LEGAL NEWS 07.11.2009

Haripriya Padmanabhan on Expeditious Disposal of Suits relating to Intellectual Property



Haripriya Padmanabhan
Cite as: (2009) PL (CL) October 9
The Supreme Court recently has passed two judgments regarding expeditious disposal of suits but unfortunately has restricted its observations to suits relating to trade mark, copyright and patents. . .

The Supreme Court recently has passed two judgments regarding expeditious disposal of suits but unfortunately has restricted its observations to suits relating to trade mark, copyright and patents. The first of the decisions was in Shree Vardhman Rice and Gen Mills v. Amar Singh Chawalwala1. The case relates to a suit filed for violation of trade mark and the defendant against whom the High Court had granted an interim order, had come on appeal to the Supreme Court by way of a special leave petition. The Bench of the Supreme Court deciding the case, without going into the merits of the controversy, disposed of the petition by observing as follows:

3. Without going into the merits of the controversy, we are of the opinion that the matters relating to trade marks, copyrights and patents should be finally decided very expeditiously by the trial court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of trade marks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper.

4. Proviso (a) to Order 17 Rule 1(2) CPC states that when the hearing of the suit has commenced, it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. The court should also observe clauses (b) to (e) of the said proviso.

5. In our opinion, in matters relating to trade marks, copyrights and patents the proviso to Order 17 Rule 1(2) CPC should be strictly complied with by all the courts, and the hearing of the suit in such matters should proceed on day-to-day basis and the final judgment should be given normally within four months from the date of the filing of the suit.

6. On the facts of the present case, we are not inclined to interfere with the impugned judgment and order. However, we request the High Court that the suit in question should be decided within three months from the date a copy of this order is produced before the trial court.

Following this judgment in Shree Vardhman2 the same Bench in Bajaj Auto Ltd. v. TVS Motor Co. Ltd.3 passed a similar order on 16-9-2009 and directed as follows:

11. Hence, without going into the merits of the controversy, we direct the respondent-defendant to file a written statement in the suit, if not already filed, on or before the last date for closing of the Madras High Court for Dussehra holdidays. We would request the learned Single Judge who is trying the suit to commence the hearing of the suit on the reopending of the Madras High Court after Dussehra holidays and the carry it on a day-to day basis. No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30-11-2009.

The only drawback in the above decisions is the fact that the observations and directions to dispose of the suit within four months have been restricted to cases dealing with intellectual property. The reasoning behind the judgment, namely, that in such disputes the main dispute between the parties is on interim relief, would equally hold good for most commercial disputes. Further, even in other disputes, where interim relief may not be the main bone of contention between the parties, the fact remains that cases are pending for very many years.

There is really no difference in the time taken for civil suits regarding intellectual property cases and other suits. If at all, in other suits where companies/business houses are not involved, and the parties are individuals, they by and large do not have the luxury of time or finances and can therefore ill afford delay in adjudication. In fact most of the civil litigation in this county which has been pending for years are filed by individuals who wait for decades for justice to be rendered. This being the case, and Order 17 CPC being mandatory as it stands for all civil cases, the Supreme Court ought to have directed that all civil suits will be decided without much delay and that Order 17 should be complied with strictly by the trial courts for all civil cases. Giving higher priority for disposing of intellectual property litigation may not be appropriate, more so as this would also be at the cost of other civil cases which are pending.

  1. SLP (C) No. 21594 of 2009 decided on 7-9-2009.
  2. Ibid.
  3. Civil Appeal No. 6309 of 2009.







Delhi HC issues notice to three schools for not complying with EWS norms

The Delhi High Court issued notices to three private schools of the capital for not complying with court orders which directed all schools to give 20% free seats to children belonging to the economically weaker sections (EWS) of society.

A bench comprising Justices A K Sikri and Sidharth Mridul directed Modern School (Barakhamba Road) , Frank Anthony School (Lajpat Nagar) and Indian School (Sadiq Nagar) to explain their stand by December 17, as to why they have not responded to the directions of the court till now.

A petition was filed by lawyer Ashok Aggarwal of the NGO Social Jurist seeking the court directions to initiate contempt of court proceedings against these schools for not complying with the Delhi High Court’s May 30, 2007 order which directed all schools of the capital to comply with the norms and reserve 15 per cent seats in the schools for the EWS students. The Court directed the schools to file an affidavit in this regard and also said those who would not file their affidavits would have to reserve 20 per cent seats for such children.

Mr Aggarwal contended in the court that the Delhi Government had earlier in June and August this year issued notices to these schools to file their affidavits but the schools did not comply with it.

The court had earlier in its May 30, 2007 order held that besides facing the contempt of court charge, the schools which do not comply with these orders would have to face de-recognition or takeover of the management of the school, the court held.

Aggarwal contended that the schools have neither filed any affidavits and nor are responding to the Delhi Government’s notice, therefore, they should be derecognised and proceedings of contempt of court be initiated against them for not taking the court orders seriously.








SC starts hearing afresh gas dispute between Ambani brothers

The Supreme Court started hearing afresh the natural gas dispute between the Ambani brothers.

Justice B Sudarshan Reddy replaced Justice R V Raveendran, who had withdrawn himself from the case, on the grounds of conflict of interest.

The bench headed by Chief Justice K G Balakrishnan also included Justice P Sathasivam.

Senior counsel Harish Salve submitted synopsis before the Supreme Court and contended that a family memorandum dated June 18, 2005 cannot prevail over the gas utilisation policy of the government.

Mr Salve, appearing for Mukesh Ambani company RIL, also submitted before the court that supply of gas at the rate of dollar 2.34 per unit to RNRL- an Anil Ambani company will adversely affect the profits of the Union Government under the profit sharing contract (PSC).

Ambani brothers are locked in a fierce legal battle over the fixation of natural gas price. The Centre is siding with Mukesh Ambani and had fixed gas rate at dollar 4.2 per unit.

As per family settlement, Mukesh Ambani had to supply natural gas from Krishna Godavari Gas basin for 17 years to Dadri based Power project of RNRL at the rate of dollar 2.34 per unit. RIL is not prepared to supply the gas at this rate. Natural gas is available within the area of 339 Sq km.

Hearing will now resume on November 10.








Centre submits guidelines for deposition of NSG commandos in 26/11 trial
The Centre submitted the guidelines before the Bombay High Court regarding the deposition of National Security Guards (NSG) commandos in the 26/11 terror attacks case.

Following this, a division Bench, consisting of Justices J N Patel and Amjad Sayed, reserved its order, on a plea moved by the Centre, challenging the designated court’s decision to summon NSG commandos to depose in the ongoing trial.

The Government, in the guidelines, stated that the depositions of the commandos should be via video conferencing and their names should not be revealed.

The Guidelines said the commandos should not be asked about their secret tactics used to handle the terror attack.

Earlier, during the hearing of the plea, the bench, in its oral order, said the defence and prosecution in the case would not question the commandos on their tactics used to handle the terror attack and would only ask limited questions.

The Court had also said the state had to obtain the High Court’s permission before calling further commandos as witness, except the three summoned by the Court.

Additional Solicitor General Darius Khambatta, who had appeared on behalf of the Central Government, strongly opposed the designated court’s order on the grounds that the deposition of the commandos may reveal certain facts which would be used by terrorist groups for other attacks.

Designated Judge M L Tahilyani, who is conducting the trial, had summoned three NSG commandos — Lt Col Rakesh Kumar Sharma, Major Ravindra Prakash and Captain Anil Jakhad, who were part of the team that stormed the Taj Mahal Palace, Hotel Oberoi Trident and Nariman House during the terror strikes, to testify regarding the operations carried out by them.








P&H HC asked Sidhu to reply by Dec 9 in election petition matter

Three-time BJP Lok Sabha member from Amritsar parliamentary constituency Navjot Singh Sidhu has been given time by Punjab and Haryana High Court here till December 9 to file a reply to the election petition filed against his victory in the May 2009 Lok Sabha elections.

Sidhu’s counsel appeared on his behalf and sought time to file the reply which was granted by justice Surya Kant, who adjourned the hearing till December 9.

Sidhu’s third successive return to Lok Sabha has been challenged by the defeated Congress candidate O.P.Soni MLA on grounds of alleged manipulation in the counting at the behest of state’s political bosses.

He claimed that the result was delayed to manipulate the counting and to deny him the victory eventhough he was having a lead over Sidhu by nearly 7,000 votes in the last leg of the counting.

Soni, who also alleged abuse of state machinery by Sidhu in securing release of power connection to some persons, has sought directions for a re-poll in the constituency.







PWC moves Delhi HC to quash proceedings in Satyam scam

Audit firm Pricewaterhouse Coopers (PWC) approached the Delhi High Court, seeking quashing of proceedings against them by the Government in the multi-crore Satyam scam as they are based in Delhi and have nothing to do with the audit of the Bangalore-based controversial company.

The audit company has stated that they are only one of the six franchisees of PWC, which have separate identities and clientele, therefore, they have no knowledge of main accused Ramalinga Raju Satyam’s financial accounts.

Accountancy regulator Institute of Chartered Accountants of India (ICAI) agreed to withdraw disciplinary proceedings against the Delhi branch of the audit firm in the Satyam scam.

Advocate CS Vaidyanathan, appearing for ICAI, agreed to withdraw the proceedings after the Delhi High Court objected to it taking action against the Delhi franchisee of the firm without giving any evidence that it was related to PWC, Bangalore which was the statutory auditor of Satyam.

Justice Sanjiv Khanna accepted the plea of the regulator and allowed it to issue fresh notice to the Delhi franchisee in case it found any evidence regarding involvement of this firm in the scam.

Since there was no connection with the Bangalore-based franchisee which had audited Satyam accounts, proceedings should be dropped against the one based in Delhi, the petitioner told the court.

There are six franchisees of the audit firm in the country and they are not related to each other in any way. We have nothing to do with the Bangalore firm which had audited Satyam accounts, so there does not arise any cause of action against us in the aftermath of the Satyam scam,’ the lawyer appearing for the Delhi firm pleaded and told the court to quash all the proceedings against them.








DDA gets HC nod to start allotment of flats

TNN 7 November 2009, 03:04am IST

NEW DELHI: Delhi High Court on Friday gave the green signal to Delhi Development Authority (DDA) to go ahead with the allotment process of over 5,280 flats to those whose names figured in the lucky draw in December last year.

Justice G S Sistani dismissed a petition challenging the process of the draw after the Economic Offences Wing (EOW) of Delhi Police submitted a report in the court giving clean chit to the DDA. The EOW had probed the charges of irregularities in the draw.

Appearing for DDA, advocate Rajeev Bansal said the controversy was created by unsuccessful applicants and there was no truth in the allegations of malpractice. He said all records of the allotment were sent for testing at the forensic laboratory in Thiruvananthapuram and it found that there was nothing wrong with the allotment process.

HC was hearing a petition filed by an unsuccessful applicant alleging that DDA had illegally allowed applicants under the Scheduled Tribe (ST) category from other states to participate in the exercise and hence the draw be cancelled.

Earlier, in response to the petition, DDA had assured the HC that it would not begin the process of allotment of flats till the EOW completes the investigation. DDA maintained that its officials had not committed any irregularity during the draw of lots.

Following the December draw a complaint was registered accusing the land agency of committing irregularities during the draw.






Gujarat HC fines itself Rs 15,000

TNN 7 November 2009, 02:10am IST

AHMEDABAD: In a curious case of judicial self-introspection, the Gujarat high court has imposed a penalty on itself for misjudging a case.
A division bench headed by Chief Justice K S Radhakrishnan on Friday imposed a cost of Rs 15,000 on the high court for neglecting judicial tradition in a case that led to the dismissal of a lower court judge.

“Judges are at times poor judges of judges, especially in judicial administration,” the division bench observed while hearing S J Pathak, who was first suspended in 1999 and dismissed seven years later for granting bail to an accused in a serious case without considering settled principles of law.

Pathak faced two departmental inquiries. The inquiry report was then placed before a disciplinary committee of Justice B J Shethna and Justice D K Trivedi (both now retired), who “tentatively” held that charges were proved against the judge. This conclusion was not supported by any reasoning.

Since, the conclusions were “tentative” the report was place before another disciplinary committee of Justice N G Nandi and Justice M S Shah. This committee in 2003 exonerated Pathak of all charges with a detailed analysis.

In wake of conflicting conclusions, the report was placed before the high court for perusal of all judges. In a chamber meeting, all judges did not accept the conclusion arrived at by Justice Nandi and Justice Shah. The judges decided to entrust the case to Justice Shethna again. In 2006, Justice Shethna held that all charges against Pathak were proved and recommended his dismissal from service.

Pathak filed a petition against his dismissal, and the bench of Justice Radhakrishnan and Justice A S Dave pulled up the high court for referring the case to Justice Shethna for re-consideration, particularly when Pathak had expressed apprehension that Justice Shethna was biased.

The Chief Justice ordered return of Pathak to service immediately and made observations against the high court’s decision of sending the case back to Justice Shethna, who had “pre-judged” the case, which led to a decision that was “vitiated by bias and liable to be set aside”.







Yasir murder case: HC orders life imprisonment for six accused

Submitted by admin4 on 7 November 2009 – 11:13am.

By Staff Correspondent,

Kochi: The Kerala High Court,on Thursday, ordered life imprisonment for six accused in the murder of Yasir. The accused have also been fined for Rs 25,000 each. The judgement of the division bench of the High Court has scrapped the order of the Manjeri sessions court in 2005 by which all the accused were acquitted for lack of evidence. Yasir, native of Tirur, was murdered in 1998.
Madathil Narayanan, Raveendran alias Ravi, Sunil Kumar alias Suni, Manoj Kumar alias Manoj, Kooliparambil Nandakumar and Kattuvilayil Sivaprasad are the accused. The judgement was made by the division bench consisting of Js K Balakrishnan Nair and P Bhavadasan. The court acquitted Nirathil Balakrishnan, the fifth accused, on want of evidence. Puthuppalli Surendran, the fourth accused, is absconding. The High Court also removed the remarks made by the subordinate court about VP Radhakrishnan, the CI of Tirur who was in charge of the investigation.

The accused have to undergo imprisonment under various sections of the IPC like 143 (six months), 147 (one year), 148 (two years), 302 (life imprisonment) and 307 (seven years). Each accused has to pay a fine of Rs 25,000. The court also directed to pay Rs 1, 25,000 from the fine amount to the widow of Yasir and Rs 25,000 to Yasir’s friend Abdul Azeez who also was injured in the attack. The accused have to undergo imprisonment for two more years in case of failure to pay the fine.

Yasir was killed by a group of men, reportedly RSS activists, at around 2 am on August 18, 1998. His friend Abdul Azeez also was seriously injured. Even though the police took them to the Taluk Hospital in Tirur, Yasir succumbed to his injuries. The prosecution case reportedly says that the accused who are RSS activists killed Yasir due to their revenge for the conversion of Yasir, friend Azeez and some others to Islam. The judgement passed by the HC yesterday came in the special revision petition filed by Yasir’s widow Sumayya through Adv CK Sreedharan.

The court reportedly observed that the reasons listed by the subordinate court to set the accused free were illegal and denial of justice. The High Court also expressed displeasure at the judgement of the subordinate court even after the witnesses had recognised the accused during the trial and the prosecution had presented all the relevant documents.
Senior lawyer CK Sreedharan and lawyers Sunny Mathew, PC Noushad and MP Abdul Latheef argued for the petitioner. Public Prosecutor Noble Mathew was present for the government and lawyers PS Sreedharan Pilla, N Bhaskaran Nair and Bodhini argued for the accused.

Yasir was earlier Ayyappan, a Hindu who used to perform religious rites in temples. He reportedly learned about Islam through his friend Jabbar and converted to Islam in 1990. His wife and two children also accompanied him. Ayyappan changed his name as Yasir and his wife became Sumayya. Yasir used to call the Azan very beautifully. With his calm nature and attractive talks, he soon became a good preacher of Islam. About 40 families, reportedly, embraced Islam by his efforts. This made him a sore in the eyes of the RSS which reportedly threatened him in many ways. But Yasir paid no heed to them.

On the day of murder, Yasir came back home late after taking his younger son to the doctor. When his daughter told him that some people had come to the house asking for him, he set out with his brother and friends in an auto rickshaw in the direction the people had left. A group of people stopped the vehicle and scared others away before they attacked Yasir and Azeez. When the police reached the spot, the attackers had escaped. The seriously hurt men were taken to hospital. Yasir succumbed to his injuries, while Azeez was saved.

All the eight accused in the case were acquitted by the sessions court on March 21, 2005. This led to tensions in Tirur in which three people were killed. Yasir’s family welcomed the HC order. Sumayya expressed her gratitude to all those who had helped them in the case.






HC panel to visit IOC inferno site

TNN 7 November 2009, 07:01am IST

JAIPUR: The Legal Awareness Committee (LAC) of Rajasthan High Court will visit the Sitapura industrial area to provide legal aid to poor labours and persons who suffered losses due to the mishap and would see that they get a proper legal redressal. The committee is a statutory body and works under Rajasthan State Legal Service Authority (RSLSA).

RSLSA executive chairman Justice Karni Singh Rathore on Friday told the media that it has been decided to send LAC to visit the site and see that the needy get proper legal help on the spot. It would further ensure that their complaints are properly presented before the state government.

“We have received reports that the poor and needy are not getting proper relief there. There are also reports that when people fled due to the inferno, there were thefts in the unlocked house of poor people. We would ensure that they get their dues,” Justice Rathore said and clarified that it is not an inquiry committee.

“We will shortly visit the site and will provide necessary help to affected persons as well as ensure redressal of their grievances. A report in this regard will also be submitted to the RSLSA chief,” said Abhinav Sharma, an LAC member.

Justice Rathore also said that RSLSA organised Lok Adalat in high court after a gap of 12 years and a total of 93,451 cases have been disposed off by September this year. While disposing of 1,683 accident claims by way of RSLSA’s alternative dispute resolution mechanism, more than Rs 18 crore has been disbursed to the victims, he added.

He further said that such Lok Adalats organised across the state has disposed of around 79,764 petty criminal cases, 803 matrimonial disputes, 69 industrial disputes and 924 bank loan refund cases. “In all, at various pre-litigation stage, we disposed of 11,90,263 cases and held 4,448 camps for legal literacy,” he said.

“Directions have been issued to all the chief judicial magistrates in the state to coordinate with the SPs of the districts and central jails to see that the undertrials, who have already completed the maximum period of sentence but are still waiting final adjudication of criminal cases from the court, are released,” added Rathore.

RSLSA has received around 12,258 NREGS-related complaints, of which 12,134 complaints were decided at pre-litigation stage alone, Rathore said and added, “There were many complaints regarding payment, for which we have directed the state authorities to take the help of scheduled banks and gramin banks instead of post offices.”






HC questions luxury tax on marriage gardens

Abhinav Sharma, TNN 7 November 2009, 07:02am IST

JAIPUR: A Division Bench of Rajasthan High Court on Friday sought explanation from the state government for extending the ambit of luxury tax to the marriage gardens across the state under Rajasthan Luxury Tax Act, 1993, through an amendment in 2007.

