|Haripriya Padmanabhan on Expeditious Disposal of Suits relating to Intellectual Property
Cite as: (2009) PL (CL) October 9
The Supreme Court recently has passed two judgments regarding expeditious disposal of suits but unfortunately has restricted its observations to suits relating to trade mark, copyright and patents. . .
The Supreme Court recently has passed two judgments regarding expeditious disposal of suits but unfortunately has restricted its observations to suits relating to trade mark, copyright and patents. The first of the decisions was in Shree Vardhman Rice and Gen Mills v. Amar Singh Chawalwala1. The case relates to a suit filed for violation of trade mark and the defendant against whom the High Court had granted an interim order, had come on appeal to the Supreme Court by way of a special leave petition. The Bench of the Supreme Court deciding the case, without going into the merits of the controversy, disposed of the petition by observing as follows:
3. Without going into the merits of the controversy, we are of the opinion that the matters relating to trade marks, copyrights and patents should be finally decided very expeditiously by the trial court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of trade marks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper.
4. Proviso (a) to Order 17 Rule 1(2) CPC states that when the hearing of the suit has commenced, it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. The court should also observe clauses (b) to (e) of the said proviso.
5. In our opinion, in matters relating to trade marks, copyrights and patents the proviso to Order 17 Rule 1(2) CPC should be strictly complied with by all the courts, and the hearing of the suit in such matters should proceed on day-to-day basis and the final judgment should be given normally within four months from the date of the filing of the suit.
6. On the facts of the present case, we are not inclined to interfere with the impugned judgment and order. However, we request the High Court that the suit in question should be decided within three months from the date a copy of this order is produced before the trial court.
Following this judgment in Shree Vardhman2 the same Bench in Bajaj Auto Ltd. v. TVS Motor Co. Ltd.3 passed a similar order on 16-9-2009 and directed as follows:
11. Hence, without going into the merits of the controversy, we direct the respondent-defendant to file a written statement in the suit, if not already filed, on or before the last date for closing of the Madras High Court for Dussehra holdidays. We would request the learned Single Judge who is trying the suit to commence the hearing of the suit on the reopending of the Madras High Court after Dussehra holidays and the carry it on a day-to day basis. No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30-11-2009.
The only drawback in the above decisions is the fact that the observations and directions to dispose of the suit within four months have been restricted to cases dealing with intellectual property. The reasoning behind the judgment, namely, that in such disputes the main dispute between the parties is on interim relief, would equally hold good for most commercial disputes. Further, even in other disputes, where interim relief may not be the main bone of contention between the parties, the fact remains that cases are pending for very many years.
There is really no difference in the time taken for civil suits regarding intellectual property cases and other suits. If at all, in other suits where companies/business houses are not involved, and the parties are individuals, they by and large do not have the luxury of time or finances and can therefore ill afford delay in adjudication. In fact most of the civil litigation in this county which has been pending for years are filed by individuals who wait for decades for justice to be rendered. This being the case, and Order 17 CPC being mandatory as it stands for all civil cases, the Supreme Court ought to have directed that all civil suits will be decided without much delay and that Order 17 should be complied with strictly by the trial courts for all civil cases. Giving higher priority for disposing of intellectual property litigation may not be appropriate, more so as this would also be at the cost of other civil cases which are pending.
Delhi HC issues notice to three schools for not complying with EWS norms
The Delhi High Court issued notices to three private schools of the capital for not complying with court orders which directed all schools to give 20% free seats to children belonging to the economically weaker sections (EWS) of society.
A bench comprising Justices A K Sikri and Sidharth Mridul directed Modern School (Barakhamba Road) , Frank Anthony School (Lajpat Nagar) and Indian School (Sadiq Nagar) to explain their stand by December 17, as to why they have not responded to the directions of the court till now.
A petition was filed by lawyer Ashok Aggarwal of the NGO Social Jurist seeking the court directions to initiate contempt of court proceedings against these schools for not complying with the Delhi High Court’s May 30, 2007 order which directed all schools of the capital to comply with the norms and reserve 15 per cent seats in the schools for the EWS students. The Court directed the schools to file an affidavit in this regard and also said those who would not file their affidavits would have to reserve 20 per cent seats for such children.
Mr Aggarwal contended in the court that the Delhi Government had earlier in June and August this year issued notices to these schools to file their affidavits but the schools did not comply with it.
The court had earlier in its May 30, 2007 order held that besides facing the contempt of court charge, the schools which do not comply with these orders would have to face de-recognition or takeover of the management of the school, the court held.
Aggarwal contended that the schools have neither filed any affidavits and nor are responding to the Delhi Government’s notice, therefore, they should be derecognised and proceedings of contempt of court be initiated against them for not taking the court orders seriously.
SC starts hearing afresh gas dispute between Ambani brothers
The Supreme Court started hearing afresh the natural gas dispute between the Ambani brothers.
Justice B Sudarshan Reddy replaced Justice R V Raveendran, who had withdrawn himself from the case, on the grounds of conflict of interest.
The bench headed by Chief Justice K G Balakrishnan also included Justice P Sathasivam.
Senior counsel Harish Salve submitted synopsis before the Supreme Court and contended that a family memorandum dated June 18, 2005 cannot prevail over the gas utilisation policy of the government.
Mr Salve, appearing for Mukesh Ambani company RIL, also submitted before the court that supply of gas at the rate of dollar 2.34 per unit to RNRL- an Anil Ambani company will adversely affect the profits of the Union Government under the profit sharing contract (PSC).
Ambani brothers are locked in a fierce legal battle over the fixation of natural gas price. The Centre is siding with Mukesh Ambani and had fixed gas rate at dollar 4.2 per unit.
As per family settlement, Mukesh Ambani had to supply natural gas from Krishna Godavari Gas basin for 17 years to Dadri based Power project of RNRL at the rate of dollar 2.34 per unit. RIL is not prepared to supply the gas at this rate. Natural gas is available within the area of 339 Sq km.
Hearing will now resume on November 10.
Centre submits guidelines for deposition of NSG commandos in 26/11 trial
The Centre submitted the guidelines before the Bombay High Court regarding the deposition of National Security Guards (NSG) commandos in the 26/11 terror attacks case.
Following this, a division Bench, consisting of Justices J N Patel and Amjad Sayed, reserved its order, on a plea moved by the Centre, challenging the designated court’s decision to summon NSG commandos to depose in the ongoing trial.
The Government, in the guidelines, stated that the depositions of the commandos should be via video conferencing and their names should not be revealed.
The Guidelines said the commandos should not be asked about their secret tactics used to handle the terror attack.
Earlier, during the hearing of the plea, the bench, in its oral order, said the defence and prosecution in the case would not question the commandos on their tactics used to handle the terror attack and would only ask limited questions.
The Court had also said the state had to obtain the High Court’s permission before calling further commandos as witness, except the three summoned by the Court.
Additional Solicitor General Darius Khambatta, who had appeared on behalf of the Central Government, strongly opposed the designated court’s order on the grounds that the deposition of the commandos may reveal certain facts which would be used by terrorist groups for other attacks.
Designated Judge M L Tahilyani, who is conducting the trial, had summoned three NSG commandos — Lt Col Rakesh Kumar Sharma, Major Ravindra Prakash and Captain Anil Jakhad, who were part of the team that stormed the Taj Mahal Palace, Hotel Oberoi Trident and Nariman House during the terror strikes, to testify regarding the operations carried out by them.
P&H HC asked Sidhu to reply by Dec 9 in election petition matter
Three-time BJP Lok Sabha member from Amritsar parliamentary constituency Navjot Singh Sidhu has been given time by Punjab and Haryana High Court here till December 9 to file a reply to the election petition filed against his victory in the May 2009 Lok Sabha elections.
Sidhu’s counsel appeared on his behalf and sought time to file the reply which was granted by justice Surya Kant, who adjourned the hearing till December 9.
