LEGAL NEWS 06.03.2010

HC refuses to take up poll plea

TNN, Mar 6, 2010, 05.04am IST

BANGALORE: In the hearing on the BBMP elections on Friday, the division Bench refused to take up the petition challenging the wardwise reservation list published a couple of days ago.

“We have already given an order twice in this matter. We don’t intend to take up this matter today. Let it come in the normal course,” the Bench observed when the counsel mentioned the case.

Shyam Sundar and Ramaiah in their petitions challenged the reservation with respect to Vijinapura and Basavanapura wards.

HC asks AAI for HAL airport details

TNN, Mar 6, 2010, 04.46am IST

BANGALORE: The Karnataka High court on Thursday asked the Airports Authority of India (AAI) to give details with regards to the capacity of HAL Airport and details of number of flights it handled (both domestic and international) and its infrastructure when it was closed in May 2008.

The division Bench headed by Justice N Kumar also directed AAI to clarify with regard to the averments in the petition vis-a-vis the concessional agreement of July 5, 2004 for setting up a greenfield international airport at Devanahalli by BIAL. The petitioners contended that the agreement is not approved by the Parliament and there is no scope for closing an airport under the AAI Act.

“Under a private contract, we can’t sell the Vidhana Soudha,” the Bench observed before adjourning the hearing to Monday.

`Everything in govt is rotten’

Observing that everything in the state government is “rotten”, Justice D V Shylendra Kumar on Friday directed the state government to file a status report regarding allotment of land to ex-servicemen and weaker sections of society in Kotthanooru.

“They make tall claims. But when it comes to action, they drag their feet. These ex-servicemen, who have shed their blood for the nation, and Dalits should have been given houses built by the government. But here, the land has been taken away on one pretext or the other. The reply from the government is evasive and callous,” he observed. The court also observed that the affidavit filed by revenue secretary G S Narayana Swamy containing wrong statement of facts is nothing but perjury.

Hindu Marriage Act not applicable to NRIs: HC

Shibu Thomas, TNN, Mar 6, 2010, 03.10am IST

MUMBAI: A desire to get married the traditional way attracts young non-resident Indian couples to tie the knot in India, but the Hindu Marriage Act (HMA) may not be applicable to them if they are domicile of a foreign country. The Bombay high court has said that the HMA cannot apply to an estranged couple who were domiciled in the US.

Justice Roshan Dalvi quashed an order of the Pune family court which had said Indian courts would have jurisdiction to hear a divorce case even if the couple had resided for a single day in the city when they came to India for a holiday.

The court was hearing a petition filed by Michigan-based Smita Muley who had got a divorce from a US court. Her husband Suhas Muley came back to India and filed another divorce petition in a Pune court.

“The man cannot confer jurisdiction on the court of Pune where the couple never stayed together for any length of time in their own matrimonial home (India), they having had their matrimonial home in the US,’’ said the judge. “The HMA itself does not apply to the couple conse-qu-ent upon their domicile in the US and also because the rights between the parties have been settled by a judgment conclusive between them.’’

The Pune court had said it had jurisdiction to hear the case based on Suhas’s claim that they had spent a night in his parents’ house in Aundh, Pune, in January 2008.

“The order of the family court, Pune, concluding that the parties last resided together in Pune and even though their residence is for a single day, it would give the court jurisdiction, suffers from material irregularity and is required to be interfered with.’’
In the HC, Suhas produced documents as proof that he was domiciled in India: copy of his ration card issued in 2001, his driving licence obtained in 1999, a 1995 voter identity card and passport with validity up to 2019.

But the court was not satisfied. “None of these documents shows his intention to reside in India permanently; his Green Card shows he intends to stay in the US,’’ said the judge, adding, “It is easy to see that both the parties have had the intention of making the US their permanent home even prior to their marriage. Since their parents reside in India, they came to India to be married as per Hindu rites.’’

The court said Suhas could challenge the US court’s divorce order of January 2009 in that country.

(Names of the couple changed)

Tide turns: HC stays Rin ad

6 Mar 2010, 0015 hrs IST, ET Bureau

KOLKATA: The Calcutta High Court on Friday restrained Hindustan Unilever Ltd (HUL) from beaming a controversial detergent ad with immediate effect.
Justice Nadira Patherya passed an order on Friday restraining HUL from telecasting its detergent advertisement that was seemingly mocking Procter & Gamble’s detergent Tide Naturals.

Justice Patherya directed that telecast of the HUL advertisement be stopped on and from March 8. P&G senior advocate SK Kapur had contended that ad was ‘a clear case of disparagement’ and that it mocked the P&G product while showing its own. The judge agreed that no manufacturer is permitted to promote its product by labelling its competitor’s as bad.

Prior thereto, HUL had moved Chennai High Court and obtained an ex-parte order directing P&G to specify a disclaimer in its packet of Tide Naturals which was vacated after P&G made an application for the same. Taking cue from the same, HUL contended in the Calcutta High Court that by filing a vacating application, P&G had submitted to the jurisdiction of Chennai High Court and the suit in Calcutta High Court cannot be proceeded with.

In its affidavit, HUL had contended that it had obtained laboratory reports which proved the superior whiteness of Rin.



Ensure water supply to Ajmer, says HC

TNN, Mar 6, 2010, 06.30am IST

JAIPUR: A Rajasthan High Court division bench has asked the state government to implement the directions of the permanent lok adalt to ensure regular water supply to Ajmer.

The bench clarified it intends to make the lok adalat suggestions applicable in the entire state. Accordingly, it directed the government to see that during supply of potable water in the morning and evening there is no electricity supply in that area to reduce the use of boosters, a cell should be created under an assistant engineer to check water wastage from leakage, to have a comupterised cell to register complaints about leaks, supply of dirty water, complaints received against non-redressal of grievances, etc.

It has also directed in case of a major fault or shutdown of supply it should be ensured that potable water supply does not get adversely affected. The Ajmer district administration will prepare an additional water storage plan for this.

Not all demands dowry-linked: HC

TNN, Mar 6, 2010, 04.43am IST

NEW DELHI: The Delhi High Court has held that a solitary demand not followed by any harassment of the wife doesn’t constitute a dowry demand and is not punishable under section 304 B of Indian Penal Code. Justice V K Jain gave the ruling while acquitting three members of a man’s family who had appealed against their conviction for dowry death.

