LEGAL NEWS 03.10.2009

Rajshekhar Rao on Saving the Arbitration and Conciliation Act, 1996

Rajshekhar Rao
Cite as: (2009) PL (Arb) August 12
The Arbitration and Conciliation Act, 1996 (hereinafter “the Act”) was enacted with great promise and was aimed at curing the ills of its predecessor viz. the Arbitration Act, 1940. . .

The Arbitration and Conciliation Act, 1996 (hereinafter “the Act”) was enacted with great promise and was aimed at curing the ills of its predecessor viz. the Arbitration Act, 1940.

Based predominantly on the UNCITRAL Model Law, the emphasis of the Act was on speedy and expeditious resolution of disputes with minimal judicial intervention. Section 5 of the Act, therefore, embodied this intent by specifically providing that:

  • 5. Extent of judicial intervention.—Notwithstanding any- thing contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part.

However, despite its otherwise noble intent, the Act has failed to fulfil its initial promise and has proceeded down the path of its predecessor resulting in long delays in the arbitral process right from the stage of appointment of arbitrators as well as due to the immense cost and delay in the completion of the proceedings. Thus, Sections 9 and 11 of the Act, which were intended to be used in rare circumstances, are amongst the prime culprits in this regard. The problem is further compounded by increasing judicial intervention contrary to the intent underlying the Act. Consequently, apart from coming under severe criticism for unwanted judicial inroads into the field of arbitration, the image of India as a destination which has an efficient and expeditious dispute resolution system has taken a beating.

A case in point is the resort, albeit misconceived, by various Indian parties to contract for arbitration outside India in the hope of avoiding the rigours and delays inherent in Indian law and the courts here. Most international contracts specifically avoid reference to India/Indian courts while looking at dispute resolution mechanisms in international contracts with Indian parties for the same reason. Consequently, we stand to lose a substantial opportunity to emerge as an important and cost-effective destination for dispute resolution. The question however, arises, whether the problem lies with the statute or manner in which it has been implemented?

The Supreme Court laid down the parameters in this regard, in its decision in Firm Ashok Traders v. Gurumukh Das Saluja 1 wherein it held that: (SCC p. 168, para 17)

  • 17. … Section 9 permits application being filed in the court before the commencement of the arbitral proceedings but the provision does not give any indication of how much before. The word “before” means, inter alia, “ahead of; in presence or sight of under the consideration orcognizance of”. The tow events sought to be interconnected by use of the term “before” must have proximity of relationship by reference to occurrence; the later event proximately following the preceding event as a foreseeable or “withinsight” certainty. The party invoking Section 9 may not have actually commenced the arbitral proceedings but must be able to satisfy the court that the arbitral proceedings are actually contemplated or manifestly intended (as Sunderam Finance Ltd.,2 puts it) and are positively going to commence within a reasonable time. What is a reasonable time will depend on the facts and circumstances of each case and the nature of interim relief sought for would itself give an indication thereof. The distance of time must not be such as would destroy the proximity of relationship of the two events between which it exists and elapses.

Notwithstanding the clear exposition of law by the Supreme Court, there are several instances of proceedings under Section 9 of the Act pending before various courts for years on end. A statistical analysis of the pendency of cases under Sections 9 and 11 of the Act would definitely reveal startling numbers. In this backdrop, the recent decision by the Chief Justice of the Delhi High Court to constitute two Special Benches solely to consider “Original Side matters under the Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996 except matters under Section 11 of the Arbitration and Conciliation Act, 1996”, is definitely a step in the right direction. Furthermore, the Chief Justice himself takes up “Original Side matters under Section 11 of the Arbitration and Conciliation Act, 1996” every Friday sitting singly.

While these measures would go a long way in reducing the delays occasioned in arbitration proceedings at the preliminary stages of the arbitration, there is yet a defining need to set out certain practice directions which would serve to advance the objective underlying the same viz.:

  1. Direct that no petition under Section 9 shall be kept pending for over 6 months.
  2. Parties ought to be directed to complete pleadings within the stipulated time and matters should be directed to be listed for hearing with time slots notified for each party.
  3. No adjournments ought to be granted on grounds of absence of Senior Counsel since parties would have sufficient notice as to the date and time of final hearing.
  4. Heavy costs should be imposed in cases where frivolous petitions are filed.
  5. Counsel should be advised to file a short note of arguments (as is being practised in some courts) prior to the hearing to enable speedy disposal and easier consideration.

As for the jurisdiction under Section 11 of the Act, in view of the decision of the Constitution Bench in SBP & Co.3 since the exercise of powers under Section 11 now constitute a judicial function, given the tremendous backlog of matters awaiting appointment of an arbitrator, it may be advisable to consider delegating powers to a few other courts and to set aside a special arbitration day, to ease the backlog. Similar practice directions ought to be issued to enable expeditious disposal. Particularly, cases where there is no dispute as to the validity of the arbitration clause and/ or the arbitrability of the dispute, matters should be listed for directions and arbitrators appointed. As an added measure to expedite arbitral proceedings, the order appointing the arbitrator should also stipulate lump sum fees to be paid to the arbitrator keeping in mind the amounts involved in the dispute and should direct the arbitrator to dispose of the arbitral proceeding within a stipulated time-frame. The latter directions may be open to some challenge as infringing upon “party autonomy”, but given the experience of arbitration in India, may well be justified.

Perhaps, it is time for the profession to start looking at specialisation and clients and lawyers to insist on accountability and expedition. It is only then that the intent underlying the Act would be preserved else the day is not far when the Act would head for a slow and steady death with fewer people opting for it and instead resorting to mediation or ordinary court proceedings to seek redressal of their disputes.

  1. (2004) 3 SCC 155.
  2. Sundaram Finance Ltd. v. NEPC Ltd., (1999) 2 SCC 479.
  3. SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618.

