LEGAL NEWS 27.09.09

An opaque judiciary

http://www.dailypioneer.com/204143/An-opaque-judiciary.html

A Surya Prakash

The ugly controversy that has erupted over the proposed elevation of Chief Justice PD Dinakaran of the Karnataka High Court to the Supreme Court is illustrative of the wide-ranging dissatisfaction across institutions and professions over the present system of appointment of members of the higher judiciary. It is indeed rare to see so many Bar Associations (Karnataka, Tamil Nadu, Delhi and the Supreme Court) raise their voice against an appointment and to press for a system of selection of judges that is transparent and fair.

The frustration that is visible in the reactions of lawyers via these fora is understandable given the inaction in judicial and executive quarters even to the weighty opinions of important national commissions, standing committees of Parliament, eminent jurists and professional bodies, all of whom have been pleading for a more broad-based system to select judges.

While under the law as it exists today, it is entirely up to the collegium of judges to take a call on the allegations levelled against this particular judge, the hullabaloo over Justice Dinakaran’s elevation only highlights the inadequacy of the procedure that is in vogue ever since the Supreme Court accorded primacy to the opinion of the Chief Justice of India and the collegium of judges in choosing members of the higher judiciary.

The National Commission to Review the Working of the Constitution, which was headed by former Chief Justice of India MN Venkatachalaiah, declared in 2002 that it was not satisfied with the present arrangement in regard to judicial appointments in which the opinion of the collegium of Supreme Court judges would have primacy over the opinions of others, including that of the President. It called for a more participatory mode which would ensure effective participation of both the executive and the judiciary. It noted that on a plain reading of Article 124 of the Constitution, the power of appointment of judges vests in the President and the President is expected to perform this function “after” consultation and not “in” consultation with the Chief Justice of India.

The Commission recalled how the law in regard to judicial appointments had undergone change over the years. For example, Article 217(1) of the Constitution requires the President to consult the Chief Justice of India, the Governor and the Chief Justice of the High Court while appointing judges to the High Courts. In SP Gupta’s case (First Judges Case), the question arose as to whether among the three judges to be consulted, the Chief Justice of India had primacy. The court said that Article 217(1) placed all the three functionaries on the same pedestal.

In the Second Judges Case (1993), the court said the Chief Justice of India must take into account the opinion of two senior-most judges of the Supreme Court to ensure that the opinion is not merely his individual opinion but is in fact “the collective opinion of the body of men at the apex level in the judiciary”. Also, the opinion of the Chief Justice of India so formed “should be determinative and almost binding on the President”. The court favoured an “integrated participatory consultative process” for selecting the best and most suitable persons available for appointment. However, in case of a disagreement between the President and the Chief Justice of India, “the opinion of the latter must prevail”. Later in 1998, the court described the collegium as the Chief Justice of India and four senior-most judges when this issue came up yet again via a presidential reference under Article 143.

The NCRWC felt that the post-1993 arrangement for appointment of judges needed improvement. It said that a National Judicial Commission headed by the Chief Justice of India and comprising two senior-most judges of the Supreme Court, the Union Law Minister and an eminent person nominated by the President in consultation with the Chief Justice of India should select judges. The NCRWC said, “It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations.” In other words, it wanted the consultative process to be more broad-based.

Parliament has been exercised over the complete monopoly of the judiciary in regard to appointment of judges ever since the Second Judges Case. In 2006, the Parliamentary Standing Committee on Law and Justice expressed its dissatisfaction with the procedure adopted since 1993. It urged the Government to come up with an alternative mechanism which would ensure the involvement of both the executive and the judiciary in the process of selecting judges.

More recently, the Second Administrative Reforms Commission has come out strongly in favour of a National Judicial Council to select judges. Though the Second ARC differed from the MN Venkatachalaiah Commission on the composition of this body, the central theme remained the same. It said the NJC should be headed by the Vice-President and comprise the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India, the Union Law Minister and the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha. It said the appointment of judges should be a bipartisan process above day-to-day politics.

However, all these suggestions and the unanimous opinion against the present system of appointment of judges have just not been acted upon. Apart from the commission headed by Mr Venkatachalaiah, committees of Parliament, the Administrative Reforms Commission, the Forum for Judicial Accountability, eminent jurists and legal luminaries like Mr Shanti Bhushan, Mr Fali Nariman and Mr Ram Jethmalani, and Bar Associations are seeking a more transparent and credible system to appoint judges.

The judiciary, however, seems unwilling to shed its insular approach to judicial appointments and the executive appears to lack the moral courage to make law on the lines suggested by Mr Venkatachalaiah and others to overcome the limitations imposed by the Supreme Court in the Second Judges Case. By resisting change, the higher judiciary is giving the impression that it is still not ready to apply the principles of transparency and accountability which it enforces in other organs of the state. If this impasse continues, we can be certain that the current rumpus over a judge’s elevation to the Supreme Court will not be the last. Over to the Chief Justice of India.

 

 

 

 

 

Reforms: where to begin?

http://www.dailypioneer.com/194427/Reforms-where-to-begin.html

Udayan Namboodiri

The UPA’s new Companies Bill smacks of insincerity — fraudulent practices in auditing will continue to breed more Satyams and resultant misery for millions

In Untouchables (1987), the Kevin Costner character based on the life of Elliot Ness, the US Treasury Department official who went after Al Capone in the heyday of prohibition era gangsterism, discovers half way through the film that his quarry has an Achilles heel. His bookkeeper. The only way to get Capone behind bars is to prove in a court of law that the leader of the Chicago mob was a tax defaulter. After an exciting shootout, the bookkeeper is caught and Capone is put away.

