in which the case was handled subsequently by the police has perplexed jurists and rights activists.

The queries are many: Why was Rajan’s body cremated, not buried, in such a tearing hurry? Why was he not taken to a hospital and a wound mahazar (a list of injuries) compiled by a government doctor if he was really injured in a mob attack while attempting to flee the scene of the crime? Why did the police not permit legal assistance when Rajan was in custody? As mandated by the National Human Rights Commission (NHRC) guidelines, was Rajan’s post-mortem videographed ? And, has a murder case been registered against the police personnel incharge of Rajan’s custody, as per NHRC rules?

“It is very peculiar to note that according to reported statements by Rajan’s family members, the police insisted that they cremate the body,” said advocate and rights activist Sudha Ramalingam. First, the police should not have been insistent on the issue. Second, even if the family wanted to dispose of the body, the police should have ensured that Rajan was buried and not cremated, she said.

There are umpteen cases where injuries of a suspicious nature have been subsequently established and the culprits brought to book after the exhumation of the body, says Tamil Nadu Advocates Association (TNAA) president S Prabakaran, who is associated with the Federation of Human Rights Associations. The disposal of Rajan’s body has virtually closed all options of investigating his death in custody.

Incidentally, the bodies of the elderly couple who were gunned down, Illangovan and his wife Ramani, were handed over to the relatives only on Friday.

The police’s claim that Rajan was badly injured in a mob attack immediately after the double murder and that he died due to those injuries, does not cut ice with jurists. The Code of Criminal Procedure as well as the Supreme Court’s 11 Commandments to the police in the D K Basu case clearly state that injured detenues should first be taken to a hospital and a wound certificate/mahazar be obtained from doctors, Sudha Ramalingam says. “Why was this not done in the case of Rajan?”

The NHRC guidelines mandate that the entire police force in whose custody the detenue dies should be booked for a case of murder, she points out and asks: “Has the murder case been registered? If so, who are the accused in the case?”

There has been no claim even from the police’s side that Rajan was permitted to meet a relative or friend or an advocate “during interrogation, if not throughout the interrogation,” said Prabakaran. Rajan was nabbed at 4.30 pm on Monday afternoon and remained in police custody till 1.30 am on Tuesday.

According to the police, he collapsed in the Adyar lock-up while drinking a glass of water and was rushed to the nearby Malar Hospital where he was officially declared dead at 2.45 am. The body was shifted to the Government Royapettah Hospital before senior officials issued a statement saying he had died in custody.

A judicial officer who has spent a lifetime handling criminal cases said one must await the revenue divisional officer’s findings in the matter before voicing opinions.

“The essential ingredients of a crime are motive, criminal intent, preparation to commit an offence and its actual commission. Here, all these aspects have been established. But this case is all but dead, unless police come out with a theory that more people were involved in the offence. If no arrest is made in the next few days, then I am sure this case will be simply referred for closure,” the judicial officer said.

He, however, said: “The deafening silence of the close relatives of victims on both sides is disturbing. It indicates that there is something more than what meets the eye. But, little can be done without actionable evidence.”

Dealing with flaws, not laws, police weaken cases against terror suspects


New Delhi, Aug. 30: Even if you’ve been proven to be an outlaw in India, there’s always cause for comfort — in the law itself and from those who are meant to invoke it.

Take the case of suspected Hizb-e-Islami militant Ayaz Ahmed Shah, who was arrested by Delhi police’s special cell with 3.5kg of explosives in 2004 and let off by the courts in January 2009.

Shah got away not because he was proved innocent; he went free because the police were dealing with flaws rather than laws.

Or, to put it more bluntly, they got sanction for prosecution under the wrong law from the wrong authorities — where they should have used the explosive substances act, they applied the explosives act; whereas they should have gone to the relevant district magistrate, they went to the police commissioner. Now the two provisions might sound similar, or indeed the same, but in fact there exists a wide enough gulf between them to let the guilty slip through.

Additional sessions judge R.K. Jain came down heavily on the special cell for such a slumbering blunder on the basics of terror law while acquitting Shah. “The special cell officers were not vigilant enough to procure required sanctions against the accused, resulting in lapses. They treated it as just another case under the arms act. In any case, the benefit of all these lapses has to be given to the accused. Accordingly, I acquit the accused for the offences he is charged with.”

But it now turns out that many more might be in line for freedom, courtesy this critical legal lapse by the special cell; officials have failed to take due sanction under the explosive substances act in close to 40 terror-related cases since 2002. Most such cases are in the final stages of trial and there is little the police can now do to make amends.

Had he been booked, as he should have been, under the more stringent explosive substances act, Shah couldn’t even dream of getting bail, much less acquittal.

Shah’s case has set an alarming precedent for prosecuting agencies — err on as little as a word of the law and it can become an ignominious and embarrassing chapter.

Records show that after the discrepancies in this case were highlighted by Shah’s counsel, M.S. Khan, last year, the police have been scrambling to file central sanctions in cases where they have spotted similar faux pas. The law states that no court shall proceed to the trial of any person for an offence against this act except without the consent of the district magistrate.