The Bench issued notices to the secretary (finance) and the commissioner (commercial taxes) on a petition, challenging the constitutional validity of the amendment, filed by Jaipur Vivahsthal Samiti, having some 500 marriage gardens as its member.

The Samiti contended that the marriage gardens are not covered under business’, business activity’ and commerce’, which come under luxury tax. It alleged that right to livelihood will seriously be hampered if such taxes are imposed on lakhs of marriage gardens in the state.

“It merely provides a facility which cannot be termed as commercial activity as no selling of any commodity is involved. It is merely a short lease which is entered for a definite purpose which is not a business activity,” claimed the petitioner’s counsel.

The petitioner also contended that the commercial taxes department has no authority to collect such a tax and that for last so many years, there was no such tax levied on these gardens.

Contrary to this, the state government, while amending the Act, was of the view that marriages are traditionally solemnised at residential houses. But with the change in trends, the marriages are now solemnised outside and this is only because the parties want to avail the luxury of having huge sets, music system and all other activities which comes in the preview of luxury.






HC seeks reply from govt to PIL on road level

TNN 7 November 2009, 05:27am IST

PATNA: The Patna High Court on Friday directed the state government to reply to a PIL that has challenged the increase in the road level in Gaya town due to which people have become apprehensive of waterlogging in their houses in the rains.

A division bench comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma gave one month’s time to the state government to give reply to the PIL filed by one Jawahar Lal.

BIADA employees

The Patna High Court on Friday ordered the Bihar Industrial Area Development Authority (BIADA) to maintain the continuity of service of the 14 employees whose dismissal was revoked on an earlier order of the HC.

A single bench presided by Justice V N Sinha disposed of the writ petitions of the affected employees, saying the principal secretary, industry, would hear their appeal regarding their status in BIADA in the light of the latest HC order.

After the services of 109 employees of BIADA were terminated for unauthorised absence when they had gone on a strike, a bench of the high court had directed the BIADA to take them back. The court had then added that the employees would not be paid salary for the period of their absence.

Basant Kumar Chaudhary and Ranjan Kumar Singh appeared for the petitioners while additional advocate general Lalit Kishore represented the state.







SC to hear Mayawati’s plea against HC order in Taj corridor case

TNN 7 November 2009, 02:48am IST

NEW DELHI: UP chief minister Mayawati on Friday moved the Supreme Court against an Allahabad High Court decision to entertain a PIL challenging the CBI’s decision to close the Taj Heritage Corridor scam case against her.

When the matter was mentioned before a Bench comprising Justices R V Raveendran and B Sudershan Reddy by a battery of lawyers, including senior advocates Mukul Rohtagi and S C Mishra, the court fixed November 16 for hearing on her appeal.

Mayawati had challenged the decision of the HC to entertain the PIL saying the apex court had refused to entertain a PIL on the same issue after the CBI closed the case following the refusal of governor T V Rajeshwar to give sanction for her prosecution in the case.

The FIR in the Taj Heritage Corridor scam was lodged against her on the orders of the apex court, which was monitoring the probe into the case. The direction for lodging the FIR against her and others came from the apex court on September 18, 2003.

After the governor refused to grant sanction in June 2007, the issue was raised before the Bench hearing Taj Heritage Corridor scam matter. However, it had refused to entertain the PIL saying the petitioner should take other recourse to ventilate his grievances.







HC admits plea for claim around Dinakaran land

TNN 7 November 2009, 03:43am IST

CHENNAI: In what could be a new twist to the controversy over the land-holdings of Karnataka High Court Chief Justice PD Dinakaran, some residents of the Kaverirajapuram village in Tiruvallur district, where the judge is alleged to have encroached upon government land, have moved the Madras HC staking ownership over properties in the same area.

Stating that they had valid titles for the land, the petitioners said their properties were no longer in their possession and had been classified as ‘anadheenam’ lands because of non-payment of tax for a long period. The petitions which came up for hearing before Justice K Suguna on Friday, contended that the lands did not belong to the government, which had failed to follow mandatory procedures before declaring them as ‘anadheenam’ lands.

Expressing their readiness to clear the tax arrears, the petitioners said the district authorities were “initiating proceedings under the Land Encroachment Act against some third parties, who have nothing to do with these lands, treating this land as government land.” They, however, did not name the ‘third parties.’

Explaining the long delay in approaching the court for a direction to the revenue authorities, the petitioners said they came to know about the attempts being made to take over these ‘anadheenam’ lands and distribute them to landless farm labourers under the TN government’s two-acre free land distribution scheme.






HC bans construction in elephant range

TNN 7 November 2009, 03:42am IST

CHENNAI: In a last-ditch effort to save whatever that remains of the ecologically fragile elephant corridor in the Nilgiris, the Madras High Court has banned all forms of new construction, including installation of solar/electrical fencing, in the region.

A division bench comprising Justice SJ Mukhopadhaya and Justice M Duraiswamy passed this order on a public interest writ petition filed by three organisations, including the Chennai-based In Defence of Environment and Animals (IDEA).

Concerned by the obstruction being caused to the animals, the judges referred to the recommendations of an expert committee constituted for the purpose and directed the forest secretary, principal chief conservator and others to furnish a map showing demarcated boundaries of the corridor clearly in two weeks.

Noting that the map must contain the survey numbers of private lands as well, the judges said no construction should be made in the region without prior intimation to the court.

“No person should be allowed to put a fresh solar/electrical fencing within the area considered the elephant corridor by the expert committee,” they said. Orders concerning the existing fence would be passed on November 19, when the matter will be taken up for further hearing.






CIC adjourns cases related to CJI for 10 days 


New Delhi, Nov 6 (PTI) Can any authority continue to refuse information under the RTI Act just because an appeal has been filed before a larger bench, without any stay order?

The issue came up today before Chief Information Commissioner Wajahat Habibullah, who granted adjournment in eight appeals on the request of Supreme Court till November 16.

The apex court had sought adjournment of hearings till a division bench of the Delhi High Court hears next week whether information held by Chief Justice of India (CJI) comes under the RTI Act or not.

In six of the eight applications, the Supreme Court had refused to provide information pertaining to the CJI on the grounds it is not held at the registry of the apex court prompting applicant S C Agrawal to file appeals before the Commission.







Contempt notice to transparency lawyer


New Delhi, Nov. 6: The Supreme Court today issued a contempt notice to activist-lawyer Prashant Bhushan for remarks accusing a judge of ignoring a potential conflict of interests and awarding mining leases to a company in which he held shares.

Justice S.H. Kapadia, next in line to be Chief Justice of India (CJI), had awarded leases to Sterlite India Private Limited. He had revealed he held some Sterlite shares and offered to recuse himself from the case, but continued hearing the case since no party objected to that.

Bhushan said the notice to him would only “bring the issue of corruption in the judiciary and outdated contempt laws into focus”.

The son of former law minister Shanti Bhushan has been at the forefront of a movement seeking greater transparency and accountability among the judiciary, which recently led to apex court judges putting their assets declarations in the public domain for the first time.

Bhushan had told a Delhi-based weekly in an interview that judicial corruption manifested itself in several ways and cited Justice Kapadia’s case as an example.

“There is a law against judges hearing cases where there is a conflict of interests, but they just bypass it and you can’t complain because that would be contempt,” he had said.

In another context, he said at least half the past CJIs were corrupt — a remark the contempt notice mentions — though he admitted he did not have evidence to back all his claims.

Bhushan and his father are now defending the editor, resident editor, publisher and cartoonist of a newspaper against contempt charges for publishing a caricature of former CJI Y.K. Sabharwal.

Justice Kapadia was part of the forest bench which had in August 2008 refused bauxite mining leases to London-based Vedanta Alumina Limited on the ground that it was unlisted in India. The bench had awarded the leases to Sterlite, in which Vedanta holds an 80 per cent stake.

Although the parties in the case did not object to Justice Kapadia being on the bench, activists opposing mining in Orissa’s Niyamgiri hills had argued that the real stakeholders — the organisations opposed to the Vedanta project — were not con- sulted.

Today, amicus curiae Harish N. Salve said Bhushan’s remarks were an “attack on the integrity” of the court.

According to Clause 11 of the Restatement of Judicial Values, adopted by Supreme Court judges in 1997, no judge shall “hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised”.







Sikh groups to move SC to seek HC probes into 84 riots

Encouraged by successful organisation of Punjab bandh yesterday, various Sikh organisations were now planning to move PIL in the Supreme Court (SC) to seek judicial inquiries by high court judges in various states where Sikhs were killed in November 1984 riots.

All India Sikh Students Federation (AISSF) President Karnail Singh Peer Mohammed and senior advocate of Punjab and Haryana High Court Navkiran Singh, a representative of US-based Human Rights group Sikhs for Justice, said here today that the Sikh organisations have now decided to move the PIL in the Supreme Court for which preparations are in progress and probably it will be filed in January 2010.

It was also decided to move the PILs in High Court of the other States with the help of victim families of the Sikh genocide, in which thousands of Sikhs were killed in riots in 39 cities across the country.

Both Peer Mohammed and Navkiran Singh Advocate also stated that a five-member delegation consisting of representatives of various organisations including Khalsa Action Committee, Sikh for Justice, AISSF and Dal Khalsa among others, would submit a memorandum to the Prime Minister on November 16 to press for punishment for the guilty of the anti-Sikh riots and to seek a resolution by the Lok Sabha condemning the genocide.

The Copies of the memorandum would also be distributed among all the Lok Sabha members seeking their support for the resolution.







HC rejects bail plea of accused in gangrape

TNN 6 November 2009, 06:19am IST

LUCKNOW: Justice Ashwani Kumar Singh of the High Court on Thursday rejected the bail plea of an accused along with two other accomplices for gang rape of an 18-year-old married woman.

Additional government advocate OP Srivastava, admitting the poor role of Gonda police, contended that a scheduled caste woman Mohini Devi lodged an FIR with Koria Bazar police station, Gonda against seven persons. She had to approach the magistrate for direction to register her FIR as even the deputy inspector general and superintendent of police, Gonda did not bother to direct the police station to register the FIR.

The victim, Mohini deposed before the magistrate that on June 19 Ram Gopal, Nankay, Nanki, Durga, Malti Devi, Ram Dehal, Bekau and Vijay Bahadur kidnapped her on gun point from her house. She was gagged and undressed. Thereafter Ram Gopal and two others took turns to rape her. She became unconscious. Then she was taken to different places under threat and was raped over and over again.

AGA Srivastava said that the role of police was dubious as when her husband, after returning from Punjab, moved the Gonda police, the accused persons released the lady but the station house officer did not register the FIR.

Justice Singh observed that it was a serious offence of gang rape in which the role of SHO was not fair and just. Therefore, the rapist Ram Gopal did not deserve bail.








No libel in case of mere publication, says HC

TNN 6 November 2009, 06:56am IST

PANAJI: In a defamation case, the high court of Bombay at Goa recently held that mere reproduction of allegations against a person by a newspaper, based on a complaint filed before the authorities, may not amount to libel against the publication.

The judgment comes in the wake of an appeal filed against a local Marathi daily and others. Based on complaints filed by one Vincy Gonsalves with the police and vigilance departments, the newspaper had published that one Liyakat Khan had threatened to bomb Gonsalves’ house at Valpoi with the help of Dawood Ibrahim. Khan’s suit claiming damages for defamation against the newspaper and Gonsalves was rejected by a trial court in 2004. Subsequently Khan approached the high court.

Dismissing the appeal, a division bench of Chief Justice Swatanter Kumar and Justice N A Britto held, “In fact, it is a conceded position before us that contents of the publication are normally verified by the newspaper and if the contents are mere reproduction of the complaint with some preface which by itself is not offending, it may not give rise to liability.”

The bench also added that the allegations published were stated to be a reproduction of a complaint given to the police and vigilance departments which per se may not render the editor liable for the claim of damages.

The newspaper had defended that the allegations published were based on the complaint made by Vincy Gonsalves to the police and vigilance departments. There was no intention to harm or cause mental agony or torture to the appellant. The newspaper had even published a clarification provided to them by the appellant.

As far as Gonsalves’ liability was concerned, the high court observed, “The complaints made to an authority with an object of they being investigated in accordance with law cannot at the stage of investigation be made foundation for an action for defamation. Claim for damages can be made if the complaint is found to be false and incorrect.”






Wyeth case: Reckitt challenges HC order

6 Nov 2009, 0537 hrs IST, Ratna Bhushan & Paramita Chatterjee, ET Bureau

NEW DELHI: In a fresh twist to the ongoing legal battle between FMCG major Reckitt Benckiser and global drugmaker Wyeth over alleged copyright violation over their respective hair-removing creams, the former has appealed against a recent Delhi High Court order which went in favour of Wyeth.

Reckitt Benckiser had, some months back, appealed in the Delhi High Court alleging that Wyeth had indulged in copyright violation. The new appeal is slated to get registered on November 25 in the Delhi High Court, said a person familiar with the matter.

When contacted, a Reckitt Benckiser spokesperson declined comment stating that the ‘matter is subjudice’. A Wyeth spokesperson said in response to an email query by ET: “An appeal has been filed by Reckitt which is way beyond the statutory limitation period.”

Reckitt Benckiser had alleged that the S-shape design used for its hair removing cream Veet Spatula was copied by Wyeth for its Anne French hair-removing cream. This was rejected by a single judge.

Reckitt Benckiser, which also makes Dettol, Cherry Blossom and Lizol, had alleged that the S-shape design used for its product ‘Veet Spatula’ was copied by Wyeth for its ‘Anne French’ cream since the design can be replicated easily. But Wyeth had countered that similar designs existed in other countries as well.

Veet, one of Reckitt Benckiser’s global best-sellers, is a leading hair-removal cream. It was launched in India in November 2004, and is endorsed by film actress Katrina Kaif. Wyeth’s Anne French, on the other hand, is decades old, and is now endorsed by Kareena Kapoor.

The hair remover category is estimated at close to Rs 200 crore, and is dominated by Anne French and Veet. Dabur’s Fem is the latest entrant in the category.










HC brings cheer to wannabe grooms with empty pockets


Posted: Friday , Nov 06, 2009 at 0313 hrs Chandigarh:

The Punjab and Haryana High Court has provided a ray of hope for government employees, who need government loan for their marriage. The rules so far provide for this facility only for the marriage of children or siblings of government employees.

Justice Ranjit Singh directed the Haryana government to “reconsider, decide and issue afresh” the policy under which a government employee is not entitled to loan for his/her marriage. Terming this ‘strange’ and ‘a case of an amiss’, Justice Singh observed: “There is no rationale in formulating these instructions in this manner. The consideration for advance (loan) in such cases rather may be more pronounced and appropriate.”

The Haryana government has been directed to reconsider the issue afresh, clarify and “introduce any change in the policy, if it would like to”.

 The directions came in wake of a public interest litigation filed by Sonu Verma, a resident of Karnal working at Industrial Training Institute Karnal. Verma, who had applied for a loan of Rs 90,000 for his marriage, was denied by the government. He then moved the high court demanding quashing of the rules.

The Justice said: “I am conscious that it is a policy formulated by the state and it is within the domain of the state Government to frame policy as per its wisdom. I am also conscious that to seek an advance may not be a right. It is an assistance which the state as a welfare measure is providing. Attempt is not to find if the policy is unwise but to refer it to the framers to consider if this is a case of an inadvertent slip. The instructions have not clearly excluded loan for self marriage.”

The Court also ruled: “This exclusion of loan for self marriage is apparently not on the basis of any well considered decision. It may be a case of the issue having escaped attention while formulating the policy instructions. Loan is for an employee. It is available to him when he is to marry his dependent but not when he needs it for his own. There seems to be no purpose for denying loan for self marriage, when it is available to the same person for marriage of his dependents.”







HC to work 15 minutes more to speed up case disposal

A Subramani, TNN 6 November 2009, 02:06am IST

CHENNAI: In a welcome measure to speed up disposal of cases, the Madras High Court has decided to work for 15 minutes longer every day from the next judicial year.

The Madras High Court, which already works 15 minutes longer than any other court in the country, has now decided to scale down the daily lunch recess from one hour to just 45 minutes. The revised sitting hours is from 10.30 am to 1.30 pm, and from 2.15 pm to 4.45 pm. The new five-and-a-half-hour-schedule will come into force on June 7, 2010, said a registry notification on Thursday.

“With this, we will be working for 30 minutes over and above the original work hours, daily. Putting in 30 minutes of additional work for 210 days will give us 105 hours annually. Translated into days, we will have 19 additional working days next year,” said a senior official.

As on June 30, the Madras High Court has a backlog of over 4.68 lakh cases, next only to the Allahabad High Court’s pendency of 9.35 lakh cases. Between March 31 and June 30 alone, the High Court’s pendency rose by more than 6,000 cases, as the filing of new cases outstripped the disposal rate. Tamil Nadu’s subordinate courts, on their part, have a backlog of 10.59 lakh cases.

In this scenario, the High Court had three options to speed up the disposal rate: slash the usual five-week summer vacation; scrap the Dussehra break or reduce Christmas vacation; and three, increase the sitting hours.

Jurists say that the increase in sitting hours will improve the disposal rate by 10%. “The move has several advantages. We will be 10% more efficient by investing next to nothing in terms of infrastructure and staff strength,” said a judicial officer. “It would cost us crores of rupees if we were to increase the number of courts or judges by another 10%,” he said.

However, another officer said it would be too simplistic to assume that a 10% increase in work hours would proportionately increase the disposal rate. “By evening, we will be tired and it would tell on the speed of disposal,” he said. A woman officer said the additional work hours would further delay their departure from office in the evening.

Rejecting the arguments, a court official said the additional work hours are well within the outer frame work, that is, the closing hours would continue to remain 4.45 pm as only the lunch hour has been reduced.

In 2007, during justice AP Shah’s tenure as chief justice, the total number of working days of the High Court was increased from 210 to 220. It was, however, brought back to 210 after protests from the Bar. It was the Bar which suggested the addition of 15 minutes to the usual work hours.

A couple of months ago, during the all India chief justices conference, justice Prafulla Kumar Misra is said to have circulated a note suggesting a uniform judicial calendar containing 220 working days for all High Courts in the country. When the suggestion was placed before the Full Court of judges here, several options, including reduction of the five-week summer break and working on Saturdays, were discussed.






CG Road demolition halted after HC stay order

TNN 6 November 2009, 02:33am IST

AHMEDABAD: Ahmedabad Municipal Corporation has stalled its demolition drive at CG Road after some builders approached Gujarat High Court demanding a stay on AMC’s anti-encroachment drive.

Owners of three buildings Shilp on CG Road, Nalanda Hotel situated at Mithakhali and Patel Estate from Nikol filed a petition in high court claiming that they had paid impact fee fixed by the AMC few years ago, and following this their construction was regularised. This time AMC initiated demolishing their construction without even issuance of prior notice.

The Bench of Justice RM Doshit and Justice RH Shukla scheduled to hear this case was not available on Thursday, therefore the petition was heard by a Bench headed by Justice Bhagwati Prasad.