Another Hollywood thriller, albeit played out in undertones, The Shawshank Redemption (1994), has Tim Robbins in the role of a tax lawyer serving three life sentences in a penitentiary where the warden routinely skims off the cream from the prison’s earnings from a social project in which the inmates work in public construction projects.

Robbins is engaged to ensure that the moneys are hidden well and deep. So Robbins conjures up characters with social security numbers, driving licenses and yes, bank accounts. Over decades, millions of dollars are stashed away in accounts all over town.

Both movies are set in pre-computerisation America and tell much about the powers that society and government invest in auditors. Such operations may be impossible in today’s paperless world of American finance, but the moot point is that in the world’s most powerful democracy, the men and women who are trained to read balance sheets and ensure that the State is not cheated of its rightful share of revenue are bound by a strict code of professional honour. They may owe their earnings to private persons and entities, but their fundamental loyalty is to Uncle Sam. An auditor, or ‘chartered accountant’ (CA), who places personal enrichment before the national interest, stands to lose his license, apart from facing stiff prison terms.

In India however, recent experience has revealed that the economic reforms process has quite bypassed this crucial area. Our CAs operate much like Al Capone’s recorders and since there are hardly any Elliot Nesses around, their machinations get blown only when the Boss makes a mistake. Something like that happened in the case of Satyam Computers. A long story cut short, B Ramalinga Raju, the much feted-by-government and pampered-by-media, promoter-chairman of Satyam Computer Services, confessed early January that he had cooked the books of his companies like there was no tomorrow. As more facts come to light, it becomes clear that Raju and his family have been spiriting cash out of the company since 2001, if not earlier, through an elaborate, well-ramified set of arrangements and manoeuvres, including forgery, inflating expenses, stripping assets, and manipulating income, inventory value and profits.

Some rushed to conclude that the Rs 2,700 crore ($1.5 billion) scam hurts the image of the IT sector, which is the pride of 21st century India. But actually, the people who should have gone underground in shame are our CAs. But nothing happened to them. Reason: clever auditors are indispensable for the high and mighty. For the nth time since the beginning of the neo-liberal reforms process, the country’s financial bottomline, and along with it the investments of thousands of people — not to mention jobs — were put to peril by this class of professionals. The Harshad Mehta scam, the MS shoes affair and hundreds of little others, both exposed and otherwise, were all results of a serious flight of ethics from a profession once respected for its old world solidity and conservatism.

This week, Saturday Special revisits the economy via the financial sector. We feature IIT alumnus and Supreme Court lawyer Somnath Bharti (main article) to shear the false rhetoric off the recently introduced Finance Bill, 2009. The gravity of the problems afflicting the country’s financial well-being by morally profligate CAs is either not appreciated fully by the media or deliberately concealed. How many billions are evaded in taxes year after year is just the tip of the iceberg. The credibility deficit that has resulted is something far more serious. At this January’s Pravasi Bharatiya Sammelan of economic and political leaders drawn from the Indian diaspora, the Satyam scam was talked about as something worse than a terrorist attack. “Who in his right senses will think of investing in India now?” a visiting desi said. Sam Pitroda, chairman of the Knowledge Commission was reported saying: “The Satyam scam shows some major manipulation of accounts, not just by its chairman but also the management and auditors. I have a question: what were the board members doing?”

According to many people, equal blame was due to the Securities and Exchange Board of India (SEBI), the Institute of Chartered Accountants of India and the Reserve Bank of India. But what is easily overlooked is that the hand of the unprofessional auditor is omnipresent in whichever institution you go to looking for the culprit. The various committees set up by the government to suggest roadmaps for financial sector reforms harp endlessly on ombudsmanship and independent regulators. After Satyam, where we saw one of the most respected Indian audit firms, Price Waterhouse, compromise its vaunted tradition of maintaining high standards, little is left to the imagination as to the workability of this idea.

It is against this background that the schizophrenic nature of the UPA Government becomes clear. On the one hand it talks about the need for an ‘inclusive financial system’ (Rajan Committee recommendations), yet, on the other, it winks at the empire of lies that routinely rips off poor and middle class investors. Of course, even the NDA Government had to bow before pressure from India Inc when it tried to give ‘whistleblowers’ within organisations the legal teeth they crucially lack. But then, the UPA, which introduced the

Companies Bill, 2009 this week in the Lok Sabha, killed off any hope of transparent corporate governance. Not only was the JJ Irani Committee’s suggestion to have watchdogs given the pass, the government also refused to dovetail this with the outstanding issues of regulation and closures.

This Saturday Special owes its genesis to the hard work put in by a young CA aspirant from Vadodara, Chirag Sawant, who has started asking awkward questions ( The Other Voice) even before making the grade. Thanks to his persistence, we have today a growing movement of young CAs all over India who are keen to see reforms in the profession which could in the long run lead to India cleansing itself of the shame that Satyam, PW Coopers and others have wreaked.

The writer is Senior Editor, The Pioneeer)

 

 

 

 

 

Arrest of teacher for boy’s suicide hasty, says HC

http://timesofindia.indiatimes.com/news/city/chennai/Arrest-of-teacher-for-boys-suicide-hasty-says-HC/articleshow/5060861.cms

TNN 27 September 2009, 04:32am IST

CHENNAI: Holding that the Cholavaram police had acted hastily in arresting a woman teacher on the charges of abetting suicide of a student, the Madras high court has ordered her immediate release on bail.

Justice T Sudanthiram, holding a vacation sitting on Friday, ordered the release of B Vijayalakshmi who was arrested by the Cholavaram police on September 18, after a class V student committed suicide moments after returning from school.