The confusion can be traced back to two sets of laws, which the super sleuths overlooked. While the accused were all booked under the explosive substances act, which pertains to materials for making any explosive substances, they got sanctions from the police commissioner under the explosives act, which relates to an act to regulate the manufacture, possession, use and sale of explosives.

These are two different laws with separate sanctioning authorities.

According to the statute, the police commissioner is authorised to sanction cases pertaining to the explosives act, but the district magistrate authorises cases under the explosives substances act.

Thus, in Ayaz’s case, where the commissioner had sanctioned the trial, the court found itself incapable of going on with the case and acquitted him.

“The provisions of both the acts are very clear and the police need to act with great caution as hardcore criminals are involved. What happened shows the police’s callousness and exposes dereliction of duty on the part of the police. They might have overwhelming evidence to nail the accused, but unless there is proper sanction, the case is bound to fall apart and the terror suspect will be acquitted. If an elite anti-terror unit does not know the basics of law that it is claiming to protect, then obviously the terror accused will use the benefit of the technical provision. It’s a matter of great shame for the police,” said noted criminal lawyer Majeed Memon, who defended those accused in the 1993 Bombay blasts.

Khan, who is also the lawyer for another terror suspect, 46-year-old Nazir Ahmad, who was arrested by the special cell in 2005 and booked under the explosive substances act for carrying RDX, has also exploited the terror cops’ negligence.

“We have already shown the court that the trial was invalid and in the next few days when his final hearing comes up in court, I am sure he will be acquitted,” said Khan.

Sources say that since the lapse came to light in Ayaz’s case in 2008, it took the police seven months to get back to court with a satisfactory reply to the defence query about the lapses in sanction. Sources in the department say that Delhi police commissioner Y.S. Dadwal held a high-level meeting with his senior officials and it was then that the process of getting the appropriate sanctions was started.

“According to the principle of double jeopardy, no one can be prosecuted for the same crime twice. The lawyers of the accused are going to invoke this law to get their clients out when the prosecution presses for a fresh trial. The mess they have landed themselves into has become a tangled web,” said Memon, adding that a sanction is a condition precedent for initiating criminal proceedings in the court of law and not subsequent to it, so no fresh trial can be initiated by the prosecution.

Ahsan Untoo, head of the International Forum for Justice as well as the Human Rights Forum of Jammu and Kashmir, however, sees a larger conspiracy in the special cell’s inability to get proper sanctions.

“They are not going to the central authorities, in this case the district magistrate, because they have no case against these people. If the police go to the central government, they have to furnish evidence, which they don’t have. So, the easier way out is to go to the police commissioner. It’s not confusion but conspiracy because in most of these cases, innocent Kashmiris are implicated. In the fight between RAW and ISI, poor Kashmiris are being victimised,” Untoo said.


Ashok Mitra

The country’s Constitution cannot be faulted. The set of directive principles of state policy it starts with is most uplifting. Consider the catch-all entry, Article 41, “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved ones.” Close on its heels comes Article 45: “The State shall endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen.”

For full six decades, these articles have lain dormant. Along with other assumed obligations on the part of the State, imparting education, including induction of children into primary and secondary schools, has remained an unfulfilled pledge. In both the articles just quoted, there is, of course, an escape clause. Article 41 indicates a rider: the State will perform such and such tasks, “within the limits of its economic capacity”. Article 45 is even more generous: the State should only “endeavour” to send children to school. Whether the State has actually put in the endeavour, or merely gone through the motions, was going to be difficult to determine in all seasons.

The ground reality is daunting though. Close to one-half of the nation continue to be functionally illiterate. Some who are enumerated in the census as literate are barely able to inscribe their signature, but, among them, the proportion of those who lapse into illiteracy is frighteningly high. While the proportion of literate children in the age group of six to fourteen has gone up over the decades, the rate of drop-outs hardly shows any sign of decline. The gender divide is equally daunting; female literacy as well as school attendance among girls lag way behind. It is a sorry picture, and it is so despite grandiose schemes such as mid-day meal schemes and the Total Literacy Campaign.

A directive principle, a few wise ones thought, was not strong enough; to transform the landscape, education must be declared as a fundamental right. The outcome was the 86th amendment to the Constitution and the Right of Children to Free and Compulsory Education Act. Doubt nonetheless refuses to be a fugitive. Despite the punctilious — even finicky — details in the new legislation, will statutory elevation of education as a fundamental right make much of a difference? If the prerogative of receiving education free of cost is denied to a child, a complaint might be posted on its behalf to the nation’s highest judiciary. The Supreme Court could issue a directive to the authorities concerned, to look into the matter. It is a big country, the source of the complaint might be a remote village thousands of miles away from New Delhi. The authorities could submit the plea that they were doing their best in the matter. If their best were judged as not enough, the Supreme Court might, at most, hold the authorities guilty of contempt of court. That, as such, would not advance the cause of primary education. In addition to the existing National Commission for Protection of Child Rights, a special National Educational Rights Commission too could be set up along with similar commissions for the states. These commissions might work round the clock and receive unending representations. But the impact of their findings is unlikely to be any more impressive than that of the assorted human rights commissions.