The main allegation against the accused was that they had asked for Rs 50,000 from the victim’s family and sent her to her parental house to get it. After it failed to come across any persistence in the demand for the amount, HC clarified that just because a demand was made once after the wedding, it doesn’t automatically attract penal provisions related to dowry as it was not ‘‘referable to the marriage.’’

‘‘Demand for something which has not been agreed to be given at any time before or at the time of marriage and which isn’t in the contemplation of the boy or his family members and which is neither expected by them to be given in the marriage can’t be said to be connected with marriage,’’ justice Jain noted, emphasizing that a demand should be in connection to marriage for it to be covered under section 304 B.

Explaining ‘‘in connection with the marriage of the said parties’’ provided under Section 304-B of the IPC, the court said that it clearly excludes the demands that were not in connection with the marriage of the parties.

The judge further clarified that even if the victim was harassed with respect to one demand, if it wasn’t connected to marriage it would not attract 304 B. ‘‘It is difficult to accept that the demands which are not at all referable to the marriage would also constitute dowry demand, in case woman is subjected to cruelty or harassment in connection to such a demand,’’ he said.

However, the judge noted there are demands other than those covered under the definition of dowry which are made after the marriage and such demands do result in subjecting the girl to cruelty and harassment. He suggested the legislature change the law if these have to be dealt with under the IPC.

Earlier, the father and brother of the victim, Lovely, had alleged she committed suicide after being harassed for not bringing Rs 50,000. The trial court had in March 2005 sentenced the victim’s husband, Naresh Kumar Sharma, besides his father, mother and elder brother to seven years of imprisonment.

Raj HC strikes down 50% quota for women

Abhinav Sharma, TNN, Mar 6, 2010, 03.42am IST

JAIPUR: Even as the UPA government at the Centre gets ready to bring the women’s reservation Bill in Parliament on International Women’s Day, the Rajasthan HC on Friday struck down 50% quota provided to women in civic and and local bodies by the state government. The court’s Jaipur bench also struck down the government’s proposal to provide quota to youth in local bodies.

During the recent local bodies, 50% of the seats were reserved for women, which resulted in election of 15 of the 33 women zilla pramukhs. The court, however, clarified that those already elected would not be affected. But in future no 50% quota would be provided to women, it clarified.

A division bench comprising Chief Justice Jagdish Bhalla and Justice M N Bhandari observed that 50% reservation for women and earmarking certain seats for candidates in the age group of 21-35 were “unconstitutional”.

“The Constitution provides for a maximum of 33% quota for women. So there is an embargo in providing more than what is mentioned in the Constitution,” said Chief Justice Bhalla while delivering the judgment. The court observed the state government has failed to justify its action in enhancing the reservation.

Bombay HC quashes order of Jail Sup imposing punishment on prisoner


Saturday, March 6, 2010 10:18 IST

Mumbai: Observing that due procedure had not been followed, the Bombay high court has quashed an order passed by superintendent of Amravati Central prison imposing punishment on a prisoner for not surrendering after the expiry of his furlough leave. Furlough is temporary leave granted by jail authorities to a convict.

The judgement was delivered by justice AP Lavande and justice PD Kode recently on a petition filed by SK Najir, 42, who is serving a life sentence in Amravati jail on murder charge.

The petitioner, convicted in 1993, had challenged punishment imposed on him for not surrendering after the expiry of his furlough leave granted to him for two weeks on April 25, 1996. Police arrested him as he did not surrender for 585 days.

In view of late surrender the superintendent of Amravati prison issued show cause notice to the petitioner on December 27, 1997. He replied to the notice some days later.

However, on February 4, 1998, the Superintendent proposed punishment of forfeiture of remissions in the ratio of 1 : 5.

Petitioner’s counsel Jaiswal submitted that if the punishment of forfeiture of remission exceeding 60 days is proposed by the Superintendent, in terms of Rule 23 of the Maharashtra Prisons (Remission System) Rules, 1962, he has to take prior approval of DIG Prisons for imposing punishment.

Jaiswal also submitted that it is also a settled law that appraisal of the District Judge has to be obtained only after the DIG Prisons approves the punishment. In the present case, this procedure has not been followed. On the contrary, the district judge, Amravati has first approved the punishment and thereafter the DIG Prisons has approved the punishment.

He, therefore, submitted that the punishment imposed on the petitioner be set aside and the matter be remanded to the authorities for fresh decision.

Prosecutor Mirza conceded that the proposed punishment imposed on the petitioner cannot be sustained.

The judges observed, “in a number of matters we have held that when the Superintendent of Central Prison proposes punishment of forfeiture of remissions exceeding 60 days, he has to first obtain prior approval of DIG Prisons and then the punishment order has to be sent for appraisal to the concerned district judge”.

“Admittedly this procedure was not followed in the present case. On this count alone, the punishment imposed on the petitioner deserves to be quashed and set aside” the judges held and remanded the matter to the authorities for a fresh decision by April 24.

DTC staff turned blind eye to eve-teasing, HC fumes

TNN, Mar 6, 2010, 04.40am IST

NEW DELHI: The Delhi High Court upheld on Friday the Delhi Transport Corporation (DTC)’s order terminating the service of a driver and conductor in a 1993 eve-teasing case. Broadening the scope of a writ petition that alleged eve-teasing at the hands of the conductor, the court demanded to know if the Delhi government and DTC had any mechanism to check such incidents.

Justice Kailash Gambhir sought an affidavit on the matter from the government, saying “an overwhelming majority of women in Delhi don’t feel safe”. The HC was hearing an appeal by a conductor, who was suspended for being “hand-in-glove” with some boys who teased female passengers in a DTC bus.

Citing how harassment of women go unreported, the court said: “The immeasurable damage that eve-teasing does to a woman’s self-esteem could hardly take us on the way to achieving gender equality. Even today one cannot ignore the reality that an overwhelming majority of women in Delhi do not feel safe. One does not need hard-hitting statistics to prove this, but a daily scan of newspapers will give a reality check as to how women face violence in the city on roads, buses and market places.”
The DTC has challenged a labour court’s order that cancelled the termination of the driver and conductor of the bus. Jai Pal Singh did not prevent teasing of a girl in 1993 and instead acted “hand-in- glove” the court found and directed that he be dismissed from service and asked DTC to file a compliance report by April 7.