The boy, Antony, told his parents that the teacher had disallowed him from writing his quarterly examination, and had warned him that he would be sent back to class IV if he did not study well. When his mother, who is the complainant in the case, went away the boy committed self-immolation. Cholavaram police had registered a case for offences punishable under Section 306 (abetment to commit suicide) of IPC against the teacher and arrested her.

Allowing her bail plea, Justice Sudanthiram pointed out that there was no material to prima facie show that the teacher had intentionally instigated the boy to commit suicide. The ingredient to abet suicide is not made out in this case, he observed, and added that it was unfortunate to note that the investigating officer had acted hastily and arrested the teacher, who was a widow.

Noting that the court understood the pain and agony of the boy’s parents, the judge pointed out that the boy had written two pages during his quarterly examination, disproving the claim that the teacher had disallowed him from writing the examination.

The judge then granted bail to the teacher, and allowed her to execute a personal warrant for Rs 25,000 to the satisfaction of the Puzhal Central Prison authorities. She shall appear before the Cholavaram police as and when required for inquiry.

 

 

 

 

 

 

 

Warring sides must attend dispute hearings: HC

http://timesofindia.indiatimes.com/news/city/mumbai/Warring-sides-must-attend-dispute-hearings-HC/articleshow/5060839.cms

Swati Deshpande, TNN 27 September 2009, 03:01am IST

MUMBAI: In a judgment that would make parties to arbitration disputes take the hearings more seriously, the Bombay high court has held that it would not interfere with an award when one party deliberately avoids participation in the arbitration process.

Justice Anoop Mohta recently upheld a decision passed by an arbitral tribunal in a dispute between West Bengal-based Ratan Garg and Sulochana Agrawal from Bhuleshwar in Mumbai. Garg had challenged an arbitration award on the grounds that he was unable to attend the hearings in Mumbai for “insufficiency of time” and said that since “full opportunity was not given” to him, the decision be set aside.

The court, however, noted that in May 2008, the arbitration proceeded in Mumbai according to rules laid down by the Bharat Merchants’ Chamber that all arbitration of its members would take place in the city. Garg had made part payment for certain goods, but was denying the transaction.

The high court held that part payment by Garg was proof that the transaction took place and observed that he had “for one reason or the other” avoided appearing personally before the arbitrator. When a party has accepted the terms of the Chamber that all arbitration would take place in Mumbai, then “the excuse of want of time to reach the city” holds no water, said Justice Mohta.

The high court, relying on a 2009 Supreme Court judgment, said, “The arbitral tribunal is empowered to pass such an award, especially when the party deliberately avoids participation in the arbitration proceedings in order to frustrate and delay the claim.”

 

 

 

 

 

 

 

1,500 cases being filed in Allahabad HC daily

http://timesofindia.indiatimes.com/news/city/lucknow/1500-cases-being-filed-in-Allahabad-HC-daily/articleshow/5060941.cms

TNN 27 September 2009, 04:46am IST

LUCKNOW: Regardless of lack of resources, we have to develop our capacity in expediting the pronouncement of judicial decisions, specially in criminal administration of justice because quick and timely administration of justice is a subject of our fundamental right, Justice Chandramauli Kumar Prasad, chief justice of Allahabad High Court said while inaugurating a 3-day north zone judicial conference on `Enhancing timely justice: Strengthening criminal justice administration’ which began at Institute of Judicial Training and Research here on Saturday.

Highlighting various problems being faced by the judiciary, Justice Prasad said that about 1,500 cases are filed every day in the Allahabad High Court. Out of total pending cases in the country at various levels, nearly 20 per cent cases are from UP alone.

He advised the judges to enhance their knowledge of laws, skill and calibre to speed up the process of disposal of cases so that delivery of timely justice without any undue delay may be possible in cases, particularly in criminal matters.

Justice Pradeep Kant, senior judge of the Lucknow bench of Allahabad high court, who is also incharge of judicial education in UP, said that delay in disposal of cases had been the burning problem in modern times but no single agency or reason could be blamed for it as the different agencies of the government, the bar and others were also responsible to some extent for the delay.

During the post-lunch session of the conference, various groups of the delegates from North Indian states were formed, who discussed the issues and suggested solutions by presenting their views through the group leaders in the presence of Justice SB Sinha, former judge of the Supreme Court of India and Justice Vishnu Sahai, former acting Chief Justice of Allahabad High Court and presently member of the State Human Rights Commission.

Earlier, during the inaugural session, director of the institute VK Mathur welcomed the chief guest and other dignitaries and the participants while Rekha Agnihotri, deputy director of the institute conducted the programme.

 

 

 

 

 

 

 

 

Prove that women are equal to men: Bombay HC

http://www.dnaindia.com/mumbai/report_prove-that-women-are-equal-to-men-bombay-hc_1293282

Mayura Janwalkar / DNA

Sunday, September 27, 2009 2:47 IST

Mumbai: Are men and women equal? Apparently, the debate is not yet settled. In perhaps a first, the Bombay High Court has sought documentary evidence to support the ‘claim’ that men and women are equal.

The Womanist Organisation of India (WOI) and the Bhartiya Bar Girls’ Union (BBGU) had filed a petition seeking the quashing of a provision in the Shops and Establishment Act, 1948 that forbids women from working in any establishments like restaurants and bars after 9.30pm. The HC has now asked them to produce documentary proof of gender equality to support their petition.

“We are looking up various studies carried out by reputed institutions which show that men and women are equal,” said Vishal Thadani, advocate for WOI and BBGU. Thadani said that the court asked for documents that speak of gender equality in general and not just in the realm of labour laws.

The WOI and the BBGU had filed a petition contending that the 9:30 deadline deprived women working in bars as waitresses or singers (not bar dancers) the right to earn their livelihood.