The court refused to interfere in the case at this juncture and it was decided that the petition would be heard by the regular Bench headed by Justice RM Doshit. The case was adjourned to Monday after the AMC counsel assured the court that the corporation would restrain itself from further demolition till the court decides on the petition.







Court Stay On Mathur Commission

TNN 5 November 2009, 07:37am IST

JAIPUR: In a major setback to the Ashok Gehlot government, a division bench of Rajasthan High Court on Wednesday restrained the three-member Mathur Commission from probing the corruption charges against the Vasundhara Raje government and the conduct of public servants during her regime.

Forming the commission under the chairmanship of Justice (retd) N N Mathur was the first decision the Gehlot government had taken to probe the charges of corruption against Raje and also the alleged irregularities during her regime. Congress had made corruption the key poll issue during the assembly elections.

The bench of Chief Justice Jagdish Bhalla and Justice M N Bhandari on Wednesday stayed the working of the commission, passing the interim order on a public interest litigation filed by one Kashi Purohit and Krishan Murarilal Asthana early this year.

While passing the interim order, the court observed that petitioners have successfully made a prima facie case fit for grant of interim relief. It felt a restraint order was required as otherwise there would be no utility in continuing with the writ petition if the commission was allowed to work in the manner it is acting at present. “The court feels self-restrained in citing any specific reason for granting the interim relief, which is based on merits of the case,” the court observed.

It was argued by advocate Abhinav Sharma, counsel for the petitioners, that besides the other grounds urged in the petition, the state government has already admitted that the commission is not functioning under the special powers provided under the Commission of Enquiry Act, 1952. “As such, no committee can be allowed to make any sort of preliminary inquiry into the serious charges of corruptions, nepotism, fraud, etc. Further the committee has summoned senior bureaucrats without any jurisdiction and it should be restrained from doing so during the pendency of the writ petition,” the court observed.

The petitioners had alleged that the Congress party during the last assembly election campaigning had alleged irregularities worth over Rs 22,000 crore during Raje’s regime. Countering the arguments, advocate general G S Bapna urged that the government had not constituted any commission, instead this was merely a fact-finding committee and it had been entrusted with the task of finding out the guilty persons and recommend action against them.







Judges appointment: CJ to decide on hearing

TNN 5 November 2009, 03:32am IST

HYDERABAD: A two-judge Bench of the A P High Court comprising Justice G Raghuram and Justice Ramesh Ranganathan on Wednesday directed the writ petition challenging appointment of new judges to the High Court to be placed before Chief Justice Anil R Dave who will now decide as to who will hear the case.

Vasireddy Raghunath, a practising HC advocate, moved a writ petition which is yet to be registered. In the meanwhile, the matter came before the division bench and the petitioner objected to the Bench sharing the matter. He contended that one of the judges had a close proximity to one of the short-listed candidates. The Bench directed the petitioner to give details in an affidavit on the reasons why he objected to the Bench hearing the matter.

Once the candidates in the list were named, Justice Ramesh Ranganathan recused from the case. A packed court hall witnessed Justice Raghuram from the Bench asking the petitioner’s counsel as to why he should not hear the matter. Advocate General D V Sitarama Murthy was also called in to assist the court. The petitioner also at one stage had sharp interaction with the AG. Justice Raghuram in his order referred to the proximity theory and wondered what was the peculiar circumstance that he suffered. The AG said the legal process cannot be permitted to be so subverted.

Ruling on illegal detention

A two-judge Bench of the AP High Court comprising Justice D S R Verma and Justice G V Seetapathy on Wednesday declared the detention of Ayub Ali Ahmed as illegal and ordered his immediate release. The Bench allowed a habeas corpus filed by Naseem Bibi complaining that after being discharged in January 2000 from jail, her husband was wrongly jailed in 2006. He was lodged in jail for offences under sections 302 and 498 A. The government contended that the remission given to him was contrary to the government order.

The Bench, speaking through Justice Verma, pointed out that the remission was granted by the governor in exercise of his constitutional powers while the clarification to re-admit him in jail was given by the jail authorities and was thus without the authority of law. The Bench also said that the re-admission to jail was without following any procedural safeguards and was thus illegal.

Advocate’s arrest ordered

Justice L Narasimha Reddy of the AP High Court on Wednesday sentenced Chaparla Sitaram, a practising advocate of the High Court, to a day’s arrest for contempt of court and interfering with the court proceedings. Earlier in the day, the lawyer informed the court about a certain case which was heard on Tuesday and pointed out that the order be withdrawn as he was not the advocate on record.

As the judge pointed out to the vakalat filed by him, the counsel questioned as to how the case was listed. The gestures and voice of the counsel led to the judge cautioning him. The judge even pointed out that his actions could attract the provisions of contempt of court act. At this stage, the counsel threatened that he too would issue contempt notice to the judge.

The judge then summoned the police officials of the Special Cell in the High Court and directed that Sitaram be taken into custody for 24 hours. The advocate was recently involved in yet another controversy when he was accused of physically assaulting a media person in the court premises.






Shilpa Shetty’s restaurant group wins employment tribunal

6th November 2009, 11:38am

Shilpa Shetty’s V8Gourmet Restaurant Group has won an employment tribunal which found allegations made by Jamal Hirani, former director and chief executive officer of Gourmet Restaurants Limited, to be untrue.

Last month various reports in the press claimed that Hirani had been forced out of the businesses to make way for Shilpa Shetty and Raj Kundra, who became investors this summer.

The Tribunal found that Hirani was not constructively dismissed adding that there was no connection between the purchase of the businesses by V8G early in the year and the recent investment by Raj and Shilpa.

Hirani was also reported in the press to be claiming “more than £1.5 million” from Shilpa’s company but V8G has dismissed this saying the amount was actually £150,000.

Apart from a very modest holiday upgrade payment of £1,323 (which V8G had already agreed) all Hirani’s claims were rejected by the Tribunal. The Tribunal said that the employers had “reasonable and proper cause for their actions” concerning the suspension of Hirani.

Shilpa Shetty said: “I am pleased with the Tribunal’s decision which was never in doubt in Raj’s and my mind.”

Managing director, Arjun Varma added: “We are delighted to hear the verdict, which vindicates Shilpa, V8 Gourmet Group and my brother Andy & myself. Truth & Justice have prevailed and we are very pleased with the outcome.”

Andy Varma, head of food & business development said: “The truth always prevails and we reserve the right to file a defamation suit.”







Applicability of MAT on amount withdrawn from revaluation reserve and credited to P&L account

Nov 7, 2009 Income Tax Case Laws


Prior to insertion of the proviso to clause (i) of the Explanation of section 115JB the assessee was entitled to reduce the sum from revaluation reserve while computing book profit under section 115JB; however, after the insertion of the proviso to clause (i) of Explanation to section 115JB, the assessee has been deprived from this benefit by clearly mandating that in case the amount of such reserve has not been added back by the assessee in relevant assessment year i.e. when the assessee created the revaluation reserve while computing the book profit for that year, then the amount is statutorily to be included while computing the book profit under section 115JB.


Decided by: HIGH COURT OF DELHI, In The case of: Indo Rama Synthetics (I) Ltd. v. CIT, Appeal No.:, ITA No. 851/2009, Decided on: September 22, 2009


3        That the relevant provision of Section 115 JB proviso to clause-(i) of Explanation 1 reads as under:-

“115JB.—Special provision for payment of tax by certain companies

(1) Notwithstanding anything contained in any other provision of this Act, where in the case of an assessee, being a company, the income-tax, payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 2001, is less than seven and one-half per cent of its book profit, such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of income –tax at the rate of seven and one-half per cent.

(2) Every assessee, being a company, shall; for the purposes of this section, prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act; 1956 (1 of 1956): …

Explanation 1- For the purposes of this section, “book profit ” means the net profit as shown in the profit and loss account for the relevant  previous year prepared under sub-Section (2), as increased by- ….. …. …. ….

if any amount referred to in clauses (a) to (h) is debited to the profit and loss account, and as reduced by-

(i) the amount withdrawn from any reserve or provision (excluding a reserve created before the 1st day of April, 1997 otherwise than by way of a debit to the profit and loss account), if any such amount is credited to the profit and loss account Provided that where this section is applicable to an assessee in any previous year , the amount withdrawn from  reserves created or provisions made in a previous year relevant to the assessment year commencing on or after the 1st day of April, 1997 shall not be reduced from the book profit unless the book profit of such year has been increased by those reserves or provisions (out of which the said amount was withdrawn) under this Explanation or Explanation below second proviso to section 115JA, as the case may be ;or] …. …. ….”

4.       The Tribunal while interpreting said section has very effectively and exhaustively looked at the issue and given the finding with which we concur.

The ITAT has held as under:-

“61. Now looking into the provision of section 115JB of the Act, we find that proviso to clause 1 of the explanation inserted/substituted w.e.f. 1.4.97, the reserves of any nature, except other than reserve specified under section 33 AC, if debited to P&L Account is to be added back to the book profits of the assessee company. From any reserve or provision, if any, such amount credited to P&L Account is required to be reduced from P&L Account after adjustment as specified in causes (a) to (f). insertion/substitution of clause (i) of aforesaid explanation it was open to the assessee to reduce the sum withdrawn from revaluation reserve, while computing book profit, amounts withdrawn from provision/reserve and credited to P&L Account, even if in the year in which the provision/reserve had been created but the amount of such reserve had not been added back while computing book profit for that year, not withstanding that the reserve had been debited to the P&L Account. provisions of section 115JB it is clear that prior to insertion of the proviso to clause (i) of the explanation of section 115 JB the assessee was entitled to reduce the sum from revaluation reserve while computing book profit under section 115JB of the Act even if in the year in which the provision/reserve had been created but the amount of such reserve has not been added back while computing book profit for that year not withstanding that the reserve had been debited to P&L Account. However, after the insertion of the proviso to clause (i) of explanation to section 115JB of the Act, in similar facts and circumstances, the assessee has been deprived from this benefit by clearly mandating that in case the amount of such reserve has not been added back by the assessee in AY 2000-01, i.e. when the assessee company created the revaluation reserve while computing the book profit for that year, then the amount is statutorily to be included while computing the book profits under section 115JB of the Act. What we interpreted herein above is just a result of a plain reading of the relevant provisions, which are devoid of any ambiguity or doubt so no other meaning could be ascribed thereto. We are further of the opinion that the Tribunal is bound to give literal interpretation to ambiguous provisions of the Act and not interpret them in any other manner which are against the wisdom of the creators of the statute who created/amended the provision with the intention that the same is to be followed while considering the issues depending on the application thereof. Hence, we are also duty bound to adhere to the plain meaning of the section in the manner as indicated above and apply the same while deciding the issue.”

6. We are of the opinion that since there is no dispute that the provision of clause (i) of Explanation-1 to Section 115 JB is applicable to the issue in question and the language of the same being plain and clear, we agree with the view of the Tribunal on the interpretation of this provision as stated by it in para 61 and as reproduced by us above. In fact, it is not disputed that the assessee company takes benefit of additional depreciation on account of revaluation of the fixed assets by increasing the revaluation reserve in the relevant assessment year 2000-2001 and consequently, the same definitely has the effect of reducing the net profit for the said Assessment Year. Looking to the scheme of the provision of Section 115 JB, and which is a Minimum Alternate Tax (MAT) provision and so introduced by the legislature to be applicable to those companies which avoid paying tax by debiting in the profit and loss account, various expenses/entries etc as specified in Section 115 JB Explanation-1 such as Income Tax paid or payable, amounts carried to any reserve, provision of losses for subsidiary companies, the amount of depreciation etc as provided in the provision. A normal literal interpretation of the provision is, therefore, the order of the day with respect to this MAT provision.







Preity Zinta supports campaign against child trafficking

by ANI on November 6, 2009

in National

Mumbai, Nov 6 (ANI): Bollywood actress Preity Zinta has joined the fight against child trafficking by lending support to a campaign along with Melanne Verveer, the US Ambassador-at-large for global women’s issues at an event held here on Thursday.

The campaign called ‘Against Child Trafficking’ or A.C.T is an initiative of a non-profit organisation by the same name.

Zinta urged the millions of villagers across the country not to be lured by money and sell off their children.

“I want to give a message to those people who live in villages, that if anyone approaches you and asks you to sell your child to them, telling you that they will provide them employment, please don’t sell your child, because she is only going to be forced into either flesh trade or be forced to work as domestic help in somebody’s house,” said Zinta.

Child trafficking is a global problem, affecting large number of children worldwide.

According to estimates, around 1.2 million children are trafficked every year. Also, about 44 million, or 13 percent of all children in south Asia, are engaged in labour, with more than half in India.

Trafficking of children for labour, prostitution or domestic services is widespread, especially within Bangladesh and India as well as to Europe and the Middle East. (ANI)






Delhi to host workshop on children’s mental health care

by Indo Asian News Service on November 5, 2009

in india

New Delhi, Nov 5 (IANS) A two-day national workshop on mental health of children who are distressed or have been abused will be held in the national capital from Friday, the organisers said Thursday.

The workshop is being organised by the National Commission for Protection of Child Rights (NCPCR) and Udayan Care, an NGO that works for disadvantaged, orphaned and sexually abused children.

‘A child who is abused by his or her family member, is orphaned or abandoned, needs more than just love and care. They need special counselling to come out of their cocoon and accept the world with open arms once again. This and many other such issues will be discussed in the workshop,’ a member of Udayan Care said.

The workshop will not just see members of the civil society, health care experts and other stakeholders participate in it, but also people like Swasthi Udayan, a chef, who managed to fight past a traumatic childhood of poverty and abandonment to fulfil her dream and become independent.

Shantha Sinha, chairperson of NCPCR, Amita Dhawan of NALSAR Law university, Hyderabad, and K. Sujatha Rao, secretary for health and family welfare, will be among the participants in the workshop.







Memorandum to NHRC by SAD is a political stunt, says Punjab Cong MLA

Punjab Newsline Network   

Friday, 06 November 2009
BHOLATH: The farcical exercise of submitting a memorandum/complaint to the National Human Rights Commission by Sukhbir Singh Badal and his group of ill advised sycophants seeking action against those guilty of 1984 Anti Sikh riots is nothing but a political stunt aimed at gaining sympathy of the Sikh Community.

In a press release on Thursday, MLA Bholath Sukhpal Singh Khaira stated, he personally feel that the undue delay of 25 years in punishing guilty of Anti Sikh riots amounts to justice delayed, justice denied. But as far as Sukhbir Badal’s approach to NHRC is concerned it is just a mock exercise, since legally the NHRC cannot take cognizance of any incident which is older than one year.

In any case the NHRC is not competent to take cognizance of the matter sub judice in nature as the cases of 1984 Anti-Sikh riots are pending in special CBI courts, what can the NHRC can do in this matter?

The Congress also questions Sukhbir Badal as to why he did not seek setting up of special fast track courts while he was Union Minister in the Vajpayee lead NDA Govt. from 1999 to 2004? He also question Badal as to what his father did as Chief Minister Punjab from 1997 to 2002 or even now as CM to assuage the hurt feelings of those affected ? Did the Akali Govt. rehabilitate any victim of 1984 riots? Did the Akali Govt. offer Govt. job to any riot victim?

Therefore, the entire exercise of seeking redressal from a forum like NHRC which cannot intervene in the matter is nothing but a political ploy to whip up sentiments of Sikhs to gain political mileage. Further, He also demand that Sukhbir Singh Badal must clarify as to what justice he has rendered to over 5000 Congressmen politically victimized in Punjab? Is not the entire political posturing of Sukhbir Badal over the 1984 riots like shedding crocodile tears only to achieve cheap political gains, questions the Congress?







National and State Human Rights Institutions in India- Need for Revaluation

November 5, 2009 ·


This post is with reference to the functioning of the National Human Rights Institutions[1] in India, and more specifically, Karnataka.


I attended a meeting (as a part of my internship with SICHREM) on 04-11-2009 of organisations and individuals who work with these National and State Human Rights Institutions. The agenda was essentially for everyone to share their experiences, both positive and negative, and express any concerns they might have with reference to the functioning of these institutions. What follows is an account of what I learnt at the Meeting, and serious issues that were raised and need to be addressed.


The formation of various human rights institutions (NHRC etc.) in India has its origins in the Vienna Declaration of the UN in 1993, with the primary aim of these institutions being that they were the delivery bodies for implementing protection and promotion mechanisms in furtherance of human rights in their respective nations.


The guiding principles for the functioning of National Human Rights Institutions have been adopted by the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) in Geneva, on June 2009. These General Observations, based on the Paris Principles, highlight crucial values that must be adhered to at the time of the formation and working of NHRIs world over. In accordance with these Observations, establishment of national institutions MUST be in a legal or constitutional text, and creation by an instrument of the Executive is not adequate to ensure permanency and independence. The requirements of maintaining plurality and independence in the composition of the NHRIs have to be met, but the same can be achieved in different ways, either by the members of the Governing Body representing different sections of society, through the appointment process and consultations and recommendations from various social groups etc. However, the ICC stresses on the importance of the meaningful participation of women in the NHRIs as an indicator of pluralism. Further, the appointment process of members of the NHRI is required to be transparent, with broad advertising of vacancies, maximising the potential candidates from a wide range of societal groups, and selecting members to serve in their own individual capacity and nor as a part of the organization they might represent; and government representatives on governing or advisory bodies of National Institutions do not have decision making or voting capacity. Simply put, the government cannot have voting rights in an institution they are to be held accountable to. In order to further maintain independence, the NHRIs must have the power to appoint their own staff members, and the dismissal of any member of any NHRI must be made in strict conformity with the substantive and procedural law in force at the time. Another important Observation is that of accreditation, a status which is granted by the ICC. If it appears that the circumstances of the NHRI have changed in any way so as to affect its compliance with the Paris principles, the NHRI would come under the review of the Sub Committee of the ICC, and if the Committee is not satisfied with the submissions of the NHRI at the end of the period of review, the NHRI stands to lose its accreditation status.


In view of these aforesaid Observations, it clearly appears that every NHRI across nations is expected to adhere to basic principles of natural justice, manifestations of which are seen in the form of transparency, accountability, accessibility, cooperation, effectiveness, plurality and diversity etc. In the event that these institutions do not adhere to these principles, they risk being downgraded by the ICC, which was seen in the case of Sri Lanka’s NHRI. A similar disaster nearly embraced Malaysia, where however, the government woke up one day before the matter was to come up before the ICC for consideration and passed an ordinance bringing about the required change. The matter is due for consideration and review by the ICC again, later this month. Given the fact that these NHRIs prepare their own reports to the ICC, a pertinent question now arises about the existence of a mechanism to place a check on and review the activities of these institutions within their respective countries. In this situation, the role of NGOs acquires a position of critical importance. Civil and political organizations and human rights groups and activists have the authority, to prepare shadow reports, (that is, reports parallel to those prepared by NHRIs) about the functioning of these NHRIs and their adherence to the aforesaid principles. In the event that the ICC finds merit in these shadow reports and is not satisfied with the response of the NHRIs at the end of a specified period, the NHRI is likely to be downgraded.


With this background, the concerns raised about the functioning of the NHRIs in India may be addressed, as India is up for review in 2011, giving us about a year to bring about any changes we might feel necessary in the functioning of these institutions.