Kerala HC admits petition on Mont Blanc pen|qsQ=&SectionID=1ZkF/jmWuSA=&MainSectionID=1ZkF/jmWuSA=&SectionName=X7s7i|xOZ5Y=&SEO=Dijo%20Kappen,%20Mahatma%20Gandhi,%20Mont%20Blanc

Express News Service

First Published : 02 Oct 2009 01:12:00 AM IST

Last Updated : 03 Oct 2009 12:33:55 PM IST

KOCHI: The Kerala High Court on Thursday admitted a petition praying the court to prohibit marketing and sales of Mahatma Gandhi Limited Edition-241 and Mahatma Gandhi Limited Edition-3000, the luxury pens manufactured by Mont Blanc International GmbH on which the name and pictorial representation of Mahatma Gandhi are used. In the petition filed by Dijo Kappen, managing trustee, Centre for Consumer Education, it is alleged that the marketing and sales of the pen, which costs Rs 14 lakh each, is in violation of Section 3 of the Emblems and Names (Prevention of Improper Use) Act.

“Gandhiji is the Father of the Nation and is considered the epitome of simplicity. Making him a symbol of a Rs 14-lakh pen is nothing but an attempt to degrade everything that Gandhiji symbolised,” the petitioner alleged.

The court has directed to issue a notice to the Mont Blanc International, a German company.

The Government of India, and Entrack International Trading, the dealers of the product in India, are the other respondents in the petition.

rees pose no danger: HC dismisses 70-yr-old’s plea


Posted: Saturday , Oct 03, 2009 at 0510 hrs Chandigarh:

The Punjab and Haryana High Court has dismissed a petition filed by a 70-year-old resident seeking directions that several trees in a school compound, which he claimed were posing a threat to his house, be axed.

Justice Jasbir Singh disposed of the petition after the Chandigarh Administration filed its reply stating that the trees posed no threat to the residence of D S Ahluwalia, a practising lawyer.

For over two years, Ahluwalia had been writing to the Administration requesting it to cut the eight safeda (eucalyptus) and one mulberry tree located in the grounds of Government Model Senior Secondary School, Sector 10-A, Chandigarh, adjoining his house.

Aggrieved by Administration’s inaction, Ahluwalia had moved the High Court in March this year.

He submitted that some of the trees, which are over 30 to 40 years old, were leaning towards his house and posed a risk.

The Administration, negating his claims, had submitted a report flatly refusing to cut down the trees. Superintending Engineer R K Singla, Construction Circle number 2, stated that after inspecting the site, it was found that the trees in question existed within the premises of the school and are about 10 feet from the boundary wall.

“Moreover, these are green trees, with ages between 20 and 25 years, and pose no threat to house of the petitioner,” read the reply of the Administration.

Thereafter, alleging that the report was false, Ahluwalia requested the court to appoint two local commissioners to verify the condition of the trees. Turning down the request, the court dismissed the petition.

WiFi enters HC lawyers’ chambers

Ajay Sura, TNN 3 October 2009, 04:46am IST

CHANDIGARH: Techno savvy lawyers of Punjab and Haryana High Court would now be able to log on to the Internet through WiFi while sitting in their private chambers. The facility, which was previously available only in the bar’s main hall, has been extended to the advocates’ individual offices.

The latest move at making HC premises more technologically vibrant would benefit as many as 400 counsels who have their offices in the two chamber blocks.

The HC bar association would reportedly bear the expenditure incurred for getting the new system, under which lawyers would be provided with security-enabled facility to access the net.

Talking to TOI, president of Punjab and Haryana High Court Bar Association S S Behl said, ‘‘Most of the young lawyers use computers in their offices but are unable to connect online. WiFi will better their efficiency as they’ll be able to check on anything at the mere click of a button.’’

WiFi access would be available during working hours from Monday through Friday, apart from other working days. Rest of the time, the system would automatically disable.

Sources said the decision was taken in view of lawyers’ excessive dependence on the net. Right from preparing cases to reading up on historic judgments and checking the nitty-gritty of various legislations, the internet is said to have aided the legal eagles’ quest to strengthen their points in the courtroom. ‘‘Laptops have lessened the need to carry heavy volumes to the court,’’ a lawyer said.

HC cancels loan defaulter’s bail

TNN 3 October 2009, 04:44am IST

KOLKATA: Loan defaulters may no longer get any help from the courts if a recent decision of the Calcutta High Court is anything to go by.
The division Bench of Justice D P Sengupta and Justice S K Chakrabarti cancelled an anticipatory bail granted by the city civil court to a city-based transporter, who defaulted on repayment of equated monthly instalments (EMIs) on a loan taken from a non-banking financial institution. In the past, the high court has held that financial institutions have the right to re-possess vehicles, without resorting to unlawful means, if a customer fails to pay EMIs. The court had also held that lower courts should not provide any relief to defaulters.

The present matter relates to M K Jain, proprietor of M/s Tecons that has an office on Ho Chi Minh Sarani. In October, 2007, Jain obtained a loan of Rs 30.78 lakh from GE Capital Transportation Financial Services Ltd, against his eight lorries. He was to repay the sum and interest in EMIs. Till the sum and interest was completely repaid, the lorries were to be hypothecated to GE.

According to GE counsel Y Dastoor and Phiroze Edulji, Jain started defaulting on his EMIs from around April, 2008. Though GE issued several demand notices, Jain chose to ignore them. When the financial institution made an attempt to recover the vehicles, it came to know from the Regional Transport Office in Nagaland (where the lorries were registered) that they were already hypothecated to a couple of banks. Realising that Jain had cheated them, GE officials lodged criminal charges against him. The chief metropolitan magistrate directed the Shakespeare Sarani police station to take cognizance of the matter. Jain, in the meantime, moved the city civil court, seeking anticipatory bail. The chief judge granted him the same.

GE then moved high court, praying that the chief judge had erred in granting bail to Jain when criminal charges were pending against him. After hearing this contention, the high court cancelled the anticipatory bail and directed Jain to surrender before the trial court within a week.

In recent times, financial institutions were finding it extremely difficult to deal with the high number of loan defaulters, especially in the eastern part of the country. They are extremely upbeat with the recent orders passed by the high court in their favour.

“With these orders, loan defaulters will think twice before trying to evade payment of EMIs,” said an official of a reputable financial institution.