Sidhu’s third successive return to Lok Sabha has been challenged by the defeated Congress candidate O.P.Soni MLA on grounds of alleged manipulation in the counting at the behest of state’s political bosses.
He claimed that the result was delayed to manipulate the counting and to deny him the victory eventhough he was having a lead over Sidhu by nearly 7,000 votes in the last leg of the counting.
Soni, who also alleged abuse of state machinery by Sidhu in securing release of power connection to some persons, has sought directions for a re-poll in the constituency.
PWC moves Delhi HC to quash proceedings in Satyam scam
Audit firm Pricewaterhouse Coopers (PWC) approached the Delhi High Court, seeking quashing of proceedings against them by the Government in the multi-crore Satyam scam as they are based in Delhi and have nothing to do with the audit of the Bangalore-based controversial company.
The audit company has stated that they are only one of the six franchisees of PWC, which have separate identities and clientele, therefore, they have no knowledge of main accused Ramalinga Raju Satyam’s financial accounts.
Accountancy regulator Institute of Chartered Accountants of India (ICAI) agreed to withdraw disciplinary proceedings against the Delhi branch of the audit firm in the Satyam scam.
Advocate CS Vaidyanathan, appearing for ICAI, agreed to withdraw the proceedings after the Delhi High Court objected to it taking action against the Delhi franchisee of the firm without giving any evidence that it was related to PWC, Bangalore which was the statutory auditor of Satyam.
Justice Sanjiv Khanna accepted the plea of the regulator and allowed it to issue fresh notice to the Delhi franchisee in case it found any evidence regarding involvement of this firm in the scam.
Since there was no connection with the Bangalore-based franchisee which had audited Satyam accounts, proceedings should be dropped against the one based in Delhi, the petitioner told the court.
There are six franchisees of the audit firm in the country and they are not related to each other in any way. We have nothing to do with the Bangalore firm which had audited Satyam accounts, so there does not arise any cause of action against us in the aftermath of the Satyam scam,’ the lawyer appearing for the Delhi firm pleaded and told the court to quash all the proceedings against them.
DDA gets HC nod to start allotment of flats
TNN 7 November 2009, 03:04am IST
NEW DELHI: Delhi High Court on Friday gave the green signal to Delhi Development Authority (DDA) to go ahead with the allotment process of over 5,280 flats to those whose names figured in the lucky draw in December last year.
Justice G S Sistani dismissed a petition challenging the process of the draw after the Economic Offences Wing (EOW) of Delhi Police submitted a report in the court giving clean chit to the DDA. The EOW had probed the charges of irregularities in the draw.
Appearing for DDA, advocate Rajeev Bansal said the controversy was created by unsuccessful applicants and there was no truth in the allegations of malpractice. He said all records of the allotment were sent for testing at the forensic laboratory in Thiruvananthapuram and it found that there was nothing wrong with the allotment process.
HC was hearing a petition filed by an unsuccessful applicant alleging that DDA had illegally allowed applicants under the Scheduled Tribe (ST) category from other states to participate in the exercise and hence the draw be cancelled.
Earlier, in response to the petition, DDA had assured the HC that it would not begin the process of allotment of flats till the EOW completes the investigation. DDA maintained that its officials had not committed any irregularity during the draw of lots.
Following the December draw a complaint was registered accusing the land agency of committing irregularities during the draw.
Gujarat HC fines itself Rs 15,000
TNN 7 November 2009, 02:10am IST
AHMEDABAD: In a curious case of judicial self-introspection, the Gujarat high court has imposed a penalty on itself for misjudging a case.
A division bench headed by Chief Justice K S Radhakrishnan on Friday imposed a cost of Rs 15,000 on the high court for neglecting judicial tradition in a case that led to the dismissal of a lower court judge.
“Judges are at times poor judges of judges, especially in judicial administration,” the division bench observed while hearing S J Pathak, who was first suspended in 1999 and dismissed seven years later for granting bail to an accused in a serious case without considering settled principles of law.
Pathak faced two departmental inquiries. The inquiry report was then placed before a disciplinary committee of Justice B J Shethna and Justice D K Trivedi (both now retired), who “tentatively” held that charges were proved against the judge. This conclusion was not supported by any reasoning.
Since, the conclusions were “tentative” the report was place before another disciplinary committee of Justice N G Nandi and Justice M S Shah. This committee in 2003 exonerated Pathak of all charges with a detailed analysis.
In wake of conflicting conclusions, the report was placed before the high court for perusal of all judges. In a chamber meeting, all judges did not accept the conclusion arrived at by Justice Nandi and Justice Shah. The judges decided to entrust the case to Justice Shethna again. In 2006, Justice Shethna held that all charges against Pathak were proved and recommended his dismissal from service.
Pathak filed a petition against his dismissal, and the bench of Justice Radhakrishnan and Justice A S Dave pulled up the high court for referring the case to Justice Shethna for re-consideration, particularly when Pathak had expressed apprehension that Justice Shethna was biased.
The Chief Justice ordered return of Pathak to service immediately and made observations against the high court’s decision of sending the case back to Justice Shethna, who had “pre-judged” the case, which led to a decision that was “vitiated by bias and liable to be set aside”.
Yasir murder case: HC orders life imprisonment for six accused
Submitted by admin4 on 7 November 2009 – 11:13am.
By TwoCircles.net Staff Correspondent,
Kochi: The Kerala High Court,on Thursday, ordered life imprisonment for six accused in the murder of Yasir. The accused have also been fined for Rs 25,000 each. The judgement of the division bench of the High Court has scrapped the order of the Manjeri sessions court in 2005 by which all the accused were acquitted for lack of evidence. Yasir, native of Tirur, was murdered in 1998.
Madathil Narayanan, Raveendran alias Ravi, Sunil Kumar alias Suni, Manoj Kumar alias Manoj, Kooliparambil Nandakumar and Kattuvilayil Sivaprasad are the accused. The judgement was made by the division bench consisting of Js K Balakrishnan Nair and P Bhavadasan. The court acquitted Nirathil Balakrishnan, the fifth accused, on want of evidence. Puthuppalli Surendran, the fourth accused, is absconding. The High Court also removed the remarks made by the subordinate court about VP Radhakrishnan, the CI of Tirur who was in charge of the investigation.
The accused have to undergo imprisonment under various sections of the IPC like 143 (six months), 147 (one year), 148 (two years), 302 (life imprisonment) and 307 (seven years). Each accused has to pay a fine of Rs 25,000. The court also directed to pay Rs 1, 25,000 from the fine amount to the widow of Yasir and Rs 25,000 to Yasir’s friend Abdul Azeez who also was injured in the attack. The accused have to undergo imprisonment for two more years in case of failure to pay the fine.
Yasir was killed by a group of men, reportedly RSS activists, at around 2 am on August 18, 1998. His friend Abdul Azeez also was seriously injured. Even though the police took them to the Taluk Hospital in Tirur, Yasir succumbed to his injuries. The prosecution case reportedly says that the accused who are RSS activists killed Yasir due to their revenge for the conversion of Yasir, friend Azeez and some others to Islam. The judgement passed by the HC yesterday came in the special revision petition filed by Yasir’s widow Sumayya through Adv CK Sreedharan.
The court reportedly observed that the reasons listed by the subordinate court to set the accused free were illegal and denial of justice. The High Court also expressed displeasure at the judgement of the subordinate court even after the witnesses had recognised the accused during the trial and the prosecution had presented all the relevant documents.
Senior lawyer CK Sreedharan and lawyers Sunny Mathew, PC Noushad and MP Abdul Latheef argued for the petitioner. Public Prosecutor Noble Mathew was present for the government and lawyers PS Sreedharan Pilla, N Bhaskaran Nair and Bodhini argued for the accused.