‘‘It is common knowledge that most women rely on public transport, especially buses, for day-to-day travel. It is often seen that women feel threatened not only by anti-social elements travelling on the bus but equally by persons manning the bus. The drivers and conductors who are supposed to act as saviours often indulge in acts of indecency if they find a lone female passengers in the bus,’’ HC noted as it upheld the DTC order, terminating the services of the conductor and driver following a case of eve-teasing on a bus in 1993.

Criticising the driver and conductor, the court said, “The case exemplifies the irresponsible and pathetic behaviour of the employees of the public transport department. Had the driver immediately applied the brakes and halted the bus, the gruesome incident could have been avoided. Both the conductor and the driver not only failed in their duty, but were hand-in-glove with the accused,” the court said. “The only remedy is to have informed and sensitive citizens. The drivers and conductors should be sensitized towards issues relating to gender violence.”

Pay for damage during party protest: HC to ex-Sena MLA

Express News Service

Posted: Saturday , Mar 06, 2010 at 0131 hrs Mumbai:

Saying a tough signal needed to be sent against vandalism, the Bombay High Court today ordered a former Shiv Sena MLA to pay Rs 5.88 lakh to compensate for the damage caused to a five-star hotel in the city last year by protesting party workers.

Sitaram Dalvi, the former MLA, had been directed by the Mumbai Collector to pay Rs 7.88 lakh for the damages at Hotel Intercontinental caused by more than 500 Sainiks during a protest over labour issues in January last year. Dalvi was held responsible as he was the area leader of the party and one of those behind the protest.

Dalvi had deposited Rs 2 lakh and then petitioned the High Court for a stay on the Collector’s order. On Thursday, the court had asked him to consult his party leaders and find out if they would pay for the damages. Dalvi got back today, saying he could not get in touch with his party chief or other leaders due to lack of time.

The division bench of Justice Ranjana Desai and Justice Mridula Bhatkar then directed Dalvi to deposit the money by March 8. “This is not a question of money but is a question of what signal should go to the people. This breaking of property, burning buses and trains must be banned,” Justice Desai observed.

The High Court said that while protesting is a Constitutional right, destruction of public and private property could not be allowed. The court also cited the Supreme Court’s 2009 judgment where it laid down guidelines for recovering damages from organizers of political agitations.

The court also refused a request by Dalvi’s lawyer Shriram Kulkarni for some time to pay the Rs 5.88 lakh. “Are you suggesting it is difficult? What is so great about it?” asked Justice Desai. Kulkarni had earlier argued that Section 51 of the Bombay Police Act, under which the Collector issued the notice to Dalvi seeking damages, was unconstitutional as it does not contemplate a proper inquiry before liability to pay compensation is fixed.

He had also argued that there was no reason why Dalvi alone should be made to pay, when other members of the party too were involved in the protest. However, the court said that these issues can be looked at when the case comes up for final hearing.

Reacting to the order, Dalvi told The Indian Express, “Why should I involve the party now? It will bring about a lot of paperwork all over again with the Collector and court for the party.

Instead I have taken the decision to pay the entire amount myself. I had initially paid the dues in my name amounting to Rs 2 lakh. When they started asking me to pay the rest of the amount as a vibhag pramukh, I challenged it. But now I have decided to keep the party out of the matter.”

In our judiciary, anybody can be bought, says Gujarat CJ

TNN, Mar 6, 2010, 03.36am IST

AHMEDABAD: Chief Justice S J Mukhopadhyay expressed concern over the future of Gujarat judiciary when hearing the case of termination of ad hoc fast-track court judges. The high court and the state government discontinued services of 56 judges last November.

Discussing charges of corruption in cases of some of judicial officers on Friday, Justice Mukhopadhaya said: “We are concerned about the future of Gujarat judiciary, where money has become the main source and where you can buy anybody with the power of money.”

Justice Mukhopadhyay insisted on maintaining transparency in judiciary in order to uphold its credibility among people. He asked the lawyers representing the FCT judges how else the high court could have reacted to allegations of corruption levelled against the judicial officers.

The FCT judges were relieved from service last year with a remark in their termination letter that they were found ‘unsuitable’.

The judge was of the opinion that issuance of a show-cause notice to the judges concerned would have served no purpose. He also made it clear that he was discussing the issue in the context of the judiciary across the nation, and not strictly pertaining to Gujarat.

Move afoot to exempt CJI from RTI Act

6 Mar 2010, 0208 hrs IST, ET Bureau

NEW DELHI: The Manmohan Singh government seems to be disinclined to get into a tussle with the higher judiciary. A proposal to exempt the office of the Chief Justice of India from the purview of the Right to Information (RTI) Act is under the government’s consideration.

With the prime minister stepping in to back amendments to the Act, the Department of Personnel and Training (DoPT) and law ministry are likely to be on their toes to explore the possibilities of making the changes.

However, with BJP and Left parties strongly opposed to any dilution of the Act, the government may run short of numbers for passage of the amendments in the Rajya Sabha. “Why should the Chief Justice of India be excluded? What is the justification in it?” asked CPI MP D Raja on Friday.

Mr Manmohan Singh has reportedly backed changes in the RTI Act “to address the concerns of the judiciary.” He said that keeping the CJI office out of its purview will secure confidential information related to the appointment of judges and higher administrative decisions from public scanner.

CJI K G Balakrishnan had written to the prime minister seeking exemption from the RTI Act in certain matters. However, Congress president Sonia Gandhi is understood to be averse to changes in the Act, which was one of the UPA’s key legislation.

The Delhi high court in January had upheld its single bench order that the office of the Chief Justice of India comes within the purview of the RTI Act and details of judges assets should be revealed under that. The Supreme Court now has around a week to challenge the HC judgement. The Delhi high court had given petitioners a 60-day deadline to challenge the ruling.

Besides the proposal to keep CJI out of the Act’s purview, the amendments proposed are disallowing discussions on policy decisions to be made public and permitting frivolous queries.



‘Politicians Meddle In Criminal Trials’

Saturday, 6 March From Tehelka Magazine, Vol 7, Issue 10, Dated March 13, 2010

What reforms does the system of judicial appointments need?
The current system is carried out in secret and there is a lack of transparency. We must select an independent Judicial Appointments Commission, with a representation of the judiciary, executive, academia, and eminent people, which functions openly.