HC awards full gratuity to govt employee


Posted: Saturday , Oct 03, 2009 at 0509 hrs Chandigarh:

Disposing of a 27-year-old case, the Punjab and Haryana High Court has decided in favour of a man who had been fighting to be awarded his gratuity. Justice K Kannan of the High Court recently dismissed an appeal filed by District Food and Supplies Controller, Ropar, who had challenged an order passed by the Labour Court, which had set aside an order of termination passed by the Controller against its employee, Prem Chand.

A resident of Ropar, Prem Chand was inducted as a watchman with the government on daily wages on December 7, 1979 and worked till February 26, 1983.

His services were terminated on February 26, 1983, but the order of termination was later set aside by the Labour Court, which also directed the authorities to reinstate him, but without arrears.

He was reinstated on August 11, 1983, put on regular payscale and served till he was superannuated on December 31, 1998.

The Labour Court also directed that Prem Chand should be paid gratuity as if there was no discontinuity in his service.

District Food and Supplies Controller, Ropar, however, challenged the order before the High Court.

Counsel for the Controller submitted that for calculating gratuity only the actual service can be considered in case of a daily wage worker.

Dismissing the appeal filed by the Controller and upholding the decision of the Labour Court, Justice K Kannan said, “The provision for continuity of service in the award of the Labour Court could only be seen in the context of every other benefit which the workman would have been entitled to, other than the back wages, which, by express order, the Labour Court was disallowing in this particular case.”

Justice Kannan observed: “The continuity in the sense employed by the Labour Court ought, in my view, to be applied also to the entitlement of gratuity. The petition is therefore dismissed.”

CBI seeks closure of case against Quattrocchi


Posted: Saturday , Oct 03, 2009 at 1312 hrs New Delhi:

CBI on Saturday filed an application before a Delhi court seeking closure of the Bofors pay off case against Italian businessman Ottavio Quattrocchi.

In the plea filed before Chief Metropolitan Magistrate Kaveri Baweja, the probe agency said all efforts to extradite Quattrocchi for facing the trial here has failed.

The agency opposed the plea of advocate Ajay Agrawal, who had filed an application in his personal capacity pleading rejection of the closure report, on the ground that he has no “locus standi” to intervene in the matter.

Additional Solicitor General (ASG) P P Malhotra said the court has limited role in deciding the application and the CBI’s plea can only be turned down on the ground that it has been filed under extraneous considerations and the investigating agency has not applied its mind.

Quattrocchi, the sole surviving accused in the two-decade-old case after the Delhi High Court quashed the charges on May 31, 2005 against other accused, has never appeared before any court in the country.

CBI contended that the continued prosecution of Quattrocchi was “unjustified” in the light of various factors including the failed attempts to extradite him.

Malhotra further said that all other accused are either dead or charges against them have been quashed by the Delhi High Court.

“I find that the continuance of the prosecution against Quattrocchi will be unjustified.It is considered expedient in the interest of justice that the proceedings against him should not be continued and be withdrawn,” the ASG said.

The nine-page application filed by the CBI said, “It is humbly and respectfully prayed that the court may consent to the withdrawal of the case.”

Advocate Agrawal, who has been pursuing the case in the Supreme Court and had approached the trial court against the CBI’s move to seek closure of the case, contended that the Centre and the agency were trying to close the case despite having sufficient evidence against Quattrocchi.

The arguments remained inconclusive and the court posted the matter for further hearing on October 9 when it will decide the issue of locus of Agrawal in the case.

The Centre had on September 29 informed the Supreme Court about its decision to drop the case against Quattrocchi, saying it could not be kept pending forever as two attempts to extradite him have failed.

The move was later endorsed by Law Minister M Veerappa Moily, who said in London that the CBI will withdraw the case against Quattrocchi.

However, Agrawal, in his plea, referred to a case of 1984 anti-Sikh riots in which a trial court rejected a closure report against former union minister Jagdish Tytler and directed CBI to re-investigate his alleged role.

Agrawal had filed an appeal in the apex court against the Delhi High Court’s May 31, 2005, decision to quash charges against all other accused in the case after CBI failed to challenge it within the mandatory 90-day period.

Solicitor General Gopal Subramanium had told the apex court that the decision to close the case was taken by considering the February 4, 2004 judgement of the Delhi High Court, which held that no case of corruption was made out in the Bofors deal.

The High Court had said that there was not a rubble of evidence under the Prevention of Corruption Act and as such no appeal was filed against the decision, he had said.

He had said that CBI tried to get him extradited to India following the Red Corner Notice issued against him but failed in its efforts.

CBI had failed on two occasion in its attempt to extradite Quattrocchi — first from Malaysia in 2003 and then from Argentina in 2007.

The Interpol has taken Quattrocchi’s name off the Red Corner notice following a communication from CBI on the basis of the opinion of the then Attorney General Milon K Banerji, who was approached by the agency last year for his view on the necessity to continue with the alert notice.

He had cited the inability of CBI to seek Quattrocchi’s extradition and opined that the judgements in both the cases indicated that there was no good ground for his extradition.

NRI jailed for 27 years for kidnapping fellow Indian


Posted: Saturday , Oct 03, 2009 at 1702 hrs London:

A 28-year-old NRI has been jailed for 27 years for conspiracy to kidnap a fellow Indian and blackmail his father who lives in Gujarat.

Dipesh Kumar Chauhan along with his accomplices, Shujah Khaliq and Arif Aga, both aged 26, pleaded guilty during the two-week trial at Southwark Crown Court last evening, the Metropolitan Police said today. Khaliq and Aga were sentenced to 18 years each in prison.

However, police did not name the victim to protect his identity to ensure he returned safely to his family.

“The victim does not come from a wealthy family. I am glad that they contacted police immediately so that we could locate the victim and ensure his safe return to the family,”Dr Greg Trinder of the Kidnap Unit said.

“The evidence against these three individuals was overwhelming. It showed the thought and planning that had gone into the crime and their motive of greed. Khaliq and Aga had the sense to plead guilty but Chauhan believed he could claim the defence of duress. I am grateful the jury saw through his lies and found him guilty alongside the other two defendants.

“Kidnaps are still comparatively rare in this country. We are grateful to all those who have assisted us in our investigation,” Trinder said.

According to the prosecution, the victim, 24-year-old at that time, had arranged to meet his friend Dipesh Kumar Chauhan at Queensbury underground station for dinner on October 17 last year.