No mystery actually lies behind the failure to live up to the promises of the Constitution with regard to literacy and elementary education. Those in charge of shaping the nation’s destiny have not ever considered the issue as one of life and death. Passion can move mountains. If there were enough national passion for the cause, illiteracy could have been wiped out from the country within the space of a few years by launching a massively big push. China could do it within a decade of the establishment of the People’s Republic; the embers of the fervour which drove the revolution were still burning — that did the magic. Or take the instance of a small country in Central America, Nicaragua, which had as high a rate of illiteracy as 92 per cent when the Sandinistas assumed power for the first time in the 1970s. In the course of a bare quinquennium, they brought that rate down to less than 10 per cent.

We did not go through a revolution. Still, we have the commitments in the Constitution reflecting national aspirations during the freedom movement. But, at a certain stage, the passion that ignited those pledges was spent. Whether the poor are taught letters or remain dumb, or whether children from impoverished families attended school, ceased to bother the power brokers. Even where passion was dysfunctional, fear that the deprived millions could turn against them in the polling booths might have propelled ruling politicians to positive action. Notwithstanding their state of ignorance — or conceivably because of it — the poor have, however, continued to exercise their franchise in the manner that the governing oligarchs wanted them to. A little learning, who knows, could in fact be a dangerous thing; if a morsel of literacy imbues the poor with a quantum of social awareness, they might begin to vote errantly; better play safe.

Cynicism, or myopia, or whatever, if only it could be snuffed out, objectives such as 100 per cent literacy and school attendance of all children in the age group of 5-14 should not be beyond the nation’s reach. But it presupposes a return to what is now derisively described as idealism. Conventional modalities per se are unlikely to make much headway. Why not, instead, raise an education army of one million dedicated young graduates who will spread -eagle themselves across the states and Union Territories, and act as a vanguard, under appropriate guidance, of a national literacy-cum-schooling campaign? There were, at the last count, 350 universities and 60,000 colleges in the country, with a total student population exceeding one crore. It should not be difficult to recruit one million earnest ‘literacy scouts’ to take up the challenge. These scouts will be the constituents of a network of state, district, taluk, village and muhalla squads, and reach out to the humblest household in the remotest towns and villages. Each scout may be assigned the responsibility for ten households that have lagged behind or been left out of the literacy race. He will be charged with the mission of ensuring that each child attends school and each adult is literate. The authorities may consider offering the scouts a monthly stipend of say, Rs 15,000. There will be need for further outlays, including some on account of construction of new schools and for essential educational equipment, such as textbooks and other accessories. To reduce drop-outs and persuade economically hard-up parents to agree to send their children to school, monetary compensation may also be called for. Subsidies to raise the nutritional standards of school-going — and even pre-school-going — children should not be ruled out either. All told, the total annual outlay could be of the order of Rs 50,000 crore, supplemental to spending under official auspices pursuant to the recently enacted legislation.

This nation lays aside close to Rs 150,000 crore in the name of defence. A further amount of around Rs 30,000 crore is put aside, it is a fair guess, to ensure internal security, which includes the provision of regalia for a battalion of mostly useless politicians. A system that makes this much of outlay in order to feel safe should not be under any strain to spare another Rs 50,000 crore for universal education. But no: a suggestion of this nature is bound to meet with instant disapproval. For there is no lobby for either universal literacy or primary education. In the absence of pressure groups, the authorities will not deviate from the beaten track. It is an aspect of felt emotions. We are ashamed at the prospect of being given a bloody nose by Pakistan or China. We, however, experience no sense of shame if the majority of our compatriots are horrendously poor or their children fail to attend school because they cannot afford to.

Indian Army flouting guidelines on sexual harassment?

New Delhi, Aug 31, IANS:
The Indian Army goes by the Army Act while probing allegations of sexual abuse. But in the process it may be blatantly overlooking guidelines issued by the Supreme Court on sexual harassment at workplace, say activists.
“We do not go by the Supreme Court’s guidelines. The army officers first come under the Army Act and we take serious note of sexual allegations,” a senior Indian Army official said on condition of anonymity.

Former judge advocate general of Indian Army Maj. Gen. Neelendra Kumar said: “The army has a standing policy that every case of serious nature invariably goes to the military court. The Supreme Court guidelines are not applicable as we have the Army Act.”
The apex court had issued guidelines for conducting inquiries into cases of sexual harassment at workplace in an August 1997 judgment and these are meant to be applicable in the absence of any specific legislation.

“In the absence of legislation to provide for guarantee against sexual harassment and abuse, particularly at workplace, the Supreme Court has laid down guidelines and norms for due observance at all workplaces or other institutions in India, until legislation is enacted for the purpose,” K.P.S. Satheesh, chairman of  NGO The Guardian Foundation, said.

The Army Act 1950, which was formulated for men when women had not been inducted into the forces, does not have specific provisions dealing with cases of sexual abuse. The allegations are generally clubbed with “unbecoming conduct” on the part of officers.