How should nominations be made to the Supreme Court and high courts?
There is no defined procedure. When I headed the collegium in the Delhi and the Madras high courts, I used to have a wide consultation with judges and Bar members outside the collegium. Even though the candidate gives an exhaustive bio-data, there is no transparency. Also, there is no investigating agency or machinery with the judiciary to enquire into allegations against a candidate. We do receive complaints, but the Intelligence Bureau does the investigation. There are times when reports are doctored depending on the government in power.

The SC collegium bypassed you for elevation. What was the procedure?
I don’t know. There is no formal communication between the judge and the collegium.

Did you try to find out what happened? You have said you were hurt.
I never made any grievance till the question was put to me. I have never made any enquiry. For me it’s a closed chapter. To keep the controversy going on will not be good for the institution. Once I took up the job, I marched like a soldier.

What is behind judicial corruption?
It is not peculiar to India. I’m proud that corruption in the superior judiciary, by and large, is minimal. If you bring in transparency in appointments it will reduce the possibility of misuse of office. Corruption can take many forms — bribes, favours to lawyers, nepotism, tendency of politicians to interfere or sometimes even allowing them to interfere, are some.

Why shouldn’t judges openly declare their assets?
There are two aspects to this. One is whether it could mean information under the RTI Act. In that case, the Central Information Commissioner can directly disclose the information. The second aspect is to put it on the website. In European countries there is no declaration of assets. According to the law, the judges must declare their assets to the CJI or CJ of the HC, which is exempt from disclosure under Section (8) J of the RTI Act unless a larger public interest is established. There is a lot of resistance to put the entire information on the Internet for security reasons.

Why is the judiciary in a general state of decline?
I don’t agree with that. It is vibrant. We are giving too much importance to a few headlines.

Why does the question of the integrity of judges come up then?
A few recent incidents have caught the attention and therefore the judiciary is not seen in good light. Two cases of impeachment in such a short span of time have sent wrong signals. The courts are constantly under media glare, which is a good thing.

Why is there such a large backlog?
There are more than two crore cases pending in our courts. The number of judges is low compared to other countries. In the Chief Justice’s conference, we decided that a judge should not look at more than 500 cases and for a magistrate it should not exceed 1,000 cases. But today a judge’s file has more than 10,000 cases. Delhi has nine lakh pending cases, out of that 6.3 lakh pertain to bounced cheques. Our methods of case management are also archaic. How does one decide priority?

Why has the judiciary failed to end corruption in public life?
The role of the court is not to put an end to corruption. But what should happen when corrupt public servants are brought before the court — is an expeditious trial and punishment. What is happening in most corruption cases is that because trials get prolonged, those involved engage a fleet of lawyers to fight and take advantage of the loopholes. Another disturbing feature is the tendency to interfere with criminal trials by filing petitions for the stay of the trial, which ultimately ends in the acquittal. To that extent, one may criticise the judiciary’s ability to deal with corruption. But lawyers and investigating agencies are also responsible. Sometimes witnesses are not brought before the court, the officials involved are transferred and so on. What the government should do is to take out the petty cases — fines and penalties — from the criminal justice system. We must think of innovative measures of improving the criminal justice system. Thousands of undertrials are languishing in jails. In a few cases the accused does not even know why he is in jail. It is disheartening that some of them cannot hire lawyers or even furnish money for bonds.

What are the three fundamental issues of crisis before the judiciary?
Judicial delays and cost of that, is one. Lack of modernisation would be the second. The third is credibility. People should have faith in the system. Without that, the courts will not survive. There is a sense of frustration among the litigating public because matters are not disposed off in time, the procedure is cumbersome and hiring lawyers is expensive. Giving speeches here and there is not the vision of the judiciary. All government departments prepare a vision statement. Where is the vision statement of the judiciary?

What else corrupts the judiciary?
Post-retirement appointments. In all democratic countries, the age of retirement for a judge is 70 years. In India not only is the age of retirement on the lower side but there is also a difference between the retirement age of high court judges and those in the Supreme Court. When HC judges come for consideration for apex court, they are preoccupied with thoughts of further elevation and extension.

Manmohan Singh not in tune with Sonia Gandhi over RTI

NEW DELHI – Prime Minister Dr Manmohan Singh has reportedly disagreed with Congress President Sonia Gandhi over the Right to Information (RTI) Act.
As per news channels, Dr Singh is in favour of excluding the office of the Chief Justice of India (CJI) from falling under the ambit of the RTI Act, whereas Sonia Gandhi has opposed any amendments in the Act.
The changes proposed by the Prime Minister in the RTI Act will keep the office of the Chief Justice of India out of the purview of the Act.
There are reports that Dr Singh has written a letter to Congress President saying that some changes are needed in the RTI Act to address the concerns of the judiciary.
A leading news channel on Thursday night reported that Sonia Gandhi wrote to Dr Singh two months ago that she was determined that there should be no amendments to the Act and the existing RTI Act should be put into operation appropriately.
The channel further reported that Dr Singh in his reply said there was a need for RTI amendments, but all stakeholders would be consulted prior to making any alteration.
There are reports that the Chief Justice of India (CJI), K G Balakrishnan, wrote a letter to Dr Singh in November 2009 expressing concern over the possible consequences of bringing his office into the purview of the RTI Act.

at 10:49 AM

CJI on Individual Rights in India: The Supreme Court’s Perspective

Posted by Tahir Ashraf Siddiqui

In a presentation titled “Individual Rights in India: A perspective from the Supreme Court” ( April 3-6, 2009) at the International Roundtable Conference’ University of Georgia, Mr. K.G. Balakrishnan, the Chief Justice of India , provides an elaborate view of the protection provided to individual rights by the Constitution of India and how they have come to be interpreted by the Supreme Court of India over the last sixty years. He concedes that it is not possible to present a complete understanding of individual rights in all spheres of public law.

He mainly focuses on the evolution of ‘religious freedom’, the interplay between individual rights, groups and governmental interests and the need to balance them. He dwells upon the ‘seemingly existential question’ of whether the guarantees provided by Articles 25-30 of the Constitution are veered towards ‘No Concern Secularism’ or ‘Equal Respect Secularism’ and the conflicting notions of secularism that were propounded and debates upon by the members of the Constituent Assembly . He also mentions how the Indianised version of secularism i.e. ‘Equal Respect Secularism’ recorded a significant victory, though certain concerns of ‘No Concern Secularism’ were also accommodated. The allowing of religious instructions in private and partially aided educational institutions is the result of the compromise between the competing strands.