Yasir was earlier Ayyappan, a Hindu who used to perform religious rites in temples. He reportedly learned about Islam through his friend Jabbar and converted to Islam in 1990. His wife and two children also accompanied him. Ayyappan changed his name as Yasir and his wife became Sumayya. Yasir used to call the Azan very beautifully. With his calm nature and attractive talks, he soon became a good preacher of Islam. About 40 families, reportedly, embraced Islam by his efforts. This made him a sore in the eyes of the RSS which reportedly threatened him in many ways. But Yasir paid no heed to them.
On the day of murder, Yasir came back home late after taking his younger son to the doctor. When his daughter told him that some people had come to the house asking for him, he set out with his brother and friends in an auto rickshaw in the direction the people had left. A group of people stopped the vehicle and scared others away before they attacked Yasir and Azeez. When the police reached the spot, the attackers had escaped. The seriously hurt men were taken to hospital. Yasir succumbed to his injuries, while Azeez was saved.
All the eight accused in the case were acquitted by the sessions court on March 21, 2005. This led to tensions in Tirur in which three people were killed. Yasir’s family welcomed the HC order. Sumayya expressed her gratitude to all those who had helped them in the case.
HC panel to visit IOC inferno site
TNN 7 November 2009, 07:01am IST
JAIPUR: The Legal Awareness Committee (LAC) of Rajasthan High Court will visit the Sitapura industrial area to provide legal aid to poor labours and persons who suffered losses due to the mishap and would see that they get a proper legal redressal. The committee is a statutory body and works under Rajasthan State Legal Service Authority (RSLSA).
RSLSA executive chairman Justice Karni Singh Rathore on Friday told the media that it has been decided to send LAC to visit the site and see that the needy get proper legal help on the spot. It would further ensure that their complaints are properly presented before the state government.
“We have received reports that the poor and needy are not getting proper relief there. There are also reports that when people fled due to the inferno, there were thefts in the unlocked house of poor people. We would ensure that they get their dues,” Justice Rathore said and clarified that it is not an inquiry committee.
“We will shortly visit the site and will provide necessary help to affected persons as well as ensure redressal of their grievances. A report in this regard will also be submitted to the RSLSA chief,” said Abhinav Sharma, an LAC member.
Justice Rathore also said that RSLSA organised Lok Adalat in high court after a gap of 12 years and a total of 93,451 cases have been disposed off by September this year. While disposing of 1,683 accident claims by way of RSLSA’s alternative dispute resolution mechanism, more than Rs 18 crore has been disbursed to the victims, he added.
He further said that such Lok Adalats organised across the state has disposed of around 79,764 petty criminal cases, 803 matrimonial disputes, 69 industrial disputes and 924 bank loan refund cases. “In all, at various pre-litigation stage, we disposed of 11,90,263 cases and held 4,448 camps for legal literacy,” he said.
“Directions have been issued to all the chief judicial magistrates in the state to coordinate with the SPs of the districts and central jails to see that the undertrials, who have already completed the maximum period of sentence but are still waiting final adjudication of criminal cases from the court, are released,” added Rathore.
RSLSA has received around 12,258 NREGS-related complaints, of which 12,134 complaints were decided at pre-litigation stage alone, Rathore said and added, “There were many complaints regarding payment, for which we have directed the state authorities to take the help of scheduled banks and gramin banks instead of post offices.”
HC questions luxury tax on marriage gardens
Abhinav Sharma, TNN 7 November 2009, 07:02am IST
JAIPUR: A Division Bench of Rajasthan High Court on Friday sought explanation from the state government for extending the ambit of luxury tax to the marriage gardens across the state under Rajasthan Luxury Tax Act, 1993, through an amendment in 2007.
The Bench issued notices to the secretary (finance) and the commissioner (commercial taxes) on a petition, challenging the constitutional validity of the amendment, filed by Jaipur Vivahsthal Samiti, having some 500 marriage gardens as its member.
The Samiti contended that the marriage gardens are not covered under business’, business activity’ and commerce’, which come under luxury tax. It alleged that right to livelihood will seriously be hampered if such taxes are imposed on lakhs of marriage gardens in the state.
“It merely provides a facility which cannot be termed as commercial activity as no selling of any commodity is involved. It is merely a short lease which is entered for a definite purpose which is not a business activity,” claimed the petitioner’s counsel.
The petitioner also contended that the commercial taxes department has no authority to collect such a tax and that for last so many years, there was no such tax levied on these gardens.
Contrary to this, the state government, while amending the Act, was of the view that marriages are traditionally solemnised at residential houses. But with the change in trends, the marriages are now solemnised outside and this is only because the parties want to avail the luxury of having huge sets, music system and all other activities which comes in the preview of luxury.
HC seeks reply from govt to PIL on road level
TNN 7 November 2009, 05:27am IST
PATNA: The Patna High Court on Friday directed the state government to reply to a PIL that has challenged the increase in the road level in Gaya town due to which people have become apprehensive of waterlogging in their houses in the rains.
A division bench comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma gave one month’s time to the state government to give reply to the PIL filed by one Jawahar Lal.
The Patna High Court on Friday ordered the Bihar Industrial Area Development Authority (BIADA) to maintain the continuity of service of the 14 employees whose dismissal was revoked on an earlier order of the HC.
A single bench presided by Justice V N Sinha disposed of the writ petitions of the affected employees, saying the principal secretary, industry, would hear their appeal regarding their status in BIADA in the light of the latest HC order.
After the services of 109 employees of BIADA were terminated for unauthorised absence when they had gone on a strike, a bench of the high court had directed the BIADA to take them back. The court had then added that the employees would not be paid salary for the period of their absence.
Basant Kumar Chaudhary and Ranjan Kumar Singh appeared for the petitioners while additional advocate general Lalit Kishore represented the state.
SC to hear Mayawati’s plea against HC order in Taj corridor case
TNN 7 November 2009, 02:48am IST
NEW DELHI: UP chief minister Mayawati on Friday moved the Supreme Court against an Allahabad High Court decision to entertain a PIL challenging the CBI’s decision to close the Taj Heritage Corridor scam case against her.
When the matter was mentioned before a Bench comprising Justices R V Raveendran and B Sudershan Reddy by a battery of lawyers, including senior advocates Mukul Rohtagi and S C Mishra, the court fixed November 16 for hearing on her appeal.
Mayawati had challenged the decision of the HC to entertain the PIL saying the apex court had refused to entertain a PIL on the same issue after the CBI closed the case following the refusal of governor T V Rajeshwar to give sanction for her prosecution in the case.
The FIR in the Taj Heritage Corridor scam was lodged against her on the orders of the apex court, which was monitoring the probe into the case. The direction for lodging the FIR against her and others came from the apex court on September 18, 2003.
After the governor refused to grant sanction in June 2007, the issue was raised before the Bench hearing Taj Heritage Corridor scam matter. However, it had refused to entertain the PIL saying the petitioner should take other recourse to ventilate his grievances.
HC admits plea for claim around Dinakaran land
TNN 7 November 2009, 03:43am IST
CHENNAI: In what could be a new twist to the controversy over the land-holdings of Karnataka High Court Chief Justice PD Dinakaran, some residents of the Kaverirajapuram village in Tiruvallur district, where the judge is alleged to have encroached upon government land, have moved the Madras HC staking ownership over properties in the same area.
Stating that they had valid titles for the land, the petitioners said their properties were no longer in their possession and had been classified as ‘anadheenam’ lands because of non-payment of tax for a long period. The petitions which came up for hearing before Justice K Suguna on Friday, contended that the lands did not belong to the government, which had failed to follow mandatory procedures before declaring them as ‘anadheenam’ lands.
Expressing their readiness to clear the tax arrears, the petitioners said the district authorities were “initiating proceedings under the Land Encroachment Act against some third parties, who have nothing to do with these lands, treating this land as government land.” They, however, did not name the ‘third parties.’
Explaining the long delay in approaching the court for a direction to the revenue authorities, the petitioners said they came to know about the attempts being made to take over these ‘anadheenam’ lands and distribute them to landless farm labourers under the TN government’s two-acre free land distribution scheme.