Akkalkot murder: HC to hear Mhetre’s bail plea on Oct 5

Vishwas Kothari, TNN 3 October 2009, 01:49am IST

PUNE: Minister of state for rural development Siddharam Mhetre, who has been booked for the murder of a BJP activist at Shegaon in the Akkalkot constituency of Solapur district, filed an anticipatory bail plea in the Bombay high court on Thursday.

The plea is slated for hearing by the single-judge bench comprising Justice A P Deshpande on October 5. The minister’s move comes after a sessions court in Solapur rejected his anticipatory bail plea on Wednesday.

Mhetre, a sitting Congress MLA from Akkalkot, is contesting against BJP’s Sidramappa Patil, who was attacked by unidentified assailants during an election rally at Shegaon on September 26. While Patil escaped unhurt, BJP worker Bhimanna Kore, was killed in the incident and six others injured.

The Solapur rural police had registered offences of murder, attempted murder and rioting against Mhetre and 28 others, who were named by Bhimanna’s brother Shrimant in the first information report (FIR) lodged with the Akkalkot South police station.

Shrimant alleged that Mhetre had visited Shegaon eight days before the incident and had instigated his supporters to put Patil in his right place in any manner they chose with his full backing.

Anticipating his arrest, Mhetre had moved the court of additional sessions judge A R Tiwari in Solapur through his lawyer G G Dodamani. Mhetre pleaded that he was not present at the scene of crime and that he was being framed in the case by his political opponents.

During the hearing at the sessions court, complainant Shrimant’s lawyer Milind Thobade opposed the bail plea on the grounds that the case was of a serious nature and granting any relief would not be appropriate. Judge Tiwari rejected the plea and directed the Solapur rural police to conduct a thorough probe into the incident.

Thobade told TOI on Thursday, “Mhetre has moved the Bombay high court against the lower court’s order and the matter is scheduled for hearing by the single-judge bench of Justice A P Deshpande on October 5.”

Govt to move HC over private JEE

TNN 2 October 2009, 11:01pm IST

BHUBANESWAR: The state government has decided move the high court challenging private engineering colleges’ decision to hold a separate entrance test to fill up vacancies.

The Orissa Private Engineering College Association (OPECA) had decided to conduct its own exam for filling up about 9000 vacant seats. The government, however, contended that the move went against Supreme Court orders.

Industry minister Raghunath Mohanty said, “The whole admission process should be a single window activity through JEE under the supervision of Policy Planning Board, the apex body for technical education in the state. As per the Supreme Court’s guidelines, nobody except JEE can conduct entrance test for admission into technical colleges without the permission of government authorities.”

OPECA had come out with advertisements for a common entrance test on October 11, the results will be declared on October 13 and counselling will be held on 15. OPECA, however, claimed that they have taken permission from the high court and also from the apex body for technical education for the test.

The JEE authorities also cautioned candidates and guardians not to take admission in technical courses without appearing for JEE because it will be declared “illegal and invalid” by the state government.

According to OPECA, over 9,000 engineering are lying vacant even after two rounds of JEE, three counselling sessions including an extended counselling for the rank holders of the first and second JEE and AIEEE, who did not take admission in any college. “The government must understand our plight. How can colleges run with so many vacant seats? The worst affected are first timers, who have invested huge money in infrastructure,” said a managing committee member of a private engineering college.

2002 Ode riots: HC upholds warrants against 16 accused

Express News Service

Posted: Saturday , Oct 03, 2009 at 0130 hrs Ahmedabad:

In a significant order, the Gujarat High Court has upheld the non-bailable warrants issued by the Court of Judicial Magistrate First Class, Umreth in Anand district, against 16 people in connection with the killing of a person from minority community during the 2002 riots.

According to the case details, two separate incidents of communal violence were reported from Ode village in Anand district in the aftermath of the Godhra train carnage.

The first incident had occurred on March 1, 2002, whereas the second had happened on March 2. In the first incident, 23 people were killed, while one person was burnt alive by rioters in the second incident.

Though the local police had filed one First Information Report (FIR) in both the incidents against 33 accused, it had submitted two separate chargesheets.

However, the Supreme Court-appointed Special Investigation Team (SIT) had further investigated the case and filed a revised charge-sheet in connection with the incident which had happened on March 2, 2002.

In the revised charge-sheet, the SIT had stated that the 16 accused were not arrested in connection with the second incident, so a fresh process should be initiated against him.

Following the same, the Judicial Magistrate First Class (JMFC), Umreth had issued the non-bailable warrants (NBWs) against the 16. The accused had then challenged the order in the Anand Sessions Court. However, the Sessions Court rejected the appeal. Subsequently, they approached the HC to get the NBWs rejected.

The counsel of the accused had contended that since the incident is part of the single FIR in which they have already been arrested and later granted bail, they couldn’t be arrested again for the same offence.

On their part, SIT counsels had argued that the initial investigating police officer had made a mistake by combining both the incidents in a single FIR as both were separate and independent incidents which had to be registered separately.

Rejecting the petition, Justice H N Devani stated that the JMFC, Umreth is right in issuing the NBWs against the accused .

The Lost Land

The Centre takes note of wakf aberrations

Outlook Bureau

Change is afoot in the laws governing the wakf. The issue of the boards selling off Muslim community resources (Outlook cover story, Allah’s Left The Building, Sept 21) has now been taken up at the highest levels by the UPA government. Sources in the PMO say Dr Manmohan Singh has personally taken note of the issue.

Union minority affairs minister Salman Khurshid promised on TV that he’ll bring in amendments to the existing wakf laws in the next session of Parliament. He was talking on an episode of the Karan Thapar show India Tonight on CNBC-TV 18 that focused on Outlook’s story. The minister agreed the situation in the wakf boards is worrying and that something needs to be done.

Advocate and standing counsel of Jamia Millia Islamia university Atyab Siddiqui has dashed off a letter to the prime minister on the “irregularities in management of the wakf boards (re: Outlook magazine, dated 21.9.2009)” requesting the setting up of a high-powered committee to suggest reforms in wakf laws and an inquiry into all the numerous properties “transferred” by various state boards. Siddiqui says “the plunder by the wakf boards is worse than the plunder by Mahmud of Ghazni”. About 3,00,000 wakf properties on about 4,00,000 acres of land are registered with wakf boards across the country.