He also discusses in detail the nexus between the protection of minority rights and the exercise of ‘religious liberty’ which have been further complicated by debates on interference with personal laws of the religious minorities and the feasibility of Uniform Civil Code for them. He points out that ‘personal laws’ were not included in definition of law under Article 13 of the Constitution and hence cannot be scrutinized on the basis of constitutional principles. The clash between the ‘group rights of religious minorities’ and ‘the individual rights of the members of the minority groups’ is clearly reflected in the difficulty posed in reconciling the competing interests of ‘non-interference with customary practices’ as they are regarded as an essential condition for protecting the group rights of religious minorities and the duty of the State to bring an end to those customs that have the effect of continuing gender-discriminatory practices.

Among other issues, the presentation also deals with the ideal of ‘state neutrality’ and how its practice by the Indian state has been repeatedly questioned in the recent past. The CJI suggests that the codification of a Uniform Civil Code presents a ‘litmus test for legislative interference and codification as a strategy of social reform.’ He takes a stand that the religious freedom impedes the pursuit of constitutional objectives of strengthening democracy, minority rights and rule of law. To quote him, “It has also been argued that these western notions of secularism are unsuitable for the Indian cultural setting, but unfortunately those who have argued for an indigenous notion of privileging religious autonomy have also tended to support religious extremism. In this respect the onus has been on the Supreme Court to show the way.”

The shaping up of secularism and minority rights in Constitutional Assembly Debates has been also dwelt upon by Rochana Bajpai (Lecturer, School of Oriental and African Studies, University of London) in an article published in May 27, 2000 issue of Economic and Political Weekly.


Regional Rural Banks Act — for granting computer increment to the employees of the RRBs — the appellant-bank issued a circular giving to its employees the benefit of “computer increment” as per 6th and 7th Bipartite Settlements and Officers Wage Revision — said circular was later recalled and the benefit granted to the employees of the appellant-bank withdrawn — the employees-association challenged the validity of the withdrawal order on several grounds — learned Single Judge allowed the writ petition by the association and directed the appellant-Bank to pay to the employees the benefits admissible to them in accordance with law as per the decision of the Government of India — appeal — legality of the Government’s decision not questioned before the High Court — documents placed on record showed that the Government of India declined the grant of computer increment to the employees/officers of the RRB as not favoured by the banks — impugned orders of the High Court set aside — this Court left the respondent-association at liberty to challenge the validity of the Government’s decision at appropriate proceedings — appeals partly allowed.

Supreme Court of India

CIVIL APPEAL NO. 4194 of 2003


Date of Judgment: Wednesday, February 17, 2010




1. These appeals by special leave arise out of an order passed by the High Court of Judicature at Patna whereby LPA No.84 of 2003 filed by the appellant-bank has been dismissed in limine and the order passed by a Single Bench of that Court allowing Writ Petitions No.7367 of 2001 and 5924 of 2002 affirmed. The controversy in the appeals lies in a narrow compass but before we come to the precise issue that falls for our consideration, we may briefly set out the facts giving rise to the proceedings before the High Court and the present appeals before us.

2. In South Malabar Gramin Bank Vs. Coordination Committee of South Malabar Gramin Bank Employees Union (2001 (1) SCC 101) this Court, inter alia, held that the Central Government was vested with the power to determine the pay structure of the employees working in the Regional Rural Banks in accordance with second proviso to sub-section (1) of Section 17 of RRB Act, and that it should try to maintain parity between the pay structure of the employees of the RRBs and those working in the nationalized commercial banks. As a sequel to the said direction the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) issued notification dated 11th April, 2001, inter alia, determining the pay scales of the employees of RRBs and granting to them the benefit of 6th and 7th Bipartite Settlements and Officers Wage Revision w.e.f. 1st November, 1992 and 1st November, 1997 respectively. The notification attempted to bring at par the pay scales of the RRB employees and those of their counterparts in other nationalized banks. It was then followed by a letter dated 25th April, 2001, defining the expressions “Basic Pay and Dearness Allowance” used in the notification. The clarification was to the effect that “Basic Pay and the Dearness Allowance” would mean “Basic Pay, Dearness Pay, Dearness Allowances, ad hoc or additional D.A.; interim relief or any other allowance which form part of pay or D.A.”

3. Pursuant to the above, the appellant-bank issued a circular dated 16th May, 2001, giving to its employees the benefit of what is known as “computer increment” as per 6th and 7th Bipartite Settlements and Officers Wage Revision. The circular envisaged that each staff member shall file an undertaking that he/she shall refund in lump the excess amount drawn by them in case a contrary decision is received from the Government of India/NABARD sponsor bank. This circular was some time later recalled by an order dated 5th June, 2001 and the benefit of computer increment and automatic switch over from scale II to scale III granted to the employees of the appellant-bank withdrawn. The order further directed that the amount already paid shall be recovered from the employees concerned.

4. Aggrieved by the order aforementioned, the employees- association filed Writ Petition No.7367 of 2001 challenging the validity of the withdrawal order on several grounds. While the said writ petition was still pending, this Court passed an order dated 7th March, 2002 in All India Regional Rural Bank Officers Federation and Ors. Vs. Govt. of India and Ors. 2002 (3) SCC 554 whereby paragraphs 2 and 3 of the notification dated 11th April, 2001 were quashed and the Government directed to issue a fresh notification for proper implementation of the judgment of this Court. The Government of India accordingly appears to have examined the matter and issued a fresh notification dated 17th April, 2002, para 5 whereof provides as under:

“All other allowances should be immediately revised, if not already revised pursuant to order dated 11.4.2001 by respective sponsor banks after negotiations with RRB employees.”