HC bans construction in elephant range
TNN 7 November 2009, 03:42am IST
CHENNAI: In a last-ditch effort to save whatever that remains of the ecologically fragile elephant corridor in the Nilgiris, the Madras High Court has banned all forms of new construction, including installation of solar/electrical fencing, in the region.
A division bench comprising Justice SJ Mukhopadhaya and Justice M Duraiswamy passed this order on a public interest writ petition filed by three organisations, including the Chennai-based In Defence of Environment and Animals (IDEA).
Concerned by the obstruction being caused to the animals, the judges referred to the recommendations of an expert committee constituted for the purpose and directed the forest secretary, principal chief conservator and others to furnish a map showing demarcated boundaries of the corridor clearly in two weeks.
Noting that the map must contain the survey numbers of private lands as well, the judges said no construction should be made in the region without prior intimation to the court.
“No person should be allowed to put a fresh solar/electrical fencing within the area considered the elephant corridor by the expert committee,” they said. Orders concerning the existing fence would be passed on November 19, when the matter will be taken up for further hearing.
CIC adjourns cases related to CJI for 10 days
STAFF WRITER 19:28 HRS IST
New Delhi, Nov 6 (PTI) Can any authority continue to refuse information under the RTI Act just because an appeal has been filed before a larger bench, without any stay order?
The issue came up today before Chief Information Commissioner Wajahat Habibullah, who granted adjournment in eight appeals on the request of Supreme Court till November 16.
The apex court had sought adjournment of hearings till a division bench of the Delhi High Court hears next week whether information held by Chief Justice of India (CJI) comes under the RTI Act or not.
In six of the eight applications, the Supreme Court had refused to provide information pertaining to the CJI on the grounds it is not held at the registry of the apex court prompting applicant S C Agrawal to file appeals before the Commission.
|Contempt notice to transparency lawyer|
OUR LEGAL CORRESPONDENT
|New Delhi, Nov. 6: The Supreme Court today issued a contempt notice to activist-lawyer Prashant Bhushan for remarks accusing a judge of ignoring a potential conflict of interests and awarding mining leases to a company in which he held shares.
Justice S.H. Kapadia, next in line to be Chief Justice of India (CJI), had awarded leases to Sterlite India Private Limited. He had revealed he held some Sterlite shares and offered to recuse himself from the case, but continued hearing the case since no party objected to that.
Bhushan said the notice to him would only “bring the issue of corruption in the judiciary and outdated contempt laws into focus”.
The son of former law minister Shanti Bhushan has been at the forefront of a movement seeking greater transparency and accountability among the judiciary, which recently led to apex court judges putting their assets declarations in the public domain for the first time.
Bhushan had told a Delhi-based weekly in an interview that judicial corruption manifested itself in several ways and cited Justice Kapadia’s case as an example.
“There is a law against judges hearing cases where there is a conflict of interests, but they just bypass it and you can’t complain because that would be contempt,” he had said.
In another context, he said at least half the past CJIs were corrupt — a remark the contempt notice mentions — though he admitted he did not have evidence to back all his claims.
Bhushan and his father are now defending the editor, resident editor, publisher and cartoonist of a newspaper against contempt charges for publishing a caricature of former CJI Y.K. Sabharwal.
Justice Kapadia was part of the forest bench which had in August 2008 refused bauxite mining leases to London-based Vedanta Alumina Limited on the ground that it was unlisted in India. The bench had awarded the leases to Sterlite, in which Vedanta holds an 80 per cent stake.
Although the parties in the case did not object to Justice Kapadia being on the bench, activists opposing mining in Orissa’s Niyamgiri hills had argued that the real stakeholders — the organisations opposed to the Vedanta project — were not con- sulted.
Today, amicus curiae Harish N. Salve said Bhushan’s remarks were an “attack on the integrity” of the court.
According to Clause 11 of the Restatement of Judicial Values, adopted by Supreme Court judges in 1997, no judge shall “hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised”.
Sikh groups to move SC to seek HC probes into 84 riots
Encouraged by successful organisation of Punjab bandh yesterday, various Sikh organisations were now planning to move PIL in the Supreme Court (SC) to seek judicial inquiries by high court judges in various states where Sikhs were killed in November 1984 riots.
All India Sikh Students Federation (AISSF) President Karnail Singh Peer Mohammed and senior advocate of Punjab and Haryana High Court Navkiran Singh, a representative of US-based Human Rights group Sikhs for Justice, said here today that the Sikh organisations have now decided to move the PIL in the Supreme Court for which preparations are in progress and probably it will be filed in January 2010.
It was also decided to move the PILs in High Court of the other States with the help of victim families of the Sikh genocide, in which thousands of Sikhs were killed in riots in 39 cities across the country.
Both Peer Mohammed and Navkiran Singh Advocate also stated that a five-member delegation consisting of representatives of various organisations including Khalsa Action Committee, Sikh for Justice, AISSF and Dal Khalsa among others, would submit a memorandum to the Prime Minister on November 16 to press for punishment for the guilty of the anti-Sikh riots and to seek a resolution by the Lok Sabha condemning the genocide.
The Copies of the memorandum would also be distributed among all the Lok Sabha members seeking their support for the resolution.
HC rejects bail plea of accused in gangrape
TNN 6 November 2009, 06:19am IST
LUCKNOW: Justice Ashwani Kumar Singh of the High Court on Thursday rejected the bail plea of an accused along with two other accomplices for gang rape of an 18-year-old married woman.
Additional government advocate OP Srivastava, admitting the poor role of Gonda police, contended that a scheduled caste woman Mohini Devi lodged an FIR with Koria Bazar police station, Gonda against seven persons. She had to approach the magistrate for direction to register her FIR as even the deputy inspector general and superintendent of police, Gonda did not bother to direct the police station to register the FIR.
The victim, Mohini deposed before the magistrate that on June 19 Ram Gopal, Nankay, Nanki, Durga, Malti Devi, Ram Dehal, Bekau and Vijay Bahadur kidnapped her on gun point from her house. She was gagged and undressed. Thereafter Ram Gopal and two others took turns to rape her. She became unconscious. Then she was taken to different places under threat and was raped over and over again.
AGA Srivastava said that the role of police was dubious as when her husband, after returning from Punjab, moved the Gonda police, the accused persons released the lady but the station house officer did not register the FIR.
Justice Singh observed that it was a serious offence of gang rape in which the role of SHO was not fair and just. Therefore, the rapist Ram Gopal did not deserve bail.
No libel in case of mere publication, says HC
TNN 6 November 2009, 06:56am IST
PANAJI: In a defamation case, the high court of Bombay at Goa recently held that mere reproduction of allegations against a person by a newspaper, based on a complaint filed before the authorities, may not amount to libel against the publication.
The judgment comes in the wake of an appeal filed against a local Marathi daily and others. Based on complaints filed by one Vincy Gonsalves with the police and vigilance departments, the newspaper had published that one Liyakat Khan had threatened to bomb Gonsalves’ house at Valpoi with the help of Dawood Ibrahim. Khan’s suit claiming damages for defamation against the newspaper and Gonsalves was rejected by a trial court in 2004. Subsequently Khan approached the high court.
Dismissing the appeal, a division bench of Chief Justice Swatanter Kumar and Justice N A Britto held, “In fact, it is a conceded position before us that contents of the publication are normally verified by the newspaper and if the contents are mere reproduction of the complaint with some preface which by itself is not offending, it may not give rise to liability.”
The bench also added that the allegations published were stated to be a reproduction of a complaint given to the police and vigilance departments which per se may not render the editor liable for the claim of damages.
The newspaper had defended that the allegations published were based on the complaint made by Vincy Gonsalves to the police and vigilance departments. There was no intention to harm or cause mental agony or torture to the appellant. The newspaper had even published a clarification provided to them by the appellant.