An observation made by a UN High Commissioner when she was on a visit to India is critical in examining India’s adherence to the principle of plurality. She remarked that in the largest democracy in the world, a country where others can learn so much from, it was shameful that there was no female member in the National Human Rights Commission. A member of an organization called Peoples Watch[2] stated at the meeting that this remark was quite flippantly dismissed by members of the NHRC, when they stated that the National Commission for Women had women members, so what was the need to include them in the NHRC. Evidently, the NCW is a forum for women and the NHRC is a forum for men. Incidentally, these very members are unaware of the existence of the ICC and the fact that every nation gets accreditation from this very body, and also stands to be downgraded. (On a different note, these members of the NHRC are also unaware of the existence of the Guidelines of the NHRC on Encounters)[3]


Further concerns pertaining to the jurisdiction of each of these institutions, and what was the adequate forum to voice grievances also came to the fore. There have been instances where a matter was referred to the NHRC, which in turn referred it to the State Human Rights Commission, which in turn referred it back to the NHRC, causing a deadlock, and the case has remained suspended for the past two years.


The lacunae in the functioning of these NHRIs is highlighted by the fact that provisions of basic laws such as the IPC and the Cr.PC, forming the basis of the entire criminal justice system have not been made available on the website of the NHRC. Activists stated that websites were available only to a select group of the population, and that these laws should be made available to the general public at large in any and every manner possible. These laws are the touchstone for human rights education and protection in any country. Further issues brought to the fore included inadequacy in the definition of human rights, leading to abuse and mismanagement of this area of law. In addition to defining human rights, each NHRI must have a fixed role identified, in order to bring about clarity and reduce scope for redundancy and confusion and ensure delivery of maximum justice.


Each institution is supposedly governed by a set of rules and guidelines, but if these are even in existence is a different matter altogether. A case in point is the Karnataka State Human Rights Commission, where the members are unaware of their powers and their duties, and claim that the rules have not been published yet. Repeated questioning of the government yields the same response that they are being finalised. As a result, members are unaware of the role they are required to play, and the decisions they are entitled to take, thus turning to NGOs and asking them what has to be done in a certain situation. To make matters worse, serious issues pertaining to conflict of interest of members of this SHRC have been raised, as members of the SHRC are also members of the Child Welfare Committee and associated with other NGOs, raising questions about their credibility and the transparency and impartiality of the appointment process.


What is more startling than procedural hassles, is the laid back and often callous attitude of certain members of National and State Human Rights Institutions. Certain erstwhile members of the Karnataka SHRC have been involved in getting crucial cases dismissed from the High Court, with false evidence being introduced. A few others encourage a ‘compromise’ between the victim of abuse and the perpetrators of the crime, in cases involving rape and domestic violence.


With the number of cases being reported to these institutions increasing by the day, the alarming number of fallacies that they present needs to be tackled at the earliest, because these tend to act as a deterrent to individuals and organizations reporting incidents of human rights violations, as they claim to be losing faith in the system, as a result of repeated encounters with nonchalant attitudes and procedural tangles.


NHRIs are very powerful quasi-judicial bodies, where misuse of power can have serious and far-reaching repercussions on the lives of citizens of this country. These institutions are meant to provide a ray of hope to victims of atrocities, and provide a faster mechanism to access and administer justice than conventional courts, plagued with delay and corruption and logistical concerns of their own. To the outside world, we still present our NHRIs as a matter of pride for the nation, bringing them up in most speeches to the UN on the matter of human rights. Within the nation however, these institutions are beginning to lose their credibility. Supposedly, there are about two hundred cases pending against the NHRC in the Delhi High Court alone, questioning the merit of leading institution for the protection of human rights in a country, where there are approximately 150 statutory human rights institutions.


Suggestions for improvement included an overhauling of the appointment process, with reservations being made for members to be de facto directly appointed by the Governor or the President (at the State and National levels respectively) with no political influence. Further, greater enforcement of accountability principles and transparency in the working of the Commissions were felt to be the need of the hour. Disclosure of grants, budgetary allocations and expenditure must be adhered to strictly, and RTI petitions must be attended to in their entirety.[4] Allowing these institutions to be open to the scrutiny of certain eminent NGOs in the nation, in order to assess the functioning of these institutions and bring about relevant changes from time to time based on the changing nature of the social fabric, and also to bring about cooperation between these institutions and the individuals and organizations who work closely with them, will have a positive impact on the functioning of National and State Human Rights Institutions.


One can only hope and persuade the ‘powers that be’ to institutionalise a few of these changes that are the need of the hour, as change with the backing of law is the most influential and emphatic of all. Until then, justice stands suspended, with the fate of thousands hanging in balance. 


[1]Hereinafter referred to as NHRIs

[2] Peoples Watch is a human rights organization

[3] This was also put forth by the same member of Peoples Watch.

[4] This was felt in light of the growing trend of these institutions to dismiss RTI petitions, or, if a petition asked 5 questions, only the first one was answered, and so on.



LEGAL NEWS 28.10.09

Case against Nirmal Yadav closed: Moily


R Sedhuraman
Legal Correspondent


New Delhi, October 28
A decision has been taken to close the case against Punjab and Haryana High Court Judge Nirmal Yadav in the cash-at-doorstep scam.


Law Minister M Veerappa Moily told The Tribune today that his understanding was that the matter was treated as closed before he assumed office on May 29.


The decision was apparently taken on the advice of the then Attorney-General, Milon K Banerjee, he said. He, however, clarified that his ministry was never in the picture in the case, at least after he took over. Such matters were handled by the Chief Justice of India and the Law Ministry got involved only after receiving a communication from the CJI in cases requiring impeachment.


Justice Yadav was asked to go on leave following delivery of Rs 15 lakh in cash at the residence of Justice Nirmaljit Kaur on August 13 last year. It was then alleged that the money was actually meant for Justice Yadav, but was delivered at the residence of Justice Kaur because of some similarity in the name.


The case came to light following an FIR registered by Justice Kaur. Subsequently, Chief Justice of India KG Balakrishnan sought explanations from Justice Yadav, who wrote at least three letters, pleading her innocence. She had also sought several documents based on which the CJI had sought her response. In his January 29 letter to Justice Yadav, the CJI maintained that all documents she had sought had been supplied.














UN rights investigator warns US drone attacks may violate international law


Amelia Mathias at 9:02 AM ET


Wednesday, October 28, 2009


[JURIST] UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] said Tuesday that the use of unmanned warplanes by the US to carry out attacks in Pakistan and Afghanistan may be illegal. Alston criticized the US policy in a report to the UN General Assembly’s human rights committee and then elaborated at a press conference [press release; recorded video]:


My concern is that these drones, these predators, are being operated in a framework which may well violate international humanitarian law and international human rights law. The onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions, are not in fact being carried out through the use of these weapons. The response of the US is simply untenable, and that is that the Human Rights Council and the General Assembly by definition have no role in relation to killings that take place in relations to an armed conflict. that would remove the great majority of issues that come before these bodies right now.


Alston’s report was presented as part of a larger demand that no state be free from accountability.

Alston previously raised the issue of US drone attacks in June. The US government responded that its position is that such attacks are carried out in a war zone where the UN has no role. The controversial attacks have killed about 600 people in northwestern Pakistan since August 2008, including around 400 militants. US Senator John Kerry said this week that the attacks would continue [RTTNews report], claiming that they have been successful in combatting al Qaeda and have resulted in minimal collateral damage. Also this week, a Pakistani court upheld the dismissal of a petition [The Nation report] against US drone attacks that sought to declare the US an enemy state.














Supreme Court CPIO seeking adjournment at CIC


The Supreme Court central public information officer seeking adjournment at Central Information Commission Court till disposal of its appeal at Delhi High Court on eight pending petitions relating to Honourable Chief Justice raises several aspects.







Wed, Oct 28, 2009 14:32:14 IST  


INDEFINITE ADJOURNMENT sought by central public information officer of Supreme Court till disposal of its appeal at Delhi High Court on eight pending petitions on information relating to Honourable Chief Justice of India raises several aspects:


  • Can simply filing of an appeal (that too without getting any stay-order) in a case involving CIC-verdict put complete Right to Information Act on hold?
  • Is filing an appeal at division bench against single-bench verdict equivalent to a refused stay-order by the higher bench?
  • Can simply a mention of a writ-petition (288/2009) in a petition (CIC/WB/A/2008/000859) put all the eight petitions on hold indefinitely especially also when this mention of the writ-petition is only in one petition (CIC/WB/A/2008/000859) for which a separate notice for hearing is issued while combined notice for hearing for other seven petitions is different.
  • A division bench of Honourable Supreme Court observed against adjournment-culture by mention that many-a-times petitioners seek stay-orders on filing a writ/appeal and drag the case for years with many-a-times ultimately losing the case even.
  • Central Information Commission usually proceeds with hearings overlooking adjournment-requests like was done in petition-number CIC/AT/A/2008/00736 in the matter (Subhash Chandra Agrawal vs Department of Justice).
  • There are several issues of national importance in these petitions fixed for hearing, which may lose relevance if hearing is postponed.
  • Central Information Commission has an admirable practice of not entertaining adjournment-requests which otherwise has become a culture in our courts for which concern is being expressed by even those in judicial-system.













Dinakaran’s conduct unbecoming’




C Shivakumar


First Published : 28 Oct 2009 06:47:33 AM IST


Last Updated : 28 Oct 2009 08:19:22 AM IST




CHENNAI: In a new representation filed before the Chief Justice of India, the Forum for Judicial Accountability (FJA) has cited an instance of judicial misconduct where Karnataka Chief Justice P D Dinakaran failed to excuse himself from hearing a case in which he was close to one of the parties.


The Forum has referred to a 2005 property case in the Madras High Court involving the Pentecostal Mission, Chennai and Anandhi Murthy, a close associate of Justice Dinakaran and his family.


The Forum states: “Contrary to accepted norms of judicial conduct that a judge shall not hear any matter to which a person close to him is a party, as it erodes the confidence of the public in the impartiality of the judicial system, Justice P D Dinakaran heard a writ petition in 2005 filed in the Madras High Court and passed certain questionable orders.” The Pentecostal Mission had filed a writ petition in the Madras High Court, praying that the police be restrained for interfering with its peaceful possession of its property near Chennai.


However, a Canadian resident, Anandhi Murthy, contested the Pentecostal Mission’s title over the property and filed a petition to be impleaded in the writ petition. By an order dated August 19, 2006, Justice Dinakaran allowed Anandhi Murthy to be impleaded, the representation said.


“Not stopping with that, Justice Dinakaran continued to pass extraordinary orders on September 6, 2006 and September 20, 2006, and other dates recording that the writ petitioner and his senior counsel conceded that the averments in the writ petition were false and passed other orders,” the representation alleged.


“According to the averments of the writ petitioner in his appeal, viz. W A No. 1329 of 2006, no such concession was made and that they had in fact wanted to withdraw the writ petition and approach the civil court. Yet, Justice Dinakaran continued to hear the matter and pass highly questionable orders.” The Forum says that Justice Dinakaran had enjoyed the hospitality of Anandhi Murthy and her husband Karuna Murthy in Canada just a year before the case was filed.


“In 2004, Justice Dinakaran, his wife and two daughters visited Canada en route to the US for admission of his daughter Amudha Porkodi in Suny College of Technology at Utica, New York State. Justice Dinakaran and his family stayed with Anandhi Murthy and Karuna Murthy in Canada between August 11 and 15, 2004. Later, it is learnt that Anandhi Murthy and Karuna Murthy actually joined the Dinakarans at Utica, US, at the time of Amudha Porkodi’s admission to college,” the representation said.


“Justice Dinakaran thus had a close connection with one of the parties to the case and despite that continued to hear the case, violating the accepted code of judicial conduct as enunciated in the Bangalore Principles,” the representation said.  
















PIL against medical college teachers strike filed




Wednesday, October 28, 2009 17:12 IST


Kochi: A PIL seeking to declare the ongoing strike by government medical college teachers was illegal, unconstitutional and unwarranted was filed in the Kerala High Court today.


When the petition by journalist Leela Menon came up before a division bench comprising chief justice SR Bannurmath and justice AK Basheer, the court adjourned the PIL to Tuesday.


The government informed the court that a high level meeting had been convened and decision was conveyed to the striking doctors. Only after getting their response, further action would be taken.


The petitioner also sought for a declaration that members of the Kerala government college teachers association and its president Dr Varghese Thomas were responsbile for any deaths during the strike period. The petitioner also sought to invoke ESMA against the members of the association.


©2009 PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.














Gurkhas fight for rights in High Court


By Andrew Gregory 28/10/2009


Gurkha veterans stand on the steps of the High Court yesterday as they launch a legal battle for the same pension as other servicemen.


Their legal team told the judges the MoD gives 24,000 veteran Gurkhas just a third of payments handed out to retired British soldiers.


They claim that current rules say Gurkhas who retired before 1997 cannot join the Armed Forces Pension Scheme.


They have to stay in their own scheme which pays substantially lower benefits based on the cost of living in their Nepal homeland.


The veterans, who won the right to settle in Britain after a campaign led by Joanna Lumley, claim they are victims of discrimination.


Lumley T heir lawyer Declan O’Dempsey said: “Although they took the same risks as other members of the British Army and have served with wide praise and distinction, they are not being treated with the same effect as regards matters of welfare, including their pensions, as other members of the British armed forces.”


Retired Gurkhas wearing poppies and campaign medals and carrying banners flocked to the High Court in Central London to publicise their campaign.


The MoD says that Gurkha pensions can be paid from the age of 33 – so over the course of their retirement veterans do end up getting the same money.














Karnataka orders CID probe on ‘love jihad’


Submitted by admin4 on 28 October 2009 – 12:35pm.


By Staff Correspondent,


Kochi: The Karnataka government has ordered for a probe by the Criminal Investigation Department to know whether an organisation called ‘love jihad’ was functioning in the state. The decision was taken in the high level meeting of police officers presided over by the state Home Minister VS Acharya.


The DGP and the CID will conduct a detailed probe and submit report to the government in two weeks. More information would be collected about the existence, alleged funding and support of the ‘love jihad’. The DGP would collect more information on the missing girls also. Further decisions as to how to curb the forced conversions, if any, would be taken after the reports are submitted.


The Karnataka High Court had ordered the government to probe into the matter of the alleged ‘love jihad’ when hearing the habeas corpus filed by the parents of a girl from Mysore. The girl had married a Muslim boy from Kannur in Kerala and had converted to Islam. When produced in court, the girl had reportedly said that she had converted on her own will, yet the court asked her to be sent with her parents and to conduct an investigation on her husband. The girl has to live with her parents till the investigation on the boy is completed.


In Kerala also, two girls who had converted to Islam and married Muslim boys were sent with their parents by the High Court when the girls’ parents filed habeas corpus. The Court ordered probe into alleged ‘love jihad’ when considering the case. The state DGP submitted areport in the court on October 22 stating that such an organisation did not exist. The Central Intelligence Bureau also has informed the Kerala High Court yesterday that there was no evidence for a movement called ‘love jihad’ in the state.


Meanwhile, the People’s Union for Civil Liberties has decided to oppose the order of the High Court in the Supreme Court. The PUCL maintains that the HC decision to send the woman, who had converted to Islam and married a Muslim, with her Hindu parents was not right.












Work out arrangment, end dispute: SC tells Ambani brothers


HT Correspondent, Hindustan Times


Email Author


New Delhi, October 27, 2009


First Published: 22:43 IST(27/10/2009)


Last Updated: 23:33 IST(27/10/2009)


The Supreme Court on Tuesday once again hinted to the Ambani brothers on the possibility of working out a “suitable arrangement” to resolve their gas dispute.


A three-judge bench headed by Chief Justice KG Balakrishnan inquired into the aptness of arbitration process as senior counsels from both sides resumed arguments.


“There are some parameters to arrive at suitable arrangements for supply of gas,” Justice RV Raveendran said. “If you are not able to reach a suitable arrangement… We can direct you to arrive at a suitable arrangement or direct you to go for arbitration.”


Arguing for Mukesh Ambani-managed Reliance Industries Ltd (RIL), as Harish Salve relied on the government’s gas utilisation policy to supply the gas, the bench reminded him that gas was a “natural resource”.


RIL contended that it couldn’t honour the commitment made in the 2005 family agreement between the two brothers due to the government’s pricing and distribution policies. At which, Anil Ambani’s Reliance Natural Resources Ltd (RNRL) senior counsel Ram Jethmalani said the policy was binding on new contracts and not existing ones.


However, Salve continued to draw support from the policy and said it was a better arrangement for the gas supply. He contended that supplying gas at any price lower than what has been fixed by the government would be “suicidal for RIL”.


Jethmalani intervened again, saying “the production tax of gas from KG basin is a meagre 89 cents.” He claimed RIL would make a profit of several thousands of crores of rupees despite selling the gas at $2.34 (Rs 112) per unit.


“It’s fraud on the nation,” Jethmalani said.












Lahore HC permits lawyer to meet Sarabjit in jail




The Lahore High Court today permitted Sarabjit Singh’s lawyer to meet the condemned Indian prisoner in the Kot Lakhpat jail.

Revealing this Ms Dalbir Kaur, sister of Sarabjit, said Mr Awas Sheikh, the lawyer fighting her brother’s case, had petitioned the High Court after he was not allowed to meet his client in jail. Kot Lakhpat Jail Superintendent and Punjab (Pak) Deputy Home Secretary too appeared in the court following summons, she said.













Govt requests HC to lift stay on Gujjar quota


TNN 28 October 2009, 06:16am IST


JAIPUR: The state government on Tuesday told the Rajasthan High Court that it had adhered to constitutional norms while granting reservation to the Gujjar community and others under a special category.

The government has been empowered by Article 46 of the Constitution which says that state government can take necessary steps for the social and economic development of the economically backward communities, the government said in its reply. “The reservation bill was passed unanimously in the assembly before it became a law”, it said.

The government also requested the court to lift the stay on reservation.

On October 12, the high court, acting on a petition filed by a student G Sharma and others, stayed the implemention of Gujjar quota and sought a reply from the government.














HC dismisses plea against SECRMU


28 October 2009, 04:48am IST


NAGPUR: The Bilaspur high court on Monday dismissed petition to derecognise South East Central Railway Men’s Union (SECRMU), which had won the elections held in 2007 to recognise railway unions across Indian Railways. The SECRMU had won the polls with a thumping majority.

Ashwin Francis, secretary of union’s Motibagh branch, said the high court refused to derecognise the SECRMU and rejected the petition filed by rival Bharatiya Railway Mazdoor Sangh (BRMS) and South East Central Railway Men’s Congress (SECRMC).

The basic contention of the petitioner-unions, who lost the polls, was that the SECRMU is registered as Dakshin Purva Madhya Railway Men’s Union but it filled the forms as SECRMU, which is a translated version of Hindi name. The two rival unions had pleaded registration of SECRMU should be cancelled and it should be derecognised.

However, the court rejected the plea and maintained the recognition of SECRMU, which has a membership base of over 64% in the entire South East Central Railway (SECR) zone comprising Nagpur, Raipur and Bilaspur railway divisions with a strength of 40,000 employees.