Siddiqui is also filing a pil this week with the Supreme Court on behalf of a group, the Society for Education, which seeks to uphold civic rights and fights for the preservation of monuments and our heritage. The pil will seek the following:

  • Supersession of all the defaulting boards under Section 99 of the Wakf Act of 1994.
  • Inquiry, preferably by the cbi, into all the land transfers.
  • Amendments to the wakf laws that would include mandatory permission of a district judge before any exchange, gift or transfer of wakf property; creation of a central wakf authority; specialised regional committees of wakf with experts and professionals; abolition of present wakf boards; minimal political representation; and appointment of an ombudsman.
  • Signing of MoUs between wakf authorities and the ASI for preservation of heritage properties like Fatehpuri Masjid, Jama Masjid and so on.
  • Public Premises Act to be made applicable to wakf properties. The Act provides for summary evictions.

Meanwhile, the Urdu press has also begun a debate. Several Urdu newspapers and journals have translated or quoted from Outlook’s story. Nai Duniya, a magazine edited by ex-MP Shahid Siddiqui, translated and published the story. The country’s most widely circulated Urdu paper, Rashtriya Sahara, carried articles that quote from the story.

The Muslim community has responded in a very emotional manner to the story. Outlook was contacted by individuals from across the country keen to highlight further cases of corruption and encroachment. We got a letter accompanied with documents from Mohammad Akhlakh of Chandigarh. It states: “The Chandigarh administration has sent the name of one Khalil Ahmed for membership of the wakf board. The said Khalil Ahmed is an encroacher of Chandigarh wakf board property and the board even filed a civil suit against him. The said property is worth crores and in case Khalil Ahmed becomes a member of the Chandigarh wakf board one can imagine the fate of the civil suit.”

We can merely investigate and highlight the story. The ball is now in the government court and, equally, the Muslim community to reform the wakf and build institutions on this valuable resource. Hopefully the process has begun.

Handcuffed In Khaki

Why Chidambaram’s exhortation on transfers means little

Vijay Nambisan

It was good of Manmohan Singh and P. Chidambaram to cheer up the top brass at the conference of inspector-generals and director-generals of police in New Delhi. Of course, the home minister must have got a silent horse laugh when he said top officers should protest against frequent transfers. The civil services can hinder or render government but can’t stand up to politicians.

Does it occur to these statesmen that they are patting the wrong backs—backs and backsides so patted and petted their owners can live comfortably even when not in their bosses’ best books, which can be said of no other job? To politicians, the DGPs, IGs and SPs may represent the police. We citizens know a completely different face—and back—of the keepers of law and order.

Rudyard Kipling noted in Kim: “Native police mean extortion to the native all India over.” He was careful not to probe any deeper. The native police were the tool of a force whose business was extortion. It ceased to matter whether they extorted on their own behalf or on behalf of their masters. To us natives, alas, the symbolism of the police constable has not vastly changed in a century.

India’s administrative system is essentially one that Sher Shah Suri designed nearly 500 years ago. Akbar fine-tuned it, the British altered it to suit their ends, but its main purpose was always the same —efficient tax collection. Justice came a tardy second when it figured at all. The chief innovation of the Raj was the creation of the district collector, an autocrat in his fief.

After independence, we retained the system devised to extract the most juice out of us. (A thick-headed press still uses the word “rule” instead of “govern” to describe the political function!) For more than 30 years, the district collector continued to be a petty despot. Now, I understand, collectors are designated district magistrates, and the post is considered very junior in the heirarchy. That is only because the breed has proliferated. There are so many more IAS officers than there used to be, or need to be.

The police was used by the Raj to keep a subjugated people beneath the yoke. There were no citizens of India. “Law and order” meant the tax-gatherer’s law, the conqueror’s order. (It still does—see how the home minister speaks of first destroying the Naxalite threat and then addressing its causes.) Justice was something to be bought and sold. (It still is—look at the celebrity hit-and-run cases.)

We have done nothing to change this system. The “native” police, under the Raj, were the enforcers, the sharpest weapons of oppression. They still are and use methods devised to suppress freedom fighters. The forced confession, the custodial death, the intimidation of relations, the very lathi—nothing has changed.

I have the utmost sympathy for the policeman. Ill-trained, ill-paid, set to menial work by his officers, reviled by the masses he has sprung from, his lot is not a happy one. In Delhi, in the mid-80s, I hobnobbed with a good number of cops, from DCPs down through SHOs to constables. (I even interviewed then police commissioner Ved Marwah.) The DCPs were slick and well-fed and spoke of their commitment to the public weal and the wonderful modern training policemen were being given. They still do this. What that really means is that IPS officers who are good boys get to do their MBAs on public funds, or go to academies abroad for a couple of years. The only public weal the constable knows is one inflicted with a lathi.

In those days, head constables, asis and other supervisory ranks got Rs 1,000-1,500 a month. They had to provide themselves with two sets of uniforms out of this. Many of them were from rural Uttar Pradesh and sent what money they could to their families, with which they spent a month or two every year if they got leave. Their “training” amounted to some lectures by the brass.

I am not in touch, but I don’t see any material change. The police mean extortion all over India. Doctors are also coming to mean the same. But doctors are relatively empowered. Do constables get to make representations to the various police reforms commissions? Do the eminent people on these commissions visit the thana unannounced? An honest IPS officer can make a deal of difference. The home minister is idealistic in asking top officers to protest transfers, but he is in the right. So is the prime minister, when he speaks of focusing on the thana. I only wish they would take a turn at cheering up the constables.

(The writer’s translation of two 16th century Kerala poets, Two Measures of Bhakti, was published by Penguin.)

CJI to probe charges against Dinakaran

3 Oct 2009, 0518 hrs IST, ET Bureau

NEW DELHI: With higher judiciary coming under attack for its failure to check deviants in its ranks, Chief Justice of India KG Balakrishnan has initiated a probe into the allegations of corruption and amassing of property against Karnataka Chief Justice PD Dinakaran. The Karnataka CJ is among the five High Court judges who have been recommended for elevation to the apex court.