As far as Gonsalves’ liability was concerned, the high court observed, “The complaints made to an authority with an object of they being investigated in accordance with law cannot at the stage of investigation be made foundation for an action for defamation. Claim for damages can be made if the complaint is found to be false and incorrect.”
|Wyeth case: Reckitt challenges HC order
6 Nov 2009, 0537 hrs IST, Ratna Bhushan & Paramita Chatterjee, ET Bureau
|NEW DELHI: In a fresh twist to the ongoing legal battle between FMCG major Reckitt Benckiser and global drugmaker Wyeth over alleged copyright violation over their respective hair-removing creams, the former has appealed against a recent Delhi High Court order which went in favour of Wyeth.
Reckitt Benckiser had, some months back, appealed in the Delhi High Court alleging that Wyeth had indulged in copyright violation. The new appeal is slated to get registered on November 25 in the Delhi High Court, said a person familiar with the matter.
When contacted, a Reckitt Benckiser spokesperson declined comment stating that the ‘matter is subjudice’. A Wyeth spokesperson said in response to an email query by ET: “An appeal has been filed by Reckitt which is way beyond the statutory limitation period.”
Reckitt Benckiser had alleged that the S-shape design used for its hair removing cream Veet Spatula was copied by Wyeth for its Anne French hair-removing cream. This was rejected by a single judge.
Reckitt Benckiser, which also makes Dettol, Cherry Blossom and Lizol, had alleged that the S-shape design used for its product ‘Veet Spatula’ was copied by Wyeth for its ‘Anne French’ cream since the design can be replicated easily. But Wyeth had countered that similar designs existed in other countries as well.
Veet, one of Reckitt Benckiser’s global best-sellers, is a leading hair-removal cream. It was launched in India in November 2004, and is endorsed by film actress Katrina Kaif. Wyeth’s Anne French, on the other hand, is decades old, and is now endorsed by Kareena Kapoor.
The hair remover category is estimated at close to Rs 200 crore, and is dominated by Anne French and Veet. Dabur’s Fem is the latest entrant in the category.
HC brings cheer to wannabe grooms with empty pockets
Posted: Friday , Nov 06, 2009 at 0313 hrs Chandigarh:
The Punjab and Haryana High Court has provided a ray of hope for government employees, who need government loan for their marriage. The rules so far provide for this facility only for the marriage of children or siblings of government employees.
Justice Ranjit Singh directed the Haryana government to “reconsider, decide and issue afresh” the policy under which a government employee is not entitled to loan for his/her marriage. Terming this ‘strange’ and ‘a case of an amiss’, Justice Singh observed: “There is no rationale in formulating these instructions in this manner. The consideration for advance (loan) in such cases rather may be more pronounced and appropriate.”
The Haryana government has been directed to reconsider the issue afresh, clarify and “introduce any change in the policy, if it would like to”.
The directions came in wake of a public interest litigation filed by Sonu Verma, a resident of Karnal working at Industrial Training Institute Karnal. Verma, who had applied for a loan of Rs 90,000 for his marriage, was denied by the government. He then moved the high court demanding quashing of the rules.
The Justice said: “I am conscious that it is a policy formulated by the state and it is within the domain of the state Government to frame policy as per its wisdom. I am also conscious that to seek an advance may not be a right. It is an assistance which the state as a welfare measure is providing. Attempt is not to find if the policy is unwise but to refer it to the framers to consider if this is a case of an inadvertent slip. The instructions have not clearly excluded loan for self marriage.”
The Court also ruled: “This exclusion of loan for self marriage is apparently not on the basis of any well considered decision. It may be a case of the issue having escaped attention while formulating the policy instructions. Loan is for an employee. It is available to him when he is to marry his dependent but not when he needs it for his own. There seems to be no purpose for denying loan for self marriage, when it is available to the same person for marriage of his dependents.”
HC to work 15 minutes more to speed up case disposal
A Subramani, TNN 6 November 2009, 02:06am IST
CHENNAI: In a welcome measure to speed up disposal of cases, the Madras High Court has decided to work for 15 minutes longer every day from the next judicial year.
The Madras High Court, which already works 15 minutes longer than any other court in the country, has now decided to scale down the daily lunch recess from one hour to just 45 minutes. The revised sitting hours is from 10.30 am to 1.30 pm, and from 2.15 pm to 4.45 pm. The new five-and-a-half-hour-schedule will come into force on June 7, 2010, said a registry notification on Thursday.
“With this, we will be working for 30 minutes over and above the original work hours, daily. Putting in 30 minutes of additional work for 210 days will give us 105 hours annually. Translated into days, we will have 19 additional working days next year,” said a senior official.
As on June 30, the Madras High Court has a backlog of over 4.68 lakh cases, next only to the Allahabad High Court’s pendency of 9.35 lakh cases. Between March 31 and June 30 alone, the High Court’s pendency rose by more than 6,000 cases, as the filing of new cases outstripped the disposal rate. Tamil Nadu’s subordinate courts, on their part, have a backlog of 10.59 lakh cases.
In this scenario, the High Court had three options to speed up the disposal rate: slash the usual five-week summer vacation; scrap the Dussehra break or reduce Christmas vacation; and three, increase the sitting hours.
Jurists say that the increase in sitting hours will improve the disposal rate by 10%. “The move has several advantages. We will be 10% more efficient by investing next to nothing in terms of infrastructure and staff strength,” said a judicial officer. “It would cost us crores of rupees if we were to increase the number of courts or judges by another 10%,” he said.
However, another officer said it would be too simplistic to assume that a 10% increase in work hours would proportionately increase the disposal rate. “By evening, we will be tired and it would tell on the speed of disposal,” he said. A woman officer said the additional work hours would further delay their departure from office in the evening.
Rejecting the arguments, a court official said the additional work hours are well within the outer frame work, that is, the closing hours would continue to remain 4.45 pm as only the lunch hour has been reduced.
In 2007, during justice AP Shah’s tenure as chief justice, the total number of working days of the High Court was increased from 210 to 220. It was, however, brought back to 210 after protests from the Bar. It was the Bar which suggested the addition of 15 minutes to the usual work hours.
A couple of months ago, during the all India chief justices conference, justice Prafulla Kumar Misra is said to have circulated a note suggesting a uniform judicial calendar containing 220 working days for all High Courts in the country. When the suggestion was placed before the Full Court of judges here, several options, including reduction of the five-week summer break and working on Saturdays, were discussed.
CG Road demolition halted after HC stay order
TNN 6 November 2009, 02:33am IST
AHMEDABAD: Ahmedabad Municipal Corporation has stalled its demolition drive at CG Road after some builders approached Gujarat High Court demanding a stay on AMC’s anti-encroachment drive.
Owners of three buildings Shilp on CG Road, Nalanda Hotel situated at Mithakhali and Patel Estate from Nikol filed a petition in high court claiming that they had paid impact fee fixed by the AMC few years ago, and following this their construction was regularised. This time AMC initiated demolishing their construction without even issuance of prior notice.
The Bench of Justice RM Doshit and Justice RH Shukla scheduled to hear this case was not available on Thursday, therefore the petition was heard by a Bench headed by Justice Bhagwati Prasad.
The court refused to interfere in the case at this juncture and it was decided that the petition would be heard by the regular Bench headed by Justice RM Doshit. The case was adjourned to Monday after the AMC counsel assured the court that the corporation would restrain itself from further demolition till the court decides on the petition.
Court Stay On Mathur Commission
TNN 5 November 2009, 07:37am IST
JAIPUR: In a major setback to the Ashok Gehlot government, a division bench of Rajasthan High Court on Wednesday restrained the three-member Mathur Commission from probing the corruption charges against the Vasundhara Raje government and the conduct of public servants during her regime.
Forming the commission under the chairmanship of Justice (retd) N N Mathur was the first decision the Gehlot government had taken to probe the charges of corruption against Raje and also the alleged irregularities during her regime. Congress had made corruption the key poll issue during the assembly elections.