The state government, in an affidavit filed before the court earlier, had refused to compromise with the provision in the Shops and Establishment Act, stating that “women employed in these establishments are from the poor strata of society and are prone to illegal exploitation at the hands of the male customers, hotel staff, etc. And hence they are not allowed to work after 9:30 pm.”

The affidavit, filed by Pandit Kale, senior inspector of police, hotel branch, further said, “The waitresses working in these establishments can never be equated with women in other fields, such as air-hostesses and lady staff in the hospitality industry.”

The police had supported the 9:30pm deadline for women employed in bars as the owners do not take the responsibility to drop them home and ensure their safety. Hearing the case last week, the court had remarked that if women and men were equal, why did the women working late need protection? It is then that the division bench of Justice DK Deshmukh and Justice RG Ketkar sought documents pertaining to the equality of men and women.

Brushing aside the wishes of nearly 2,835 women working in 292 bars in the city, Kale also said that “most of the bar premises are not suitable for ladies to work as they are not provided with basic amenities.”

Going a step further, Kale, in his affidavit, has stated, “It was found that … bar owners are exploiting the lady waitresses for immoral and illegal activities, which are against the public interest and society. I say that several lady services bars are mushrooming in the city, endangering the public morality and culture.”

 

 

 

 

 

 

 

HC raps police for harassing one in false case

http://timesofindia.indiatimes.com/news/city/delhi/HC-raps-police-for-harassing-one-in-false-case-/articleshow/5060638.cms

Rahul Tripathi , TNN 27 September 2009, 12:05am IST

NEW DELHI: A Delhi court came down heavily on the police in Delhi and Ghaziabad for allegedly implicating a youth in a false case and harassing his family. Vinit Shukla, a student of Bachelor of Arts at Delhi University and a resident of New Usmanpur, was reportedly picked up by the police in April in connection with a cellphone theft.

Though he got the bail, Shukla claimed police from New Usmanpur and Ghaziabad kept on harassing him and his family members. After Ghaziabad police failed to prove involvement of Shukla in any criminal case, the court told police in both the states to refrain from “harassing” the victim and intimate his family three days in advance if they want to question him.

“(For now) no case has been registered against the victim… In case of registration of any case, three days notice (should) be given to him in the event of arrest,” the court said in its order.

The incident once again highlights dubious way in which law-enforcing agencies sometimes work. When Shukla was arrested, he reportedly told police he got the mobile from one of his relatives who asked him to get it repaired. The Ghaziabad police also arrested two more persons in this connection, including one Rajesh Kumar who was Shukla’s relative.

Shukla was later released on the bail but police from New Usmanpur and Ghaziabad continued visiting his house. “We made several complaint to local police in Delhi and Ghaziabad but no one was ready to help us. The UP police threatened us, saying they will book my brother under gangster act and kill him in an encounter,” alleged Sunil Shukla, the victim’s elder brother.

” One day, around 8-10 policemen from Ghaziabad visited our house in New Usmanpur to question my brother but he was not at home. So they asked me to appear before them few days later at Ghaziabad. When I reached there, they detained me and told me that if I do not bring my younger brother to them, they will implicate me in a false case of narcotics,” added Sunil.

The family then filed an application in the court on 23 September. The court sought replies from both Delhi Police and UP police but the Ghaziabad police failed to appear in the court.

When contacted, the circle officer of Indirapuram at Ghaziabad, Rahul Srivastava, denied any illegal detention or high-handedness. He also claimed they have not received any court order. “In cases where more than one person is involved, we slap gangster act to prevent them from committing crime. When we arrest someone from Delhi or UP, we will always do it in legal manner,” said Srivastava.

 

 

 

 

 

 

 

Wife’s suspicion can’t be ground for divorce: HC

http://www.ptinews.com/news/302176_Wife-s-suspicion-can-t-be-ground-for-divorce–HC

STAFF WRITER 22:49 HRS IST

Mumbai, Sep 26 (PTI) Observing that mere suspicion by a woman that her husband is allegedly having an affair with another woman cannot be the ground for divorce, the Bombay High Court has set aside a divorce granted to a techie and his lecturer wife by a family court in Pune.

After marriage, no wife will tolerate the company of another woman in her husband’s life, observed Justices P B Majumdar and R V More on Thursday.

Quashing the divorce, the judges asked the couple, Rajesh and Smita (names Changed to protect identity), to come together and learn to adjust with each other more particularly as they have a small child to raise.

Rajesh had sought divorce from his wife on the ground of cruelty alleging that she suspected him to have an affair with Reena, a family friend.

 

 

 

 

 

 

 

HC stay on Rs 64-lakh graft FIR against Panchamrut Dairy CMD

http://timesofindia.indiatimes.com/news/city/vadodara/HC-stay-on-Rs-64-lakh-graft-FIR-against-Panchamrut-Dairy-CMD/articleshow/5060622.cms

TNN 26 September 2009, 11:23pm IST

VADODARA: Gujarat High Court has granted an interim stay on an offence registered against chairman Panchmahal District Co-operative Milk Producers’ Union Ltd (Panchamrut Dairy) chairman and former Godhra BJP MP Bhupendrasinh Solanki and managing director R S Patel.

An offence, registered earlier this month at Godhra police station against the duo by the office of the district co-operative registrar, accused them of misappropriating funds to the tune of Rs 64 lakh.

It alleged misappropriation regarding a scheme to provide cattle to persons living below the poverty line from Jhalod and Fatehpura talukas of Dahod district.

“We pleaded that till a decision was given regarding quashing the FIRs, a stay should be granted on the investigations. HC has granted our plea,” Solanki said. He added that the cattle were procured and distributed in two talukas under a memorandum of understanding (MoU) with the state government. “We were to purchase the cattle and then furnish bills to state government,” he said.