5. In the writ petition filed by the association before the High Court, the Bank filed an affidavit in reply, inter alia, stating that the matter relating to the grant of “computer increment”, “computer allowance” and “automatic switchover from scale II to scale III” was pending consideration of the Government of India which is the authority competent under Section 17 of the RRB Act. A learned Single Judge of the High Court of Judicature at Patna, however, allowed the Writ Petition Nos.7367 and 5924 of 2002 by a common order dated 17th December, 2002 and directed the appellant-bank to act upon the decision dated 17th April, 2002, taken by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) in its letter and spirit and to pay to the employees the benefits admissible to them in accordance with law. The said direction proceeded on the premise that the decision of the Government of India dated 17th April, 2002, particularly, clause (5) of the notification issued by the Government envisaged grant of all allowances admissible to the employees of the nationalised banks to those serving in the RRBs. A Letters Patent Appeal preferred against the said order, having been dismissed summarily, the appellant-bank has filed appeal to this Court by special leave as already noticed above.

6. Appearing for the appellant-bank, Mr. Dhruv Mehta, learned counsel, submitted that so far as grant of automatic switch over from scale II to scale III was concerned, the issue stood finally resolved by the Government and NABARD who have now taken a decision to extend the facility of automatic switch over to the employees working in the RRB w.e.f. 16th December, 2002. In support of his submissions, Mr. Mehta drew our attention to a letter dated 11th April, 2002 addressed by NABARD to the Government of India suggesting certain modalities and conditions for the grant of automatic switch over facility to the officers of RRBs and order dated 6th January, 2003 issued by the said bank pursuant to the decision taken by the Government of India on the subject. A careful reading of the said order would show that the Government of India and NABARD have agreed to the grant of automatic switch over from scale II to scale III to the officers of RRBs w.e.f. 16th December, 2002 subject to the conditions stipulated in the said order. Mr. Mehta argued, and in our opinion rightly so, that the facility of automatic switch over from scale II to scale III shall stand granted to the officers w.e.f. 16th December, 2002 subject to the conditions stipulated in the said order and that the directions issued by the High Court can subject to that modification be affirmed.

7. Mr. Rakesh Dwivedi, learned senior counsel, appearing for the respondents-writ petitioners were agreeable to the disposal of these appeals subject to the condition that the payment already made to the employees shall not be recovered from them for the period earlier to 16th December, 2002. We order accordingly.

8. The only other question that had fallen for consideration before the High Court and that need be noticed by us relates to the grant of computer increment to the employees of the RRBs. Mr. Tripathi, Additional Solicitor General, appearing for the Government of India, has placed before us a compilation of documents comprising a letter dated 6th January, 2003 from the Government of India to NABARD approving the consensus of the bank as set out in NABARD’s letter dated 23 rd July, 2002. A perusal of the said letter would show that the grant of computer increment to the employees/officers of RBBs was not favoured by the banks and the NABARD which consensus was agreed to by the Government of India thereby effectively declining the grant of computer increment to the employees/officers of the RRB. It was contended by Mr. Tripathi and Mr. Mehta that the Government of India had taken a conscious decision on the subject leaving no manner of doubt relating to the admissibility of computer increment to the employees/officers of RRBs.

9. The material placed on record was not disputed by Mr. Dwivedi. Mr. Dwivedi fairly conceded that the Government’s decision, as is evident from the documents placed on record, does indeed deny the said benefit to the employees of RRBs. It was, however, argued by the learned counsel that the decision of the Government of India was arbitrary and ought to be set aside by permitting the respondents to amend the writ petitions suitably or by remanding the matter back to the High Court. We are not impressed by that submission. We say so because the legality of the decision taken by the Government was not in question before the High Court in the writ petitions filed by the respondents. We, therefore, see no reason why we should allow the employees to challenge the said decision in the present proceedings when the High Court did not have an occasion to examine the matter in the writ petitions heard and disposed of by it. Since the Government’s decision denies the benefit of computer increments the direction issued by the learned Single Judge and upheld by the Division Bench in appeal to the extent requiring the respondent-bank to grant the said benefit cannot be sustained. We, however, make it clear that this order shall not prevent the respondent- association or any member thereof from challenging in appropriate proceedings the validity of the decision taken by the Government of India on all such grounds as may be open to them but subject to all just exceptions including delay and laches. These appeals are accordingly allowed in part and the orders passed by the High Court to the extent indicated above set aside. The parties are left to bear their own costs.


Govt open to amendments in women’s quota bill


Published on Fri, Mar 05, 2010 at 17:35, Updated on Fri, Mar 05, 2010 at 18:10 in Politics section

New Delhi: The Congress-led United Progressive Alliance Government is open to amendments in the Women’s Reservation Bill.

Sources have told CNN-IBN that the Government has conveyed its desire to amend the Bill to all political parties and is trying for a consensus on the issue.

Both Congress and the Bharatiya Janata Party (BJP) have issued whip to their party MPs to support Bill in Parliament with the Government trying for a vote on the Women’s Reservation Bill on Monday.

The Women’s Reservation Bill will grant women 33 per cent reservation in the Lok Sabha and state assemblies.

The UPA, bolstered with numbers in its favour, is confident of a smooth passage of the Bill in Parliament.

Apart from the BJP, the Left Front has also pledged its support for the Bill.

However parties like the Rashtriya Janata Dal (RJD), Samajwadi Party and the Bahujan Samaj Party have vowed to oppose the Bill in its present form.

They are demanding a quota within the quota for women from backward classes. Union Finance Minister Pranab Mukherjee met RJD chief Lalu Prasad on Thursday.

Other key Congress strategists are working on getting all parties on board.

Congress President Sonia Gandhi met all the women MPs to work out a strategy. Congress has the numbers in the Lok Sabha but the Bill which is likely to be presented in the Rajya Sabha first, will face opposition.

“We are looking for a consensus and we hope the parties will support,” said Union Law Minister Veerappa Moily.

On quota within the quota he said: “Another legislation needs to be passed to ensure what parties like SP and others are demanding, one must understand this legislation has to be in its current form.”

Congress spokesperson Jayanthi Natarajan is confident that the Bill will be passed in Rajya Sabha on Monday, just in time for International Women’s Day.

“The Congress President Sonia Gandhi and the entire Congress party is totally committed to this very important promise made to the women of India which has been pending for more than decade now, nearly 17 years,” she said.

“We hope that we will be able to pass it in the upper House on Monday which represents a 100 years of Women’s Day on March 8. So, it’s a historic day and we hope that this historic legislation will be passed on that day. If the main Opposition parties stand to their promise and to what they’ve said in the past, to stand with the Bill, then I don’t think there will be any problem.”

The Samajwadi Party, one of the main opponents of the Bill, continues to demand a quota within the quota for OBC women and Muslims.

“We want the party to be reserved. Women should get reservation but don’t snatch men’s right. There is not even a single Muslim male representative from several districts, then how will Muslim women get representation from there?” Mulayam Singh, Samajwadi Party chief, said.

“We will not support this Bill. How do you think Muslim women are going to find representation, there should be separate reservation for Muslim and OBC women,” he added.

The Majlis-e-Ittehad-al-Muslimin is also set to oppose the Bill. Its leader Asauddin Owaisi says a quota for women will affect the number of Muslims in the House.

“I will oppose the Bill. It will affect the Muslim constitution of the House. It’s the crass reality of our democracy, the numbers of Muslim MPs this tenure is only 29. Last time it was 34, so our numbers are going down. The candidates win election mainly because of party backing and finance and most of these national parties don’t file Muslim candidates. I will vote against the Bill because it is against the Muslim community,” said Owaisi.

But Rashtriya Lok Dal chief Ajit Singh has changed sides in favour of the Women’s Reservation Bill.

“Overall, I am in favour of the Bill. I think this time it will go through,” he said.

Parties’ strength:

In Rajya Sabha, the government needs at least 155 votes out of 233. While the Congress party has 71 members, Left parties have 22 and the BJP has 45 with 26 members belonging to other parties.

In Lok Sabha out of 544 votes, the Bill requires 363 in its favour. However, the UPA government enjoys support of 410 members.

PIL seeks ban on meat export

Press Trust of India

Posted: Friday , Mar 05, 2010 at 2358 hrs Mumbai:

A public interest litigation (PIL) has urged the Bombay High Court to restrain Brihanmumbai Municipal Corporation and Maharashtra Government from allowing slaughter of animals at Deonar slaughter house for export of meat. The PIL also opposed the proposed expansion plan of Rs 125 crore for abattoir’s modernisation.

Chief Justice Anil Dave and Justice S C Dharmadhikari have asked the state and BMC to file affidavits within two weeks.

The petitioner, Viniyog Parivar Trust, submitted that until 1962 there were two slaughter houses in Mumbai — one at Bandra and the other at Kurla. In 1973 another slaughter house came up at Deonar where animals were slaughtered for local consumption as well as exports.

Concerned with decline in animal population, the BMC passed a resolution in 1983 to stop slaughter for exports at Deonar abattoir. However, in 1985, BMC administrator passed orders not to implement this decision. Till date, animals are slaughtered at Deonar for local consumption and exports.

Petitioner’s counsel Prafulla Shah argued that the Deonar abattoir sustained losses to the tune of Rs 117 crore in the last ten years and it had been observed that whenever exports increased the losses also rose.

Excise Scam: HC dismisses PIL

Patna, (BiharTimes): A division bench of the Patna high court comprising Chief Justice Dipak Misra and Justice Mihir Kumar Jha, on Wednesday dismissed a petition seeking direction for the Central Bureau of Investigation probe into the alleged multi-crore scam, which involves the chief minister’s secretariat and the excise department of Bihar.

The court said that the allegations in the case is related to award of tender, the aggrieved persons had not approached the court and there was no lis (subject of dispute) to be adjudicated by the court

The bench dismissed the petition filed by Arvind Kumar Sharma, an advocate. The petition was withdrawn after the counsel, Deenu Kumar, could not satisfy the court on the count of locus standi, lis and the public interest involved in the case.

The petitioner had made the chief minister, Nitish Kumar, the deputy chief minister, Sushil Kumar Modi, the chief secretary, Anup Mukherjee, principal secretary of the chief minister, R C P Singh 16 others as respondents.

The petitioner had claimed that the excise scam was worth Rs 500 crore and had caused a huge loss to the state government.

Why not punish Telangana leaders for destruction of public property?

TNN, Mar 5, 2010, 01.23am IST

NEW DELHI: Questioning the soft approach of Andhra Pradesh government towards pro- and anti-Telangana activists indulging in violence and destruction of public property, a PIL in the Supreme Court has sought arrest of leaders of the agitation and recovery of cost of the destroyed property from them.

An advocate from Guntur district moved the PIL saying the apex court had taken serious view of the damage to railway tracks and destruction of public property during the agitation by Gujjars under Kirori Singh Bainsla demanding SC status for the community.

The petitioner Sateesh Galla said the apex court had last year laid down guidelines for authorities to initiate action under the Prevention of Destruction of Public Properties Act in such situations for recovery of cost of the destroyed property.

Galla said the state government was a mute spectator to the provocative speeches made by political leaders, including K Chandrasekhar Rao, Prof K Rama Reddy of Osmania University, Damodar Reddy, Jeevan Reddy, K Kavitha, Bandaru Dattatreya, Madhu Yakshi and T Harish Rao, leading to largescale violence and arson.

“The state government and police had taken no preventive action and unfortunately it does not prima facie appear that any action has been taken against the offenders who were responsible for destruction of public property,” he said.

Seeking a direction to the Rosaiah government for appointment of claims commissioner to assess the worth of the public property destroyed so far in the Telangana agitation, the petitioner said it was time the court issued directions for appropriate amendments to the law to make it a deterrent for those indulging in vandalism during agitation and damaging public property.

Accused should get copy of FIR on demand: HC to cops

Express News Service

Posted: Friday , Mar 05, 2010 at 2351 hrs Mumbai:

An accused facing a criminal charge can get a copy of the first information report on demand at the time of arrest, the Bombay High Court ruled recently.

The court was hearing an anticipatory bail application filed by Mohammed Khalid Shaikh, 25, from Pune who faces forgery and cheating charges. An FIR was filed against Shaikh by one Manoj Dixit after two cheques, worth Rs 95,000 and Rs 98,400 respectively, handed over to Dixit by Shaikh and another accused were found to be forged. Shaikh had contended that the police had wrongfully denied him a copy of the FIR filed on December 30, 2009.

“A police officer is also required, in law, to give a certified copy of an FIR to the accused on demand,” Justice D G Karnik said in the order.

Under provisions of the Criminal Procedure Code only a magistrate gives a copy of the FIR to the accused on demand.

Shaikh’s argument was that a magistrate has the power to give a copy of the FIR to the accused under the CrPC and it is an established fact that an FIR is a public document. Shaikh argued that under section 76 of the Indian Evidence Act, 1872, a public officer in custody of a public document can give a certified copy of the document to a person who wishes to inspect it. He pointed out that since the concerned police officer is the custodian of the FIR he too has the power to grant a copy of the FIR to the accused.

 “An accused defending himself against the charge has the right to a fair trial. He would naturally require a copy to know the allegations against him and the contents in the FIR,” Shaikh argued.

Additional public prosecutor K V Saste had opposed the grant of FIR to the accused by the police as the accused could also seek copies of witness statements prior to conclusion of investigations as they too are public documents.

The court, however, pointed that only the person with the “right” to examine a public document is allowed access. The evidence act will not cover witness statements since the accused, at the stage of bail, is not allowed to examine witness statements, the court said.

PIL says cannot have mosque in Hindu area, HC says intolerance has to go

Express news service

Posted: Thursday , Mar 04, 2010 at 0323 hrs Mumbai:

A resident of a Hindu-dominated locality in Navi Mumbai has challenged the construction of a mosque; the Bombay High Court has told her such intolerance has to go.

The petition, filed by Sumitra Kadu of Sector 50E, Nerul, alleges that CIDCO given a Muslim trust a 1042.27-sq-metre, reserved plot. Her advocate, G N Salunke, told the court Wednesday that not one Muslim family lives in a radius of 1 km from the site and only 331 Muslim families live beyond that radius.

“If the mosque is allowed there is every possibility of encroachment on the public open premises in the locality by Muslim encroachers which may badly affect the development of the city,” says the petition, heard by a division bench of Justice F I Rebello and Justice J H Bhatia.

“So minorities cannot have their own place of worship? This intolerance has to go. Either we should live together or pack our bags and go,” the bench said.

Kadu contends she is a project-affected person and 12.5 per cent of the area was reserved for their rehabilitation which has not been completed yet. Her lawyer said the police commissioner has repeatedly stated there is likely to be a law-and-order problem if construction of the mosque is allowed, yet CIDCO has handed over the plot to the trustees of the mosque. “Public in the locality is very much annoyed and aggressive and there is every possibility to riot and in law-and-order point of view the allotment is required to be cancelled,” the PIL states.

It says the trustees are neither project-affected persons nor residents of Sector 50E. The construction of the mosque, it says, will affect the construction of a college the land was reserved for. The plot is also a mangroves bed but permission has not been sought to hack it, the PIL adds.

The court directed CIDCO to file an affidavit and submit a map of the area in two weeks. The court also told Salunke and the CIDCO counsel to come up with a workable solution.

HC restraint on dwelling units in Chimbel, Colva panchayats

TNN, Mar 5, 2010, 07.34am IST

PANAJI: The high court of Bombay at Goa on Thursday directed the Chimbel village panchayat not to consider any fresh applications for construction of structures with more than ten dwelling units without seeking permission of the court.

A division bench comprising Justice N H Patil and Justice N A Britto passed the order during the hearing of a petition filed by the Ribandar Chimbel Rakhon Samiti Manch (RCRSM) complaining that the panchayat had been granting licences to major projects in Chimbel village. The petitioner had pointed out that the village did not have adequate infrastructure facilities such as water supply, garbage disposal facilities to support such projects.

The petitioner’s advocate, Nilesh Shirodkar, told the court that three such large projects had been granted permissions by the village panchayat, which could lead to overburdening the existing infrastructure. The lawyer prayed for a direction that no further licences should be granted till the infrastructure is upgraded sufficiently.

The petitioners have objected a project of The Army Welfare Housing Organisation having 122 flats, Real Estate Goa Pvt Ltd’s project consisting of 35 villas and 25 swiming pools and about 93 flats being constructed by T R Constructions.

Senior Counsel Atmaram Nadkarni appearing for Goa Real Estate Pvt Ltd and T R Construction told the court that for the construction they have made arrangements on its own by using water tankers and are not dependent on existing water supply network. Nadkarni also alleged that the petitioner had only singled out the three projects and had not made a case against many other such projects coming up in the area. However, the court was not convinced as the Chimbel panchayat had admitted at the last hearing to have granted permissions to 350 such projects in the area.

The bench thereafter admitted the petition and directed the panchayat not to consider any fresh applications without the court’s permission.

In another petition, the high court has also issued directions to Colva panchayat not not to issue NOCs to structures having more than five dwelling units until the garbage problem is settled. The court passed the order in a suo motto petition regarding garbage problem in coastal village panchayats. The Colva Civic and Consumer Forum had also filed an application complaining that the Colva panchayat was not collecting the garbage.

Stuntmaster moves HC against actor Ajith

Express News Service

First Published : 05 Mar 2010 04:30:00 AM IST

Last Updated : 05 Mar 2010 06:49:45 AM IST

CHENNAI: Stuntmaster CP Jaguvar Thangam (48) has moved the Madras High Court for a direction to the City Police Commissioner and the MGR Nagar police to launch a probe into his complaints against actor Ajith, his manager and others.

Justice R Regupathy, before whom the petition came up for hearing, ordered notice to the CoP and the MGR Nagar police, returnable in two weeks.

According to Thangam, the film artistes organised a function to felicitate Chief Minister M Karunanidhi on February 6 last. At the function, Ajith had expressed his displeasure over attending the function and stated that the artistes association should not compel the artistes and the film celebrities to attend such functions.

Condemning the statement, the petitioner gave an interview to the media on February 13. And at the instigation of Ajith, a group of over 15 men came to the petitioner’s house, when he was away at Madurai, on February 18. They abused his family members in filthy language and damaged his Scorpio car and his house. The petitioner lodged a complaint with the MGR Nagar police on February 18. Though the police registered an FIR for offences under various sections of the IPC including Section 506(ii) (non-bailable) and the TN Prevention of Destruction to Public Properties Act, they did not include the name of Ajith as an accused.

Another group came to his house on February 19 and attacked him and his wife. Thangam then lodged another complaint with the MGR Nagar police. But no further action was taken.

Alleging that the police had not taken any action as Ajith was an influential person with political clout, Thangam prayed for a direction to the police to investigate his complaint. His interim prayer sought police protection to him and his family members.

Restraint on free transfer of shares is illegal: HC

5 Mar 2010, 0053 hrs IST, Deeptha Rajkumar & Lijee Philip, ET Bureau


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