“The army’s argument that its personnel are under the Army Act cannot be accepted since the act was meant only for men. So in the absence of any specific rules, procedures or norms in the Army Act for solving sexual harassment at workplace, the apex court guidelines are very well applicable to the army as well,” Satheesh said.

According to Defence Minister A.K. Antony, during the last five years, 11 cases of sexual harassment have been reported in the armed forces, where the strength of women officers remains minuscule.

Currently, 5,137 women officers serve in the armed forces. They include 4,101 in the army, 784 in the air force and 252 in the navy. A recent example is the case of Captain Poonam Kaur of the Army Supply Corps (ASC). In July 2008, she alleged that three officers of her unit had mentally and sexually harassed her and confined her illegally when she resisted their advances.

The army then constituted a court of inquiry whereby all three officers denied the allegations and she was found guilty on at least 20 counts, including levelling false charges against her senior officers.

The apex court has succinctly laid down that any inquiry team investigating a sexual harassment case should be headed by a woman, more than half the members should be women and there should be third party participation in the inquiry like that of a non-profit organisation.

However, the inquiry into Kaur’s allegations was presided over by Brigadier R.P. Attri of the army’s Western Command headquarters. Among the three members of the inquiry, only one was female and there was no representative from an NGO in the panel.
The Guardian Foundation has moved an application on the army in the National Commission for Women against “violation of guidelines and norms prescribed by the Supreme Court while dealing with cases of sexual harassment at workplace”.


“Judges must know justice is above religion”
A bar association in Kerala has, through a resolution, sought an enquiry into the conduct of a Supreme Court judge, Justice Cyriac Joseph, and criticised a statement he recently made at a meeting of the Christian clergy. The conduct and the statement were reported but they did not receive wide attention. The impugned action of the judge, who was chief justice of Karnataka High Court before being elevated to the Supreme Court in June this year, and the purported statement he made in Kerala are difficult to understand and that is why they have raised questions and caused concern.

The CBI, which is investigating the Sister Abhaya murder case in Kerala, submitted in the Kerala High Court earlier this month that the judge visited the Forensic Science Laboratory in Bangalore in May, and examined the narco-analysis tapes of the accused there. Justice Joseph was Chief Justice of Karnataka High Court then and did not have anything to do with the Abhaya case which was being heard in Kerala. The case has become controversial because of the persistent charges of cover-up attempts by the church. Justice Joseph belongs to the religious denomination to which the three accused, a nun and two priests, belong. The judge’s private visit to the laboratory and his viewing of the tapes have raised questions because there is no satisfactory explanation for his action. Again, at a meeting in which senior members of the clergy were present in Kerala this month, the judge said his religion was more important to him than his position as a judge.  Whatever Justice Joseph meant by the statement, it conveyed the sense that his commitment to his judicial position was less than his loyalty to the community and the church. That is strange because members of the judiciary should be committed to the Constitution and be guided by it only. They need to be above allegiance to castes, communities and religions, sense of identities based on states, languages, and other sectarian considerations. That is necessary to maintain the judiciary’s independence and impartiality and to retain people’s faith in it.
Seen in this light, the judge’s action and words could only be considered improper. A request has been made to the Supreme Court to conduct and inquiry into them and to take appropriate action. Judges should also refrain from attending functions organised by religious, communal or sectarian organisations.

Murderous custom

“Existing laws are enough to tackle honour killings”
The spate of honour killings that have been recently reported from Haryana, Punjab, western UP and Rajasthan show the continuing hold of a malevolent tradition on people’s minds and the inability of the society and the law enforcement agencies to counter it. A number of young men and women have been killed or punished in other ways by members of their own families or traditional village panchayats, called khaps, for getting married against the wishes of the family or in defiance of traditional norms. Even those who fall in love have been punished and couples who eloped to avoid social sanction have been hunted down and made to pay for their ‘mistakes’. A young man was killed in Amritsar last week by relatives of the girl he was in love with. Four cases of killing of couples were reported from Haryana in the last three weeks. In all the cases, the role of khap panchayats is suspected. The state’s average is said to be six or seven cases a month. Many cases go unreported too.

Couples are punished if they marry outside their castes, belong to the same gotra or even to the same village, because such marriages are taboo. Khaps wield enormous power and influence and are outside the pale of law. They dispense justice in terms of medieval and obscurantist social canons. Village social groups and families maintain a sense of false honour handed down from the past and do not accept the free will and right of choice of individual members of society. There is a need to put an end to the barbaric custom which militates against citizens’ rights, rule of law and civilised norms of social life and conduct.

The police and politicians are often found to be colluding with the wrong-doers or at least refusing to act against them. Cases are not sincerely pursued by the police and punishment is rare. Politicians want to keep the khap panchayats, which have control over votes, in good humour. It is difficult to curb the practice unless the law is enforced strictly. There is no need for a separate law, because, as Union Home Minister P Chidambaram stated, honour killings can be treated as murder and legally dealt with accordingly. He has suggested some measures, including sensitisation of the police. It is not only the police but the entire society that needs to be sensitised and educated.