Following the court decision, the SECRMU celebrated the verdict by bursting crackers and distributing sweets in all the three divisions. Talking to TOI, Salil Lawrence, general secretary of SECRMU, said, “The petition was nothing but a vendetta against our union.”














HC seeks info on BEd colleges


TNN 27 October 2009, 07:01pm IST


PATNA: The Patna High Court on Tuesday directed Magadh University and National Council for Technical Education (NACTE) to reply to a PIL, stating violations of provisions in giving affiliation and recognition to BEd colleges lacking basic infrastructure.

A division bench comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma issued the directive while hearing the PIL of Vijay Kumar. The case was adjourned for three weeks.












Again, HC rejects Telgi’s plea for home food


TNN 28 October 2009, 02:39am IST


BANGALORE: The high court on Tuesday rejected a petition filed by Abdul Kareem Telgi, main accused in the multi-crore fake stamp paper racket. He had sought for home-cooked food.

Justice Arali Nagaraj dismissed the petition, observing that Kareem be given `diet food’ as per the chart made by the medical superintendent.

“The petitioner’s statement says he is not suffering from any inconvenience in the jail. Besides, Section 30 of the Karnataka Prisons Act has no provision for supply of food from outside to a convicted prisoner,” the judge observed.

Telgi, who claims to be HIV positive and a diabetic, sought home-cooked food on the ground that it will improve his health.

But the CBI countered his claim. “The petitioner is being provided food inside and outside the prison according to the provisions of the Karnataka Prisons Act, 1963, and Rules, 1974, and as per medical authorities. He is involved in many cases and as of now, he is being tried in two cases, which have almost reached judgment stage,” the CBI stated.

Telgi had challenged the August 7, 2008, order by the trial court, which rejected a similar application.












HC raps BBMP, asks for population list


TNN 28 October 2009, 02:36am IST


BANGALORE: Making a tough observation that guidelines issued for ward-wise reservation for the ensuing BBMP polls lacked legal as well as constitutional requirements, the Karnataka High Court on Tuesday directed the BBMP to provide by Wednesday the city’s population list. The list is to include the percentage figures about SC/ST population, and SC/ST women in each of the wards, through an affidavit.

“What sort of reservation list is this? There should be some legal and constitutional requirements associated with it. But the guidelines indicate that there is an attempt to delay the elections. Come with details. If you can’t do it (list), we will give you the chart as we have done in the case of panchayat elections some time ago,” Justice H N Nagamohan Das observed, before adjourning the hearing.

Earlier, Jayakumar Patil, counsel for the petitioners, told the court that replicating the Assembly constituency concept for determining ward-wise reservation of SC/STs is an artificial exercise and is found nowhere in the KMC Act, or even the constitutional scheme governing municipal elections.

“If reservation is fixed based on the guidelines issued as per the July 21 notification, only wards in a handful of assembly constituencies will benefit,” he argued.

On October 1, the court had stayed the July 21 guidelines with respect to reservation of wards for the forthcoming BBMP polls.

“In the guidelines, it was stated that reservation for SC/STs would be decided after taking into account the population in 23 assembly constituencies that come under BBMP. Thereafter, they would consider the highest population of SC/STs within a particular ward in that assembly constituency, for reserving it for SC/STs. As per the constitutional scheme under Article 243(T) and Sec.7 of the KMC Act, the BBMP area population should have been the basis for determining the reservation. Apart from this, they have also decided not to consider the 1995 and 2001 reservation lists. All these mistakes seem to have been intentionally made,” petitioners Ramakrishna Pai and K Devan have stated in their petition.












HC gives killer servant 25 years in jail


Abhinav Garg, TNN 28 October 2009, 01:45am IST


NEW DELHI: A domestic servant killed the son of his employer, seriously wounded one of his daughters and raped another. But the Delhi High Court on Tuesday ruled that his case didn’t fall in the `rarest of rare’ category.

A bench comprising Justice Pradeep Nandrajog and Justice Indermeet Kaur on Tuesday commuted the death sentence passed on Sanjay Dass by a lower court to a life term. However, the bench directed that he would not be entitled to any commutation or premature release and would have to be in jail for 25 years. Convicts awarded life imprisonment usually become eligible to be considered for remission by the executive after 14 years in jail.

“The crime commited by Sanjay is more than a murder of an ordinary category, having an aggravated content of the diabolical manner in which the offence was commited, we hold that the instant case falls in the category midway between, ie, of a category where the approapriate sentence to be imposed is of imprisonment for life with a direction that Sanjay would not be considered for being granted remission till he undergoes an actual sentence of 25 years,” the bench ruled, ignoring repeated pleas by public prosecutor Richa Kapoor to uphold the death penalty.

The HC was dealing with a death sentence reference sent to it for confirmation by the lower court that had in October last year awarded the maximum penalty to Sanjay for the ghastly crime after it convicted him.

According to the prosecution, on October 19, 2006, the Roop Nagar police station was informed that three children of a local businessman were seriously wounded by their servant who had escaped. While the four year old boy succumbed to his injuries at the hospital later (he was stabbed in the neck), the medical records showed one of the daughters of the businessman had been raped while the other was critically injured.

The police launched a manhunt for Sanjay who it emerged had joined just 5 days before at the recommendation of the household driver.

Though the prosecution highlighted the sheer brutality of the crime, the abuse of trust and the moral depravity exhibited by the crime, HC remained unmoved, instead relying on earlier Supreme Court verdicts to conclude that the case was of a “midway category” that didn’t call for the maximum penalty even as it warranted Sanjay stay in jail for the next 25 years.












HC summons MCD commissioner


TNN 28 October 2009, 04:09am IST


NEW DELHI: The commissioner of Municipal Corporation of Delhi (MCD) will have to appear before the Delhi High Court on Wednesday and explain the delay in complying with an HC order.

An irked HC on Tuesday summoned K S Mehra after it found that the court’s previous order asking the agency to submit an affidavit had not been complied with and was being unnecessarily delayed.

The affidavit to be submitted was to have a report of an MCD committee constituted to review the ban on cycle rickshaws in the capital.

HC is currently taking stock of MCD’s policy to ban the rickshaws as well as reviewing earlier orders of the court on the issue.

The bench was angry that despite its asking for an affidavit on the issue the agency claimed it awaited a word from the LG and standing committee whose deliberations are to be included in the report. The court slammed this delay on behalf of the MCD and quipped, “Either your commissioner doesn’t understand our orders or he doesn’t want to obey. Let him appear personally before the court and give an explanation.”

Tuesday’s stand of the MCD comes after earlier flip flops. On July 9, MCD had informed HC that the report was ready and will be filed in two weeks. However, on October 5 the agency claimed the report in the form of affidavit would take time as there was lack of consensus within the committee mainly between the MCD and traffic police.

HC was hearing a petition by NGO Manushi that HC’s order and MCD’s policy of banning rickshaws from the main arterial roads and Chandni Chowk area is arbitrary and violates the fundamental rights of rickshaw pullers. The petition also assails the ceiling imposed on the number of licences granted to rickshaw pullers in the city.
















Collegium defers decision on Dinakaran’s elevation again


TNN 26 October 2009, 01:26am IST


NEW DELHI: The collegium headed by Chief Justice K G Balakrishnan on Sunday deferred a decision on whether to withdraw its earlier recommendation to the Centre proposing appointment of Karnataka High Court Chief Justice P D Dinakaran as a judge of the Supreme Court.

The move to reconsider the earlier recommendation resulted from relentless bombardment of allegations and documents purportedly showing that Justice Dinakaran had amassed large tracts of land and even encroached upon government land, which was virtually substantiated by Thiruvallur district collector’s report to the CJI.

However, the collegium could not take a decision in the face of defiant response of Justice Dinakaran that he had not acquired an inch of land since his appointment as an HC judge and a counter allegation that the collector’s report was motivated. This was the second time within a month that the collegium deferred a decision on the controversial issue.

Though the Judicial Accountability Forum had forwarded additional documentary evidence to lace its earlier allegations against Justice Dinakaran, what made the collegium decide to seek further information from the Tamil Nadu government was documented representation from another lawyer group in support of the Karntaka Chief Justice, alleging that the charges were made to victimise the judge.

With the controversy refusing to die, the Centre has already put on hold the process for deliberating on the collegium’s recommendation on Justice Dinakaran and has decided to wait till a fresh word from the collegium — either standing by the earlier recommendation or rescinding it.

Justice Dinakaran had on Saturday told TOI, “I still stand by what I had told the Chief Justice of India when the controversy broke out. I have not acquired an inch of land after being appointed as a judge of the High Court. All allegations about encroachment of public land is patently false.”

Asked about the damning report of the Tiruvallur collector about alleged encroachment of 197 acres by him in Kaverirajapuran village, Justice Dinakaran stoically said, “The collector has got his facts wrong. I have never encroached a single inch of land.”














Apex court to decide custody of NRI child abducted by mother


by Indo Asian News Service on October 27, 2009


in india


New Delhi, Oct 27 (IANS) The Supreme Court Tuesday decided to take a call next Wednesday on the question of the custody of a US-born minor child, abducted by his Indian mother from New York and brought here after she divorced her estranged husband.


A bench of Justice Tarun Chatterjee and Justice G.S. Singhvi decided to take a call on the issue of the child’s custody after the Central Bureau of Investigation (CBI), acting on the court’s Aug 29 order, traced seven-year-old Adithya, who was in the custody of his mother Vijayashree Voora, in Chennai Oct 25.


Voora had been on the run all over the country to keep the child in her custody.


The bench told the CBI to keep the child in its custody at the government’s guest house till next Wednesday.


The bench earlier had ordered the CBI to trace the child on a plea by his father V. Ravi Chandran, who had moved the apex court in September 2007 after his divorced wife brought the child to India violating the New York Supreme Court’s order, granting him and his divorced wife joint custody of the child.


The bench ordered the CBI to intervene after the police of various states failed to trace the minor child, with his mother consistently on the move from one state to another for the last two years to dodge the police.


The apex court’s order had come on the plea by Ravi Chandran, a New York-based medical practitioner, who had got married to Voora in Tirupathi in December 2000. The couple had a son on July 1, 2002 in the US.


But shortly thereafter, relations between the couple turned sour and Voora moved New York’s apex court in July 2003 for divorce. While adjudicating on the divorce plea, the New York court on April 18, 2005, granted the couple joint custody of the child, stipulating that both the parties would keep the other informed about the whereabouts of the child.


The New York family court had eventually also passed the divorce decree in September 2005, incorporating its order on the child’s custody in the decree, and stipulated that both the parties will have alternative physical custody of the minor child on a weekly basis.


But as per Chandran’s plea, Voora had brought the minor child to India and informed him that she would be living with the child in Chennai.


Chandran had first approached a New York family court, pointing out the violation of the state’s Supreme Court order by Voora.


The New York court granted exclusive custody of the child to Chandran, but for the enforcement of the New York court’s order, Chandran moved the Indian Supreme Court September 2007.


During adjudication of Chandran’s plea, the apex court found that despite efforts made by police officers and officials of different states, such as senior superintendent of police (SSP), Agra, SSP Chandigarh, director general of police (DGP), Tamil Nadu, DGP, Karnataka, and commissioner of police, Bangalore City, Adithya and his mother could not be traced.


Accordingly, the apex court asked CBI to trace the child.





















































































































































































































































LEGAL NEWS 05.10.2009

Karnataka CJ presides over court


Bangalore,Oct5 (PTI) In the eye of a storm, Karnataka High Court Chief Justice P D Dinakaran, whom the local bar had asked not not to sit in court proceedings till he is cleared of allegations of land grab, presided over the proceedings today.

Since very few cases were posted for hearing, he sat for an hour, completed the proceedings in the court, which resumed work after a 16-day vacation, and then left for his chamber. The court proceedings went on smoothly without any protest from any quarter.

Justice Dinakaran had reportedly expressed unwillingness to sit on the Bench following a resolution passed by the Advocates Association of Bangalore asking him to refrain from attending or presiding over judicial proceedings until he was cleared of the charge.

All our judges are declaring assets before CJI: SC–SC


New Delhi, Oct 5 (PTI) Five days after the deadline given by the Delhi High Court, the Supreme Court today said all its “sitting” judges are declaring their assets before the Chief Justice of India.

Earlier, the Supreme Court Registry had resisted sharing any information with RTI applicant Subhash Chandra Agrawal, who had sought to know how many judges were complying with the 1997-resolution of the Full Court of May 7, 1997 in which it was had decided to declare judges’ assets before the Chief Justice of India.

The Central Information Commission had turned down the stand taken by the Registry and directed that the information should be given to Agrawal, a decision which was challenged by the apex court at the Delhi High Court.

The High Court in its September 2 order upheld the decision of the Commission and asked the Supreme Court to provide the information within four week

SC challenges HC order on judges’ assets declaration–assets-declaration


New Delhi, Oct 5 (PTI) The Supreme Court today moved the Delhi High Court challenging its order holding that the office of Chief Justice of India came within the ambit of the RTI Act and that information pertaining to declaration of judges’ assets could be made public.

The apex court filed an appeal against judgement of a single bench of the High Court which had on September 2 stated that the CJI is a public authority and his office comes within the purview of the transparency law.

The High Court judgement was against the stand taken by Chief Justice K G Balakrishnan, who had consistently been maintaining that his office is beyond the purview of the Right to Information Act.

Orissa HC judges want ‘corrupt’ colleague out

An additional judge of the Orissa High Court has been recommended for removal for rigging a selection test for subordinate judges, according to documents seen by Hindustan Times.

The judge, to be confirmed as a full-fledged judge next January, had “wrongly increased the marks of two candidates”, says a letter written by the high court to Chief Justice of India K.G. Balakrishnan and the Union law ministry.

Citing an inquiry by Orissa high court’s acting chief justice I.M. Quddusi, the letter recommends “suitable action” and “reconsideration of the decision to appoint him as a judge”.

In continuing embarrassment for higher judiciary, this is the third case in the last 14 months of the judiciary seeking the removal of a judge for corruption or misconduct.

Chief justice Balakrishnan had sought last August the removal of Justice Soumitra Sen of Calcutta High Court. And a committee appointed by the CJI recommended the removal of Punjab and Haryana High Court judge Nirmal Yadav in December 2008.

The Orissa court judge under fire said during the inquiry, the “difference in marks may have appeared due to a wrong dictation given to him, which was not cross-checked in good faith”

Justice Quddusi declined to comment on the issue.

The error was detected, when the interview board insisted on seeing the answer sheets of all six candidates called for the interview.

The court, in a notification posted on its website on September 15, admitted the error and withdrew the August 26 notification announcing the results of the test.

HC: Admit girl who had not studied in regular school–Admit-girl-who-had-not-studied-in-regular-school


New Delhi, Oct 4 (PTI) A 12-year-old girl, who was denied admission in a government school on the ground that she had not studied in a regular school upto class V, has found a ray of hope with the Delhi High Court directing the NCT government to ensure her admission in class VI within a week.

Justice Manmohan, in a recent order, directed the Directorate of Education to give admission to Ruby in class VI in Government Senior Secondary School at Jahangirpuri.

On July 30, the girl was denied admission by the school on the ground that she has not studied in a regular school upto class V.

In a petition, Ruby’s counsel Ashok Agarwal submitted that the girl could not study in a regular school due to financial constraints.

He contended denial of admission to her is violative of fundamental right to have education.

Bofors: Joginder Not in Favour of Giving Legal Burial

New Delhi Oct 04, 2009

A former CBI Director, who had brought to India documents relating to the Bofors pay-off case, today did not favour the agency seeking its legal burial saying it is a “legally sound case” to show there was corruption.

“Documents are there to show that he (Ottavio Quattrocchi) received money”, said Joginder Singh during whose tenure the documents were brought to the country. Singh was CBI’s Director during 1996-97.

“It is a legally sound case…Documents were brought and submitted to the government and to the courts in the country,” he told PTI when asked about CBI seeking a legal burial to the case.

Singh also said a decision to withdraw the two-decade old case against Italian businessman Ottavio Quattrocchi is taken by the government and not by the CBI.

“It is not the CBI but it’s the government’s decision because it is the government’s advocate who has said this… you can put all the blame on CBI because he (the advocate) is representing a CBI case,” he added.

“It is the the government which decides whether to go in for an appeal in a particular case from lower case to the High court and from the High court to the Supreme court,” he added.

If the government says there is no case it means that the CBI says there is no case, he said.

Singh said that “no one has gone behind that who and why the legal opinion for seeking the withdrawal of the case against Italian businessman was given?”

On the flak that the premier investigating agency of the country was receiving in the two-decade-old case, Singh said, “It is not CBI’s case and no one (in CBI) will talk about it for the simple reason that they are bound by the conduct rules.

“After all, the CBI functions as per the law in the country and the Attorney General is the highest authority to decide,” he said.

The former CBI director also rued that the agency even does not have the independence of hiring an advocate on its own or pay fees to him.

The CBI on Saturday sought legal burial of the 20-year-old Bofors pay-off case against Quattrocchi by moving for its withdrawal before a Delhi Court which refused to pass any immediate order.

CBI sought withdrawal of the case against the 69-year-old Italian businessman on the ground that “continuance of his prosecution will be unjustified”.

Didn’t mislead SC on Ambedkar memorial, says state govt

Express News Service

Posted: Sunday , Oct 04, 2009 at 0303 hrs Lucknow:

The state government has clarified it has not misled the Supreme Court in the case relating to the Ambedkar Samajik Parivartan Sthal, which is pending in the apex court.

In a fresh affidavit, Mithilesh Kumar Singh, one of the petitioners on whose petition the construction work of parks and memorials was stayed by the Supreme Court on September 8, had said the Mayawati government misled and confused the apex court and filed a false affidavit denying further construction activity on the memorials.

The petitioner said the UP government, in its affidavit on September 17 filed before the apex court, coined new names for some structures to claim they were not subject to the writ petition pending in the Allahabad High Court.

The apex court on September 8 had stayed construction work on memorials and parks under construction here at Lucknow. The UP government had then given an undertaking to the Supreme Court that no further construction would be made over the properties which are subject matter of the writ petition pending before the Allahabad high court.

“No misleading fact or false information has been mentioned in the affidavit filed by the state government before the Supreme Court,” the government said in a statement today. “Petitioner Mithilesh Kumar Singh is not aware of the facts and is unable to differentiate between the properties which are not subject to the writ petition filed before the Allahabad High Court.”

The government said the land of Ambedkar stadium is not the subject matter of any writ petition filed before the Allahabad High Court.

GC Rules amended to enable pvt colleges get grants


Posted: Thursday , Oct 01, 2009 at 1429 hrs New Delhi:

The government has amended the 34-year-old University Grants Commission (UGC) Rules to enable more private institutes get grants.

The UGC (Fitness of Institutions for Grants) Rules 1975 have been amended by the HRD Ministry, a senior official said.

The University Grants Commission (Fitness of Institutions for Grants) (Amendment) Rules, 2009 will enable the UGC to relax one or more of its conditions for giving grants to private and unaided institutions in the country.