The bench of Chief Justice Jagdish Bhalla and Justice M N Bhandari on Wednesday stayed the working of the commission, passing the interim order on a public interest litigation filed by one Kashi Purohit and Krishan Murarilal Asthana early this year.
While passing the interim order, the court observed that petitioners have successfully made a prima facie case fit for grant of interim relief. It felt a restraint order was required as otherwise there would be no utility in continuing with the writ petition if the commission was allowed to work in the manner it is acting at present. “The court feels self-restrained in citing any specific reason for granting the interim relief, which is based on merits of the case,” the court observed.
It was argued by advocate Abhinav Sharma, counsel for the petitioners, that besides the other grounds urged in the petition, the state government has already admitted that the commission is not functioning under the special powers provided under the Commission of Enquiry Act, 1952. “As such, no committee can be allowed to make any sort of preliminary inquiry into the serious charges of corruptions, nepotism, fraud, etc. Further the committee has summoned senior bureaucrats without any jurisdiction and it should be restrained from doing so during the pendency of the writ petition,” the court observed.
The petitioners had alleged that the Congress party during the last assembly election campaigning had alleged irregularities worth over Rs 22,000 crore during Raje’s regime. Countering the arguments, advocate general G S Bapna urged that the government had not constituted any commission, instead this was merely a fact-finding committee and it had been entrusted with the task of finding out the guilty persons and recommend action against them.
Judges appointment: CJ to decide on hearing
TNN 5 November 2009, 03:32am IST
HYDERABAD: A two-judge Bench of the A P High Court comprising Justice G Raghuram and Justice Ramesh Ranganathan on Wednesday directed the writ petition challenging appointment of new judges to the High Court to be placed before Chief Justice Anil R Dave who will now decide as to who will hear the case.
Vasireddy Raghunath, a practising HC advocate, moved a writ petition which is yet to be registered. In the meanwhile, the matter came before the division bench and the petitioner objected to the Bench sharing the matter. He contended that one of the judges had a close proximity to one of the short-listed candidates. The Bench directed the petitioner to give details in an affidavit on the reasons why he objected to the Bench hearing the matter.
Once the candidates in the list were named, Justice Ramesh Ranganathan recused from the case. A packed court hall witnessed Justice Raghuram from the Bench asking the petitioner’s counsel as to why he should not hear the matter. Advocate General D V Sitarama Murthy was also called in to assist the court. The petitioner also at one stage had sharp interaction with the AG. Justice Raghuram in his order referred to the proximity theory and wondered what was the peculiar circumstance that he suffered. The AG said the legal process cannot be permitted to be so subverted.
Ruling on illegal detention
A two-judge Bench of the AP High Court comprising Justice D S R Verma and Justice G V Seetapathy on Wednesday declared the detention of Ayub Ali Ahmed as illegal and ordered his immediate release. The Bench allowed a habeas corpus filed by Naseem Bibi complaining that after being discharged in January 2000 from jail, her husband was wrongly jailed in 2006. He was lodged in jail for offences under sections 302 and 498 A. The government contended that the remission given to him was contrary to the government order.
The Bench, speaking through Justice Verma, pointed out that the remission was granted by the governor in exercise of his constitutional powers while the clarification to re-admit him in jail was given by the jail authorities and was thus without the authority of law. The Bench also said that the re-admission to jail was without following any procedural safeguards and was thus illegal.
Advocate’s arrest ordered
Justice L Narasimha Reddy of the AP High Court on Wednesday sentenced Chaparla Sitaram, a practising advocate of the High Court, to a day’s arrest for contempt of court and interfering with the court proceedings. Earlier in the day, the lawyer informed the court about a certain case which was heard on Tuesday and pointed out that the order be withdrawn as he was not the advocate on record.
As the judge pointed out to the vakalat filed by him, the counsel questioned as to how the case was listed. The gestures and voice of the counsel led to the judge cautioning him. The judge even pointed out that his actions could attract the provisions of contempt of court act. At this stage, the counsel threatened that he too would issue contempt notice to the judge.
The judge then summoned the police officials of the Special Cell in the High Court and directed that Sitaram be taken into custody for 24 hours. The advocate was recently involved in yet another controversy when he was accused of physically assaulting a media person in the court premises.
Shilpa Shetty’s restaurant group wins employment tribunal
6th November 2009, 11:38am
Shilpa Shetty’s V8Gourmet Restaurant Group has won an employment tribunal which found allegations made by Jamal Hirani, former director and chief executive officer of Gourmet Restaurants Limited, to be untrue.
Last month various reports in the press claimed that Hirani had been forced out of the businesses to make way for Shilpa Shetty and Raj Kundra, who became investors this summer.
The Tribunal found that Hirani was not constructively dismissed adding that there was no connection between the purchase of the businesses by V8G early in the year and the recent investment by Raj and Shilpa.
Hirani was also reported in the press to be claiming “more than £1.5 million” from Shilpa’s company but V8G has dismissed this saying the amount was actually £150,000.
Apart from a very modest holiday upgrade payment of £1,323 (which V8G had already agreed) all Hirani’s claims were rejected by the Tribunal. The Tribunal said that the employers had “reasonable and proper cause for their actions” concerning the suspension of Hirani.
Shilpa Shetty said: “I am pleased with the Tribunal’s decision which was never in doubt in Raj’s and my mind.”
Managing director, Arjun Varma added: “We are delighted to hear the verdict, which vindicates Shilpa, V8 Gourmet Group and my brother Andy & myself. Truth & Justice have prevailed and we are very pleased with the outcome.”
Andy Varma, head of food & business development said: “The truth always prevails and we reserve the right to file a defamation suit.”
Nov 7, 2009 Income Tax Case Laws
SUMMARY OF CASE LAW
Prior to insertion of the proviso to clause (i) of the Explanation of section 115JB the assessee was entitled to reduce the sum from revaluation reserve while computing book profit under section 115JB; however, after the insertion of the proviso to clause (i) of Explanation to section 115JB, the assessee has been deprived from this benefit by clearly mandating that in case the amount of such reserve has not been added back by the assessee in relevant assessment year i.e. when the assessee created the revaluation reserve while computing the book profit for that year, then the amount is statutorily to be included while computing the book profit under section 115JB.
CASE LAW DETAILS
Decided by: HIGH COURT OF DELHI, In The case of: Indo Rama Synthetics (I) Ltd. v. CIT, Appeal No.:, ITA No. 851/2009, Decided on: September 22, 2009
3 That the relevant provision of Section 115 JB proviso to clause-(i) of Explanation 1 reads as under:-
“115JB.—Special provision for payment of tax by certain companies
(1) Notwithstanding anything contained in any other provision of this Act, where in the case of an assessee, being a company, the income-tax, payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 2001, is less than seven and one-half per cent of its book profit, such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of income –tax at the rate of seven and one-half per cent.
(2) Every assessee, being a company, shall; for the purposes of this section, prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act; 1956 (1 of 1956): …
Explanation 1- For the purposes of this section, “book profit ” means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub-Section (2), as increased by- ….. …. …. ….
if any amount referred to in clauses (a) to (h) is debited to the profit and loss account, and as reduced by-
(i) the amount withdrawn from any reserve or provision (excluding a reserve created before the 1st day of April, 1997 otherwise than by way of a debit to the profit and loss account), if any such amount is credited to the profit and loss account Provided that where this section is applicable to an assessee in any previous year , the amount withdrawn from reserves created or provisions made in a previous year relevant to the assessment year commencing on or after the 1st day of April, 1997 shall not be reduced from the book profit unless the book profit of such year has been increased by those reserves or provisions (out of which the said amount was withdrawn) under this Explanation or Explanation below second proviso to section 115JA, as the case may be ;or] …. …. ….”
4. The Tribunal while interpreting said section has very effectively and exhaustively looked at the issue and given the finding with which we concur.