‘Court verdict not a setback’

Staff Correspondent

DAVANGERE: Chief Minister B.S. Yeddyurappa has maintained that the verdict of the JMFC, Bellary, upholding the authority of the Election Commission to question the decision of the Cabinet to withdraw cases against the Reddy brothers, was not a setback to the BJP Government.

He said that any government should bow to the order of the court and the BJP Government would honour the verdict. In a democratic set-up, courts played a vital role in pointing out the mistakes of the government, he said.

He was speaking to presspersons here before leaving for Bangalore on Sunday.

Everything for justice

V.R. Krishna Iyer

The best judge will have nothing to hide and everything to discover without fear or favour.

The Prime Minister and the Chief Justice demand more number of courts — in their thousands. This is part of the pathological arrears syndrome. The truth is: more courts, more arrears, more lazy judges, more examples of Parkinson’s Law and Peter Principle. The real cause of the escalating arrears is the absence of accountability and transparency.

The correctional strategy is an effective Appointments Commission in place of the dubious collegium, a vigilant Performance Commission, and periodic collegiate updating of jurisprudence. There is also a need to sensitise judges about socio-economic and political problems, to pare down redundant dockets and prolix hierarchy, streamline procrastination and ensure better-behaved precocity. On the whole, the Victorian system of justice administration should be eliminated and a transformation should occur. There should be periodic Law Reform Commissions whose recommendations are implemented by high-power judicial committees. There should be more itinerant decentralisation, evening courts, creative realism and a critical assessment of the curial hierarchy and public debate of judgments.

For more disposals, early finality and inexpensive justice, the purposeful therapy is not the arithmetical illusion of judicial numbers but intelligent selection of the robed brethren, of result-oriented technology, and summary procedure. One capable judge with sound social philosophy is a better instrument of justice than a dozen mediocre, indolent ignoramuses who will merely add to the adipose of the system.

The Bar contributes to the locomotion of the justice system. Typically, an American attorney delivers better arguments in 30 minutes than a Senior Advocate would do over three days in an inert Indian court. An efficient Bar is more promotive of the celerity of judicial disposal than an elaborate precedent — in a crowded, paper-logged, forensic, prolonged-performance system. The strategy of judicial excellence is not a play with numbers, or a game of hiding assets or delaying the delivery of judgments. The Supreme Court, which is inordinately the fifth deck of a poor system of justice, is infallible for the rich because it is final; not because it is wise, humanist and compassionate or within the reach of the poor.

The Chief Justice claimed that he had the title to represent the entire judicature, claiming an unknown power oblivious of the fundamental fact that he is only first among equals and can be overruled by just two of his brothers. It was a joy to read of the daring move of the judges together asserting the transparency principle, defying the chief and deciding to make their assets public. To hide is to arouse suspicion and suspicion is the upas tree under whose shade reason fails and justice dies.

Any judge who seeks immunity from truth under the cover of the robe robs the rights of We, the People of India, the sovereign of Bharat. Secrecy is unbecoming of the curial fraternity and shall be exposed if they justify their freedom from revelation from the People of India. The transparency of the socio-economic condition of the judges is not negotiably fundamental in any civilised system of justice. The court is an open book and if the Bench seeks an iron curtain between its economic interest and the litigant community it is violative of glasnost.

All’s well that ends well. The huge majority of the judges of the Supreme Court had to save their reputation, dignity and integrity over the most powerful constitutional institution. The Chief Justice of India is the noblest office of justice and is ordinarily infallible, but the court as the whole is supreme and is governed by perestroika and glasnost. What a wonder that the whole court has upheld the finest doctrine of openness. Nothing to hide, everything for justice.

This is why India holds in hallowed reverence the administration of justice. Never in the field of human conflict was so much owed by so many to so few. Fundamental rights, human values, sacred duties, peace and stability are governed by the performance of the court (Article 41).The best judge has nothing to hide and everything to discover without fear or favour and do justice to everyone, be he high or humble, without affection or ill-will.

Futile assertion

The pity of it is that the Chief Justice made a case when he vainly made a futile assertion that judicial assets are a hidden treasure. No, he made a mistake. But the full court saw the wisdom of judicial assets being responsibly disclosed to serious citizens under accountable conditions, not to frivolous busybodies. The chief may be forgiven because even the great could go wrong.

It was Emerson who wrote: “Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh.”

In our murky world of gloom, greed and agony, our duty is to save the country by means of a compassionate recipe a la Vivekananda: “Feel, my children, feel for the poor, the ignorant, the downtrodden; feel till the heart stops and the brain reels and you think you will go mad. We talk foolishly against material civilisation. The grapes are sour… Material civilisation, nay even luxury, is necessary to create work for the poor. Bread; I do not believe in a God who cannot give me bread here, giving me eternal bliss in heaven. Pooh; India is to be raised, the poor are to be fed, education is to be spread, and the evil of priestcraft is to be removed… more bread, more opportunity for everybody….”