The offence states that while Dahod district collector had given administrative clearance to the deputy director (animal husbandry) of Dahod district panchayat to go ahead with the purchase of cattle, no money was deposited for the purpose with Panchamrut Dairy. The dairy, which was the facilitator in the process, procured cattle worth Rs 64 lakh and distributed it under the scheme without the amount being given to it.

It has been alleged that the funds of co-operative dairies should not be used for such purposes. The dairy had moved the high court to quash the FIR.

Earlier, too, an offence was registered against Solanki and Patel for misappropriation of funds, but HC granted a similar stay on investigations. Assistant co-operative officer (audit) K V Katara had filed the previous offence stating that Solanki and Patel were involved in a fraud amounting to Rs 28,000 in purchase of cattle for four tribal residents of the district.

 

 

 

 

 

 

 

Judges under scrutiny

http://www.rtiindia.org/forum/31169-judges-under-scrutiny.html

Despite recent concessions to be subject to Right to Information Act, the Supreme Court’s attitude to the sunshine law remains a matter of concern, writes Pradeep Baisakh.

25 September 2009 – In an apparent climb-down, the Supreme Court agreed on 11 August 2009 to disclose information under the Right to Information (RTI) Act what action has been taken by the Chief Justice of India (CJI) on a complaint against some judges of the Allahabad High Court. Earlier, the apex court had declined to provide this, claiming that such information is not available with its official registry. Its reversal of that stand is a welcome change of view.

Nonetheless, the overall attitude of the Supreme Court toward the sunshine law continues to remain a cause of concern. In the most recent development where a single judge bench of Delhi HC ruled that office of CJI comes under RTIA, the SC is planning to appeal against the order in a division bench of the same court.

Don’t look inside our house

P K Dalmia of Noida, Uttar Pradesh had sought information from the Public Information Officer of the Supreme Court on what action had been taken on three of his complaints made in 2007 and 2008 against the judges of Allahabad High Court on some matter of embezzlement. The PIO replied in negative as information relating to complaints against High Court judges were not part of the routine SC registry. Though such information was available with the ‘office of the Chief Justice of India (CJI)’, the PIO neither attempted to get it from there nor transferred the RTI application to that office. Dalmia appealed to the Central Information Commission (CIC), which ordered the PIO on 24 February 2009 to provide the information sought by him. At this stage too, the Supreme Court did not comply; instead, this order of CIC was challenged in the Delhi High Court.

During the hearing before the High Court, the Attorney General Vahanvati (appearing on behalf of the Supreme Court) agreed to provide the information sought. However, he maintained that he does not accept the correctness of the CIC‘s judgement on the matter.

Even an order by the full bench of the CIC delivered in January 2009 could not change the Supreme Court’s view on the ‘personal capacity’ of an office-holder.

• Are judges over-reaching?
• The balance of power
• Contemptible but true

This case has similarities to the much-highlighted case of S C Agrawal, where the applicant had sought information from the Supreme Court whether any declarations of assets have been made by the judges of the Supreme Court and the High Courts to their respective Chief Justices, as expected under the resolution passed by the All India Judges Conference in May 1997. The Supreme Court declined to provide this information , arguing instead that the May 1997 resolution was an ‘in-house mechanism’. Moreover, the court took the view that assets declared by judges to their respective chiefs, were given ‘voluntarity’, and received in the ‘personal capacity’ of the Chief Justices (implying, therefore, that they were not official documents subject to RTI ).

Even an order by the full bench of the CIC delivered in January 2009 could not change the Supreme Court’s mind on this – instead, the SC filed a writ petition in the Delhi High Court, and obtained a stay on the order. Since then, the CJI has reversed himself (see below).

Both these cases center around a key legal issue, namely, whether the ‘Office of Chief Justice of India, in his capacity as Chief Justice not sitting in a Court” is subject to the application of Right to Information Act, 2005. The Information Commission’s view was that the Chief Justice is a custodian of the information available with him, and that it is available for perusal and inspection to every succeeding office-holder. Therefore the information cannot be categorized as “personal information ” even if the CJI holds it in his personal capacity.

Legalising secrecy

The proposed legislation that rocked the upper house in recent monsoon session of Parliament was the “The Judges (Declaration of Assets and Liabilities) Bill, 2009”. The bill apparently aimed at brining transparency to the functioning of the higher judiciary by providing for declaration of assets and liabilities by the judges. Under it the judges of Supreme Court would declare their assets to the Chief Justice of India (CJI) and judges of High Courts to the concerned Chief Justice, the CJI would be required to declare assets to the President. Judges failing to declare their assets (in 30 days time) or providing a false declaration would be deemed to be misconduct and misconduct is a ground for removal of a judge.

But clause 6 of the draft bill prohibits such declaration from being made public. This exclusion was vehemently opposed by most political parties, as well as some legislators from the ruling Congress. Parliamentarians termed such a move violative of the Constitution and the RTI Act. Arun Jaitly of BJP wondered why, if candidates contesting elections are to divulge their assets and liabilities under the constitutional provisions , why cannot the judges; and argued that there cannot be two interpretations of Article 19 that gives fundamental right to citizen to know. Brinda Karat of CPI-M said [the proposed Bill] violates the equality of all citizens, a basic feature of Constitution. Noted Constitutional expert and Rajya Sabha MP Ram Jethmalani termed it as a “conspiracy of corruption”.

It would be pertinent to put here what exactly clause 6 of the bill reads. It says, “notwithstanding anything contained in any other law for the time being in force, a declaration made by a Judge to a competent authority shall not be made public or disclosed, and, shall not be called for, or, put into question by any citizen, court or authority, and, save as provided by sub-section 2, no Judge shall be subjected to any enquiry or query in relation to the contents of the declaration by any person.”