As per the earlier rules, those private institutes, which met certain criteria with regard to faculty and infrastructure, got grants from the UGC.

The criteria laid down that a private institute should have at least five departments each having one professor, two readers and three to four lecturers. They should have administrative and academic buildings.

MRTP Act will be replaced in 2011

October 4th, 2009

By Our Correspondent


Oct. 3: The Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) will cease to be in force from 2011 and will be replaced by the Competition Act, 2002.
The Centre had earlier notified the provisions dealing with anti-competitive agreements (Section 3) and abuse of dominance (Section 4) in the Competition Act in May 2009. However, Sections 5 and 6 that deal with combinations, mergers and acquisitions are yet to be notified.
This has resulted in ambiguity and confusion as there were effectively two independent statutes, the MRTP Act and the Competition Act having concurrent jurisdiction. This has led to the uneasy coexistence of two anti-trust regulators without reconciled powers and functions, the MRTP Commission and Competition Commission of India (CCI).
“The Centre is in the process of notifying Sections 5 and 6 in the Competition Act. Once it does, the MRTP Commission will be repealed. It is under active consideration of the government. Then, the Competition Commission of India will remain the single regulatory authority in the country to protect the interests of consumers, ensure freedom of trade carried on by other participants in markets, eliminate unhealthy practices having adverse effect on competition,” said Mr Dhanendra Kumar, chairman, CCI, at Babul Reddy Foundation seminar here on Saturday.
Justice Altamas Kabir of the Supreme Court and Justice Arijit Pasayat, chairman, Competition Appellate Tribunal, participated at the meeting.
As per Section 66 of the Competition Act that was notified in September, the MRTP Commission will function for two years from September 1, 2009, to dispose of the pending cases dealing with Restrictive Trade Practices (RTP), Monopolistic Trade Practices (MTP) and those involving a combination of RTP, MTP and Unfair Trade Practices (UTP).
After that, these cases will be transferred to the appellate body formed under the Competition Act, that is, the Competition Appellate Tribunal (CAT). CAT is required to decide these cases in accordance with the MRTP Act, as if the MRTP Act had not been repealed.

NHRC help sought to improve city

TNN 4 October 2009, 10:17pm IST

LUDHIANA: Irked by the lackadaisical attitude of the government and civic authorities in providing reprieve from dilapidated roads in the city, residents have requested the National Human Rights Commission (NHRC) to intervene into the matter.

Acting on a report published in the Times of Ludhiana on October 2 wherein the condition of broken roads in Industrial area-A had been highlighted, local resident Arvind Sharma has written to chairman of the NHRC and urged him to bring the local bodies to task.

Sources said though the civic body had initiated carpeting of roads after laying stones at many places, work had failed to kick off, creating problems for commuters coming to the industrial area. Despite numerous complaints by residents to civic body officials, authorities are least bothered to address the issue.

Even posh localities, including Model Town, Model Town Extension, Sangeet Cinema Road and Transport Nagar from where huge revenue is drawn are lying in a deplorable state.

The letter further states that some roads constructed by the MC a few months ago had returned to their earlier condition. This had resulted in frequent accidents and had become a major reason for causing backaches to people.

“The roads have failed to pass the sample test but local bodies are not paying attention to improve their condition and MLAs keep busy in their vote politics,” the document states.

As such, the complainant has asked for the immediate intervention of the NHRC chairman so that erring officials can be strongly dealt with.

Man moves court against recovery agents

TNN 4 October 2009, 10:57pm IST

NEW DELHI: Despite strict guidelines by Reserve Bank of India and numerous court orders against them, recovery agents continue to use coercive methods with impunity. A trial court recently received a complaint from a man, alleging his family members were harassed by recovery agents of a leading telecom company who posed as officials from Patiala House courts.

R C Mathur, a resident of Patparganj, alleged the recovery agents not only threatened his son-in-law but also extorted money from him apart from the bill amount, claiming it would save the family from further trouble. Taking cognizance of the complaint, metropolitan magistrate Jitendra Mishra told the police to file FIR against the accused.

In his complaint, Mathur claimed that Amit Chawhan, posing as an “arrest warrant processor from Patiala House”, called his daughter and claimed there was an arrest warrant against her husband because he had failed to pay his phone bill.

Chawhan reportedly claimed to have received a “closed” file on Mathur’s son-in-law and they wanted him to pay the pending bill to avoid any trouble. He also made him talk to one Neeraj Goal, allegedly a lawyer at Patiala House courts. Goal reportedly told the family to pay Rs 2,500 to escape arrest even though the outstanding bill was just Rs 862.

Following court’s direction, the police have registered an FIR under Section 419 (cheating) and Section 507 (criminal intimidation by anonymous communication) of IPC.

Accused in Siridao gang fight case gets bail

TNN 5 October 2009, 06:45am IST

PANAJI: The high court of Bombay at Goa has granted bail to Domnic Nazareth, one of the accused in the Siridao gang fight case. The single bench of Justice N A Britto granted bail to the accused on his furnishing a bail bond of Rs 25,000 with one surety of like amount.

It may be recalled that on May 10, 2009, a gang fight broke out between two rival gangs on the Siridao beach in which one person died, while three were injured. According to the police, there was a known rivalry between the two groups. The groups attacked each other with glass bottles and knives at a shack on Siridao beach.

Santosh Kalel, 37, from Zuarinagar of the Mirand gang was declared dead by doctors at Goa Medical College and hospital. He had knife wounds on his knees and he may have been punched hard on the chest, due to which he collapsed and later died in the hospital.

Francis Manuel D’Souza alias Mirand, 36, from Merces and his aide Johnny Fernandes, 36, were injured and had suffered stab wounds in the chest. From the other group, the alleged leader Zenito Cardozo, 20, was also injured.

Granting the bail, the court held: “One fails to understand on what basis the learned sessions judge came to the conclusion that the present applicant had instigated Zenito to inflict injuries on Johnny and Santosh.”

The court has further observed that if the accused initially stood behind Zenito, it was because he had no other option. The sessions court had rejected the bail application of the accused on September 4 after observing that the accused had allegedly played a role in encouraging and instigating Zenito.

LEGAL NEWS 04.10.2009

3 lakh cheque bouncing cases in Mumbai, only 23 courts
PTI 4 October 2009, 09:51am IST
MUMBAI: The Bombay High Court has asked the Maharashtra government what it is going to do to ensure faster disposal of cheque bouncing cases.

In Mumbai alone, some three lakh cheque-bouncing cases are currently pending and there are only 23 special magistrate courts to deal with these cases.

The government gave this information to the Bombay High Court recently, during the hearing on a PIL about pendency of cases.

Additional government pleader Anand Patil informed the court that government has framed the rules for setting up evening courts in the state, which would help reduce the growing pendency.

But the division bench of Chief Justice Swatanter Kumar and Justice A M Khanwilkar was not happy with the plan.

Initially there would be twenty evening courts (ten in Mumbai) which would function from 1800 hours to 2000 hours.

The judges pointed out that evening court would not be dealing with cheque bouncing cases exclusively.

Further, the judges also expressed apprehension about practicability of setting up evening court without recruiting additional staff.

Govt staff can’t take part in political agitation: HC
A Subramani, TNN 4 October 2009, 06:15am IST
CHENNAI: Sounding a warning to government servants taking part in political agitations and courting arrest, the Madras High Court has upheld the dismissal of a government employee who had participated in the DMK’s anti-Hindi agitation in 1986 and was convicted for the criminal offence of burning a copy of the Constitution.

Justice K Chandru, refusing to interfere with the dismissal, ruled: “A government servant ought not to have participated in the agitation conducted by a political party, got himself arrested and convicted for burning a copy of the Constitution. He also did not inform his employer about the conviction.”

Justice Chandru was passing the order after dismissing the writ petition of a commercial tax department employee K Karunanidhi, who was dismissed from service after he was convicted of charges of burning a copy of the Constitution of India during the anti-Hindi agitation in Tamil Nadu in 1986.

As Karunanidhi, who filed the case originally, had died during the pendency of the case, it is now being pursued by his wife K Kantha.

Karunanidhi was arrested and kept in Cuddalore Central Jail between November 21, 1986 and January 22, 1987. Later, he was convicted by a Villupuram court and was sentenced to two-week imprisonment for offences punishable under the provisions of the IPC as well as the Prevention of Insults to National Honour Act 1971.

Without disclosing his conviction to authorities, Karunanidhi applied for leave for a total of 138 days. After the issue was brought to the notice of the authorities, disciplinary proceedings were initiated against him and he was dismissed from service in December 1997. Though he had moved the Tamil Nadu Administrative Tribunal, the matter was transferred to the High Court after the abolition of the tribunal.

Among other things, his counsel CA Diwakar contended that dismissal was a punishment disproportionate to his offence.

Justice Chandru, rejecting the submissions, said that burning a copy of the Constitution was a “serious offence” and it would attract the penal provisions of the Prevention of Insults to National Honour Act. Pointing out that 10 MLAs too lost their jobs for committing the very same offence, the judge said that in November 1986 the assembly passed a resolution disqualifying them from holding the posts.

Citing the Supreme Court observation that the National Flag, the National Anthem and the Constitution were symbols of the sovereignty of the country, Justice Chandru said the apex court had cautioned that prolonged absence of a government servant did not deserve any indulgence.

Drop Quattrocchi case in ‘public interest’, CBI tells HC
TNN 4 October 2009, 04:07am IST
NEW DELHI: The CBI on Saturday invoked “public interest” and sought withdrawal of the Bofors payoff case against Ottavio Quattrocchi before a Delhi court — it also cited its failure to twice extradite him, for good measure.

Seeking legal burial of the case against the Italian businessman on the grounds that “continuance of his prosecution will be unjustified”, the agency said it has arrived at this conclusion after its failure on two occasions to extradite the 69-year-old businessman from Malaysia and Argentina to face trial.

The CBI, which also relied on various other factors including the Delhi HC judgments quashing charges against all other co-accused to justify its decision, claimed in the court that the application to withdraw the case has been filed in public interest.

“In any event, the attempts to secure the presence of Quattrocchi from Malaysia and Argentina have failed. I find that the Malaysian court has also touched upon the merits of the case,” additional solicitor general P P Malhotra and advocate Naveen K Matta submitted before chief metropolitan magistrate Kaveri Baweja, on behalf of the agency.

CJI seeks report from Tamil Nadu
J. Venkatesan
New Delhi: Chief Justice of India K.G. Balakrishnan has called for a report from the Tamil Nadu government on the allegations against the Chief Justice of the Karnataka High Court, P.D. Dinakaran, that he acquired large land holdings.
Justice Dinakaran is among the five judges recommended for elevation to the Supreme Court by the Supreme Court collegium. The file is pending with the Union Law Ministry in view of the recent allegations.
Highly placed sources told Hindu The that “since we wanted to verify the facts, we called for a report from the State government/District Collector.”
Justice Dinakaran has already met the CJI and denied the allegations.
Asked whether calling for the report could be called a probe, the sources said: “You can’t call it a probe. We want some details in respect of the land holdings and whether there is encroachment or not.”

Panel finds fresh evidence of land-grabbing by Dinakaran
Manoj Mitta, TNN 4 October 2009, 04:17am IST
NEW DELHI: Even as CJI K G Balakrishnan is holding a discreet inquiry into allegations of land-grabbing by prospective SC judge P D Dinakaran, Chennai’s Forum for Judicial Accountability (FJA) has come up with more serious evidence of properties allegedly acquired by him and his immediate family members.

The highlight of the third and latest representation sent by FJA to the SC collegium on October 1 is his alleged modus operandi to acquire three prime plots in 2005 from Tamil Nadu Housing Board near the IT corridor of Chennai for his wife Vinodhini Dinakaran and daughters Amudha and Amirtha.

Violation of eligibility conditions

His parents-in-law, James Kuppuswamy and Paripoornam, were allegedly benami for his daughters. The plots that finally went to the daughters were originally applied for in the names of his parents-in-law. Since those plots of about 350 sq metres were meant for high-income group, it required the applicants to have an annual income of at least Rs 90,000. But the housing board allotted plots to Dinakaran’s parents-in-law although his father-in-law’s declared annual income was merely Rs 56,668 and his mother-in-law’s was Rs 49,200.

Transfer of land within two days of allotment

The transfer of land from parents-in-law to daughters, made through a family settlement, violated the public house scheme meant for the benefit of those without property and in need of housing. The allotment itself was in violation of the one-plot-per-family rule.

Dinakaran’s order helps his family get plots

Since his wife and parents-in-law were among the applicants for the housing board land near the IT corridor, Dinakaran should have declined to hear a case challenging the land acquisition. Yet, it was thanks to his order that the land acquisition was upheld and that in turn paved the way for the housing board to effect sales in favour of, among other allottees, his wife and parents-in-law. FJA called this a “gross abuse of office and subversion of justice”.

Another shocking property transaction brought out by FJA is the purchase by his mother-in-law of a 4.5-acre bungalow in Ooty in August just around the time Dinakaran’s name was cleared by the collegium to be elevated to the apex court from his current post of chief justice of the Karnataka high court. Though the market value of that property was Rs 8 crore and the government guideline value was Rs 3 crore, the transaction was grossly undervalued at Rs 33,75,100.

Even so, his mother-in-law, who retired as a school headmistress, and his father-in-law, who retired as a security officer, did not by their own admission have the resources to buy the Ooty and Chennai properties, FJA pointed out.

In its earlier representations, FJA had focused on the manner in which Dinankaran and his family, after he became a judge, allegedly fenced off over 300 acres of land in Kaverirajapuram village in Tiruvalluvar district (near Chennai). FJA had also sent balance sheets of the four companies through which Dinakaran and his family allegedly consolidated their hold over the fenced-off land which included 150 acres of government land meant for community use. FJA also alleged irregularities in the properties owned by Dinakaran in the localities of Anna Nagar and Shenoy Nagar in Chennai.

No lawyer wants to touch this case
Manoj Mitta, TOI Crest 3 October 2009, 01:35pm IST
It’s the kind of lapse the Supreme Court wouldn’t have allowed the government to get away with. But this time, the shoe is on the other foot. For, it’s none other than the Supreme Court itself that has defaulted for four years on a statutory obligation that makes it mandatory for the court to make disclosures regarding its powers, duties, budget, processes – almost all the things that tell you how the wheels of justice turn in the country’s apex court.

Under the four-year-old Right to Information (RTI) Act, the court was required to make these disclosures way back in October 2005. There have since been two chief justices, but neither took the trouble to make the disclosures required under section 4(1)( b), indicating a certain disregard for the law, which in any other case would have made the Supreme Court furious.

Finally, an organisation, Youth for Equality (YFE), got sufficiently agitated about this lapse and decided to file a petition – where else? – in the Supreme Court, naming the Chief Justice of India K G Balakrishnan as the sole respondent. YFE ran into difficulties straight away. None of the advocates-on-record – the community of lawyers who can file pleadings in the court – agreed to take on the case.

Ironically, when YFE – a body of students, teachers and professionals – filed an earlier petition in the Supreme Court against reservation in educational institutions, it became something of a rallying point for the middle class, including lawyers. This time it was something of an outcast – with advocates-onrecord , at least. And with the court registry.

YFE finally decided to file the petition itself as “petitionerin-person” with the court registry. The registry got back pointing out “defects” in the petition. One of the seven issues raised was: “Petitioner-in-person to clarify why Chief Justice of India made party.” YFE replied promptly that the CJI could not be avoided as the RTI Act had designated him as the “competent authority” for the Supreme Court. Therefore, he was accountable for its failure to comply with a statutory obligation. YFE responded to all seven “defects” six months ago. There has been no word from the registry. It has neither rejected the clarifications nor listed the petition for hearing. YFE president Kaushal Kant Mishra, an orthopaedic surgeon , approached the registry last month to check the case status. He was not allowed to inspect the file. Crest asked YFE lawyer-member Gopal Sankaranarayanan why they were being obstinate about naming the CJI as the sole respondent . Why didn’t YFE break the deadlock by substituting the CJI with the registrar as the respondent ? “But the buck stops with him,” said Sankaranarayan. The CJI under RTI, he said, was not just the head of a public authority but also the designated competent authority in matters concerning the apex court. “It’s therefore a matter of principle for us,” he added.

Much as the CJI is legally and morally responsible for administrative lapses of the Supreme Court, it is debatable whether YFE was justified in naming him the sole respondent. For, as RTI lawyer Divyajyoti Jaipuriar pointed out, “The function of the competent authority is to frame rules for the implementation of RTI. He is not supposed to be directly involved in the measures taken to comply with the law.”

However, the technicality over who should have been named the respondent does not detract from the importance of the issue raised by the petition. Section 4(1)( b) is a key aspect of the RTI scheme. The provision makes it mandatory for every public authority – the Supreme Court included – to disclose suo motu (on its own) details about the powers and duties of its functionaries, its decision-making process, the nature of documents under its control, its budget, disbursements and so on.

This was required of every public authority within 120 days of RTI becoming law. The deadline was, accordingly, October 12, 2005. The law also made it clear that the public authority concerned would update the information from time to time.

The Supreme Court has not put up on its website – one of the mandated methods to make information public – as many as 15 categories of information concerning its functioning. It has put up just one category of information – the names and contact details of the information officer and the first appellate authority under RTI. It’s a far cry from the elaborate columns

containing all 16 categories of information on the websites of other public authorities.

Those courts that put all 16 categories of information in the prescribed format on their websites include the Bombay, Karnataka, Andhra Pradesh, Madhya Pradesh and Rajasthan high courts. The Andhra high court has come out with a 22-page manual complying with the proactive disclosures specified in section 4(1)( b).

What could be the justification for the Supreme Court then to withhold information that would lend high transparency to its functioning ? Should the Supreme Court not lead by example? The RTI explains the rationale behind proactive disclosures thus: “It shall be a constant endeavour of every public authority…to provide as much information suo motu to the public at regular intervals through various means of communication, including internet, so that the public have minimum resort to the use of this Act to obtain information.” Would the

apex court disagree with this?

The Delhi high court, while ruling that the CJI’s office came under the ambit of RTI, said: “Judges are under attack and revealing assets and other information may increase the reputation of judges.” The failure to make proactive disclosure under section 4(1)( b) is actually more than a matter of reputation. “The omission of this statutory duty is in line with the hostility betrayed by Justice Balakrishnan to all matters relating to RTI, putting the Supreme Court way behind other institutions in transparency,” advocate-activist Prashant Bhushan said.

There is much for the Supreme Court – and the CJI himself – to explain, if and when YFE’s petition is taken up. The wiser option is to make the petition redundant by taking preemptive action and putting out all the mandated information.