The awakened robes have righted the absurd wrong of the chief. I salute you for overruling the jejune wrong; the jurisprudence of concealment is corruption. Corruption is the power of the rich. The robe shall not permit to be robbed by the rich.

It is better to be ultimately right than consistently wrong. To conceal the truth with regard to assets is unbecoming of fiat justicia, civilised justice, justices and justicing. Sorry, chief. You still can hold a kindly light amid the encircling gloom. No more darkness, but light. You are still the leader of luminous law and untainted truth, without fear or favour.

MCOCA checks crime in state

Mateen Hafeez, TNN 31 August 2009, 04:15am IST

MUMBAI: The Maharashtra Control of Organised Crime Act (MCOCA) has been successful in curbing organised crime, if one goes by conviction figures. The stringent law, introduced in 1999, has achieved a conviction rate of 58% as compared to 25% under the IPC.

Of the 95 cases, where the courts have passed their verdicts, the state got convictions in 57 cases. After Maharashtra, the Act was also adopted by New Delhi and Tamil Nadu.

Prior to MCOCA, the prosecution agencies relied on Terrorism and Anti- Disruptive Activities Act (Tada) till it was repealed in 1995. Between 1995 and 1998, a total of 203 cases of shootout were reported to the police and in most, the underworld was found to be involved.

Soon after MCOCA was put in place in 1999, the number of shootouts fell to 40 from 93 in the previous year. The figures shrunk to 23 in the year 2000. Only 90 shootouts took place in the past nine years, the police say.

“Criminals fear MCOCA as confession under this Act is treated as evidence. Moreover, the police secure their custody for a period of 30 days as the bail provision is tough,” said crime branch chief Rakesh Maria who had invoked MCOCA against gangster-turned-MLA Arun Gawli last year.

Because of the designated courts, the trials begin within two years and are completed at the earliest. 209 members of the Dawood gang and 167 associates of gangster Chhota Rajan were booked under this law.

Former IPS officer-turned-lawyer Y P Singh said it is easy to procure permission under MCOCA for tapping suspicious phone calls and using them as evidence. “The higher conviction rate in MCOCA may not be a healthy sign. This is because it uses draconian provisions. These not only ease the rules of evidence but are also inimical to the human rights of innocent persons who ultimately get acquitted by the courts but have to languish in jails for years,” said Singh.

Film financier Bharat Shah and director of movie `Chori Chori Chupke Chupke,’ Nazim Rizvi, along with several others were arrested under MCOCA in 2000. This was the first high-profile MCOCA case. While Shah was acquitted under MCOCA, he was convicted under IPC. Rajan’s wife, Sujata Nikhalje, and others were booked for threatening a developer. Extradited gangster Abu Salem is facing the Ajit Diwani murder case under MCOCA.

Crime branch yet to take a call on Hashmi case

Mateen Hafeez, TNN 31 August 2009, 04:17am IST

MUMBAI: The city crime branch, probing the `alleged’ discrimination against actor Emraan Hashmi in the purchase of a Bandra flat, is yet to decide whether to continue its investigation or close the case. The state human rights commission (SHRC) has said that it was not discrimination but a case of `misunderstanding’.

Emraan had a month ago `alleged’ that he was refused a NoC to buy a flat at Nibbana housing society in Pali Hill `allegedly’ because he was a Muslim. While a section of the society agreed with his `allegations,’ several Muslim film stars criticised Emraan’s statement saying Muslims are not discriminated against. This resulted in a stir and subsequently minister of state (home) Naseem Khan told crime branch chief Rakesh Maria to investigate the `alleged’ discrimination case.

“The crime branch personnel went to Emraan and the seller of the flat, asking them to give their statements. However, none of them have turned up for a statement yet,” said Maria.

The matter was later taken to the SHRC. “We will be asking for a copy of the commission’s order to learn what exactly it has found during the hearing,” said Maria. He added that the SHRC has sent them a letter stating that it was a case of misunderstanding between Emraan and the other party. “We are legally examining if it was a case of discrimination,” Maria said.

The crime branch is still in the process of obtaining legal opinion on whether it will be proper on their part to continue a probe in the case when SHRC has already delivered its verdict. “We don’t know if the SHRC has closed the case. We are yet to get and read the order copy,” he said.

Mediation for couples takes billboard route

Smriti Singh , TNN 31 August 2009, 04:39am IST

NEW DELHI: A picture is worth a thousand words. A huge billboard sprawls across the Metro line at Tilak Marg showing a couple sitting at the extreme ends of a couch. The message is clear there is trouble in paradise. The surprise comes when one sees Delhi High Court written on the billboard asking the feuding couples to come to their mediation cell Samadhan and resolve their differences.

Realising the worth of advertising, the otherwise conservative judiciary has finally come of age. This is one such example of the various ways in which mediation is being advertised by the Delhi High Court Legal Services Committee (DHLSC). Its for the first time that the concept of the alternative dispute resolution (ADR), a better way to resolve compoundable offences at pre-litigative stage, is being so rigorously promoted by the HC.