This is the first time that a probe has been instituted against a High Court judge after the Supreme Court Collegium made its recommendation. But this will not be a formal probe as such allegations are usually inquired into by a panel of judges.

Sources said the CJI will be looking into the charges of Dinakaran acquiring land in excess of the ceiling in force in Tamil Nadu. He will also probe whether there has been any encroachment of public land by the judge.

“The findings of the CJI’s investigations will be placed before the collegium,” sources said. This means that Justice Dinakaran will continue to stay in Karnataka till the SC collegium takes a call on the probe report.

The collegium had last month cleared the names of Justice Dinakaran, Madhya Pradesh High Court chief justice AK Patnaik, Punjab and Haryana CJ TS Thakur, Calcutta HC CJ SS Nijjar and Gujarat High Court CJ KS Radhakrishnan for elevation to the Supreme Court.

This recommendation is pending with the Centre. It is not clear whether the Dinakaran controversy would delay the elevation of other four judges. The Centre is yet to indicate its plan of action.
The legal fraternity was outraged when Dinakaran’s name was cleared by the SC collegium. Justice Dinakaran had met the CJI to explain his side of the story. But the public outcry forced the SC collegium, which met subsequently, to delay a decision.

Senior lawyers had written letters to President Pratibha Patil and Prime Minister Manmohan Singh seeking a probe into the allegations against Justice Dinakaran before notifying his appointment to Supreme Court.

“The consequences will be far more serious if a person lacking integrity is appointed as a Supreme Court Judge than delaying the appointment of a person against whom the charges may not be eventually established,” they had said in the letter.

SC to challenge HC order

Posted On Friday, October 02, 2009

New Delhi, Oct 2:
The highest judiciary has decided to challenge the Delhi High court order dated September two, which held that the office of the Chief Justice of India comes under the ambit of Right To Information Act.
Justice S Ravindra Bhat had ruled that the CJI was a “public authority” under the RTI Act and directed the Supreme Court to provide information sought by RTI aspirant Subash Chandra Aggarwal within a month.
The period of the order expired yesterday. Since the HC is closed for Dusshera holidays till October 5, the Central Public Information Officer of the Supreme Court will file the appeal on Monday.

Ex-CJI irked over HC judges’ refusal to declare assets–refusal-to-declare-assets


Allahabad, Oct 2 (PTI) Former Chief Justice of India V N Khare today expressed displeasure over a reported decision of the Allahabad High Court administration whereby details of the assets of its judges were not to be made public.

“The more you hide, the more you become suspect. The higher you go, the more transparent and humble you ought to become. I fail to understand why such a decision should be taken,” Khare told PTI over phone from Noida.

He was replying to a query on a reported decision taken at a full court meeting of the Allahabad High Court on September 12, wherein judges were required to disclose their assets only before the Chief Justice. The decision was unlike High Courts of some other states which have agreed to put such details on their respective official websites.

The Collegium, Judges Assets and Justice Dinakaran

Posted by Aditya On October – 1 – 2009

Below is a short version of my Speech for the Constitutional Law Society’s debate on The Collegium, Judges Assets and Justice Dinakaran. It was a laudable effort on the part of the CLS to organise the same and kudos to them.

In the Second Judges case, Verma J quoted the famous passage from Shakespeare’s ‘Measure for Measure’ stating,

“O, it is excellent

To have a gaint’s strength;

but it is tyrannous

To use it like a giant.”

The Indian Supreme Court today is regarded as one of the most powerful courts in the world. This because of its ability to make and enact law, declare it unconstitutional and lastly to create procedures for its own administration in a manner that may not have mention in the Constitution. When the Supreme Court in 1993 held that under the Constitution of India, no appointment of any judge can be made unless it is in conformity with the opinion of the Chief Justice of India, it was following the above last example.

One must understand that this whole idea of a collegium and the Supreme Court regulating its own appointments emanates from the phrase ‘independence of the judiciary’. In a host of cases, this principle has been held to be a part of the basic structure of the Constitution and in what seems to be quite ridiculous, the Court apparently feels that its independence would be taken away if the executive and legislature have a say in appointments, even though the Constitution may require so. Under the garb of this independence, the collegium has been created and justified thus demonstrating its power and showing the President as a mere puppet who is obliged to go by the Chief Justice’s recommendation.

About a little while ago, the President sent back the recommendation of the CJI on the elevations of four judges. This because the President thought that four others had been superceded in the process. However, the CJI sent back the recommendation to the President. According to the Third Judges case, the President is then bound to consider this names and appoint them. More here

The idea of a Collegium has the status of a Constitutional Convention

Constitutional Conventions are uncodified procedural practices that are followed by state authorities as a matter of rule. The idea comes from England where there being no written constitution, functions of government are governed by conventions. In India, this may be applicable to practices developed by Constitutional functionaries where the Constitution is silent on the same. Ivor Jenning’s stated that in order to establish a convention three questions must be asked; 1) what are the precedents, 2)did the actors in the precedents believe that they were bound by the rule and 3) whether there is a good reason for the rule ?.

Taking this forward, it was largely through Dicey’s influence that the term ‘convention’ has been accepted to describe a constitutional obligation, obedience to which is secured despite the absence of the ordinary means of enforcing the obligation in a Court of law. These obligations arise from customs and practices.

In the First Judges case, Bhagwati J. described the idea of a collegium as a convention but was silent on its enforceability and its binding character. It was only in the Second Judges case that Kuldip Singh J. went on to describe the appointment process as a ‘Healthy Convention’. The court necessarily applied Ivor Jenning’s requirements to show the same.

But then how are Constitutional Conventions enforceable ?

Kuldip Singh J. held that once it is established in a court of law that a convention exists and that the constitutional functionaries are following the same as binding precedents, then there exists no justification to deny such a convention the status of law. what the Court did was to treat constitutional conventions at par with constitutional law and thus binding.

In the Third Judges case, interestingly, the Court did not answer the question as to the process being a convention and thus the ratio of the second judges case stands on this point. The moment one grants the collegiums the status of a convention, we ought to recognize it as a constitutional process being binding on the authorities.