The higher Judiciary welcomed the bill in its totality. Responding to the bill, CJI K G Balkrishnan said “We [the judges] welcome it. We only wanted it”. Commenting on keeping the same information out of the purview of the RTIA, he said “We do not want the judges to be harassed.”

Public statements have been issued from time to time by the CJI, who has been in forefront in advocating the view of keeping the higher judiciary out of the purview of RTI , e.g. “no self respecting judge will accept compulsory declaration” (05/02/2007, The Hindu), “The Chief Justice is not a public servant. He is a constitutional authority. RTI does not cover constitutional authorities” (20/04/2008, TOI), “We do not want the judges to be harassed.” (26/07/2009, The Hindu) all of which are directly or obliquely concerned to the asset declaration case.

Since then, however, amidst views from some judges themselves that declaring their assets publicly is necessary, the Chief Justice has reversed himself owing to a unanimous decision taken by all the SC judges; now the Court will place the statements of assets on its web sites. Whether this amounts to accepting the jurisdiction of the RTI or if any action will be taken for non-declaration of assets, is unclear.

Disclosure and judicial independence

The second concern that bears examination is this: “will greater scrutiny of judges affect their judicial independence, or will scruinty become a tool of harassment by the public or by vested interests?”. I think not.

The SC and the High Courts already enjoy numerous protections to ensure that they are not unduly pressured, whether by other branches of government or by the public. The Constitution provides that the CJI will be consulted in judicial appointments, that judges will have guaranteed tenure, their salaries are not voted upon, their conduct cannot be discussed in legislatures, and they have absolute immunity from civil and criminal proceedings for acts done in discharge of their official duties. They also hold the power of ‘contempt of court’ to protect themselves from any malicious criticism and to enforce implementation of their decrees.

All these provisions make the higher judiciary immune from interference from legislative or executive organs of the state and also from any individual. Eminent jurist Fali Nariman has rightly said “If only the judges had relied on the Constitution of India to protect them, as when they decide individual cases, and disgruntled litigants sometimes make allegations against them, they would have had no need for additional protection from government or from Parliament”. Therefore any apprehension that judges would be harassed if their assets and liabilities are made public is only superfluous.

And among judges themselves, as we saw recently, there is divided opinion. Even earlier, progressive voices to include judiciary under the purview of RTI have come from former CJI J S Verma (January 2007) and the Parliamentary Standing Committee on Personnel, Law and Justice (April 2008).

The Judges Assets Bill would also, in all likelihood, be challenged in the courts if passed in its current form, and therefore it was wise that the government withdrew it for the moment. If the question of the constitutionality of the Bill were to be raised, it would have been uncomfortable for the justices to have sat in judgment of their own views. Instead, we now witness a compromise, by which the judges have agreed that their assets would be declared publicly on the SC’s web site.

 

 

 

 

 

 

HC refuses to hear writ against Rosaiah regime

http://www.expressbuzz.com/edition/story.aspx?Title=HC+refuses+to+hear+writ+against+Rosaiah+regime&artid=IfLtwQ9TpqM=&SectionID=e7uPP4%7CpSiw=&MainSectionID=fyV9T2jIa4A=&SectionName=EH8HilNJ2uYAot5nzqumeA==&SEO=
Express News Service

First Published : 26 Sep 2009 07:58:49 AM IST

Last Updated : 26 Sep 2009 09:51:26 AM IST

 

HYDERABAD: A Division bench of the High Court, comprising Justice T Meena Kumari and Justice GV Seethapathy, today refused to hear a public interest writ petition questioning the governance of the State by a Cabinet headed by K. Rosaiah.

A.Ravi, a practising advocate, filed the writ in public interest, stating that there was no test of strength conducted on the floor of the Assembly.The bench listed the matter for hearing after the Dasara vacation.

Another writ petition seeking the issuance of a quo waranto filed by Bezwada Govind Reddy contending that in view of his not having the support of the majority of his party, Rosaiah could not continue as the chief minister was also filed and expected to be listed after the vacation.

Sathiveedu SEZ: GO on transfer of powers quashed A division bench comprising Justice Ghulam Ahmed and Justice Nooty Ram Mohan Rao suspended a government order with regard to the Sathiveedu SEZ. Under the impugned order made in February, the government delegated the powers of gram panchayats in the Sathiveedu Special Economic Zone to the Sri City authorities.

The village panchayats of Mallavaripalem (e) Metherimetha complained that such delegation of powers of a gram panchayat to the AP Industrial Infrastructure Corporation or the authorities under the SEZ township was unconstitutional and in violation of the constitutional amendment which envisages that power must vest with the elected bodies at the grassroot level.

SEZ dev. commissioner’s appointment set aside

A division bench comprising Chief Justice Anil Ramesh Dave and Justice Ramesh Ranganathan allowed a quo warranto writ petition and accordingly set aside the appointment of P.

Venugopal, president of Software Technologies Park, as development commissioner for special economic zone.

The bench was dealing with a writ petition filed in public interest by one Ahmed Ehtesham Kawakab complaining that the appointment was contrary to law and that the incumbent did not satisfy the prescribed qualification.

The bench upheld the contention that the law prescribed that the director should be an officer of the Central Government not below the rank of deputy director under Section 11 (1) of the Special Economic Zones Act and since the present incumbent was not a government employee he was not qualified to hold the post.