The HC has also involved CAW cell for its promotion through radio channels. Recently, the legal aid committee booked 12 slots on 10 FM channels for over a month and went to promote the concept of mediation. Not only the jingle informs the listener about the various options available to the people, it has put full information about mediation centres at High Court, Nanakpura, Rohini, Karkadooma and Tis Hazari court complexes.

The mediators believe that extensive advertising has spread more awareness about the concept of ADR and there has been an increase in the more number of people looking for alternative options rather than directly going to litigation. With such advertising, now people are coming to us right away. Earlier, we used to get cases after they had already approached the court for litigation. But now, with the media being involved, people have got trust in the option, said Isha Khanna, one of the 15 expert mediator in the HC.

She further said that with all the awareness, the figures have doubled in terms of people approaching the mediation cell. Besides billboards put up on the prominent intersections across the city and FM channels, the DHLSC is also distributing animated brochures and calenders giving information about the mediation.

Seema Dayal (name changed), who recently got her divorce case settled with the intervention of the mediation cell of DHLSC after 13-years of court battle, said, earlier, I was not aware of such an option, but after coming to the mediation cell, my case was settled within three months without any court proceedings.

With the help of Samadhan, Dayal got Rs 22.50 lakh as final future maintenance from her husband.

At the lower level, information about mediation is spread through Delhi Legal Services Authority, which holds camps in all the slum areas of the capital. With that around 100 police personnel across Delhi have also received training in counselling at the TISS.

Right to Education Act soon: Minister

TNN 31 August 2009, 04:56am IST

VISAKHAPATNAM: Union minister of state for human resource development Daggubati Purandeswari said the Centre would soon bring an Act on the Right to Education.

Though primary education is a subject of state governments, the central government has asked all the states to prepare mandatory norms for the implementation of the bill, she said while addressing a programme here on Sunday.

The government would implement compulsory education free of cost from first class to eighth class, but the reservation percentage would be finalised by the states. “To discuss the issue we are holding a meeting with the education ministers of the states in the first week of September in Delhi,” she said.

She ruled out a separate zone for Waltair railway division, which is now a part of the East Coast Railway. “The railway ministry has created a separate zone East Coast railway. So, another new zone will not be possible right now,” she added.

Purandeswari said she has already requested railway minister Mamata Banerjee to merge the Waltair division with South Central Railway.

Justice denied as compensation claims hang fire

A Subramani , TNN 31 August 2009, 02:52am IST

CHENNAI: If justice delayed is justice denied, then no family member of any custodial death victim has ever got justice in Tamil Nadu.

Just consider this. Rohini, whose history-sheeter-husband Lingam was beheaded inside a sub-jail with the knowledge of an assistant jailer in 1992, got a compensation in 2008. The widow of a bootlegger in Thanjavur’s Bhoodhalur area, who was killed in the police custody in 1994, finally got compensation in 2005. The family of Marisamy from Tirunelveli got compensation in 2008, though he was found dead in police custody in 1998. Rajammal of Vaniambadi got her compensation in 2008, for her husband’s custodial death in 1993. Balu (26) was found dead inside Korattur police station in 1998, and his family got its compensation only in 2008.

Marisamy of Nelkattuseval village in Sivagiri was picked up by the Sankarankoil police in Tirunelveli district on September 16, 1998 in connection with a petty case. By noon his wife Kalithai received an information that her husband had hanged himself inside the station toilet. The police said he had used his lungi as a noose around his neck. After it was closed as a suicide case, Kalithai moved the high court seeking Rs 10 lakh compensation. A division bench comprising Justice PK Misra (since transferred) and Justice K Chandru awarded Rs 2 lakh to her. But, by then, a decade had gone by.

Rohini, wife of the notorious Lingam, moved the High Court after her husband was beheaded inside the Nagercoil sub-jail by a gang which had gained entry into the premises with the connivance of an assis-tant jailer. Justice P Jyothimani, who awarded Rs 6 lakh as compensation besides another Rs 3 lakh towards interest, said that be it a convict or undertrial or a notorious element, the duty of the state organ such as the prison is to protect the life and limb of people under its custody and care. But the relief reached Rohini in 2008, nearly 16 years after her husband met with the gory end.

The death of a bootlegger at the Bhoodhalur police station in Thanjavur district in 1994, too ended in the Madras High Court awarding Rs 5 lakh compensation to his wife. Though a single judge first awarded only Rs 70,000 as compensation, a bench headed by the then Chief Justice AP Shah enhanced the amount to over Rs 5 lakh. But the damages came 11 years after the incident in 2005.

Justice KK Sasidharan adopted a multiplier’ formula, usually adopted only while awarding compensation to victims/kin of motor accident victims, to grant Rs 4.32 lakh to a young widow B Ammu and her two children. Ammu’s husband, Balu, was picked up by the Korattur police on November 11, 1998 in connection with a theft case.