The ITAT has held as under:-
“61. Now looking into the provision of section 115JB of the Act, we find that proviso to clause 1 of the explanation inserted/substituted w.e.f. 1.4.97, the reserves of any nature, except other than reserve specified under section 33 AC, if debited to P&L Account is to be added back to the book profits of the assessee company. From any reserve or provision, if any, such amount credited to P&L Account is required to be reduced from P&L Account after adjustment as specified in causes (a) to (f). insertion/substitution of clause (i) of aforesaid explanation it was open to the assessee to reduce the sum withdrawn from revaluation reserve, while computing book profit, amounts withdrawn from provision/reserve and credited to P&L Account, even if in the year in which the provision/reserve had been created but the amount of such reserve had not been added back while computing book profit for that year, not withstanding that the reserve had been debited to the P&L Account. provisions of section 115JB it is clear that prior to insertion of the proviso to clause (i) of the explanation of section 115 JB the assessee was entitled to reduce the sum from revaluation reserve while computing book profit under section 115JB of the Act even if in the year in which the provision/reserve had been created but the amount of such reserve has not been added back while computing book profit for that year not withstanding that the reserve had been debited to P&L Account. However, after the insertion of the proviso to clause (i) of explanation to section 115JB of the Act, in similar facts and circumstances, the assessee has been deprived from this benefit by clearly mandating that in case the amount of such reserve has not been added back by the assessee in AY 2000-01, i.e. when the assessee company created the revaluation reserve while computing the book profit for that year, then the amount is statutorily to be included while computing the book profits under section 115JB of the Act. What we interpreted herein above is just a result of a plain reading of the relevant provisions, which are devoid of any ambiguity or doubt so no other meaning could be ascribed thereto. We are further of the opinion that the Tribunal is bound to give literal interpretation to ambiguous provisions of the Act and not interpret them in any other manner which are against the wisdom of the creators of the statute who created/amended the provision with the intention that the same is to be followed while considering the issues depending on the application thereof. Hence, we are also duty bound to adhere to the plain meaning of the section in the manner as indicated above and apply the same while deciding the issue.”
6. We are of the opinion that since there is no dispute that the provision of clause (i) of Explanation-1 to Section 115 JB is applicable to the issue in question and the language of the same being plain and clear, we agree with the view of the Tribunal on the interpretation of this provision as stated by it in para 61 and as reproduced by us above. In fact, it is not disputed that the assessee company takes benefit of additional depreciation on account of revaluation of the fixed assets by increasing the revaluation reserve in the relevant assessment year 2000-2001 and consequently, the same definitely has the effect of reducing the net profit for the said Assessment Year. Looking to the scheme of the provision of Section 115 JB, and which is a Minimum Alternate Tax (MAT) provision and so introduced by the legislature to be applicable to those companies which avoid paying tax by debiting in the profit and loss account, various expenses/entries etc as specified in Section 115 JB Explanation-1 such as Income Tax paid or payable, amounts carried to any reserve, provision of losses for subsidiary companies, the amount of depreciation etc as provided in the provision. A normal literal interpretation of the provision is, therefore, the order of the day with respect to this MAT provision.
Preity Zinta supports campaign against child trafficking
by ANI on November 6, 2009
Mumbai, Nov 6 (ANI): Bollywood actress Preity Zinta has joined the fight against child trafficking by lending support to a campaign along with Melanne Verveer, the US Ambassador-at-large for global women’s issues at an event held here on Thursday.
The campaign called ‘Against Child Trafficking’ or A.C.T is an initiative of a non-profit organisation by the same name.
Zinta urged the millions of villagers across the country not to be lured by money and sell off their children.
“I want to give a message to those people who live in villages, that if anyone approaches you and asks you to sell your child to them, telling you that they will provide them employment, please don’t sell your child, because she is only going to be forced into either flesh trade or be forced to work as domestic help in somebody’s house,” said Zinta.
Child trafficking is a global problem, affecting large number of children worldwide.
According to estimates, around 1.2 million children are trafficked every year. Also, about 44 million, or 13 percent of all children in south Asia, are engaged in labour, with more than half in India.
Trafficking of children for labour, prostitution or domestic services is widespread, especially within Bangladesh and India as well as to Europe and the Middle East. (ANI)
Delhi to host workshop on children’s mental health care
by Indo Asian News Service on November 5, 2009
New Delhi, Nov 5 (IANS) A two-day national workshop on mental health of children who are distressed or have been abused will be held in the national capital from Friday, the organisers said Thursday.
The workshop is being organised by the National Commission for Protection of Child Rights (NCPCR) and Udayan Care, an NGO that works for disadvantaged, orphaned and sexually abused children.
‘A child who is abused by his or her family member, is orphaned or abandoned, needs more than just love and care. They need special counselling to come out of their cocoon and accept the world with open arms once again. This and many other such issues will be discussed in the workshop,’ a member of Udayan Care said.
The workshop will not just see members of the civil society, health care experts and other stakeholders participate in it, but also people like Swasthi Udayan, a chef, who managed to fight past a traumatic childhood of poverty and abandonment to fulfil her dream and become independent.
Shantha Sinha, chairperson of NCPCR, Amita Dhawan of NALSAR Law university, Hyderabad, and K. Sujatha Rao, secretary for health and family welfare, will be among the participants in the workshop.
|Memorandum to NHRC by SAD is a political stunt, says Punjab Cong MLA|
Punjab Newsline Network
|Friday, 06 November 2009|
|BHOLATH: The farcical exercise of submitting a memorandum/complaint to the National Human Rights Commission by Sukhbir Singh Badal and his group of ill advised sycophants seeking action against those guilty of 1984 Anti Sikh riots is nothing but a political stunt aimed at gaining sympathy of the Sikh Community.
In a press release on Thursday, MLA Bholath Sukhpal Singh Khaira stated, he personally feel that the undue delay of 25 years in punishing guilty of Anti Sikh riots amounts to justice delayed, justice denied. But as far as Sukhbir Badal’s approach to NHRC is concerned it is just a mock exercise, since legally the NHRC cannot take cognizance of any incident which is older than one year.
In any case the NHRC is not competent to take cognizance of the matter sub judice in nature as the cases of 1984 Anti-Sikh riots are pending in special CBI courts, what can the NHRC can do in this matter?
The Congress also questions Sukhbir Badal as to why he did not seek setting up of special fast track courts while he was Union Minister in the Vajpayee lead NDA Govt. from 1999 to 2004? He also question Badal as to what his father did as Chief Minister Punjab from 1997 to 2002 or even now as CM to assuage the hurt feelings of those affected ? Did the Akali Govt. rehabilitate any victim of 1984 riots? Did the Akali Govt. offer Govt. job to any riot victim?
Therefore, the entire exercise of seeking redressal from a forum like NHRC which cannot intervene in the matter is nothing but a political ploy to whip up sentiments of Sikhs to gain political mileage. Further, He also demand that Sukhbir Singh Badal must clarify as to what justice he has rendered to over 5000 Congressmen politically victimized in Punjab? Is not the entire political posturing of Sukhbir Badal over the 1984 riots like shedding crocodile tears only to achieve cheap political gains, questions the Congress?
National and State Human Rights Institutions in India- Need for Revaluation
November 5, 2009 ·
This post is with reference to the functioning of the National Human Rights Institutions in India, and more specifically, Karnataka.
I attended a meeting (as a part of my internship with SICHREM) on 04-11-2009 of organisations and individuals who work with these National and State Human Rights Institutions. The agenda was essentially for everyone to share their experiences, both positive and negative, and express any concerns they might have with reference to the functioning of these institutions. What follows is an account of what I learnt at the Meeting, and serious issues that were raised and need to be addressed.
The formation of various human rights institutions (NHRC etc.) in India has its origins in the Vienna Declaration of the UN in 1993, with the primary aim of these institutions being that they were the delivery bodies for implementing protection and promotion mechanisms in furtherance of human rights in their respective nations.