 

 

 

 

 

 

 

Legal notice to Sach Ka Saamna team

http://timesofindia.indiatimes.com/entertainment/tv-/Legal-notice-to-Sach-Ka-Saamna-team/articleshow/5060054.cms

TNN 27 September 2009, 12:00am IST

Remember the National Commission for Women (NCW) had recently filed a complaint against the reality show, Sach Ka Saamna?
They had sent a legal notice to the producers of the show. So, when we met up with NCW’s chairperson, Girija Vyas, at an event recently, we asked her to give us her view on the show. “The show might have done really well in America, but the format in which it is being aired here does not fit in with our culture,” she said. Well, she feels that this sach is not going quite well with the Indian families. She added, “The families in our country stay together. I feel this show does not have a very good effect on the minds of an average Indian.” Also, she added, “I believe they have stopped the show now.”

However, the NCW chairperson may not be very happy to know that the channel insiders have said that the show will be back, next year. And not only that, it will have more episodes this time. Here’s what a source from the channel told us, “We are working on it and will have it on air again. It had a great response from the audience.” Guess, it is time for Vyas to do is sach ka saamna!

 

 

 

 

 

 

 

HC raps police for harassing one in false case

http://timesofindia.indiatimes.com/news/city/delhi/HC-raps-police-for-harassing-one-in-false-case-/articleshow/5060638.cms

Rahul Tripathi , TNN 27 September 2009, 12:05am IST

NEW DELHI: A Delhi court came down heavily on the police in Delhi and Ghaziabad for allegedly implicating a youth in a false case and harassing his family. Vinit Shukla, a student of Bachelor of Arts at Delhi University and a resident of New Usmanpur, was reportedly picked up by the police in April in connection with a cellphone theft.

Though he got the bail, Shukla claimed police from New Usmanpur and Ghaziabad kept on harassing him and his family members. After Ghaziabad police failed to prove involvement of Shukla in any criminal case, the court told police in both the states to refrain from “harassing” the victim and intimate his family three days in advance if they want to question him.

“(For now) no case has been registered against the victim… In case of registration of any case, three days notice (should) be given to him in the event of arrest,” the court said in its order.

The incident once again highlights dubious way in which law-enforcing agencies sometimes work. When Shukla was arrested, he reportedly told police he got the mobile from one of his relatives who asked him to get it repaired. The Ghaziabad police also arrested two more persons in this connection, including one Rajesh Kumar who was Shukla’s relative.

Shukla was later released on the bail but police from New Usmanpur and Ghaziabad continued visiting his house. “We made several complaint to local police in Delhi and Ghaziabad but no one was ready to help us. The UP police threatened us, saying they will book my brother under gangster act and kill him in an encounter,” alleged Sunil Shukla, the victim’s elder brother.

” One day, around 8-10 policemen from Ghaziabad visited our house in New Usmanpur to question my brother but he was not at home. So they asked me to appear before them few days later at Ghaziabad. When I reached there, they detained me and told me that if I do not bring my younger brother to them, they will implicate me in a false case of narcotics,” added Sunil.

The family then filed an application in the court on 23 September. The court sought replies from both Delhi Police and UP police but the Ghaziabad police failed to appear in the court.

When contacted, the circle officer of Indirapuram at Ghaziabad, Rahul Srivastava, denied any illegal detention or high-handedness. He also claimed they have not received any court order. “In cases where more than one person is involved, we slap gangster act to prevent them from committing crime. When we arrest someone from Delhi or UP, we will always do it in legal manner,” said Srivastava.

 

 

 

 

 

 

 

Village courts to try pending cases

http://timesofindia.indiatimes.com/news/city/bangalore/Village-courts-to-try-pending-cases/articleshow/5060763.cms

TNN 27 September 2009, 01:25am IST

BANGALORE: At least 5,000 grama nyayalayas will be set up across the country in three years. They will try to clear lakhs of cases pending in various courts.

“Two hundred grama nyayalayas will be operational from October 2 and they can help in clearing half of the pending cases in six months,” Union law and justice minister M Veerappa Moily said here on Saturday.

He was speaking at the inauguration of a regional conference on judicial and police reforms organized by the Indian Institute of Public Administration.

Judicial reforms sought by the public will be addressed in a year or two. “I will ensure court cases are up and running and don’t stay in the pending basket. Also, 90% of the proposed reforms don’t need amendments; they only need skills of the judiciary,” Moily pointed out.

Whenever law ends, tyranny begins, and this is what has been happening in many cases. “Let the system govern… Accountability in the judiciary is important and a comprehensive Bill for accountability and declaration of assets will be tabled and passed in the winter session of Parliament,” Moily said.

Former director general of police R Sri Kumar revealed how the police are treated like a football. “As per a Supreme Court order, a police officer must have a steady posting for two years (before moving on to another) under any circumstances. But this is not happening and it amounts to contempt of court,” Kumar said. “The draft of the Police Act is on the website to invite suggestions and comments but the government has not taken it forward.”

A movement to have `crime stoppers’, perhaps similar to `neighbourhood watch’ in other countries, and to act as a bridge between the police and citizens, has very few takers. “Project 100, through which police can come knocking at the door after just a phone call, is also a must. This requires high technical abilities,” Kumar summed up.

 

 

 

 

 

Panel frowns on hawkers selling public land to third parties for fancy price

http://timesofindia.indiatimes.com/news/city/chennai/Panel-frowns-on-hawkers-selling-public-land-to-third-parties-for-fancy-price/articleshow/5060854.cms

Julie Mariappan, TNN 27 September 2009, 04:44am IST

CHENNAI: The hawking committee (implementation) appointed by the Madras high court has castigated hawkers for selling demarcated hawking area near the Lily Pond complex off Central railway station for a “fancy price” to third parties, through a general power of attorney. The unauthorised deal is said to have been registered at the sub-registrar’s office in Mannady.