Police said Balu hanged himself with his lungi when they allowed him to go to a toilet in the station premises. Though RDO inquiry concluded that it was a case of suicide, justice Sridharan said death while he was in the custody of police is enough to order compensation. “Provisions of sister enactments like Motor Vehicles Act can also be invoked for arriving at a quantum of compensation,” he reasoned. Here again, while the incident occurred in 1998, the compensation came to be awarded in 2008.

The latest case is that of R Dhanasekar, who was shot dead by an escort constable while the former was being taken from a court to jail. It is suspected to be a revenge killing because head constable Murugan’s mother was murdered for gain a few months ago, and Dhanasekar is an accused in the case. Now Dhanasekar’s father has moved the high court for compensation. One does not know, how long the battle is going to take.

Man gets 6-yr jail for neighbour’s murder

31 August 2009, 04:30am IST

BHAVNAGAR: In a six-year-old murder case in the city, a man was sentenced to 10 years of imprisonment on Saturday, while a man was sentenced to five years of imprisonment in Botad taluka of Bhavnagar district in a two-year-old murder case.

According to the details of the Bhavnagar case, accused Mithu Garg, 35, had killed Premsagar Gupta ,55, by hitting him with a pan over a trivial issue on January 5, 2003. Garg was angry at Gupta over his refusal to address the issue of water wastage. Garg had alleged that Gupta was wasting water by keeping the taps of his house open.

Garg was arrested on the complaint of Gupta’s son Manish with A Division police station and was booked under sections 302, 504 of Indian Penal Code and section 135 of BP Act. Apart from 10-year imprisonment, additional district court slapped a Rs 5,000 fine and an additional imprisonment of 2 years in the event of failure to pay.

In Botad, Dhiru Dandhal and his two accomplices had beaten up Bharatsinh and his younger brother over an issue of the sale of a cell phone on October 9, 2007. Bharatsinh was badly injured and rushed to first Botad and then Bhavnagar government hospital, where he died during a treatment.

Dhandhal and his two aides were arrested and booked under sections 302, 307 of Indian Penal Code. The fast track court in Botad sentenced Dhandhal to five year imprisonment under sections 324, 304 (2) of IPC and charged him with a Rs 27,000 fine. The court directed that Rs 3,000 of the fine should go to the widow of the deceased as compensation. The two other accused in the case were acquitted for want of evidence.

source: sandesh

Will politicians follow judges in posting wealth details on website?

Dhananjay Mahapatra, TNN 31 August 2009, 12:48am IST

Dark clouds of suspicion have hung about judges for years because of their stubborn reluctance to make their assets public. It has finally been blown away by the winds of transparency generated by a full court resolution of the Supreme Court on August 26.

Many have since laid claim to this revolutionary happening, from RTI applicants to self-proclaimed judiciary watchdogs. But the credit must go to the judiciary, the judges and, of course, Chief Justice of India K G Balakrishnan for being able to strike a consensus on posting their wealth sheets on the SC’s official website.

The seed of this revolution was planted 12 years ago on May 7, 1997, when the full court of the SC decided that all judges, including the CJI, must declare their, their spouses and dependents assets and investments. But, they also took a decision to keep these declarations “strictly confidential”.

The August 26 decision has punctured the confidentiality clause. This means, every new acquisition of asset or fresh investment by a judge, spouse or dependent will have to be put in the public domain.

The insertion of the confidentiality clause was mainly because the judges had feared harassment at the hands of unscrupulous litigants filing frivolous cases relating to their wealth. Have the judges overcome this fear? Not really, says the CJI. He wants to wait and watch the public’s reaction.

Has this decision rendered the Judges Assets Bill redundant? Not really. It may need some changes, especially of the provision which barred access to wealth declarations through RTI applications. A law may still be necessary since the present declarations are voluntary in nature and it is always better to make things formal rather than keep it informal.

Sadly, the decision to make public their assets will not end the debate about the integrity of judges. If a litigant loses a case before a judge who is rich because of a flourishing practice at the Bar prior to joining the Bench, then he would invariably be the target of allegations of corruption. More so, because off-the-cuff allegations in hushed voices in the corridors of courts spread thick and fast. Judges, despite their bold decision, may have to live with this for some time.

At the same time, their decision to declare every addition to their asset and each new investment has lobbed the ball firmly back to the court of politicians who had recently stalled introduction of the Judges Assets Bill in Parliament.

The politicians declare their assets on affidavits only prior to contesting elections. Will they follow the judges and post on websites their assets and investments and update it with every new acquisition and money transfer?

At the time of elections, we come across affidavits telling how their riches have swelled dramatically in the last five years. During the last general elections, we saw how some managed to increase their wealth from lakhs to crores and from crores to hundreds of crores of rupees.

Will they explain the unusual rate of growth of their wealth? Revelations about the mean and modes to multiply wealth could provide ideas to a large chunk of citizens, who have been struggling for years to cross the poverty line. After all, politicians are the leaders of the masses who should voluntarily take the lead to remove all misgivings of the citizens about them.


One Response

  1. […] more from the original source: LEGAL NEWS 31.08.2009 « Advocate Kamal Kumar Pandey Tagged with: […]

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