Incomplete Disclosures


Andhra Pradesh High Court Bombay High Court Karnataka High Court Madhya Pradesh High Court Rajasthan High Court


Supreme Court Delhi High Court Madras High Court Calcutta High Court Punjab & Haryana High Court

KSBC also a divided house News Service
First Published : 03 Oct 2009 04:02:47 AM IST
Last Updated : 03 Oct 2009 11:08:13 AM IST

BANGALORE: Karnataka State Bar Council (KSBC) has ‘unanimously’ resolved to request Chief Justice of India (CJI) K G Balakrishnan, to consider allegations made against Karnataka High Court Chief Justice Dinakaran and take an appropriate decision at the earliest.
KSBC held a meeting on Friday and discussed the issue at length. It finally resolved to leave the issue to the CJI and the collegium of the Supreme Court to take an appropriate decision.
“We have resolved that the Supreme Court should evolve a machinery to examine allegations against members of the higher judiciary without compromising on the independence of the judiciary,” R Abdul Reyaz Khan, chairman of KSBC, told reporters after the meeting.
“The CJI is yet to look into the allegations. But media reports have caused great embarrassment to the judiciary,” the resolution of the KSBC said.
“The allegations are under consideration by the collegium.
The correctness of these allegations have to be expeditiously examined and a decision should be taken so that public confidence in the institution is not shaken.
So, KSBC will have to repose faith in the collegium of the Supreme Court and CJI,” the resolution said.
KSBC has also blamed and condemned media reports.
But it has kept mum over the recent resolution by the Bangalore Advocates Association asking the CJ not to sit in the first court until he is cleared of the charges.
“We have no power to pass a resolution asking the CJ not to preside over the judicial proceedings,” Reyaz said.
“I am not in favour of the KSBC resolution. I stick to my stand that the Chief Justice should not sit in the first court until he is cleared of the charges,” Y R Sadashiva Reddy, former chairman of KSBC told reporters after the meeting.

LEGAL NEWS 03.10.2009

Rajshekhar Rao on Saving the Arbitration and Conciliation Act, 1996

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Express News Service

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

WiFi enters HC lawyers’ chambers

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

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

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

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

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

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

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

HC cancels loan defaulter’s bail

TNN 3 October 2009, 04:44am IST

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

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

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

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

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

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

HC awards full gratuity to govt employee


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

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

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

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

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

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

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

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

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

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

CBI seeks closure of case against Quattrocchi


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NRI jailed for 27 years for kidnapping fellow Indian


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Govt to move HC over private JEE

TNN 2 October 2009, 11:01pm IST

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

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

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

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

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

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

2002 Ode riots: HC upholds warrants against 16 accused

Express News Service

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

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

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

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

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

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

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

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

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

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

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

The Lost Land

The Centre takes note of wakf aberrations

Outlook Bureau

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

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

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

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

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

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

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

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

Handcuffed In Khaki

Why Chidambaram’s exhortation on transfers means little

Vijay Nambisan

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

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

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

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

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

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

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

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

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

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

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

CJI to probe charges against Dinakaran

3 Oct 2009, 0518 hrs IST, ET Bureau

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

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

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

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

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

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

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

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

SC to challenge HC order

Posted On Friday, October 02, 2009

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

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


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

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

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

The Collegium, Judges Assets and Justice Dinakaran

Posted by Aditya On October – 1 – 2009

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

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

“O, it is excellent

To have a gaint’s strength;

but it is tyrannous

To use it like a giant.”

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

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

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

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

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

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

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

But then how are Constitutional Conventions enforceable ?

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

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

The CJI being a ‘Public Authority’ has grave Implications

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

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


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

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

The Collegium and the RTI Case: Exploring the Link

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

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

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

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

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

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

Suggested Readings

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

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

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

Test noise levels at helipads: HC

Mayura Janwalkar / DNA

Friday, October 2, 2009 2:56 IST

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

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

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

SC concerned at lawyers’ obsession with money

Rakesh Bhatnagar / DNA

Friday, October 2, 2009 2:23 IST

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

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

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

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

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

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

By Mumtaz Alam Falahi,,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LEGAL NEWS 02.10.2009

HC sets up body to examine noise level at helipads


Mumbai, Oct 2 (PTI) A committee has been set up by the Bombay High Court to examine noise levels at helipads in Mumbai and submit its report to it.

The issue of noise pollution caused by traffic at helipads came up during the hearing of a PIL filed by city-based Awaz Foundation.

At an earlier hearing, the petitioners had pointed out newspaper reports saying that Municipal Corporation was going to allow helipads atop rooftops of buildings in the city.

That prompted the court to ask, “what would happen to the noise levels if choppers begin to land regularly in city areas?”

Yesterday, a Division Bench of Chief Justice Swatanter Kumar and A M Khanwilkar ordered that a committee be set up, which will have representatives from municipal corporation, pollution control board and other concerned authorities.

Gujarat HC rejects ADC Bank’s election schedule

Express News Service

Posted: Friday , Oct 02, 2009 at 0107 hrs Ahmedabad:

Gujarat High Court has rejected the election schedule of the Ahmedabad District Co-operative Bank Ltd. The order came following a petition filed by petitioners Khokhra Mehmedavad Seva Sahakari Mandali Ltd, Dev Ashish Co-op

Housing Society Ltd and Karuna Co-op Housing Society Ltd.

A division bench of Justice R M Doshit and Justice S D Patel has directed the respondent bank to delimit its constituencies in accordance with Rule 3(a) of Gujarat Specified Co-operative Societies Election to Committees Rules within three months. The court has also directed the bank to start the election process afresh once the constituencies are delimited as per the court order.

The bank is also told to include areas of Chandkheda and Motera also in it as they were merged into the Ahmedabad limits in 2008. The court has also ordered the bank to scrutinise all the 730 self-help groups that are allegedly made members at the last moment. Importantly, the court has struck down the criteria set by respondents under By law 8 (1) of the bank, which made the eligibility to vote difficult.

The ruling comes as a major blow to the group affiliated to the Bharatiya Janata Party and led by Home Minister Amit Shah seeking to gain absolute control over the affairs of the bank. Advocate Saurabh Amin appeared for the petitioners.

Needle of suspicion points to Raja

J Gopikrishnan | New Delhi

Petitioner duo who sought bail in Chennai close to Telecom Minister

The father-son duo that tried to influence a Madras High Court judge through a Union Minister for a favourable verdict in a criminal case, was close to Telecom Minister A Raja.

Justice R Reghupathy created a sensation on Monday evening in open court in Chennai when he alleged that a Union Minister had tried to influence him for grant of anticipatory bail to a doctor and his son in a forged marksheet case filed by the CBI. The judge said the Union Minister called him twice for granting anticipatory bail to Krishnamoorthy and son S Kiruba Sridhar, facing a CBI inquiry for malpractices in medical college exams of Pondicherry University.

While the judge did not name the Minister who had tried to put pressure on him, documents available with The Pioneer show Dr C Krishnamoorthy enjoys close proximity with Telecom Minister A Raja.

Krishnamoorthy is a close associate of Raja and belongs to the Minister’s hometown, Peramballur. He is the owner of the building which housed a law firm run by Raja before he became a Minister. Krishnamoorthy is also the managing director of a Coimbatore-based real estate company, Kovai Shelters Promotors India Pvt Ltd, formed on January 19, 2007. As per the documents available with the Registrar of Companies, Raja’s nephew Dr R Sridhar and nieces R Anandabhuvaneswari and R Santhanalakshmi are directors in this company and jointly hold 45 per cent shares in Kovai Shelters.

The Pioneer had on January 12, 2009, reported that Raja’s nephew, a Class-I officer in the Ministry of Environment and Forests, violated the service conduct rules by remaining on the board of a private firm without informing the Government. Sridhar had secured the Government job by providing false experience certificates. Applications for this post were invited during Raja’s tenure in the Environment Ministry. The mandatory five-year experience certificate was falsely issued to Sridhar by his research guide Dr L Kannan, who was later elevated as the Vice-Chancellor of Thiruvalluvar University.

Krishnamoorthy also owns a big investment company, AGM Investments Finances Pvt Ltd. This company, formed in September 1990 by one Arun G Mehta in Chennai, was acquired by Krishnamoorthy in February 2008 along with his brother Satyanarayanan.

On Tuesday, Justice Reghupathy spilled the beans when the advocate, appearing for S Kirub Shridhar, a third-year student in a private medical college in Puducherry, and his doctor father Krishnamoorthy, complained that the judge was not granting bail to his clients on the basis of prosecution submissions.

The advocate’s remarks came after the judge said he was not inclined to grant any relief as their pleas had been rejected on June 15 itself. Annoyed, the judge said, “A Union Minister talked to me about the matter. You yourself know every thing. Unless an unconditional apology is tendered by you, I will incorporate every detail in my order.”

Justice Reghupathy said he would also write to the Prime Minister about the “pressure exerted” on him.

TRAI changes tune

J Gopikrishnan | New Delhi

Modified opinion coincides with arrival of regulator’s new boss

Having consistently taken the position that the first-come-first-served system adopted by the Telecom Department for allotting spectrum was improper, the Telecom Regulatory Authority of India (TRAI) has suddenly turned coy and tacitly started backing the controversial process. Incidentally, the change in opinion coincides with the arrival of a new face as the regulatory panel head.

In an affidavit filed recently in the Delhi High Court, which is hearing a public interest litigation against the controversial allotment of 2G spectrum, TRAI diluted its opposition to the first-come-first-served formula. The court had asked for the regulator’s opinion on the dubious allotment of spectrum in February-end. The affidavit, which downplays the organisation’s consistent opposition to the dubious allotment, was filed after the appointment of JS Sharma as the new TRAI chairman.

A copy of the affidavit — which The Pioneer possesses — does not even mention ‘first-come-first-served’ as a basis for allotment, though the court had asked it to comment precisely on the allotment process.

Even though TRAI did say that it had suggested the auction method to determine market price of the spectrum on several occasions, it did not comment on its stand regarding the first-come-first-served system, let alone express its known unequivocal opposition to it.

Seeking to distance itself from the contentious issue, TRAI told the court, “It is respectfully submitted that the policy of allotment of telecom spectrum is an administrative matter under the jurisdiction of the Department of Telecom.” It added, “In the 2G bands, the allocation through auction may not be possible as service providers were allocated spectrum at different times of their licence and the amount of spectrum with them varies from 2×4.4MHz to 2x10MHz for GSM technology and 2×2.5MHz to 2x5MHz in CDMA technology. Therefore, to decide the cut-off after which the spectrum is auctioned, will be difficult and might raise the issue of level playing field.”

Interestingly, TRAI did not mention a word about a crucial letter written by its former chairman Nripendra Misra to Telecom Secretary Siddharth Behura on January 14, 2008, in which he had vehemently criticised the spectrum allotment on first-come-first-served basis. Misra blamed the Telecom Department for “cherry picking” in adopting those recommendations that suited the department while ignoring other important ones. In that letter, the former chairman had criticised the allotment of spectrum to new players without specifying the availability of the scarce resource. Misra had on several occasions blamed the department for making claims that the 2G spectrum allocation process was conducted as per TRAI recommendations.

“It would be unfair and misleading if any decision and consequent action is initiated without identifying and implementing the linkages elsewhere in the recommendation. It was reiterated that the authority (TRAI) should be formally consulted if there is any deviation from the totality of the recommendation,” Misra pointed out in the letter.

The letter added, “The authority has emphasised that there is need to ensure availability of adequate spectrum, its efficient utilisation and making the process (of spectrum allocation) completely transparent and based on a roadmap and well-researched plan.

It is sincerely hoped that the above suggestions/observations and compliance of legal provisions would receive highest consideration as they have a long-term bearing on the telecom sector.”

Misra’s tenure ended in March and Sharma was appointed the new chairman on May 14. Sharma is a former Secretary of Telecom and, prior to this appointment, was a member of the Telecom Disputes Settlement Appellate Tribunal (TDSAT).

Spectrum Scam

  • TRAI dilutes its opposition to first-come-first-served formula in an affidavit filed in HC
  • Court is hearing public interest litigation against controversial allotment of 2G spectrum
  • Court had asked for regulator’s opinion on dubious allotment of spectrum in Feb-end
  • Affidavit does not even mention ‘first-come-first-served’ as a basis for allotment
  • TRAI tells court: “…policy of allotment of telecom spectrum is administrative matter under the jurisdiction of Department of Telecom”
  • TRAI did not mention a word about letter by its former chairman Nripendra Misra to Telecom Secretary in which he had vehemently criticised spectrum allotment on first-come-first-served basis

CVC smells foul play

J Gopikrishnan | New Delhi

2G spectrum allocation

The Chief Vigilance Commissioner has confirmed large-scale irregularities by the Telecom department in awarding licences for 2G spectrum services, and said it would soon fix responsibility for the lapses. In an exclusive interview to The Pioneer, CVC Pratyush Sinha said his organisation had found “gross violation” in the “non-transparent” methods adopted in licence allotments.

The Pioneer had through a series of reports recently exposed violation of rules and regulations in the 2G issue and the role allegedly played by the Telecom Ministry headed by the DMK’s A Raja.

“We have found that there were gross violations and non-transparent activities in the allocation of 2G spectrum. Basically, the violations are: Granting licences on first-come- first-serve basis; licences being issued in 2008 at prices fixed in 2001, companies such as Swan and Unitech offloading their shares at whopping prices to foreign companies soon after the licences were awarded to them,” said the CVC. He said these steps had led to heavy losses for the national exchequer.

Sinha wondered why the Telecom department had not opted for the auction route. “The Telecom department says they had adhered to the TRAI (Telecom Regulatory Authority of India) guidelines. We found this version totally wrong. The department had used cherry-picking or pick-and-choose theory suit to their intentions. They selectively picked TRAI recommendations that suited them,” he said.

“We had already sent our findings to the department for clarification and fixing responsibility. We are not at all satisfied with their clarification and justification on the allocation 2G spectrum,” said the CVC, adding that they were in the process of “fixing responsibility”.

The CVC also blamed the department for not insisting on a ‘lock-in period’ for the licence-holders to prevent speculative sales. In its report, the CVC blamed the department for exclusion of clauses in the licence agreement that would have prevented ‘offloading’ of shares by the company.

The controversy over 2G spectrum allocation broke out when the Telecom department gave licences to new players like Swan and Unitech in October last year. These two real estate developers bagged the licences at throwaway prices.

Swan got the licence for Rs1,537 crore for starting telecom operations in 13 circles in mid-2008. Within months, Swan offloaded its 45 per cent of the share to UAE-based Etisalat for Rs 4,500 crore, making a whopping profit. Similarly, Unitech bagged the licence for Rs 1,651 crore for operating in 22 telecom circles. It too sold 60 per cent of the shares to Norwegian company Telenor, which is currently providing telecom services in Pakistan and Bangladesh, at a high price of Rs 6,120 crore.

Delhi tops list of smoking ban violators

PNS | New Delhi

Delhiities have another ‘dubious’ distinction to their credit. Data released by the Union Health Ministry on Thursday shows that they top the list of offenders who violate the ban on smoking in public places. Authorities in the national capital have booked 11,362 people for smoking in public places thereby collecting a fine of Rs 1,26,310 from October 2, 2008 to July 31, 2009. Tamil Nadu came a close second with 10,979 violations and Rs 1,17,743 collected as fine.

Enacted to protect health of non-smokers who are exposed to passive smoking or environmental tobacco smoke, the ban on smoking in public places came into effect from October 2 last year. Smoking in public places like hospitals, restaurants, public offices, court buildings and educational institutions was made punishable. Any violation of this would lead to a fine of up to Rs 200.

Data involving 13 States shows Rajasthan had lowest number of violations — nine. While Gujarat has fined 285 people, Chandigarh penalised 1,540 and Karnataka 2,465 collecting Rs 84,090, Rs 1,15,398 and Rs 3,08,000 respectively.

Tobacco is the risk factor for six out of eight preventable causes of death. India is the second largest consumer and third largest producer of tobacco in the world. The estimates from the latest round of National Family Health Survey indicate an increasing prevalence of tobacco consumption in India, with 57 per cent males and 10.9 per cent females consuming tobacco in some form.

Out of this, 32.7 per cent men and 1.4 per cent women are smokers. Prevalence of bidi smoking is around 54 per cent and that of cigarette 16 per cent. The rustic bidi is more harmful than cigarettes as a person inhales greater amount of carbon monoxide while smoking a bidi. “The bidi extinguishes faster and hence a person needs to take more puffs than required for a cigarette. In the bargain the person ends up inhaling greater quantities of carbon monoxide”, Raj Kumar at the Vallabhai Patel Chest Institute said.

The Tobacco Control Report mentions 50 per cent of all cancer deaths in the country due to tobacco consumption. Moreover, 0.8 million people die due to tobacco consumption every year. Studies indicate approximately 40 per cent of the disease burden in the country to be associated with some form of tobacco or other.

HC for strict censoring of TV content

A Subramani, TNN 2 October 2009, 03:22am IST

CHENNAI: Calling for a powerful “moral guardian for the society,” the Madras high court has favoured stringent censor mechanism to vet television programmes that contain violence, obscenity and vulgarity.

Justice R Regupathi, quashing defamation proceedings initiated against actor Vijay in various courts of Tamil Nadu, on Thursday observed: “The most dangerous trend is, there are certain channels which exclusively air music and fashion programmes with semi-nudity and adult content, and school-going children, who have free access to remotes, get to view such channels. Their character and psychology is hardened at a tender age…and it is feared that good behaviour, human values and moral standards would be stripped away forever.”

He was passing orders on the petitions filed by Vijay, producer of Sivakasi’ AM Rathinam and its director Perarasu, who sought quashing of over a dozen defamation proceedings initiated by advocates in different courts. Advocates, represented by S Prabakaran, claimed the film “scornfully ridiculed” the legal profession. During the hearing, the crew apologised for the scenes and said objectionable portions had already been deleted.

Recording the apology, the judge quashed the complaints, but with an observation: “The film industry too has social and moral responsibilities… Of late, it is irritating to note that corruptive, pointless and irresponsible messages are being conveyed through movies in the name of entertainment.”

Justice Regupathi lamented that most of the movies, documentaries, serials, music and dance programmes “televised ceaselessly” contained obscene, vulgar and violent scenes, besides promoting supernatural and superstitious beliefs. “In such a critical situation, clear and stringent censorship guidelines for TV programmes must be laid down,” he observed.

He said: “The need of the hour is, apart from scrutiny of films, there should also be a close monitoring of television programmes so as to check lapses and to instantly initiate steps against transgressors. Such a governing body should be powerful, unbiased and mindful of its role and responsibility as a moral guardian of the society.”

Noting that the media and the cinema industry derived their right to freedom of speech and expression from the Constitution, the judge said the right was subject to the reasonable restrictions set out in Article 19(2) of the Constitution to ensure that such freedom is not misused.

As for the role of the Censor board, Justice Regupathi said, “the members of the board should be alive to their responsibilities and duly perform the functions for which they are holding the office.” Regular offenders, guilty of promoting ill-will and hatred among different sections of the society, obscenity and malice towards persons practising other professions, should be legally proceeded against, the judge said.

Calling for more teeth to the existing laws, Justice Regupathi also said: “It is expected that the government of India may take suitable steps to device effective legal mechanism in respect of screening/broadcasting through cinema and television so as to make the certifying agency more effective.”

Don’t write on Raja’s private life: HC to magazine

TNN 2 October 2009, 03:18am IST

CHENNAI: The Madras high court has restrained a Tamil biweekly, Junior Vikatan, from publishing news or photographs or caricatures concerning the private life of Union information and technology minister A Raja, or that of his wife and daughter.