The CJI being a ‘Public Authority’ has grave Implications

In CPIO Supreme Court v. Subhash Agarwal, Ravindra Bhat J. declared that the Chief Justice of India is a public authority under the Right to Information Act. This, going beyond what was required in the case and stating such. See article here

This implications of this are grave in nature.  Not only is the CJI a public authority with respect to declaration of assets but now in all administrative matters. This also includes note taking, judges meetings and activities of the collegium.


– Court cases must contain a dispute or a ‘lis’ to have a ratio. Just like Maneka Gandhi’s case, this case too did not have a ‘lis’ as four days before the CJI declared that the assets would be made public. More so, the Delhi High Court went beyond what was mandated and ruled on other questions too thus making the CJI a public authority in other aspects too rather than just the declaration of assets.

– The Third Judges case was based on a reference submitted under Article 143 of the Constitution. References and opinions given by the Court as a result of it are not binding and cannot be considered as under Article 141. However, while the case was being heard this issue was brought up and the Attorney General Soli SOrabjee stated that the government would give an undertaking to accept this opinion as binding.

The Collegium and the RTI Case: Exploring the Link

The Court in the Third judges case held that the collegiums was formed so as to deter the involvement of other public functionaries in the appointment process. While the question was not answered in the third judges case, it was opined in the second judges case that members of the bar may have their say.

Today when members of the Bar have made a representation against Justice Dinakaran’s appointment, I see no legal jusitification as to why the Collegium must consider such representation. This move to consider itself is a step when the collegiums has decided to involve other entities in the appointment process, something not mandated by the third judges case.

To go further, the third judges case mandated that all the members of the collegiums write down notes on the consultations in the course of the appointment process. With the advent of the RTI Act and the Delhi High Court judgment, there is a stark possibility that these notes may be treated as public documents and me made public. It would then become easy for one to know whether the charges against Justice Dinakaran were brought up and considered by the collegium and what each judge thought about the same.

The crucial question then is; if the Court did not intend public entities to participate in the appointment process, doesn’t the current trend against Justice Dinakaran go against it ?

While I am a supporter of judicial accountability, I do see an irony in the current scenario. We have a judicially created process getting the status of a constitutional convention out of a reference and itself made binding by the judiciary. Then we have a statute and a case making the CJI a public authority and the process itself public and thus defeating the purpose for which the convention according to the third judges case was created.

The solution perhaps then lies in a legislation codifying this constitutional convention. This is in line with the recent law commission proposal to review the judges cases and perhaps give more meaning to the language of the Constitution ( the word ‘consultation’ in Art 124 ).

Suggested Readings

1) Lord Cooke of Thorndon, Where Angels Fear to Tread, Supreme But not Infalliable : Essays in Honor of the Supreme Court of India, p. 97.

2) TR Andhyarujina, Issues of Judicial Independence, The Hindu. Available here

3) Sriram Panchu, Make Declaring Judges’ Assets Mandatory for all Further Appointments, The Hindu. Available here

Test noise levels at helipads: HC

Mayura Janwalkar / DNA

Friday, October 2, 2009 2:56 IST

Mumbai: In response to a PIL filed by Awaaz foundation, the Bombay high court, on Thursday, directed for the constitution of a committee with representatives from the BMC, the MPCB and other relevant departments to examine the noise levels at helipads.

The committee has been asked to record the noise levels and inform the court whether or not they are within the statutory limits prescribed. The PIL has been adjourned for four weeks.

The original PIL had pointed out the alarming noise levels in the city as a result of which the court had directed the identificationof silence zones in Mumbai.

SC concerned at lawyers’ obsession with money

Rakesh Bhatnagar / DNA

Friday, October 2, 2009 2:23 IST

New Delhi: The Supreme Court is concerned with the steep fall in the “nation’s character,” unhappy as it is with some of the country’s top lawyers’ obsession with money. “In Patna, an additional sessions judge had to be evicted after water and power supply to his bungalow was disconnected. It is unfortunate that people holding such high positions are involved in unauthorised occupation,” a bench of justices BN Agrawal and GS Singhvi observed while hearing a PIL about unlawful possession of government accommodation by bureaucrats, ministers and judges.

“Thank God, it has not happened with Supreme Court judges,” the judges said.
Lawyer Ranjit Kumar, who is assisting the court, suggested withholding of pension benefits to unauthorised occupants. But the apex court doesn’t ascribe to his request for an order depriving VIPs of pension benefits until they produce a no-objection certificate from the estate office. “Merely framing rules is not sufficient. Their implementation must be done,” the judges said.

Disgusted at the unchecked illegal occupation of bungalows, the judges said, “Whenever, we pass orders, they are not complied with. In many cases, we had to hammer to see that they are implemented. There has to be a moral authority to function.”

“Some top lawyers in the Supreme Court are earning good money but they do not want to become judges,” the bench said. “We want a strong democracy and an independent judiciary. But some of the SC advocates want to mint money,” the court said.

Human rights violations can’t be tolerated in the name of terrorism: Rajendra Sachar

Submitted by mumtaz on 1 October 2009 – 10:33pm.

By Mumtaz Alam Falahi,,

New Delhi: Governments are using ‘war on terror’ to suppress resistance of society against human rights violations, said Justice (Retd) Rajendra Sachar, adding that human rights violations cannot be tolerated in the name of terrorism.

While delivering keynote address at the all India convention on State, Democracy and ‘Terrorism’ organized by the Jamia Teachers’ Solidarity Association at Jamia Millia Islamia in New Delhi today, Justice Sachar said that attack on human rights at large scale has weakened resistance power of people, so there is a need of such programs to strengthen the weakening voice.

Lambasting the governments for draconian laws, Justice Sachar said that when POTA was repealed all proceedings under it should have been stopped but the government did not do it but incorporated the most stringent part of the law into new anti-terror law. He reminded the audience how the obsession with security was seriously undermining the liberty of citizens. Political parties such as the Congress though promised the repeal of draconian laws such as the POTA when in opposition, once in power they put in place an even worse law, the Unlawful Activities Prevention Act (ULAPA 1967).

“Arresting of innocents in the name of terrorism, torturing them and then ruining their life in jails and then to say sorry will not be accepted,” he said.