Committee chairperson Justice A Ramamurthy told TOI that there was sufficient prima facie evidence to prove his point. About 20 to 30 hawkers who were evicted from Poonamallee High Road, Purasawalkam High Road, Park Station subway and Aminjikarai had sold to third parties 20 sq ft of land allotted to them under the hawking scheme. “The corporation’s licences to these hawkers have been misused by certain elements,” Ramamurthi said.

It was only last year that about 620 hawkers, who were hindering the flow of traffic, were shifted to the Lily Pond complex. Ramamurthi said that he would soon write to find out how many people had registered illegally in the sub-registrar’s office in Mannady. “I was absolutley shocked when I saw the documents, which showed that a small piece of land was sold for more than a lakh of rupees. The registration department has been directed to report on the issue,” he added.

According to rules, each hawker pays a montly licence fee of Rs 100 to the local body. By selling the land to third parties, the hawkers have conferred all ownership rights on them. The latter can pay a monthly licence fee, renew licences, get loans from nationalised and cooperative banks, obtain a no-objection certificate from the police department, sell the shop or rent/sub-lease the tiny plot of land for a premium amount.

Based on a report submitted by the hawking committee led by Justice J Kanakaraj, the high court appointed Justice Ramamurthi to head the implementation committee in 2006. Despite hawking spaces being demarcated by the committee, effective implementation of the report remains a challenge.

“The court wanted poor hawkers to lead a decent life but they make money by selling public land, which is shocking. I have also asked the corporation to enquire into the case before embarking on legal action,” Ramamurthi said. The committee submitted a report to the high court recently, pointing out the violations.

T Nagar hawkers: Following objections from the corporation and transport department to its previous orders, the Ramamurthi committee has suggested another area beneath the newly built South Usman Road flyover – from Nalli to Rangan Street – for relocating hawkers of Pinjala Subramanian Street in T Nagar. Tens of traders have encroached on the street for nearly a year, following the construction of a flyover. “The local body has not replied till date,” Ramamurthi said.

 

 

 

 

 

Warrant issued against a German for illegal cutting of trees in Goa

http://timesofindia.indiatimes.com/news/city/goa/Warrant-issued-against-a-German-for-illegal-cutting-of-trees-in-Goa/articleshow/5061679.cms

PTI 27 September 2009, 10:44am IST

PANAJI: While Goa police have issued non-bailable warrant against 73-year-old German national Ingo Grill, the state government has refused to give him visa, which has forced the accused to stay back in his homeland, his lawyer said.

Grill, a businessman who pioneered the concept of Saturday-night bazaar in Goa’s coastal village of Arpora, has applied for the visa in the Indian consulate.

Grills lawyer vikram varma said that the Indian government has consistently refused him the visa even as he is wanted in Goa for the case of illegal cutting of trees.

The Government had filed a case for the illegal cutting of a tree by some local persons, Varma said.

Even though this act was done without the knowledge of Grill and at a time when he was not even present in this country, he was made a co-accused, Varma said.

His presence is required by the Judicial Magistrate First Class (JMFC) court in Mapusa to defend himself and a non-bailable warrant has been issued in his name through Calangute police station, he added.

The businessman who has spent 27 years of his life in Goa had a bitter legal fight with the Goa government after deportation orders were served on him.

Grill won the case against the government in the Goa bench of Bombay High Court, which had ruled that the state had no grounds to deport him.

 

 

 

 

 

 

 

13 get life term for Nimdar murder

http://timesofindia.indiatimes.com/news/city/nagpur/13-get-life-term-for-Nimdar-murder/articleshow/5060462.cms

TNN 27 September 2009, 03:35am IST

CHANDRAPUR: Thirteen accused, including three women, were sentenced to life imprisonment for the murder of Parasram Nimdar at Nimdar Tola in Chamorshi teshil of Gadchiroli. The judgement was pronounced by Gadchiroli principal and district sessions judge GN Tadwalkar on Friday.

The victim Parasram Dadaji Nimdar (27) had been murdered on July 3, 2003, in Nimdar Tola village following old rivalry over tendu leaves collection contract owned by him. The prosecution case was that over 50 people, including over two dozen women and a couple of juveniles, conspired on the day of the murder and together attacked the members of the Nimdar family in the village.

Parasram and his brothers were chased along the lanes of the village and thrashed brutally. Parasram sustained critical injuries in the attack and died on the spot. The attackers later carried his body on sticks they had used in the attack and threw it outside the village along the road.

A complaint was lodged in this regard by Sagarbai Nimdar, and Ghot police had booked 51 people and two juveniles under relevant sections of the law. After investigations in the case, the Ghot police had charge-sheeted all the 51 accused in the court at Gadchiroli. During the course of hearing one of the accused died and hence the case proceeded against only 50 accused in the court of principal and district sessions judge.

The prosecution examined 18 people before the court during the trial and on Thursday judge Tadwalkar held 13 accused guilty of the murder and sentenced them to life imprisonment. The convicted accused are Nandkishor Dhodre, Bandu Dhanorkar, Yadav Shinde, Manoj Ogilwar, Sudhakr Marathe, Sanjay Ogilwar, Chandu Madpalliwar, Rumaji Wasekar, Bhagrath Ogilwar, Wasant Waghade and the women Pramilabai Gongle, Mayabai Mandhre and Kamlabai Madapalliwar.

Judge Tadwalkar also convicted the accused under various other sections of the law in the same case and the sentences pronounced against these will run concurrently with the life term. The judge however dismissed charges against 37 accused for lack of evidence and discharged them from the case.

The case against the two juveniles accused in the murder is still pending before the juvenile court, sources said. Additional public prosecutor R B Kunghadkar appeared before the court for the state.

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