The guiding principles for the functioning of National Human Rights Institutions have been adopted by the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) in Geneva, on June 2009. These General Observations, based on the Paris Principles, highlight crucial values that must be adhered to at the time of the formation and working of NHRIs world over. In accordance with these Observations, establishment of national institutions MUST be in a legal or constitutional text, and creation by an instrument of the Executive is not adequate to ensure permanency and independence. The requirements of maintaining plurality and independence in the composition of the NHRIs have to be met, but the same can be achieved in different ways, either by the members of the Governing Body representing different sections of society, through the appointment process and consultations and recommendations from various social groups etc. However, the ICC stresses on the importance of the meaningful participation of women in the NHRIs as an indicator of pluralism. Further, the appointment process of members of the NHRI is required to be transparent, with broad advertising of vacancies, maximising the potential candidates from a wide range of societal groups, and selecting members to serve in their own individual capacity and nor as a part of the organization they might represent; and government representatives on governing or advisory bodies of National Institutions do not have decision making or voting capacity. Simply put, the government cannot have voting rights in an institution they are to be held accountable to. In order to further maintain independence, the NHRIs must have the power to appoint their own staff members, and the dismissal of any member of any NHRI must be made in strict conformity with the substantive and procedural law in force at the time. Another important Observation is that of accreditation, a status which is granted by the ICC. If it appears that the circumstances of the NHRI have changed in any way so as to affect its compliance with the Paris principles, the NHRI would come under the review of the Sub Committee of the ICC, and if the Committee is not satisfied with the submissions of the NHRI at the end of the period of review, the NHRI stands to lose its accreditation status.
In view of these aforesaid Observations, it clearly appears that every NHRI across nations is expected to adhere to basic principles of natural justice, manifestations of which are seen in the form of transparency, accountability, accessibility, cooperation, effectiveness, plurality and diversity etc. In the event that these institutions do not adhere to these principles, they risk being downgraded by the ICC, which was seen in the case of Sri Lanka’s NHRI. A similar disaster nearly embraced Malaysia, where however, the government woke up one day before the matter was to come up before the ICC for consideration and passed an ordinance bringing about the required change. The matter is due for consideration and review by the ICC again, later this month. Given the fact that these NHRIs prepare their own reports to the ICC, a pertinent question now arises about the existence of a mechanism to place a check on and review the activities of these institutions within their respective countries. In this situation, the role of NGOs acquires a position of critical importance. Civil and political organizations and human rights groups and activists have the authority, to prepare shadow reports, (that is, reports parallel to those prepared by NHRIs) about the functioning of these NHRIs and their adherence to the aforesaid principles. In the event that the ICC finds merit in these shadow reports and is not satisfied with the response of the NHRIs at the end of a specified period, the NHRI is likely to be downgraded.
With this background, the concerns raised about the functioning of the NHRIs in India may be addressed, as India is up for review in 2011, giving us about a year to bring about any changes we might feel necessary in the functioning of these institutions.
An observation made by a UN High Commissioner when she was on a visit to India is critical in examining India’s adherence to the principle of plurality. She remarked that in the largest democracy in the world, a country where others can learn so much from, it was shameful that there was no female member in the National Human Rights Commission. A member of an organization called Peoples Watch stated at the meeting that this remark was quite flippantly dismissed by members of the NHRC, when they stated that the National Commission for Women had women members, so what was the need to include them in the NHRC. Evidently, the NCW is a forum for women and the NHRC is a forum for men. Incidentally, these very members are unaware of the existence of the ICC and the fact that every nation gets accreditation from this very body, and also stands to be downgraded. (On a different note, these members of the NHRC are also unaware of the existence of the Guidelines of the NHRC on Encounters)
Further concerns pertaining to the jurisdiction of each of these institutions, and what was the adequate forum to voice grievances also came to the fore. There have been instances where a matter was referred to the NHRC, which in turn referred it to the State Human Rights Commission, which in turn referred it back to the NHRC, causing a deadlock, and the case has remained suspended for the past two years.
The lacunae in the functioning of these NHRIs is highlighted by the fact that provisions of basic laws such as the IPC and the Cr.PC, forming the basis of the entire criminal justice system have not been made available on the website of the NHRC. Activists stated that websites were available only to a select group of the population, and that these laws should be made available to the general public at large in any and every manner possible. These laws are the touchstone for human rights education and protection in any country. Further issues brought to the fore included inadequacy in the definition of human rights, leading to abuse and mismanagement of this area of law. In addition to defining human rights, each NHRI must have a fixed role identified, in order to bring about clarity and reduce scope for redundancy and confusion and ensure delivery of maximum justice.
Each institution is supposedly governed by a set of rules and guidelines, but if these are even in existence is a different matter altogether. A case in point is the Karnataka State Human Rights Commission, where the members are unaware of their powers and their duties, and claim that the rules have not been published yet. Repeated questioning of the government yields the same response that they are being finalised. As a result, members are unaware of the role they are required to play, and the decisions they are entitled to take, thus turning to NGOs and asking them what has to be done in a certain situation. To make matters worse, serious issues pertaining to conflict of interest of members of this SHRC have been raised, as members of the SHRC are also members of the Child Welfare Committee and associated with other NGOs, raising questions about their credibility and the transparency and impartiality of the appointment process.
What is more startling than procedural hassles, is the laid back and often callous attitude of certain members of National and State Human Rights Institutions. Certain erstwhile members of the Karnataka SHRC have been involved in getting crucial cases dismissed from the High Court, with false evidence being introduced. A few others encourage a ‘compromise’ between the victim of abuse and the perpetrators of the crime, in cases involving rape and domestic violence.
With the number of cases being reported to these institutions increasing by the day, the alarming number of fallacies that they present needs to be tackled at the earliest, because these tend to act as a deterrent to individuals and organizations reporting incidents of human rights violations, as they claim to be losing faith in the system, as a result of repeated encounters with nonchalant attitudes and procedural tangles.
NHRIs are very powerful quasi-judicial bodies, where misuse of power can have serious and far-reaching repercussions on the lives of citizens of this country. These institutions are meant to provide a ray of hope to victims of atrocities, and provide a faster mechanism to access and administer justice than conventional courts, plagued with delay and corruption and logistical concerns of their own. To the outside world, we still present our NHRIs as a matter of pride for the nation, bringing them up in most speeches to the UN on the matter of human rights. Within the nation however, these institutions are beginning to lose their credibility. Supposedly, there are about two hundred cases pending against the NHRC in the Delhi High Court alone, questioning the merit of leading institution for the protection of human rights in a country, where there are approximately 150 statutory human rights institutions.
Suggestions for improvement included an overhauling of the appointment process, with reservations being made for members to be de facto directly appointed by the Governor or the President (at the State and National levels respectively) with no political influence. Further, greater enforcement of accountability principles and transparency in the working of the Commissions were felt to be the need of the hour. Disclosure of grants, budgetary allocations and expenditure must be adhered to strictly, and RTI petitions must be attended to in their entirety. Allowing these institutions to be open to the scrutiny of certain eminent NGOs in the nation, in order to assess the functioning of these institutions and bring about relevant changes from time to time based on the changing nature of the social fabric, and also to bring about cooperation between these institutions and the individuals and organizations who work closely with them, will have a positive impact on the functioning of National and State Human Rights Institutions.
One can only hope and persuade the ‘powers that be’ to institutionalise a few of these changes that are the need of the hour, as change with the backing of law is the most influential and emphatic of all. Until then, justice stands suspended, with the fate of thousands hanging in balance.
Hereinafter referred to as NHRIs
 Peoples Watch is a human rights organization
 This was also put forth by the same member of Peoples Watch.
 This was felt in light of the growing trend of these institutions to dismiss RTI petitions, or, if a petition asked 5 questions, only the first one was answered, and so on.