Addressing the first session of the daylong program S.R. Darapuri, ex-IG and retired IPS officer of Uttar Pradesh, and currently Vice President of PUCL, said the composition of the police force, which had negligible Muslim presence was to a large extent responsible for its communal bias. “While in the last several years, thanks to reservation, the presence of other communities in the police force has increased but Muslims are still 1% in the force. On the basis of my 32 years in police service I can say the police is not secular,” Darapuri said while giving shameful examples of communal bias by the PAC in UP.
He urged human rights activists and groups to keep police reform on top of their agenda so that governments can be pressed for that. Giving figures about encounters in UP Darapuri said that from 2007 to till date the state has a share of 50% of all encounters in the country.

He also gave details about his fact findings in the cases of some terror accused including Shahbaz of Lucknow and Mufti Abul Bashar of Azamgarh, and concluded they are simply innocents. He highlighted unfair dealing of terror cases by the police while saying that Mufti Bashar who can’t ride a bicycle nor can operate a cell phone has been branded as a mastermind of terror blasts in the country and is facing 40 terror cases with 100-200 witnesses in each case.

Kavita Srivastava highlighted the continuing attack on the Bengali-speaking Muslims in Rajasthan and the uprooting of their colonies and their imprisonment on charges of being Bangladeshis soon after Jaipur blasts. The Ajmer blasts, she noted, had virtually unleashed a spate of illegal detentions of Muslim youth across the state, and not a single case has been filed against the police for illegal detention and torture.

She demanded that Ajmer blast should be properly investigated. Slain Maharashtra ATS chief Hemant Karkare had indicated that there was connection between Ajmer blast, Hyderabad blast and Malegaon blasts. For Malegaon blast Karkare had arrested about a dozen Hindu suspects, first time in India in terror cases.

Mukul Sinha, the lawyer for the family of Ishrat Jehan, presented a report on the encounters in Gujarat. He said that while the number of encounters in Gujarat may not be as high as in other states, Gujarat was significant because encounters were a political strategy to reap electoral victories for the BJP and to create the image of Narendra Modi as a Hindu icon. In particular, he focused on the evidences that proved the Ishrat Jehan encounter was staged.

Shafiq Mahajir, a senior lawyer from Hyderabad, presented a photo documentation of the police firing at innocent worshippers after the blasts in Mecca Masjid in Hyderabad. The photographic evidence he placed clearly proved that the police had fired with a clear communal intent; the worshippers were peaceful after the blasts and the police concocted stories that they were not allowing access to ambulances and pelting stones.

The second session was addressed by the representatives of various political parties.

Ali Anwar of Janata Dal (U) said that while one party is openly communal while another is covertly so. Subhashini Ali of CPI (M) condemned the NHRC for repeating the police version in the case of Batla House ‘encounter’ and said that if indeed the killed were terrorists, then it would have been better if they had been caught alive rather than killed.

Kavita Krishnan of CPI (ML) said that the war on terror has a clear mandate from the US; it is noteworthy that on the anniversary of 9/11, the Indian Home Minister was in the USA taking lessons from American government. She pointed out that issues such as secular agenda, terrorism, and foreign policy are not divorced but liked intimately to each other; a political movement needs to be launched. Ramgopal Yadav (Samajwadi Party) lamented that NHRC guidelines are never followed by the police, and this is leading to the disillusionment among people.

Dr. Javed Akhtar of Ulema Council expressed his anguish at the stereotyping of Azamgarh as the den of terror and said that the people of Azamgarsh only wished to live in peace and communal harmony.

At the end of the convention, Jamia Teachers’ Solidarity Association adopted resolutions demanding end to the culture of encounters, greater accountability on the part of police and end to communal witch-hunts.

This house resolves to strengthen the movement for the demand of an independent and fair probe into the Batla House ‘Encounter’. It demands the Prime Minister to immediately institute a Judicial Enquiry into the ‘encounter’.

This house rejects the partisan and biased enquiry by the NHRC, which refused to take cognizance of the points raised by the civil rights activists, and which failed to even visit the site of the ‘encounter’ to meet possible eye witnesses and neighbors.
This house demands speedy justice for the accused and arrested youth. The filing of separate charge sheets in different blasts, even in the same city, implies that the trials will be prolonged for years. We demand that a mechanism of parallel trials be evolved in order to ensure the time-bound conclusion of trials.

This house notes with great alarm the communally biased torture and mistreatment of accused in the terror related cases in the various jails across the country. In particular, the brutal violence in Sabarmati Central Jail on March 27, 2009, and the violence that SIMI accused were subjected to by Jail authorities in Jaipur on 21st September on Eid.

This house demands immediate punishment for the police personnel responsible for the extra judicial killing of Chungkham Shanjit and Rabina Devi in July 2009.

This house expresses outrage at the continuing arrests of democratic rights activists in Manipur and their torture in police custody. It demands the immediate and unconditional release of all those arrested in relation to the protests in the state since August 2009.

This house demands the repeal of Armed Forces Special Powers Act (AFSPA) from the states of Northeast and Kashmir, which has bred an atmosphere of impunity.

This house demands that the NHRC guidelines pertaining to encounter killings be scrupulously adhered to, and all those police and security personnel who indulge in extra judicial killings be booked under culpable homicide.

All those found guilty of implicating innocents as terrorists, as in the case where the Delhi Police Special Cell fabricated evidence to claim two young men as operatives of Al Badar, should be given exemplary punishment.

This house demands the Rajasthan government and the central government to investigate the Ajmer blasts, which the late Hemant Karkare, IG, ATS, Maharashtra was pursuing.

This house resolves to build a wide political movement for the defence of human rights and for the revamping of the state and national human rights commissions.

This house urges the Indian government to immediately halt the violence against the adivasis in Chattisgarh, Orissa, Jharkhand and West Bengal in the name of fighting Maoists.

The first session of the convention began by the release of the Hindi edition of the JTSA report on Batla House. The Hindi edition was released by Justice Sachar. Jamia Teachers’ Solidarity Association has announced setting up a fund for legal assistance of the youths picked up following Batla House encounter and made accused in Delhi blasts cases.


One Response

  1. very good updates. wroth reading.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: