LEGAL NEWS 27.05.2010

Rush for judgement copy turns out to be a vain effort
Menaka Rao / DNA
Thursday, May 27, 2010 1:11 IST
Mumbai: After the 26/11 trial was over, one would imagine the reporters covering it could breathe easy. This notion, I am afraid, is far from the truth.
The most interesting story after a trial concludes is always the contents of the judgment. Very few courts have left copies for the media to read as judge Abhay Thipsay did in the Zaheera Shaikh case in 2006.
However, we knew no such system would be followed in this trial, and that we would have to chase the lawyers concerned. The only trustworthy contact we had was Khalid Azmi appearing for Faheem Ansari, who was eventually acquitted.
Another defence lawyer appearing for an acquitted accused had minted money earlier when he took Rs12,000 from each reporter for a photocopy of the 11,280-page charge sheet. Needless to say, many scribes ‘bought the charge sheet’.
I would call the court, Azmi, and the prosecutor every day to check if the judgment was ready. But honestly, getting hold of 1,588-pages of the judgment requires crafty management when we consider the number of media persons who want to get hold of it. Hence, it’s best to be prepared in advance.
We soon realised Monday was the D-day. At about 11.15am, I found a frail Yasmeen, Ansari’s wife, carrying almost 5kg of paper in her hand. I helped her. Yasmeen had strict instructions from Gulzar Azmi, general secretary of the Jamiat Ulama-e-Maharashtra, to get the judgment to their office first. The Jamiat had provided legal aid to Ansari.
After reaching the Jamiat office, at about 12.30, some of us reporters, along with a Jamiat man, went to a photocopying shop at Fort. By now, about 15 reporters had already contacted us, asking us to keep a copy for them, too. It took nearly four hours for my copy to be made.
I rushed to the office and scanned through the entire judgment. My bosses were expecting me to file at least 3-4 stories. But alas, for the hours of time and energy I spent, I could find only one story in the judgment. What a damp squib!

HC fast-tracks Rathore’s plea
Ajay Sura, TNN, May 27, 2010, 02.54am IST
CHANDIGARH: The Punjab and Haryana High Court on Wednesday fast-tracked former Harayana DGP SPS Rathore’s appeal against the 1-1/2-year sentence for molestation, scheduling the hearing on Friday, a day before the court goes on a monthlong vacation. It admitted his review petition seeking suspension of his sentence and sent notices to the CBI, asking them to file replies by Friday. Legal experts say courts usually take time in admitting review petitions and then more time in sending notices. On Tuesday, the Chandigarh district court had enhanced Rathore’s sentence in the Ruchika Girhotra molestation case to one-and-a-half years, leading to his being sent to jail. Rathore faced the prospect of a long stay in jail, given that the high court would be on vacation for a month from May 29. Besides issuing notice to CBI, Justice Gurdev Singh of the high court also admitted the revision appeal filed by Rathore against the conviction. The Rathores were in a hurry, with his wife Abha Rathore, who is also his counsel, reaching the high court at 10am on Wednesday and approaching Justice SS Saron, the senior most judge of the criminal bench of the high court, requesting him to fix the revision petition against the conviction for hearing. Justice Saron referred her petition before the registry branch for verifying its technical aspects and then it was referred to Justice Gurdev Singh for hearing, which issued notice to CBI at 3.20pm.

HC, Praful get Air India flying again
May 27th, 2010 — Age Correspondents
A flash strike by Air India (domestic) ground staff and aircraft maintenance engineers was called off by union members on Wednesday evening after a stay order by the Delhi high court. Air India, meanwhile, dismissed 17 union leaders and suspended 15 others. Sources said more dismis-sals may follow.
The Air India management ordered the dismissals and suspensions after minister of state for civil aviation and the highest levels of the government authorised such tough action. Mr Patel earlier briefed the Cabinet and also spoke to PM Manmohan Singh and finance minister Pranab Mukherjee. The government was furious at the inconvenience to passengers and over the fact that the strike was called soon after the Mangalore tragedy.Well-placed ministry sources and a union leader confirmed that both Air Corporation Employees Union general secretary J.B. Kadyan and All-India Aircraft Engineers Association general secretary Y.V. Raju had been dismissed. Both were unavailable for comment.“We are planning the next course of action in the wake of the dismissals and suspensions,” said a stunned union leader who claimed 10 ACEU members and five engineers had been sacked. All 15 suspended employees were engineers. The strike was called earlier over the airline’s move to issue showcause notices to Mr Kadyan and Mr Raju for airing grievances to the media. Air India officials and union leaders attended arbitration proceedings at the chief labour commissioner in New Delhi all through Wednesday.

Games workers’ welfare: HC gives govt a to-do list
Utkarsh Anand
Posted: Thu May 27 2010, 00:52 hrs New delhi:
Describing the plight of the Commonwealth Games workers as a “complex human problem” arising from flouting of welfare provisions bound by law, the Delhi High Court on Wednesday drafted a five-point directive for the Delhi government along with other authorities and ordered for their time-bound execution.
The court, for the first time since the petition was taken up in January, also asked the government to draft an education scheme for the workers’ children, noting that illiteracy was the root of problems relating to their welfare.
A Division Bench of Chief Justice Dipak Misra and Justice Madan B Lokur decided to draw up rules for the authorities after observing that while registration of workers might have been in the process, there were thousands left.
“A complex human problem…travelled to the court pursuant to non-compliance with labour laws. There is a thin line between work and hunger. And a man in despair, unless compelled, does not complain,” observed the Bench.
The first directive to the Delhi government and agencies like the MCD, NDMC, DDA, DMRC, DIAL, PWD and CPWD, was to make “all possible” effort to register the maximum number of workers so that they were not deprived of statutory benefits. In its second point, the Bench held that providing identity cards was a must as it was also a way to avoid future unwarranted litigation.
“Passbooks (a booklet for registered workers carrying benefits like loan, insurance and medical cover among others) should also be given to all workers and the Labour department should monitor this. They must ensure that people working in this weather have food, clothing and shelter and live with dignity,” said the Bench.
The fourth directive regarding education for workers’ children came as the court took into account the widespread illiteracy among workers. After the government’s standing counsel Najmi Waziri apprised the Bench of its awareness drives, Justice Misra noted that the education level of the workers was such that they could not be expected to come forward to get registered and avail the welfare schemes. “An education scheme must be drafted. Their children must get education as illiteracy is the cause of several problems,” said Justice Misra.
The fifth directive asked the authorities to ensure medical facilities, along with benefits relating to maternity, death, accidents and insurance, after framing guidelines. The authorities have been asked to submit a report on their responses to the directives in the next month.
A report by the Monitoring Committee, appointed in accordance with the court directive in March, had revealed that 43 workers had died at Games construction sites, while thousands of others were deprived of minimum wages and other entitlements. The court had then asked the authorities to ensure compliance with the provisions relating to labour laws.
1 Register maximum workers 2 Providing identity cards to aviod legal complications later 3 Passbooks for registered workers, with Labour dept’s supervision4 Education for workers’ children5 Medical and other benefits for registered workers

NGO moves HC against rickshaw ban on SP Marg
Ayesha Arvind
Posted: Thu May 27 2010, 00:46 hrs New delhi:
The Municipal Corporation of Delhi’s (MCD) pilot project to decongest SP Mukherjee Marg by segregating motorised and non-motorised vehicles has hit a roadblock, with the police banning rickshaws on the stretch.
Pointing out that the police’s move goes against the February order passed by the Delhi High Court favouring cycle-rickshaws, Manushi Sangathan, an NGO and the petitioners in the case, has now moved the High Court.
In its recent application, Manushi Sangathan sought that “a special bench be constituted for close and regular monitoring of the case” to ensure that none of the agencies involved flout the court’s directions.
The MCD had proposed dedicated lanes for motorised and non-motorised vehicles in an attempt to decongest S P Mukherjee Marg, the main link to the Old Delhi railway station, before the Commonwealth Games. In its application, the NGO has stated that despite the MCD’s keenness to segregate non-motorised vehicles like hand carts, cycle-rickshaws on the road to ensure their smooth plying, the Delhi Police has been making repeated attempts to block the project. The application further states: “An interference had to be made at the highest level so that MCD could carry on with the project, but the Delhi Police is still being adamant.” The application will now come for a hearing in the court on July 13.

HC to pronounce judgement on Halappa’s DNA test on Thursday
The Karnataka High Court will pronounce its judgement on Thursday on the appeal by former minister H. Halappa, facing allegations of rape, challenging a local court order permitting conduct of DNA test on him.
When the case came up for hearing before the Single Bench, Justice Subhash. B. Adi, on Wednesday, Mr. Halappa’s counsel Ravi. B. Naik filed his objections against Shimoga JMFC order permitting the CID police investigating the case to draw Mr. Halappa’s blood samples to conduct the DNA test.
Meanwhile, the hearing of Mr. Halappa’s bail application has been adjourned for two weeks.
Mr. Halappa’s judicial custody was recently extended by Shimoga JMFC court to June Seven.
Mr. Halappa had quit as Food and Civil Supplies Minister on May 2 in the wake of allegations of rape of his friend’s wife in November last at Shimoga.

You sit tight and let national security go to hell: HC ask Navy on Worli building
Mohan Kumar
Posted: Thu May 27 2010, 23:51 hrs Mumbai:
The Bombay High Court on Wednesday pulled up the Naval authorities after they sought action against a Slum Rehabilitation Authority building at Worli citing security threat.
The building, Har Siddhi Heights, termed as a security threat by the Navy, has been constructed by the Slum Rehabilitation Authority (SRA) and is located near the naval base INS Trata. The court had earlier sought the views of the Naval authorities as well as the Slum Rehabilitation Authority after a Worli resident moved court against BEST for cutting off power supply to the 18-storey building in which she stays on May 3.
Navy in their defence submitted that there are missile based installations near the building which will be a security threat and also that NOC from Navy is required for buildings that come up within 300 meters of naval installations.
The vacation bench of the court, however, pointed out on Wednesday that the Navy has done nothing except writing letters to various authorities including the BEST for disconnecting the power supply.
“You’ve just been writing letters. This is how you protect national security?” a division bench of Justice S J Kathawala and Justice Rajesh Ketkar asked, pointing out that the building has been there since April 2009 with power supply.
“You sit tight and let national security go to hell?” justice Kathawala asked, adding that they should have come to the court in the beginning.
The Naval authorities also said that following their letters, the state government was taking action including issuance of a stop work notice.
BEST too was not spared after it was revealed that the power cut was done without any proper order or show cause notice to that effect.
The judges in the morning session observed that this as a serious matter and called for the relevant files and the officer to be present in court for the afternoon session.
However, BEST in the second session said that they are ready to restore the power supply from today till the next hearing on June 14 when the case will be finally heard.
Petitoners pointed out that there is another building in the vicinity as well as the rehabilitation building to which the Navy had no objections.
Navy said that this building was there since 1995 during which time the parameters were different. They also submitted that the building was close to the administrative side and not defence installations.
The case will come up for hearing on June 14.

HC adjourns Tata-Reliance power tussle till June 7

BS Reporter / Mumbai May 27, 2010, 0:55 IST

The vacation bench of the High Court here today adjourned to June 7 the case between Tata Power and Reliance Infrastructure (R-Infra) over the supply of electricity to the latter’s distribution arm.
Tata Power has petitioned against an order of the Maharashtra government to continue to supply 360 Mw of power to R-Infra’s distribution arm in Mumbai, at regulated rates, till a specified period.

The HC asked both the state government and R-Infra to file an answer to Tata’s petition by June 4.
Tata Power claims that it needs 160 Mw of the power it was asked to supply to Reliance for its own additional consumers, in Mumbai, who have shifted from Reliance’s distribution network.
“Our distribution business is suffering an additional financial burden of about Rs 60 lakh per day on account of this illegal refusal to schedule 160 Mw power to us,” Tata said in its petition. Scheduling decisions go through the state government.
R-Infra had earlier made a presentation to the state government (before the decision) saying the rates it charged its consumers would have to be raised if Tata stopped supply. It also accused Tata Power of selectively choosing high-end consumers from those who wished to change from its network.
“We welcome the decision of the High Court for not staying the government decision. As directed by the High Court, we will file our response by June 3,” the company spokesperson said.
“At the request of Reliance Infrastructure and the state government, they have been given an opportunity to file an affidavit. All issues will be addressed in the next hearing,” Tata Power said.

HC quashes LIC rule of charging for assigning policies
Shibu Thomas, TNN, May 27, 2010, 03.47am IST
MUMBAI: In a relief for thousands of persons who pledge their insurance policies to raise loans, the Bombay High Court quashed a three-year-old rule by the country’s biggest insurance provider, Life Insurance Corporation, to charge a fee for assigning insurance policies to financial companies. “The service charge/fee is not authorised by law,” said a division bench of Justice F I Rebello and Justice J H Bhatia, while ruling that LIC’s demand for a fee violated the fundamental right of financial companies who advance loans on insurance policies to carry on trade and business. The circular levying a fee of Rs 250 if a policy holder assigns his insurance policy in favour of “financial organisations” also infringed on the Constitutional right of petitioner Dravya Finance Pvt Ltd’s by depriving it of its property without the authority of law, the high court held. With 19 crore policy holders, LIC is the market leader with a 55 % share of the insurance industry. As per rules, a policy holder can transfer his interest in the life insurance policy to another person or institution as a security for a house loan or just emergency cash. These institutions reap “windfall gains” in the form of tax-exempted returns, according to LIC. Trading in life insurance policies, where a company purchases insurance policies from policy holders and then sells it to banks and financial institutions, is a lucrative business worldwide. Earlier in 2003, LIC tried to rein in the practice by banning trading in insurance policies. The HC in 2007, however, set aside the rule and held that insurance policies are “movable property” that can be traded and assigned freely. The 2007 rule, according to the petitioners, levying a fee was another attempt at controlling such assignments.

Bombay HC nod for Savarkar concert at Shivaji Park
Hetal Vyas / DNA
Thursday, May 27, 2010 2:03 IST
Mumbai: The Bombay high court on Wednesday allowed a cultural association to organise a musical function at Shivaji Park to mark the centenary of freedom fighter Veer Savarkar’s escape from the Andaman jail in 1910.
“If norms can be relaxed to celebrate the death anniversary of Babasaheb Ambedkar, then why not for Veer Savarkar? Both were great heroes,” remarked justice SJ Kathawala.
The court was hearing a petition filed by Venus Cultural Association, seeking permission to celebrate the historic event on May 30. The petition was filed after the Brihanmumbai Municipal Corporation (BMC) initially denied permission for the function following an order of the high court which had directed the state and the BMC to notify Shivaji Park as a silence zone.
A division bench of justices Kathawala and RG Ketkar said the function can be allowed if all norms of the noise pollution act are followed.

Probe MCD Scam: HC
Harish V Nair, Hindustan Times
Email Author
New Delhi, May 27, 2010
The Delhi High Court, on Wednesday, directed the Delhi Police commissioner to probe the alleged scam of ‘ghost’ employees in the Municipal Corporation of Delhi (MCD).
A Division Bench asked the Delhi Police to complete the inquiry within two months and submit the report in court.
The Bench discarded the report of the internal enquiry conducted by the MCD Commissioner which said the issue had been blown out of proportion and the blamed the new biometric attendance system for the discrepancies.
The MCD report states that out of 22,853 employees verified, only 2,503 employees were found without bio-metric ID numbers and termination show cause notices have been issued to them. The MCD claimed that no salary has been paid to anyone not on the new system.
A PIL seeking a probe by an independent agency had alleged that 22,000 “gardeners” and “sweepers” existed as MCD employees only on paper and they were being paid salary.

Custody death: HC orders CBI probe
Wednesday, May 26, 2010
The Kerala High Court today ordered the Central Bureau of Investigation (CBI) to investigate the custodial death of Sampath, the key accused in the Sheela Murder Case. Justice V Ramkumar, while issuing the orders observed this was a case where the public had lost confidence in police. It is evident there had been manipulation in the case records and the police investigation was a ‘farce’ as there were attempts to save higher officials. The court observed this was a fit case for the central investigating agency to probe. The court had directed the State Police to hand over the case records to the CBI unit here. Sampath (26), the first accused in the Sheela murder case, died while in police custody on March 29 at Puthur in Palakkad District. The court also observed it was unfortunate that lock-ups in the State had turned into ‘death rooms’. The Crime Branch, which was probing the custodial death, had filed chargesheets against 12 police officials. The court further observed that sensitive cases should be investigated by police officials with proven credentials. Any police official who was directly or indirectly connected with the incident should be brought to book, the court said. The court gave the order while allowing a petition filed by Murukesh, the brother of Sampath. The court also observed that investigation into the Sheela Murder Case in which Sampath was an accused should not be influenced by the observation of the judgement. The murder of Sheela Jayakrishnan took place on March 22, 2010, in the day light at her house in the heart of Palakkad. Her mother Karthiyayani (70) was also brutally attacked
Posted by Connecting Music at 6:57 AM

HC dismisses Halappa’s appeal against DNA test
Karnataka High Court on Thursday dismissed an appeal by former Minister H. Halappa, facing allegations of rape, challenging a local court order permitting conduct of DNA test on him.
When the appeal came up for hearing, Justice C. R. Kumaraswamy upheld the Shimoga JMFC order permitting the CID police investigating the case to conduct the DNA test as it was necessary for investigation and dismissed the appeal made by Mr. Halappa’s counsel Ravi. B. Naik.
The High Court had on Wednesday adjourned hearing of Mr. Halappa’s bail application to two weeks.
Mr. Halappa’s judicial custody has been extended to June Seven.
Mr. Halappa had quit as Food and Civil Supplies Minister on May 2 in the wake of allegations of rape of his friend’s wife in November last at Shimoga.

LIC can’t charge fee for transfer of policy: HC
28 May 2010, 0154 hrs IST,PTI
MUMBAI: Life Insurance Corporation of India, the market leader in insurance sector, cannot charge any fee for transfer or assignment of its policies, the Bombay High Court has held. The court conceded that transfer of policy is a cumbersome process and puts burden on LIC’s resources and manpower, as it has to be registered. However, the division bench of Justices FI Rebello and JH Bhatia held that under the LIC Act, or even the Insurance Act, the company has no power to charge such fees. Earlier, LIC had banned the transfer of insurance policies, but it was challenged, and High Court had in its 2007 decision held that sale of policies was permissible. The present controversy arose after LIC issued a circular (which came into effect in May 2007) whereby it began to charge a fee of Rs 250 on every transfer of policy. It was challenged by city-based Dravya Finance, a non-Banking Finance company, engaged in the business of advancing loans against the assignment of life insurance policies. It contended that the imposition of the fee was illegal. The division bench upheld its contention, after observing that only the central government had the power to impose such a fee with respect to a policy, and not LIC.

Sand prices shoot up as mine contractors defy HC ban order
Raakhi Jagga
Posted: Fri May 28 2010, 23:02 hrs Ludhiana:
Following a ban by the High Court on sand mining, the price of sand all across the state has increased by more than double. Sources have told The Indian Express that, in defiance of the ban, mining continues, especially during night hours. Since the ‘risk’ is higher now, one trolley-full of sand now costs Rs 1,600; it was earlier priced at half the amount.
The state government was to submit an environmental plan for sand mining before the HC till May 15, which it failed to do, following which the court banned sand mining till further orders.
Vishvbandhu, GM (Industries), Ludhiana, who looks after the mining operations, said, “I have issued challans to about 10 trolley and truck owners who were found bringing sand into the city. A fine of Rs 23,000 has also been collected in the last six days. I am aware that illegal activities are going on, and our staff is acting tough to stop them.”
DC Rahul Tewari added, “The HC’s orders have been sent to the police department for strict compliance, and if they are being flouted, I will call a meeting to get them implemented.”
During the Congress government regime, the sites had been auctioned at Rs 1.56 crore, while during the SAD-BJP tenure, they were auctioned for more than double that. Hence, the price of sand had seen a jump from the start of the SAD-BJP government.
Apart from sand, even rates of bitumen have also increased from Rs 18 a foot to Rs 20 a foot in the retail market, because the court has banned even crushing of bitumen from the hills till further orders.
S S Mavi, patron of Ludhiana Builders’ Association, said, “It is sad that the state government failed to submit a plan due to which the ban had to be ordered by the High Court. Now, consumers are suffering and even builders are directly affected.”

Kerala HC issues notice to state, judges on judiciary exam–judges-on-judiciary-exam/624658
Shaju Philip
Posted: Fri May 28 2010, 23:38 hrs Thiruvananthapuram:
The Kerala High Court on Thursday issued notices to the state government, the registrar of the High Court and six district judges on a petition questioning the moderation marks awarded by the HC to applicants in the written test held for the post of district judges .
The orders for issuing notices were given by Judge Dominic Joseph based on the petition moved by Minu Mathews, an applicant who attended the written test in 2007.
Mathews had pointed out that granting of 20 marks each for three papers for the applicants by the High Court was illegal and the selection list should be struck down.
The High Court had finalised a list of 10, of which only four had passed the exam without moderation. Three others had obtained minimum marks without moderation.
On the other hand, when moderation was granted, 45 applicants became eligible for attending the interview. This created a situation in which the eligible candidates were forced to compete with those who figured in the list with moderation. Six were even appointed as district judges from this list. The applicants who had passed the exam could not make it to the final list.
Earlier, the Supreme Court had opined that granting of moderation marks was a serious issue and asked the petitioners to first approach the High Court.

Direct police to produce wife in court, man asks HC
Vignesh Iyer, Hindustan Times
Email Author
Mumbai, May 28, 2010
A 28-year-old driver from Satara has prayed to the Bombay High Court to order the police to produce his wife in court.
Pradeep Phadthare, who filed a habeas corpus (produce in person) petition, claimed that his wife Shubda (18) has been illegally detained by her father Dattatray, a police constable, because he was opposed to their marriage.
“The high court has issued a notice to Dattatray. The case is likely to be heard on June 6,” said Pradeep’s lawyer Suryakant Shelke.
In his petition Pradeep said he and Shubda, a college student, “fell in love” in May 2009.
“As she was 17-and-a-half years old, my parents asked me not to propose marriage until she was 18,” the petition said.
In June 2009, Pradeep and his parents went to meet Shubda’s parents in Mumbai, but Dattatray turned them down.
On June 18, 2009, Shubda called Pradeep and him that she had left home and was in Pune. “She told me that her parents were beating her and forcing her to marry someone else,” the petition said.
He tried to convince her to return home, but she refused to even talk to her parents. On July 2009, they got married in a temple though she had not yet turned 18, the petition said.
After Shubda left home, her father filed a case of kidnapping against Pradeep and his family and the police arrested his mother, sister-in-law and cousins. They later got bail.
After the wedding, Pradeep and Shubda surrendered to the police. While Pradeep got bail, she was sent to the Dongri remand home because she told the court that she did not want to live with her parents.
On April 2010, her custody was given to her parents.
Pradeep, in his petition, said that on May 8, Shubda’s friend called him and said that his wife’s mental condition was not good and her parents were harassing her.
“She [the friend] said Shubda’s health was worsening by the day and if he didn’t come and get her, she would commit suicide,” the petition said.

Dark spots, dimly lit areas in judiciary: HC judge
Press Trust Of India
Posted on May 27, 2010 at 16:07
Bangalore: Senior Karnataka High Court Judge D V Shylendra Kumar has taken a fresh swipe at the Supreme Court Collegium, saying the institution was not “playing straight.”
The Collegium is a panel of five senior-most judges of the Supreme Court and administers the highest court of the country.
Justice Kumar wrote on his website that there were “dark spots and dimly lit” areas in judiciary and accused the Collegium and High Courts of functioning in a “masked manner”.
Justice Kumar created controversy last year when he criticized the then Supreme Court Chief Justice K G Balakrishnan on the issue of judges making their assets public.
“It is no doubt that there are dark spots and dimly lit areas in the judiciary and as of now, there may be a case of Justice ( S D) Dinakaran in the South, Justice Nirmal Yadav in the North and Justice Soumitra Sen in the East and also the masked manner of functioning of the Collegium of Supreme Court and the High Courts,” he said.
He accused the Collegium of “not necessarily playing straight or in consonance with the accepted moral standards.”
“I am of the view that these are all nothing but aberrations of the times and the institution of judiciary will definitely weather these hiccups, shed its black sheep and emerge clear and virtuous in the long run,” he said.
Justice Kumar created news when he strongly demands that judges declare assets they own and voluntarily put details about his assets on his website in August last year.
He has accused the Collegium of being “secretive” in selection of judges and “blissfully remaining insensitive to public opinion. ”
He had also consistently attacked Karnataka High Court Chief Justice P D Dinakaran, against whom impeachment proceedings are pending in Rajya Sabha, over his continuing to discharge administrative functions while being away from the Bench following the land grab charges against him.

Probe corruption charges against Patil, MN Singh: HC
By: Vikas Mishra

Date: 2010-05-28

Place: Mumbai

The Bombay High Court has asked the Mumbai police to investigate and file a report on allegations of corruption and misuse of power levelled against Home Minister R R Patil and former Mumbai commissioner M N Singh, among others, by a retired assistant sub-inspector.
Baban Jadhav, who retired from duty in 2007, said he filed a written complaint against Patil and Singh in Azad Maidan and Marine Drive police stations in June last year. But, after both police stations failed to lodge an FIR, he moved the High Court in December.AllegationsJadhav alleges that, in 2002, while he was a constable in Chembur police station, he filed a complaint against some IPS officers for taking bribes for recruitment. After the news was published in newspapers the same year, he alleges, he was charged with misconduct on duty and was dismissed from the department under Section 311. “The matter (of my dismissal) went to the Kurla court and, in 2005, the decision came in my favour. But even then, the IPS officers’ lobby did not want me to come back on duty. When I finally rejoined duty in 2006, my promotion was stopped. I was promoted from constable to assistant sub-inspector only after I wrote a letter to the Chief Justice telling him that I would commit suicide if I was not promoted,” said Jadhav.”In the meantime, I filed an RTI and found out about the corrupt activities of several IPS officers and ministers, especially during recruitment. There are several officers who were dismissed under Section 311 but were reinstated within 10 months by R R Patil,” he added. “I was proven innocent in court and it took me two years to rejoin duty, while other officers who were corrupt were reinstated even with cases pending against them in court,” said a visibly upset Jadhav.Jadhav’s complaint also includes the names of ADG Javed Ahmed, ACP Katak Dond, SPI Vilas Shinde and home secretary P K Jain.
The Other Side
Former Mumbai commissioner M N Singh said, “I dismissed him as he was not following the rules. He was also involved in activities against the police department and was acting like a union leader. His allegations are baseless.”Despite repeated attempts to contact him, R R Patil was not available for comment.

HC notice to Patkar on plea seeking prosecution for perjury
Press Trust Of India
New Delhi, May 27, 2010
The Delhi High Court has issued notice to Narmada Bachao Andolan (NBA) leader Medha Patkar on a petition seeking her prosecution for allegedly filing “fake” medical certificate to seek exemption from personal appearance in two criminal defamation cases.
Justice Siddharath Mridul asked the NBA leader to respond to the petition filed by V K Saxena, President of an NGO, National Council for Civil Liberties (NCCL), challenging the order of a trial court dismissing his application.
A trial court here had on March 31 dismissed the plea of Saxena who sought prosecution of Patkar for perjury for allegedly filing fake medical certificate to ensure exemption from personal appearance in defamation cases filed by them against each other.
The NCCL chief in his petition before the High Court, sought quashing of the metropolitan magistrate’s order saying that the trial court had wrongly denied him adjournment as his counsel was not available on the day and it resulted in “gross injustice”.
“The Magistrate has shown exemplary haste in disposing of application and even did not allow one-day adjournment to get the case argued through a senior counsel,” he said.
The petitioner has also sought an inquiry into the matter to ascertain the truth about the medical certificate used by Patkar in the case.
“Respondent (Patkar) has deliberately, intentionally, dishonestly and with a view to mislead the court lied simultaneously in two cases to deliberately derail the due process of justice by filling false, fabricated certificate of her illness.
“However, the learned Magistrate failed to appreciate the efforts made by the petitioner (Saxena) to expose the lies of Patkar and instead of ordering an inquiry to ascertain the truth he dismissed the application, which has caused gross injustice,” he said.
According to the petitioner, Patkar did not appear before a court March 3, 2009, and had sought exemption from personal appearance on the ground that she was ill by allegedly filing “fake” medical certificate which was issued by a hospital in Maharashtra.
Saxena, in his application, had questioned the veracity of the medical report claiming that on the day, she was busy staging a ‘dharna’ at the collector’s office at Nandurbar in Maharashtra.
He claimed that according to a reply received from Public Information Officer of the Superintendent of Police office at Nandurbar in response to an RTI application clearly established that Patkar was medically fit and was present in the Collector’s office on the day.

Teachers’ Services May be Availed For Census: HC
Allahabad May 27, 2010
The Allahabad High Court today said that conducting the census was “national work” and there was nothing wrong in availing the services of government school teachers for the purpose if the same was done without affecting teaching work.Passing the judgement, a Division Bench comprising Acting Chief Justice Amitav Lala and Justice Shabihul Hasnain directed the Centre as well as the Uttar Pradesh government to chalk out a formula whereby teachers could be roped in for census work while ensuring that teaching work at schools went on unhindered.The court also pointed out that teaching work would not be harmed if teachers took part in census during holidays.The order was passed while hearing a Public Interest Litigation filed by Uttar Pradesh Madhyamik Shikshak Sangh, which had opposed roping in of secondary school teachers in the state for census work on the ground that this would interfere with teaching work and would have an adverse impact on children’s education.However, the court disposed of the petition saying it saw no ground for interference in the matter and that both census and teaching were important and neither should be allowed to suffer.
Filed At: May 27, 2010 21:25 IST , Edited At: May 27, 2010 21:25 IST

Avoid castigating strictures on lower judiciary: Supreme Court
J. Venkatesan
The Supreme Court has cautioned the High Courts against using intemperate language and passing castigating strictures on judges of the lower judiciary. For, doing so would diminish the image of judiciary in the eyes of the public.
A vacation Bench of Justices G.S. Singhvi and C.K. Prasad, quoting earlier judgments, stressed the need for the High Courts adopting the utmost judicial restraint against using strong language as in such matters the judicial officer concerned had no remedy in law to vindicate his position.
The Bench allowed an appeal filed by a senior judicial officer against certain observations made by the Andhra Pradesh High Court. The Bench expunged them, holding that these remarks were bound to adversely affect the appellant’s image in the eyes of the public and his credibility as a judicial officer, and would also affect his career.
As Principal District Judge, Kadapa, the appellant granted a temporary injunction in favour of plaintiffs in a suit and restrained the defendants from interfering with the plaint schedule property.
On an appeal by the defendants, a Division Bench of the High Court set aside the order and made scathing criticism of the appellant as a judicial officer, and recorded highly disparaging remarks.
Allowing the appeal by the judicial officer for expunction of the remarks, the Supreme Court said: “The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.”
Judicial authoritarianism
It said: “The Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for its making highly disparaging remarks against the appellant as a judicial officer, casting doubts on his ability to decide the cases objectively. The use of the words ‘out of sheer arrogance and disrespect to the lawful order’ and the expression ‘judicial authoritarianism’ show that the Division Bench ignored the words of caution administered by this court in several judgments.”

Govt mulls over appeals courts to cut Supreme Court load
Rakesh Bhatnagar / DNA
Thursday, May 27, 2010 1:44 IST
New Delhi: The Centre is contemplating the creation of at least four “courts of appeal” between the high courts and the Supreme Court to take on the burden of disposing of appeals that have no constitutional issues to adjudicate on.
The courts of appeal would restore the status of the Supreme Court to that of a constitutional court, reducing its burden.
Law minister M Veerappa Moily told DNA that the proposal was under “serious consideration” by the government.
Moily said the proposed courts of appeal would comprise judges drawn from the high courts and their verdicts would be final, unless the rulings raised constitutional aspects and issues.
There is also a move to enhance the retirement age of high court judges from 62 to 65 years, thus bringing parity between the two sets of constitutional judges.
Moily said benches of the courts of appeal would be set up in at least four regions so that litigants having disputes over rent, matrimonial matters, custody of children, partition of property, and such other issues did not have to rush all the way to Delhi for finality.
Senior constitutional lawyer PP Rao, however, has strong reservations on Moily’s plans. “The increase in retirement age and creation of the courts of appeal would require a constitutional amendment,” Rao said. “What’s needed is better quality of judges at every forum and speedy justice, which alone could restore people’s faith in the dispensation.”
But Rao’s concerns don’t find favour with the Supreme Court, which, in a ruling on March 20, said: “If special leave petitions are entertained against all and sundry orders passed by any court or tribunal, then this court after some time will collapse under its own burden.”
The order was passed by a bench of Justice Markandey Katju and Justice RM Lodha.
Under the constitutional scheme, the last court in the country in ordinary cases was meant to be the high court. The Supreme Court, as the apex court, was meant to deal only with important issues like constitutional questions, questions of law of general importance, or where grave injustice had been done, the bench said.
The ruling came amid intense debate on the need to divide the apex court, with the then chief justice of India, KG Balakrishnan, stoutly defending its status, saying: “I will not allow the court to split.”
A strong votary of the courts of appeal, noted constitutional lawyer KK Venugopal said the Constitution could be amended by adding an article, 136A, whereby the courts would exercise some of the powers of the Supreme Court.
This means that the courts of appeal would finally decide all cases arising from the HCs relating to 140 subcategories, without any further appeals lying with the SC.
Former Lok Sabha speaker and eminent jurist Somnath Chatterjee has said that two or three judges from the Supreme Court could constitute the circuit benches and dispose of appeals at different centres in their capacity as Supreme Court judges, making the judgments final.
The chief justice of India would remain in New Delhi with other judges who would decide on issues of constitutional or national importance, cases that may be so designated by the bench in Delhi or other circuit benches, said Chatterjee, who had seen the first bench of the Supreme Court functioning at Parliament House.
Bar Association of India general secretary Lalit Bhasin supports the carving out of courts of appeals, but emphasises that the retirement age of judges should be increased to 68 years.

FEMA, 1999 (Section 19 & 35) read with Article 226 of the Constitution – Tribunal ordering 50% pre-deposit of penalty amount
Foreign Exchange Management Act, 1999- section 19 and 35 read with Article 226 of the Constitution of India- Tribunal ordering 50% pre-deposit of penalty amount-writ petition against the order filed- whether writ petition is maintainable- held, yes.
Issue: Whether the order of the Tribunal directing to deposit certain amount of pre deposit could be challenged under the writ.
Decision: Writ petition is maintainable against the order.
Reasons: Whether pre-deposit of a disputed duty or penalty would cause hardship, and if so, to what extent, are essentially matters of facts which are to be taken into account considering various factors including, in particular, the financial capacity of the appellant and the prima facie case in the appeal. Where the admission of an appeal from an order of Appellate Tribunal is conditional upon satisfaction of the High Court of the existence of a question of law, and, therefore fraught with uncertainty, it would not be proper for the High Court to refuse to exercise its writ jurisdiction on the sole ground of existence of an alternative remedy of appeal.
Article 226 of the Constitution of India does not impose any limitation on the power of the High Court to issue writs, even where there is an alternative remedy, the High Court refrains itself from exercising its extraordinary jurisdiction. The power regarding alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy convenience and discretion and never a rule of law. The High Court should not reject an application under Article 226 where the remedy, if any, of appeal is uncertain as in the case of appeal under Section 35, which depends on subjective satisfaction of the High Court of existence of a question of law.
An appeal under Section 35 is not ordained or an automatic procedure. The condition precedent for entertaining an appeal is the satisfaction of the High court that the case involves a question of law as contemplated by Section 35. The relief under Article 226 can be refused on the ground of existence of alternative remedy only if that alternative remedy is effective and equally efficacious. Evaluation of circumstances which warrant waiver of pre-deposit would fall within the purview of Article 226 of the Constitution of India.
In view of the foregoing discussion, a writ petition against an order pf pre deposit under Section 19 is clearly maintainable. The appeal was, accordingly to be dismissed.

Competition Commission of India – The New Regulator
Wednesday, May 26, 2010
India bade farewell to the MRTP Act of 1969, quite ceremoniously on 28th August, 2009 by notifying the Section 66 of the Competition Act 2002 and the rest was taken care by the promulgation of the Competition ( Amendment ) Ordnance, 2009 dated 14th October 2009.
The Competition Commission of India is our new regulator. Although the Competition Act 2002 came into being in the year 2003 but the relevant sections were notified very recently, only in 2009 and about the same time Mr. Dhanendra Kumar was appointed as the full time Chairman of the Commission.
Competition Act 2002 ( the said Act, here in after ) and the Competition Commission ( The Commission, here in after ) has professional orientation from it’s inception and it is expected to emerge as one of the most powerful regulators, if not the most powerful regulator, in the days to come.
Recognition to ProfessionalsSection 35 of the said Act contains provisions related to appearance before the Competition Commission of India. This Section enables Company Secretaries, Chartered Accountants, Cost & Works Accountants and Legal Practitioners to appear before the Commission. Further, Section 53S of the said Act enables the said professionals to appear before the Competition Appellate Tribunal. Involvement of different professionals belonging to different disciplines and organizations will certainly enrich the Commission and further develop professionalism.Speedy Adjudication Process
Under the said Act, there is a three tier speedy adjudication process,Tier One – Competition Commission of IndiaTier Two – Competition Appellate TribunalTier Three – Supreme Court of IndiaThere is yet another significant provision, that is, the exclusion of the jurisdiction of Civil Courts vide Section 61 of the said Act . This is significant for a modern economy as this provision will stop parties from taking injunction from a civil court. As per the news paper reports a civil court has refused to entertain the petition by Kingfisher Airlines seeking relief against the enquiry by the Competition Commission of India in the Code Sharing issue of Jet – Kingfisher deal.
Latest Significant DevelopmentsNotification of Sections 3 and 4 of the said Act on 15th May, 2009 brought into effect the provisions related to “Prohibition of Anti Competitive Agreements” and “Prohibition of Abuse of Dominant Position”. With these notifications, Bid Rigging, Cartel formation and other anti competitive activities have come under the scanner of the Competition Commission of India. The Commission has recently been engaged by the Government of India to enquire the matter related to the alleged bid rigging in Indian Premier League ( IPL ).Notification of Section 66 on 28th August, 2009 and subsequent promulgation of the Competition ( Amendment ) ordnance 2009 have repealed the MRTP Act 1969 completely and has also closed the MRTP Commission permanently. This ordnance has the effect of transferring the pending cases to such authorities as mentioned here in below;( a ) All cases related to Monopolistic and Restrictive Trade Practices, including those in which Unfair Trade Practices have also been alleged have been transferred to the Competition Appellate Tribunal( b ) All cases related to Unfair Trade Practices ( other that under Clause X of Section 36A ( 1 ) of the MRTP Act 1969 ) have been transferred to the National Commission established under the Consumer Protection Act 1986 and( c ) All cases related to Unfair Trade Practices (under Clause X of Section 36A(1) of the MRTP Act 1969 ) have been transferred to the Competition Appellate Tribunal
Positive Role of a RegulatorThe policy behind the said Act and the Commission is prevention of the abuse of dominant position. The Act recognizes and accepts dominant positions and prohibits it’s abuse. Dominant position of an undertaking is an integral part of economic development and it should not be prevented, unless it can or results in deprivation of consumers or adversity towards healthy competition. In the words of the Chairman, Competition Commission “If you wish to define dominance, you have to first define what is relevant market, and within that relevant market there could be situations of dominance. So every case has to be viewed on a case-by-case basis but the intention is very clear that unless there is a situation there is an undertaking which can abuse its dominance to the detriment with the market we won’t like to step in”.
A Wide DomainThe Commission has within it’s legal jurisdiction a wide range of corporate entities and activities. Competition Act 2002 is applicable to a person or a department of Government as well, except in matter related of sovereign functions, Atomic Energy, Currency, Defence and Space. The Commission can therefore exercise it’s jurisdiction over a large number of sectors and areas such as Banking, Insurance, Telecom, Capital Market, Roads, Railways, Airlines, Ports, Broadcasting, Films, Television, Mines, Minerals, Sports and others. In some areas there are sector specific regulators, say Indian Banks Association and some of these regulators have been trying to restrict the jurisdiction of the Commission in their specified sectors, however, it is unlikely that the powers of the Commission would be curtailed.
Deeming ProvisionIn case of combinations ( arising out of mergers ), as per Section 31 of the said Act, if the Commission does not reply within 210 days from the date of service of the notice by the applicant under Section 6 ( 2 ) of the Act, seeking approval for the combination, it shall be deemed that the approval has been granted.Leniency Provision
Section 46 of the Act provides for leniency in penalty and punishment where the party voluntarily intimates the Commission about his involvement in any cartel leading to violation of the Section 3 of the said Act. The Commission can impose lesser penalty in these cases.Is something still pending ?Yes India Inc. is eagerly awaiting the notifications of Sections 5 and 6 of the Act and the issue of Combination Regulations, which will set a new course for big scale mergers and acquisitions in India.
Posted by Anjan Kumar Roy at 6:36 AM

Rights panel files PIL on Langpih
– High court’s Shillong bench seeks report on firing in four weeks
Shillong, May 25: The Meghalaya Human Rights Council, an NGO, today filed a PIL before the Shillong bench of Gauhati High Court seeking its intervention on the alleged rights violations in Langpih firing on May 14, which claimed four lives.
After hearing the petition, Justice Ramesh Surajmal Garg, who is the Chief Justice of Gauhati High Court, sought a report from Assam, Meghalaya and the Centre on the Langpih firing within four weeks.
The secretary general of the organisation, Dino Dympep, in the petition said his concern was not about the territorial dispute but the human rights violation of the indigenous people of the state.
The petitioner brought to the notice of the court “the illegal and perverse action of Assam police in resorting to indiscriminate firing (188 rounds) on a group of unarmed local villagers of Langpih in the West Khasi Hills district, Meghalaya, on May 14 without any provocation, thereby killing four innocent civilians and further injuring one person currently undergoing treatment at the North East Indira Gandhi Regional Institute of Medical Sciences (NEIGRIMS), Shillong, for bullet injuries”.
The petitioner also said in the same incident, a local villager, B. Lyngkhoi, was picked up by Assam police and taken to Boko police station where he was beaten mercilessly and thereafter taken to the GMCH, where he was handcuffed to the bed when admitted for treatment.
Lyngkhoi has suffered multiple injuries and is currently admitted at Woodland Hospital here.
According to the petitioner, since the British era, Langpih in the West Khasi Hills district of the present day Meghalaya, was situated in Nongmynsaw Syiemship in the United Khasi and Jaintia Hills.
The petitioner said the deputy commissioner of the then United Khasi and Jaintia Hills district and the deputy commissioner of Kamrup district had settled and demarcated the boundaries of their respective districts and the same was published in the gazette notification dated September 23, 1876.
“Langpih was all along part and parcel of the United Khasi and Jaintia Hills district and as such with the creation of the state of Meghalaya, the same came into being part and parcel of the territory of the state of Meghalaya. As such a border outpost at Langpih was maintained by Meghalaya in Langpih,” the petitioner said.

Sports ministry pushes for early meeting with IOC
Wednesday, May 26, 2010 2:21 IST
New Delhi: The Union sports ministry is not relenting in the ongoing crisis over government guidelines for sports bodies.
It has written to the International Olympic Committee (IOC) clarifying its stand, while also asking for an early meeting to sort out the issue.
Signed by joint-secretary Injeti Srinivas, the letter to IOC chief Jacques Rogge suggests that “a false situation of crisis” was being created by officials of the Indian Olympic Association (IOA). It hoped that the world body would not take any hasty decision after warning the government of a possible suspension for putting a cap on tenure of officials.
In a direct attack on the IOA secretary-general Randhir Singh, the ministry quotes guidelines and rules of other countries and contends that the matter of guidelines being put in place by the government in response to a Public Interest Litigation (PIL) in the Delhi high court needed to be put in perspective.
“It is unfortunate that the IOC member from India has not even cared to consult us before taking up this matter with you. He is fully aware of the proceedings before the Delhi High Court, as the IOA is a respondent, in the ongoing PIL. Further, as the Secretary General of the Olympic Council of Asia (OCA), he is conversant with the sports legislations of Malaysia and Sri Lanka.
“However, it appears that IOC has not been apprised by him of the national perspective in its entirety, thereby exposing his conflict of interest as well, since he has been holding the post of Secretary General, IOA for over two decades,” reads the letter to IOC chief Jacques Rogges, signed by Injeti Srinivas, joint-secretary of the ministry.
“We have carefully studied sports regulations prevalent in more than 30 countries, including USA, France, Italy, Hungary, Mauritius, Malaysia and Sri Lanka. These countries have enacted sports legislations, which contain several mandatory provisions that their sports federations have to conform, to obtain recognition and financial support from the government.”
“For example, the US Amateur Sports Act, 1978 makes it mandatory for the US Olympic Committee to reserve 20 percent of membership and voting rights, in favour of amateur athletes, who have represented the country within the preceding 10 years.
“Similarly, the Sri Lankan Sport Law of 1973 prescribes a two tenure limit for the sports administrators; besides empowering the Sports Minister to dissolve National Sports Associations and appoint interim bodies. The Malaysian Sports Development Act of 1997, which was enacted on the eve of the 1998 Commonwealth Games, gives wide-ranging powers to the Sports Minister for the regulation of sports bodies in the country, including the National Olympic Committee,” and says that the guidelines issued here could not be viewed differently.
The ministry reiterates that there is no new resolution and that those of a regulation in 1975 had been liberalised by following norms adopted by the IOC. It also states that the regulations had been accepted by sports bodies at the time, but either not incorporated in their respective constitutions, or deleted at a later point in time.

Petition against Tata Power Company over supply tussle
HT Correspondent, Hindustan Times
Email Author
Mumbai, May 26, 2010
A management consultant and resident of Dahisar has filed a public interest litigation in the high court seeking that Tata Power Company (TPC) be directed to continue supplying 500 mega watt (MW) to RInfra at a price determined by the Maharashtra Electricity Regulatory Commission.
“I filed the PIL on behalf of lakhs of Mumbai consumers. I have prayed that the government be directed to take appropriate actions to ensure consumers are not made a victim of this corporate war,” Shrikant Soman told Hindustan Times.
Tata Power Company had filed a petition in the high court on Monday challenging the decision of the state government asking it to supply 360 MW of electricity to RInfra till June end. It wants to supply 160 MW of the power supplied to RInfra to its [TPC’s] consumers.
TPC’s petition will be heard on Wednesday. According to Soman’s petition, if TPC refuses to supply power to RInfra, the latter’s consumers would have to face power cuts.
RInfra may have to procure electrical energy at market rate from BEST or TPC or other suppliers. The burden of increased cost will be passed on to the consumers, states the petition.
It adds that to avoid power cuts or payment of higher tariffs to RInfra, the consumers will be forced to look to TPC, which is also entitled to supply energy to consumers in RInfra’s area (suburban Mumbai).
The petition says TPC does not have an extensive distribution network in the suburban areas and would not be able to distribute energy in RInfra’s area without developing their own distribution network at a considerable costs. Or TPC would have to pay wheeling charges (rental) to others whose network/ infrastructure it would use to distribute power.
“It appears that consumers will end up paying higher tariffs for supply of energy by the second Respondents (RInfra),” states the PIL. Soman’s advocate Anupam Dighe is likely to mention the PIL for hearing on Wednesday.

Nangloi had many banned units: Report
Utkarsh Anand
Posted: May 26, 2010 at 2357 hrs IST
New delhi The closure of polluting units in Nangloi village in the wake of a Delhi High Court order in March has brought to light that a large number of industries, totally prohibited within the Capital, were also operational in the area for years. The second status report, set to come up before the court on Wednesday, says that apart from other de-notified units, several paint manufacturing and metal polishing units were operational in the area.
In March, a Division Bench headed by the then acting Chief Justice Madan B Lokur had directed hundreds of polluting industrial units to shut shop. Expressing concerns about pollution affecting the health of people residing in these areas, the Bench had sought strict compliance of the Supreme Court ruling in the M C Mehta case whereby the government was obligated to close all hazardous units.
The order came on a PIL filed by Mahavir Singh, who alleged that hundreds of illegal units are operating in villages like Nangloi, Ghevra, Neelwal and Mundka. The court had asked the authorities to start with polluting units in Nangloi and finish the clean-up within four weeks.
The first status report in the case was submitted before the Bench on April 15. The report moved by Delhi government’s Standing Counsel Najmi Waziri contended that 36 units were closed by then. Satisfied, the court then had asked the SDM to continue the operation till the area was completely cleaned-up. A total of 80 units have been shut down till now.
Meanwhile, with the shutting down of the units, residents in the area have reported a perceptible improvement in the quality of the air along with better availability of water and power. “I have been living here since childhood. When I completed my LLB, I first thought of filing a PIL against the units. Though I could not do so, somebody else’s plea has finally ushered in relief. The amount of dust and other particles in the air has come down,” said Rajeev, an advocate who lives in the area.
Corroborating this, a Delhi Pollution Control Committee officer said they would soon be conducting a formal study to analyse air quality.
“The action is certainly welcome and it will have a positive impact. The residents will not just have more water at their disposal because of the improvement in ground water level but it will also be cleaner as there are no dumping areas for industrial wastes now,” said V K Jain, an environment activist who heads Tapas, an NGO.

HC stays Geelani case till August
Express News Service
Posted: Wed May 26 2010, 00:20 hrs New delhi:
The Delhi High Court on Tuesday stayed criminal proceedings on perjury charges against Delhi University teacher S A R Geelani, who was acquitted in the 2002 Parliament attack case. The court, while seeking a response from the Delhi Police on his petition, stayed the proceedings till August 13.
Geelani has challenged the order of a sessions judge directing his prosecution under the perjury charge for giving a wrong address while standing surety for an accused in a bomb blast case.
Geelani, a professor of DU’s Zakir Husain College, had mentioned his address as Moti Masjid at Zakir Nagar in the bail bond of accused Mirza Iftikhar Hussain who was recently acquitted in the 1996 Lajpat Nagar blast case.

Prisoners using cell phones, HC shocked

Harish V. Nair, Hindustan Times
Email Author
New Delhi, May 26, 2010
The Delhi High Court on Tuesday expressed shock at the rampant use of cell phones by prisoners from inside Tihar jail despite a strict ban on carrying them, installation of jammers and CCTVs.
A Bench of newly sworn in Chief Justice Dipak Misra and Justice M.B. Lokur has directed the jail authorities to confiscate all phones within three days.
The revelation came in the form of a report submitted by Delhi’s Chief Metropolitan Magistrate Kaveri Baweja who had conducted an enquiry following complaints.
Last year, at least nine mobile phones and 11 SIM cards were found inside Tihar Jail. The Bench said: “It is common knowledge that there have been cases where convicts or undertrial operate from inside to galvanize and accentuate the crimes” by contacting their members through cell phones.
Noting that “communication was an essential part of life and the prisoners had every right to it”, the judges said that the requirement had been satisfied with insallation of a number of landlines for them.
In a status report, Pawan Sharma, Delhi Police standing counsel informed the court that some inmates were using body cavities to smuggle in cellphones. He also said surprise checks are also being made inside jails to seize phones.
Not satisfied with these measures, the Bench said “these are just curative steps why don’t you take preventive measures?”

Fall from train can be compensated: Delhi HC
Rakesh Bhatnagar / DNA
Wednesday, May 26, 2010 1:55 IST
New Delhi: If a passenger dies due to any untoward incident, his dependents are entitled to compensation from the railway ministry regardless of whether it was neglect, wrongful act or a fault by the department.
Death due to a fall from a running train or due to a jerk that’s often felt when a train is brought to a halt, squarely falls within the definition of “untoward incident”, says the Delhi high court.
Accidental fall of any passenger from a train carrying passengers would amount to an “untoward incident” as envisaged under Section 123(c) (2) of the Act, the court held while resolving a decade-old dispute between the dependents of a passenger who died after he fell from a running train and a reluctant railway ministry that contested the compensation of Rs4 lakh ordered by the Railway Accident Claims Tribunal.
The railway ministry counsel said the passenger died as he was negligent. But, justice AK Pathak rejected the argument and said railways have “no business to issue tickets in excess of the carrying capacity of a train”.
One Dharampal Dahiya used to daily commute from Sonepat to Faridabad by train. On October 11, 2000 at about 6 pm, he was trying to board a train at Subji Mandi. The train started moving and he slipped from the footboard and died. His widow Suresh Devi and two minor children have been litigating for compensation under Section 124-A of the Railway Act.

Consider him disabled: HC to Centre–HC-to-Centre/623799
Express News Service
Posted: Wed May 26 2010, 03:05 hrs Chandigarh:
In a crucial judgment that may have a serious impact on the society, the Punjab and Haryana High Court on Tuesday directed the Ministry of Human Resources and Development to consider a dyslexic student, Pranay Jain, in the category of physically disabled during the counselling of AIEEE and Joint Entrance Examination (JEE), 2010, examination.
The interim relief was granted by a division bench comprising Chief Justice Mukul Mudgal and Justice Jasbir Singh after the counsel for the Central government failed to submit its response against a petition filed by Jain on May 18.
Jain has already appeared for the two examinations. The admission process will begin in June.
On May 18, the High Court had issued notices to Secretary, Ministry of Social Justice and Empowerment; Secretary, Ministry of Human Resource Development on a petition filed by Jain.
The appellant had sought directions to the Central counselling board and the Indian Institute of Technology, Roorkee, to treat dyslexia as a disability. He had also requested that his case be treated under physically handicapped quota of three per cent in terms of Section 39 of the Persons with Disabilities (Equal Opportunities Protection of Rights and full participation) Act, 1995, for admission.
On January 29, Jain had requested AIEEE to consider his candidature under the physically handicapped quota, which was declined. Jain had then moved the High Court.
The appellant had also moved the High Court accusing the CBSE of harassing him by shooting his video during his examination.

CHANDIGARH NEWS: Review Functioning Of Revenue Courts – HC To Punjab, Haryana
Wednesday, May 26, 2010
CHAN­DIG­AR­H: “Th­e­re­ is­ a n­­e­e­d to re­vie­w­ th­e­ adjudic­atory me­c­h­an­­is­m of re­ve­n­­ue­ c­ourts­. Un­­de­r th­e­ c­on­­s­titution­­al­ s­c­h­e­me­, judic­ial­ p­ow­e­rs­ mus­t be­ e­xe­rc­is­e­d by th­e­ c­ourt or tribun­­al­s­ man­­n­­e­d by p­e­rs­on­­s­ qual­ifie­d to do s­o, an­­d mus­t be­ fre­e­ from e­xe­c­utive­ fun­­c­tion­­s­, as­ far as­ p­os­s­ibl­e­,” obs­e­rve­d a Divis­ion­­ Be­n­­c­h­ of th­e­-P­unj­ab­ and­ H­ary­ana H­igh­ Co­urt­.
The­ Be­n­c­h c­om­p­ri­si­n­g Ju­stic­e­ Adar­sh­ K­u­mar­ Go­e­l a­nd­ J­ust­i­c­e Alok Si­n­­gh has­ di­rec­ted the P­un­jab an­d Hary­an­a go­v­ern­men­t’s­ to­-rev­i­ew the exi­s­ti­n­g f­ramewo­rk­ o­f­ man­n­i­n­g an­d f­un­c­ti­o­n­i­n­g o­f­ rev­en­ue c­o­urts­ an­d o­ther tri­bun­als­ exerc­i­s­i­n­g judi­c­i­al p­o­wers­ un­der v­ari­o­us­ lo­c­al laws­, an­d p­res­en­t a s­ummary­ bef­o­re the HC­.
T­h­e o­b­servat­io­n­s were mad­e d­urin­g h­earin­g o­f a p­et­it­io­n­ fil­ed­ b­y Ram Sin­gh­, seekin­g d­irect­io­n­s t­o­ al­l­ d­ist­rict­ co­l­l­ect­o­rs, t­eh­sil­d­ars an­d­ n­aib­ t­eh­sil­d­ars in­ H­aryan­a t­o­ can­cel­ mut­at­io­n­s in­ favo­ur o­f t­h­e p­an­ch­ayat­, p­assed­ in­ vio­l­at­io­n­ o­f t­h­e H­C jud­gmen­t­ o­n­ March­ 13, 2003.
O­n­ a query raised­ b­y t­h­e B­en­ch­, d­et­ail­s o­f 6,000 p­en­d­in­g cases were given­ b­y t­h­e Haryan­a D­ep­uty D­i­recto­r, Pa­n­cha­ya­t, whi­ch sta­ted tha­t 5,035 ca­ses wer­e’ pen­di­n­g i­n­ cou­r­ts of­ a­ssi­sta­n­t collector­s i­n­ the sta­te. M­ost of­ the pen­di­n­g li­ti­ga­ti­on­ r­ela­ted to r­em­ov­a­l of­ i­llega­l possessi­on­.
The Ben­ch obser­v­ed tha­t these cou­r­ts wer­e m­a­n­n­ed by n­aib teh­sild­ars, teh­sild­ars and SDMs, and appe­als o­­r­ r­e­visio­­ns w­e­r­e­ made­ t­o­­ de­pu­ty co­­mmissio­­ne­r­s, co­­mmissio­­ne­r­s o­­r­ financial co­­mmissio­­ne­r­s. A­ll fun­ctio­n­a­rie­s­ e­xe­rcis­e­d j­udicia­l p­o­we­rs­ a­s­ tribun­a­ls­.
“It is­ e­xp­e­cte­d tha­t a­ll p­e­rs­o­n­s­ ho­ldin­g­ the­s­e­ fun­ctio­n­s­ mus­t ha­v­e­ le­g­a­l e­xp­e­rtis­e­, j­udicia­l e­xp­e­rie­n­ce­ a­n­d a­p­p­ro­a­ch. To­ e­n­s­ure­ the­ir in­de­p­e­n­de­n­ce­, the­y mus­t be­ fre­e­’ fro­m n­o­rma­l hie­ra­rchy, a­n­d a­s­ fa­r a­s­ p­o­s­s­ible­, the­re­ s­ho­uld be­ a­ s­e­p­a­ra­te­ ca­dre­ with a­n­ in­de­p­e­n­de­n­t a­utho­rity a­t the­ he­a­d,” the­ Hig­h Co­urt; Be­n­ch o­bs­e­rv­e­d.
The­ Be­n­ch s­ta­te­d tha­t in­ E­n­g­la­n­d, the­re­ ha­d be­e­n­ a­ re­v­ie­w o­f fun­ctio­n­in­g­ o­f tribun­a­l’s­ in­ the­ lig­ht o­f the­ Fr­an­ks R­e­po­r­t­ and­ Leggatt C­o­­mmittee R­epo­­r­t, wh­ic­h­ r­e­c­om­m­e­n­de­d th­at th­e­ tr­ibun­al s­h­ould be­ in­de­pe­n­de­n­t, pr­om­pt, e­xpe­r­t; in­for­m­al an­d c­h­e­ap

Armed forces tribunal indicts Lt Gen for fake Kargil battle accounts
28 May 2010, 0455 hrs IST,ET Bureau
NEW DELHI: The Armed Forced Tribunal has indicted a former Lieutenant General for showing bias against a Brigadier, playing down his achievements and for falsifying accounts of battles. In an unprecedented the tribunal has raised serious questions on the military leadership in the 1999 Kargil war. The tribunal, whose observation has left the Army red-faced, directed that the officer concerned, Brigadier (Retd) Devinder Singh, on whose petition the order was passed, be considered for a notional promotion. Brigadier Singh, who led the Batalik-based 70 Infantry Brigade during the war, had petitioned the Delhi high court in 2006, complaining that his performance during the conflict had been assessed incorrectly, which eventually cost him a war medal and also led to his supersession while being considered for promotion to the rank of Major General. The case was transferred to the newly-formed Armed Forces Tribunal. Brigadier Singh bemoaned that the report of Lt Gen Kishan Pal, then General Officer Commanding (GOC) of 15 Corps, who oversaw operations in that sector, not only cost him a war medal but also deprived him of a promotion. In its order, the tribunal, headed by Justice A K Mathur, held that “the annual confidential reports (ACRs) were not written in an objective and unbiased manner’’ by Lt. Gen Pal. Observing that the report of a person who writes ACRs in a biased manner could not be allowed to be sustained, it observed that the then GOC was not favourably motivated towards Brigadier Singh and had attempted to tailor the report belittling his achievements. “As per the tribunal order, I will also be considered for promotion to the notional rank of a Major General and the records about the operations by my brigade in the war will be set straight,’’ Brigadier (retd) Singh said here on Thursday. In his plea, Brigadier Singh said he had contended that in the post-Kargil operations report, Lt Gen Pal had falsely shown four of his most successful battalions under a fictitious headquarters commanded by the then deputy general officer of 3 Infantry Division, Brigadier Ashok Duggal. “For reasons best known to Lt Gen Kishan Pal, he was favouring and giving credit to Brigadier Duggal and my command tenure was shown in bad light. Though it could not help him and he could not take his next rank, I had to suffer a lot because of this act,’’ Brigadier Singh said. Due to the `fudged’ battle accounts, Brigadier Singh was awarded only a Vishisht Seva Medal (VSM), and not a Mahavir Chakra, for which he had been cited. During the visit of then Army Chief Gen V P Malik to the war-front, Lt Gen Kishan Pal had estimated the number of intruders to be around 45 whereas Brigadier Singh estimated it to be over 600, which later proved to be right. Brigadier Singh filed a complaint with the Army Headquarters in 2000, charging Lt Gen Pal with bias, which was rejected by the Army two years later. In 2004, the defence ministry struck down Lt Gen Pal’s assessment of Brigadier Singh’s battle performance, but refused to strike down key sections of his ACR written by the former Corps Commander. General Malik, however, defended the actions taken by the Army during the war, described by him as the most “well-documented and transparent’’ war India had ever fought, and maintained that issue was between Brigadier Singh and the Corps Commander. Asked about Brigadier Singh’s claims that there was a difference of opinion between him and Lt Gen Pal on the estimation of intruders, the former Army chief said, “by the time I visited his Brigade sector, we had the Cabinet permission to treat it as a full-fledged war with Pakistan Army and not militants.’’ The then Army chief, nevertheless, agreed that injustice had been done to Brigadier Singh, and said that he had “personally intervened to get the former 70 Brigade Commander a VSM.’’ Asked if the Army should appeal against the verdict, General Malik said whatever order has been given by the Tribunal, the Army should follow it. The Army reacted cautiously to the Tribunal’s order backing claims that top commanders had fudged accounts of the 1999 Kargil war, particularly of battles waged in the Batalik sector. While General Malik cited the account-fudging incident as an `aberration,’ the Army said that it will take action on the issue only after analysing the verdict. “We have not yet received the copy of Tribunal’s judgement. Once we get it, it will be analysed and appropriate action would be taken,’’ a senior Army officer told a news agency.

Sting ops can be used to ‘malign’ people: Army Tribunal—malign—people–Army-Tribunal/624559/
Posted: May 27, 2010 at 1905 hrs IST
New Delhi Sting operations alone cannot be relied upon by authorities to take action against officials as there have been several cases where such operations are “framed-up” to “malign the image” of individuals and institutions, said the Armed Forces Tribunal.
The observation was made by Principal Bench of the Tribunal while hearing a petition of retired Major General P S K Choudary, who was allegedly caught taking bribe in the Tehelka sting operation and wanted a stay on his court martial proceedings.
“Cases are galore where it has come to the knowledge that such kind of sting operations are sometimes framed-up to malign the image of any respectable person or the institution,” Tribunal Chairman Justice A K Mathur observed.
The Bench added that if authorities start acting on the information provided by the media without verifying its authenticity “it will cause great havoc and will ruin the life of the officers.”
The competent authorities should be apprised of the correct facts in order to help it to take decisions with regard to sting operations, it said.
In the particular case, Choudary had contended that Army had suspended him on March 14, 2001, a day after video footages were aired showing him purportedly taking bribe from journalists posing as arms dealers.

Honour killing: NHRC summons Haryana DGP
Updated on Thursday, May 27, 2010, 21:50 IST
New Delhi: The National Human Rights Commission has directed the DGP of Haryana to appear before it on June 29 and submit a report on the alleged honour killing of a young couple in Hisar district in September last year. The Commission has summoned the state Director General of Police after his department failed to submit “requisite report” before it about the incident despite several reminders being sent to his office from NHRC in this regard.
It, however, said the DGP will not be required to appear if the report is received before June 29. “The Director General of Police, Haryana, is directed to produce the requisite report before the Commission on 29-6-10,” Commission said in its order. “If the report is received before that date, the conditional summons for the personal appearance of Director General of Police shall stand dispensed with,” it added. 22-year-old Sandeep and his 16-year-old fiancee Monica were killed, tied with a rope and left hanging from a tree outside Subana village in Hisar district in September last year. It was alleged to be a case of honour killing.
“A report was called for from the Harayana DGP vide Commissions communication on August 29, 2009. No report was received. A final reminder was then issued on January 29 this year for the same. Even then the requisite report was not received,” the Commission observed. NHRC took cognizance of the case on the basis of a complaint filed by a rights activist and lawyer Prabir Das who alleged that the couple was killed for “defying the caste traditions”. Before they were found dead, Monica’s father Ram Kumar had lodged a complaint at Beri police station on August 5, alleging that his daughter had been missing since August 1. In his complaint, Kumar alleged that Monika had been “allured” by Sandeep, a resident of the same village. The police had registered a case of abduction in this connection. PTI

AAPSU to take up Chakma issue with NHRC
Itanagar, May 24 : The All Arunachal Pradesh Students’ Union (AAPSU) has decided to apprise the National Human Rights Commission (NHRC) of atrocities of the Chakma refugees as well as their audacity to defy the indigenous rights in the state.
The apex students’ body of the state had recently constituted a fact finding committee with its spokesperson Tabom Dai as the chairman to investigate the incident of clash at M-Pen on April 9 where scores of people were injured following clash between Singpho community and Chakma refugees after a dispute over land.The clash took place after 60 Chakma families were evicted from M-Pen following a court order to vacate the area as some Singphos who have Land Possession Certificate wanted it back.The members of the committee held a discussion with the local Singpho and Tangsa leaders at Miao in Changlang district yesterday to comprehend the human right violation and curtailment of indigenous rights by the Chakma refugees.”We have to disclose to the world how the Chakma’s are challenging the rights of the indigenous people as well as spreading disharmony by encroaching our land and not abiding by the court’s verdict and the state government’s order,” Mr Dai commented during the meeting.Leaders from All Tai Khampti-Singpho Students Union (ATKSSU), All Anjaw District Students Union (AADSU), All Lohit District Students Union (ALDSU) and All Mishmi Students Union (AMSU) also spoke on the occasion.Earlier the members visited M-Pen along with administration and security personnel and took stock of the situation.

Tribunal pulls up Army for delaying action in Tehelka case

PTI, May 27, 2010, 04.10pm IST
NEW DELHI: The Armed Forces Tribunal has given a go-ahead for court martial against a former Major General who was allegedly caught on-camera taking bribe in the 2001 Tehelka sting operation and pulled up the Army for delaying the matter for so long. Rejecting Maj Gen (retd) P S K Choudary’s plea against the court martial ordered against him by Western Commander in July 2004, Principal Bench of the Tribunal said it did not see “any merit” in his petition. At the same time, it had some critical observations against the Army for delaying the matter for so long. “It is not necessary that the authorities should wait till the end of the period of limitation for initiating the action. Such action of delay unnecessarily causes the suspicion and creates legal complications,” the Principal Bench of the Tribunal said in its verdict. The Tribunal said that in such matters, action should be taken “promptly and without unnecessary delay”. In the Tehelka sting operation, code-named ‘Operation Westend’, Choudary was shown in a TV programme on March 13, 2001, purportedly taking bribe from journalists posing as arms dealers. He was suspended the next day and a Court of Inquiry was ordered against him. Subsquently, court martial against him was convened on May 26, 2004. In his plea to the Tribunal, Choudary had contended that the Army could not initiate the court martial proceedings against him as the three-year ‘limitation period’ in the case was over as he was suspended in March 2001 and the court martial was convened only on May 26, 2004. According to Army Rules, no offence shall be tried after expiry of period of three years which shall be counted from the first day of the commencment of initial action against a personnel and the final action in his or her case. Rejecting Choudary’s contention, the Tribunal said, “in the present case, it is not right that the period of commencement of the limitation should be from 14th-15th March, when petitioner was placed under suspension. “That suspension order was only a prima facie action on the basis of the media information which was yet to be acquired an actionable information by competent authority to act upon that,” it said. The Tribunal agreed with Army’s argument that commencement of limitation period should start from June 14, 2001 when the direction for recording Summary of Evidence was issued on the basis of the Court of Inquiry instituted by Army to verify the facts of the sting operation. It added that the Army could not have taken action merely on the basis of the sting operation.

NHRC issues notice to MHA on renaming Raj village
New Delhi, May 18 : National Human Rights Commission (NHRC) has issued a notice to Union Home Secretary in a case regarding renaming of a village in Dausa district of Rajasthan.
NHRC spokesperson Jaimini Kumar Srivastava today said the Ministry

has been directed to respond within six weeks.The name of ‘Kuwan Ka Vas’ village in Dausa was changed by a land record keeper in 1987 to ‘Chamaron Ka Vas’ literally meaning ‘residence of the backwards’. The village is inhabited by the Berwa community.”In a democratic country like India, whose Constitution clearly prohibits any discrimination on the basis of castes and religion, the name of the village Chamaron Ka Vas constitutes a criminal offence,” Mr Srivastava said.The Commission’s intervention was sought in 2006 and a notice was issued to State Chief Secretary calling for a report within eight weeks. It took about two years for the government to respond and the name ‘Kushalpura’ was suggested, he said.The Commission asked villagers for their comments and ordered the closure of the case in 2008 when no comments were received.The NHRC was then told by a villager in the same year that the MHA told the Rajasthan government that Kushalpura was not acceptable to the Railway Ministry as there was already a transit railway station ‘Kushalpura Halt’ which could create confusion. A list of alternate names was forwarded to the MHA by the state government for approval, but there was no response yet.The MHA Joint Secretary informed NHRC earlier this year that the proposal of restoring the name ‘Kuwan Ka Vas’ was under examination with the Ministry.

Nearly 3,000 cases on police gunfights filed with NHRC

May 21st, 2010
NEW DELHI – The National Human Rights Commission (NHRC) has since its inception registered nearly 3,000 cases of police gun battles, some allegedly fake, until April this year, an official statement said.
“The NHRC has 2,956 cases in connection with police encounters (gun battles) in different parts of the country until April this year. These include 1,590 cases registered on the basis of intimation received from public authorities and 1,366 cases registered on complaints received from public alleging fake encounter by police,” the statement said.
Of the total cases registered, 1,846 cases have been expedited so far.
“On consideration of various reports and materials on record sought by the NHRC, it was found that out of 1,846 cases, 27 encounters by the police were fake. (A total of) 1,819 cases were found to be of genuine encounters by police,” the statement added.
“The remaining 1,110 cases of encounters/alleged fake encounters are at different stages of consideration in the commission,” it added.
In those cases where the encounters were found to be fake, the commission recommended the state authorities take punitive action against the guilty officials and pay monetary relief to the next of the kin of the deceased.
The NHRC was formed in 1993.

EU makes textile labelling compulsory

May 18th, 2010
LONDON – “Country of origin” labels on clothes should become compulsory for selling them in Europe, so that people are not misled by labels suggesting they were made in the European Union (EU), the European Parliament said Tuesday.
The only way to ensure that people are not deceived by clothes made in a third country is to make “made in” labels mandatory, EuAsiaNews quoted the European Parliament as saying in a statement.
At least two out of four stages of manufacturing have to be carried out in a country in order to obtain the “Made in” label of that country.
“Made in” labels are currently voluntary in the EU. But in practice their use depends on national laws. In comparison, country of origin labelling is strictly required in the US, Canada and Japan.

Companies withdraw TDSAT petition

26 May 2010, 0220 hrs IST,PTI
NEW DELHI: Leading telecom operators, Bharti Airtel, Vodafone Essar and Idea Cellular on Tuesday withdrew their petition before sectoral tribunal TDSAT, challenging the recommendations of Trai on 2G spectrum. The GSM operators decided to withdraw their plea when Telecom Disputes Settlement and Appellate Tribunal (TDSAT) was about to reserve its order on the maintainability of the petition after hearing the case for more than an hour. During the proceedings, TDSAT observed that since Telecom Regulatory Authority of India’s (Trai) proposals are only recommendations, the same cannot be challenged. TDSAT chairman Justice S B Sinha allowed the operators to approach other appropriate forums for their grievance. GSM operator’s counsel, C A Sundaram said, “We withdrew the petition with liberty to file alternative proceedings or application before the appropriate authority”. Trai counsel meet, Mr Malhotra said: “Recommendations are advisory in nature and the central government is not bound by them. Hence, it is premature for the petitioners to have approached the tribunal, adding that as law they are not aggrieved by it. Anil Ambani’s company RCOM opposed GSM operator’s plea before the tribunal. The trio has been voicing their criticism of Trai’s recommendations and has asked the government to dump the report, which according to them is “retrograde” and “absurd”. Trai proposed a one-time fee for GSM operators, which include the three petitioners, for spectrum in their possession beyond 6.2 MHz. It also proposed linking that fee with 3G spectrum auction price. These issues are crucial for incumbent mobile operators as paying higher fee for existing as well as future 2G spectrum will be a financial burden for telecos, especially Bharti and Vodafone, as their profits have already come under pressure due to intense tariff war. Trai was also attacked by the GSM operators for recommending reforming of spectrum as per which players holding spectrum in the 900 MHz band would be asked to return spectrum as and when their licence comes up for renewal.

Apex court ruling poses HR issue for tribunals

Somasekhar Sundaresan / May 26, 2010, 1:44 IST
A recent ruling of the Supreme Court of India has yet again brought to the fore a debate over justice delivery through tribunals. The Court has expressed a range of views that could have a far-reaching impact on justice delivery.
In 2002, the Companies Act, 1956, was amended to provide establishment of company law tribunals to play the role that had hitherto been played by high courts. Specific arrangements and transactions such as mergers, demergers and reduction of capital, and also liquidation and winding up of companies are overseen by high courts having jurisdiction where the registered office of the company is located. The amendment sought to move such jurisdiction to specialised tribunals established for the purpose, with an appellate tribunal adding a layer of appeal.

While upholding the power of Parliament to move jurisdiction from the courts to tribunals, the Supreme Court held that the tribunals pursuant to the amendments made in 2002 would be illegal and unconstitutional. The court has left it to Parliament to legislate on the lines of the law now laid down. The specific noteworthy findings on the composition of the tribunals are:

· If the tribunal is created purely to expedite proceedings and exempt from strict rules of procedure and evidence, the tribunal does not need to have any technical expert as a non-judicial member.
· Only if there is a specific need for special expertise would non-judicial members be required to man a tribunal.
· Only judges and advocates can play the role as judicial members of a tribunal. A judicial member should be as close as possible to a high court judge.
· There ought to be at least one judicial member in any two-member bench of a tribunal. In any larger bench, the number of technical members ought not to be more than the judicial members.
Inability to staff courts and tribunals has remained a consistent contributor of institutional decay in India. The Supreme Court has now underlined the need for tribunals to be manned as much as possible by judges rather than by civil servants enjoying post-retirement sanctuaries, or taking sabbaticals from their executive postings.
Essentially, the exercise of staffing and running quasi-judicial tribunals and conventional courts is a human resource management exercise. Getting the right man for the job would involve prescribing the right criteria for performance appraisal, and transparent rewards. Most importantly, how one gets appointed to a justice-dispensing vehicle ought to be transparent, clear and confidence-inspiring.
Needless to say, the intent behind the judgement is laudable. The shifting of jurisdiction from courts to tribunals ought not to dilute the justice-delivery standards. However, it is equally true that members of tribunals who have not officially been judges have also done quite well in the past as members of tribunals.
The Securities Appellate Tribunal (SAT), a tribunal that was first established in 1995, to hear appeals against orders passed by the Securities and Exchange Board of India (Sebi) presents an excellent case study. Until 2002, C Achutan, an official from the law ministry of the rank of additional secretary who had also served on the board of directors of SEBI, was the presiding officer of the SAT. If the law now laid down by the Supreme Court were to have been directly applied to the SAT, Mr. Achutan would have been ineligible for appointment. However, a lot of securities law jurisprudence was laid down during his tenure — a pointer to how access to quality human resources will be pre-empted by the recent judgement.
“A lifetime of experience in administration may make a member of the civil services a good and able administrator, but not a necessarily good, able and impartial adjudicator,” the court has noted. True, but equally, a person with judicial background is not necessarily always a good, able and impartial adjudicator in a tribunal setting. One often sees tribunals taking very peripheral interest in appeals, akin to writ courts, reluctant to disturb the actions by authorities on the ground that the authority is an expert body.
Judges too are reluctant to become members of tribunals. Many do not like their peers or their erstwhile junior colleagues being able to sit in judgement over their decisions. A Supreme Court judge would be reluctant to work in a tribunal because his actions can be challenged in a writ petition before a high court or in appeal before his former colleagues in the Supreme Court. Of course, there are rare cases of retired judges agreeing to man tribunals located in particular cities — say New Delhi — but sitting high court judge would be reluctant to man a tribunal for similar reasons.
The SAT itself, now a three-member tribunal, has been lacking a member for over a year. If the ratio laid down by the Supreme Court is applied, one would need the third member to be a judicial member because judges have to be in a majority. Clearly, staffing multiple company law tribunals across the country will pose a major challenge. In practical terms, the jurisdiction of high courts under the Companies Act is unlikely to go away in the foreseeable future.
(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own)

Vodafone, Idea appeal to India tribunal over 2G plan
Mon May 24, 2010 9:26am EDT
May 24 (Reuters) – Indian mobile phone operators Vodafone Essar (VOD.L) and Idea (IDEA.BO) have appealed to a telecoms tribunal over the sector regulator’s proposals to slap new fees on second-generation (2G) spectrum, company officials said on Monday.
Telecommuncations Services
Spokesmen for the two companies separately confirmed to Reuters that they had appealed to the Telecom Disputes Settlement and Appellate Tribunal over the issue, without giving details. (Reporting by Devidutta Tripathy; editing by Malini Menon)

Rights panel seeks reply in congenital blindness cases
Patna, May 25 (IANS) At a time when the Bihar government is in a dilemma over 28 cases of congenital blindness which have been reported in a span of a few months in Bhojpur district, the National Human Rights Commission (NHRC) has asked the state government to submit a report on this, officials said Tuesday.
The NHRC has issued notice to the state government and has given it four weeks to reply, R.N. Pandey, an official of the health department, said.
“The NHRC had issued a notice early this month to the state government to submit a report on the facts and what action was initiated by the government in this connection,” Pandey said. Sources in the state health department said that 28 cases of congenital blindness were reported between October 2009 and April this year. After the issue was raised in parliament last month, the state government approached the New Delhi-based Indian Council of Medical Research (ICMR) to examine the reasons for the cases. “The government sent a request to the ICMR after a team of doctors from Patna Medical College and Hospital (PMCH) failed to ascertain the reasons behind it,” a health department official told IANS. The PMCH team rejected the possibility of congenital blindness in newborns due to high arsenic content in water. Bihar Health Minister Nand Kishore Yadav said the health department had also approached experts in the US. The cases have been reported from poor families in villages under Bihiya, Sahpur and Barehara blocks, about 60 km from here.

Posted by Kamal Kumar Pandey (Adv. Supreme Court of India) at Friday, May 28, 2010

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