Passing orders on a petition filed by Raja and his wife MA Parameswari, a division bench comprising justice M Chockalingam and justice R Subbiah said: “The respondents (the biweekly’s editors and publisher) cannot be allowed to take shelter under the Doctrine of Freedom of Press, and the same cannot also be extended to publishing exclusively private affairs of the appeallants (Raja and his wife) calling it as connected to or concerned with public life.”

After Raja filed the civil suit to restrain the bi-weekly from publishing anything concerning him, a single judge had granted the interim relief. However, the injunction was vacated by another single judge recently. He judge had also imposed an exemplary cost of Rs 10,000 on the union minister.

Setting aside the exemplary cost, the division bench said: “It is a matter of surprise to note that the single judge has awarded exemplary costs of Rs 10,000 while dismissing the application.” They described it was unwarranted and unjustified.

The judges concurred with the submissions of senior counsel VT Gopalan and advocate P Wilson, and said a scrutiny of the magazines indicated that there were instances in which the privacy of Raja was invaded, and added that some of the photographs would “seriously damage the image of Raja in the minds of the readers of the magazine.”

Referring to the publication of the photograph of Raja’s wife, the judges said, “It is not the case of the respondents that she is a public figure or she is in a public domain. Hence it has got to be termed that the publications made against her were infringement of her right to privacy, which is guaranteed by the Constitution.”

HC stays SHRC recommendation against cops

TNN 2 October 2009, 01:44am IST

BANGALORE: The high court on Thursday stayed for three weeks a recommendation sent by the State Human Rights Commission (SHRC), asking the government to take action against five police officials.

The five include a DCP and two ACPs, and the case is one of alleged custodial torture. Vacation judge H Billappa passed the order on a petition filed by DCP Basavaraja Malagatti, ACPs T C Chandrashekar and Ramachandrappa, PI M S Ashoka and SI Kempegowda.

“They were issued a notice on August 20 and the recommendation was sent on August 22 without offering them an opportunity to have a say. They were not even allowed to engage a counsel, and were asked to pay Rs 50,000 to the complainant’s family. The SHRC had recommended a CBI inquiry beyond its scope,” the counsel for the petitioners told the court.

Based on Vasanthamma’s complaint that her husband was ill-treated at Amrutahalli police station, the SHRC had recommended suspension of Ashoka, Kempegowda and Chandrashekar, and disciplinary action against Ramachndrappa and Malagatti.

Cheque bouncing cases clogging wheels of justice

TNN 2 October 2009, 02:29am IST

NEW DELHI: Over 30 lakh cheque bouncing cases are clogging the wheels of justice which have already been slowed down by the weight of 2.7 crore cases pending in the trial courts, the Supreme Court said on Thursday.

A solution is difficult to find, said a Bench comprising Justices B N Agrawal and G S Singhvi. “It is easy to point fingers at the apparent slow pace of justice, but are there enough judges? It’s difficult to select even 20 good judges from a total of 3,000 applicants,” said Justice Singhvi citing his experience as a member of the selection panel.

“Will those who point fingers at judiciary care to find out the financial implications of recruiting more number of judges and the willingness of the states to invest more in judiciary,” the Bench asked. It said the competent among the lawyers were refusing to become judges.

The recruitment of judges may depend on the willingness of the state governments to create more posts and invest handsomely in the judiciary, but law minister Veerappa Moily is of the view that the pendency of cheque bouncing cases needs to be tackled expeditiously.

“We have a proposal to extend the jurisdiction of the fast track courts, which at present decide only sessions cases, to cheque bouncing cases,” he told TOI recently.

SC to contest HC order on judges’ assets disclosure’-assets-disclosure.html

Abraham Thomas | New Delhi

In an unprecedented move, the Supreme Court has decided to challenge the Delhi High Court’s decision directing it to disclose information on judges’ assets under the Right to Information Act.

The apex court judges had already unanimously resolved to make public their assets and the SC’s move to challenge the High Court order is primarily to settle constitutional questions relating to “institutional integrity of the court”, “independence of judiciary” and “office of the Chief Justice of India”.

The Central Public Information Officer (CPIO) of the Supreme Court would file an appeal by Monday in the Delhi High Court, which would be heard by a Division Bench comprising a minimum of two judges.

Justice S Ravindra Bhatt, in his decision of September 2, had directed the Supreme Court to provide information about judges’ assets available with the Chief Justice of India to an RTI applicant, Subhash Chand Agarwal, “within one month”. With the period having expired on Wednesday, Agarwal had written to the Supreme Court seeking compliance of the HC order. In response, Agarwal was informed that the appeal against the said order was in the course of being filed in the Delhi HC.

According to sources in the Supreme Court, the appeal has taken strong objection to the manner in which the single judge examined aspects of “essential ethical behaviour of judges” and the binding nature of the May 7, 1997, full court resolution (under which judges decided to declare their assets to the Chief Justice of India), stating that it was never an issue to be decided before the court.

The High Court had held, “The assumption was, and continues to be, that holders of these offices are women and men of impeccable credentials and maintain the highest standards of probity in their professional and personal lives…. Therefore, if they consciously decide to create self-regulatory norms, their adherence is guaranteed.” Under this assumption, the High Court judge considered the assets’ information held by the Chief Justice of India in public capacity and not in fiduciary capacity, directing him to disclose the same.

The appeal has further maintained that the judge committed an error in ruling that the information on assets was “held” and “under the control of” the Chief Justice of India. Stating that for information to be held or to be under the control of an authority it required an element of “sanction”, the CPIO sought to argue that the information being disclosed to the CJI as a result of a voluntary disclosure by judges, he held no authority over it and hence no right was created over such information, sources said.

The court reiterated its argument that information on assets is not held in public domain, for there is a danger in holding it as “information” under Section 2(f) of the RTI Act. This danger was presented by suggesting that several informations were available with the judges of the Supreme Court, for instance draft judgments, notes, collegium decisions etc, which could not be placed in public domain. It further indicated that till there was no law permitting them, there would be no right available with any RTI applicant to seek information privy only to the judges.

Keeping with the only leeway given by the High Court – that the RTI applicant must demonstrate a right to any information being sought, sources added that the Supreme Court CPIO was open to make available the information sought by Agarwal, subject to the above condition.

Judicial officers back CJ Dinakaran

TNN 2 October 2009, 01:43am IST

BANGALORE: Expressing solidarity with Chief Justice P D Dinakaran, the Karnataka State Judicial Officers Association has termed the recent reports against him an onslaught on the independence of judiciary.

At a special general body meeting on Wednesday, the judicial officers decided to appeal to the Supreme Court to deal with matters of this kind and prevent recurrence of such incidents. Only then can people’s confidence in the judiciary be maintained, they said.

Stating that Justice Dinakaran had an unblemished 13-year service to his credit, the association felt the onslaught was taking place because he is due to be elevated to the apex court.

“The resolution passed by Advocates Association on September 17 that the chief justice should refrain from presiding over the court, is uncalled for and unconstitutional… It is an interference of the greatest magnitude in the independent judiciary,” the judicial officers’ association stated, urging advocates to withdraw the resolution.


They said media reports on 50 to 60 per cent of judges being corrupt are baseless. “The reports also claimed that delay in disposal of cases is only on account of laxity of the judiciary. Such statements are highly derogatory and members of the association deprecate the same. The judiciary’s image is tarnished on account of this,” they noted.

“False allegations are being made against judges at all levels without any basis and the courts are often boycotted. The functioning of the judiciary was interfered with only on the basis of reports appearing in the press without verifying the truth…”

Association president Veeranna G Tiagdi has been authorized to submit the resolution to the Supreme Court secretary general, with a request to place it before the Chief Justice of India.

The Bar Council is meeting on Friday to discuss the issue.

A year on, smoking ban appears ineffective

TNN 2 October 2009, 02:37am IST

CHENNAI: The much-hyped ban on smoking in public places was introduced exactly a year ago but the butt is yet to be stubbed. Many continue to puff away in offices, cinemas, railway stations and, in Tamil Nadu, even on the campus of the state secretariat. And the fines collected reflect the lackadaisical attitude of the governments, say healthcare experts.

Tamil Nadu remains on top, having fined 10,979 people and collected Rs 12.6 lakh in fines, but health authorities admit that smoking in public places is still rampant. While Rs 1 lakh was collected in Delhi, it was Rs 3 lakh in Chandigarh, Rs 1.1 lakh in Karnataka and Rs 1.4 lakh in Andhra Pradesh.

“We are only in the initial stages. We only wanted to create awareness. The rule is not meant to just fine people but to make them understand that smoking is harmful. With assistance from pictorial warnings we hope to see a difference,” said a senior health ministry official from New Delhi.

Many doctors aren’t willing to agree particularly after the Tobacco Atlas Catalogue, released by the American Cancer Society and World Lung Foundation last year, rang more than one alarm bell. The study showed that women who smoke have their lifespan shortened by eight years, at least six million children aged between four and 14 work in the beedi industry. The report says India is the second highest consumer of tobacco with the highest number of young smokers.

Tamil Nadu Director for Public Health Dr S Elango said a squad whose members would inspect public places had been set up. “We still have a long way to go. But we have made a good beginning. The state believes that when smoking is curbed it not only discourages people from smoking, it also preserves the right of a non-smoker. More than anything else, we encourage the rights of a non-smoker. It’s important considering that we have huge problem of non-communicable diseases,” he said.

People like Adyar Cancer Institute chairman Dr V Shantha have been urging steps to break the marketing network of tobacco giants. “Curbing people from smoking can prevent several diseases, including cancer.”

Data from the Centre for Monitoring Indian Economy show a 75% increase in the production of cigarettes in India since 2004.

The direct and indirect cost of tobacco use in India is estimated to be at least Rs 350 billion. At least 83% of the deaths in the world due to tobacco are in low and middle income countries. Four countries China, Brazil, India and the US produce at least two-thirds of the cigarettes sold across the world. While global tobacco production has doubled since the 1960s, low and middle resource countries show a 300% increase in tobacco consumption. Meanwhile, tobacco consumption dropped by more than 50% in high-income countries. In 2006, world tobacco production totalled nearly 7 million metric tonnes with 85% of the toxic leaf grown in middle income resource countries.

2002 riots case: Ode killings may see 2 trials

TNN 2 October 2009, 01:12am IST

AHMEDABAD: More than seven years later, the 2002 massacre at Ode village in Anand district in which 24 persons were killed, may now have two separate trials. This might add one more trial to the current nine on-going cases of Special Investigation Team (SIT).

The Gujarat High Court has cleared way for separate prosecution of witnesses by rejecting a petition by the accused who opposed the non-bailable warrants issued against them.

The police apparently made a mistake in this post-Godhra case by filing one FIR for two incidents one of Jampliwala building in Ode where 23 persons were burnt alive on March 1, and the other where an elderly man was killed in his vehicle on the outskirts of the village on March 2.

The investigating officer (IO) lodged an FIR for 23 killings the next day itself but learnt about the murder of the elderly man on March 5. The IO filed two chargesheets one against 51 persons for March 1 offence and the other against 33 for killing the man, which was technically wrong.

But, this was pointed by the Supreme Court-appointed SIT when it began investigation in 2008. After further probe, SIT amended the chargesheets and dropped 17 out of 33 accused persons from chargesheet filed for the killing of the man. The chief judicial magistrate, Umreth issued non-bailable warrant against 16 accused persons.

The accused opposed the warrant on grounds that SIT could not arrest them twice in a single offence. They claimed that both the chargesheets were submitted to sessions court, Nadiad as one case, and they were released on bail by the court in 2002.

The lower courts’ decision that 16 accused should surrender to court for the committal process of charge sheet B has been upheld by Justice HN Devani. The high court judge refused the accused’s request to stay SIT and lower courts from initiating procedure against them to move the apex court.

Mobile court launched in Hazaribag

TNN 1 October 2009, 11:30pm IST

HAZARIBAG: On the directive of the Jharkhand State Legal Services Authority, the district unit legal services authority on Thursday launched a month-long campaign Nyay Aapke Dwar Par (Justice at your doorstep) to provide quick justice to people, especially those living in rural areas.

Earlier in the day, district and sessions judge Sheo Narayan Singh flagged off a van which would hold “lok adalat-cum-legal awareness camps” in the rural areas of the district.

The first mobile court was held at Barhi. A large number of villagers attended the camp. Barhi subdivisional judicial magistrate Vijay Kumar apprised the villagers of the benefits of the mobile courts. He said that the mobile adalats would provide justice to people free of cost.

Chief judicial magistrate-cum-secretary of the district legal services authority, Hazaribag, informed people that the mobile lok adalats would take up cases relating to payments under NREGA programmes, minimum wages Act, revenue, forest and excise. He said that the mobile lok adalats would also settle petty criminal cases.

On the very first day, the mobile court settled as many as 31 cases, including both civil and criminal offences, Pandey said.

LEGAL NEWS 01.10.2009

Apex court halts order on Uttar Pradesh civil service exams

October 1st, 2009 SindhToday

New Delhi, Oct 1 (IANS) The Supreme Court Thursday suspended an Allahabad High Court order which had scrapped the results of the Uttar Pradesh civil services preliminary examination for 2007 that had introduced quota for Dalit and backward category candidates.

A bench of Chief Justice K.G. Balakrishnan temporarily halted the high court’s Aug 30 order on a lawsuit by the Uttar Pradesh government challenging it.

The lawsuit had contended that the high court order has not merely brought the entire three-stage selection process of the state’s civil services for the year to naught but also cast doubts over the legality of the results of various other examinations for state jobs.

The high court had scrapped the preliminary examination result Aug 30 on a lawsuit by candidate Dhananjay Singh and others, challenging the state government’s decision to reserve seats for Dalit and backward category candidates during the preliminary examinations.

The high court stayed the preliminary examination, ruling that the introduction of quota for Dalit and backward category candidates at this stage was not legally justified.

The high court division bench of Justice Amitav Lala and Justice Umanath Singh had also asked the state government to conduct the examination afresh within a month.

While staying the Allahabad High court order, the apex court bench, which included Justice P. Sathasivam and Justice B.S. Chauhan, issued notices to petitioner Dhananjay Singh and others, seeking their replies to the state government’s lawsuit within four weeks.

In his lawsuit, Dhananjay Singh had pointed out that to provide reservation to Dalit and backward category students, the Uttar Pradesh Public Service Commission had changed its rule for holding preliminary examinations for 2007.

He said to provide the quota, the Commission had fixed different cut off marks for different categories of candidates.

The cut off marks for general category candidates was fixed at 347.25, while for the backward, Scheduled Caste and Scheduled Tribe candidates it was fixed respectively at 345, 308.75 and 242.19.

Citing an apex court ruling in the case of Andhra Pradesh Public Service Commission versus Balaji, the high court had ruled that as per the Uttar Pradesh Public Service Commission’s rules and regulations, the preliminary test is not meant to select the candidate for the state job.

It is merely a process to screen the most eligible candidates who appear for the civil service examination in huge numbers, the high court had ruled.

The candidates are eventually selected for the state job on the basis of the main examination and the interview, the high court had reasoned.

It had also directed that if the requisite number of backward and Dalit category candidates fail to clear the preliminary tests, the joint and common cut-off for all candidates should be lowered rather than having different cut-offs for different categories.

The UPPSC had issued the advertisement for the 2007 State Civil Services Examination in March 2007 and held the preliminary examination in September that year. The results were declared in February 2009 and the main examination for 2007 were held in July-August 2009.

But the high court’s Aug 30 order had rendered the main examination meaningless.








SC not to interfere with HC move to allow RIL plea

PTI 1 October 2009, 12:14pm IST

NEW DELHI: The Supreme Court on Thursday refused to interfere with the Bombay High Court decision to allow RIL to amend its petition related to the gas dispute with state-run NTPC.

However, the apex court allowed NTPC to file a reply to deny the allegations, if any, levelled by RIL in its amended written statement.

The bench headed by Chief Justice K G Balakrishnan also directed the high court to dispose of the matter expeditiously.

NTPC had moved the Supreme Court challenging the Bombay High Court’s decision that allowed Reliance Industries to amend its petition on the gas dispute saying the government’s policy would render the deal with power PSU infructuous.

The power PSU had sought 12 mmscmd gas from RIL, which had emerged winner in an international competitive bid quoting a price of USD 2.34 per mmBtu. But RIL now says the government’s policy on gas utilisation could frustrate the deal.







Kerala HC wants probe into ‘love jihad’

Shaju Philip

 Posted: Thursday , Oct 01, 2009 at 1012 hrs Thiruvananthapuram:

Kerala has a new concern: “love jihad”. The state High Court on Wednesday directed the Kerala Police and Union Home Ministry to probe the alleged movement, under which young Muslim boys reportedly target college girls for conversion by feigning love.

The court also asked the state and Centre to look into the sources that “fund” the love jihad, the number of girls who have got “trapped in the racket” in the past three years and its extremist links, if any.

Justice K T Sankaran was hearing anticipatory bail applications of two Muslim youths, accused of “luring” two MBA students into marriage for reportedly the purpose of religious conversion. The court rejected their bail pleas.

The two youths were allegedly associated with Campus Front, a student outfit of the right-wing Muslim organisation Popular Front of India (PFI).

Earlier this month, the parents of the two girls had filed a habeus corpus in the high court after their daughters were found missing. On being produced in court, the girls deposed that they were “trapped” by the youths and forced to convet to Islam. Allowing them to go with their parents, the court had asked the police to probe the charges of forced conversion after trapping girls in love affairs.

The students, originally residents of Kochi and Thiruvananthapuram, had been studying in a college in Pathanamthitta. According to them, one of them fell in love with a senior and eloped to marry him. This senior allegedly “handed over” the other girl to his friend. The girls told the court that they were taken to a centre in Malappuram where they were given literature and shown visuals promoting religious extremism.

Police officials admit that there are cases of girls having been converted forcibly or “trapped” into adopting Islam. “The groups focused on girls from well-settled families, a majority of them Hindus,” sources said.

Senior PFI leader Naseerudheen Elamaram refuting charges against his organisation said, “Religious conversion is not a crime; conversion takes place to Hinduism and Christianity also… One cannot paint all love affairs as cases of forced conversions meant for extremist activity.”







Shiney Ahuja gets bail in rape case


Posted: Thursday , Oct 01, 2009 at 1641 hrs Mumbai:

The Bombay High Court granted bail to actor Shiney Ahuja in the case of alleged rape of his domestic help but ordered him to stay in Delhi till the trial begins.

Justice A P Deshpande enlarged the actor on payment of Rs 50,000 cash with a condition that he would stay in Delhi and report to the nearest police station regularly.

On a query by the Court, the actor’s lawyer said Shiney hails from Delhi and he may be allowed to stay there.

The court ruled that Shiney would be permitted to come to Mumbai only during the trial.

The actor was asked to surrender his passport and refrain from offering any inducement to witnesses, directly or indirectly and warned against tampering with evidence.

The actor was allowed to be released on cash bail of Rs 50,000 but he will have to provide one or two sureties of like amount within a period of three weeks.

Shiney was arrested on June 15 after his maid lodged a complaint with Oshivara police station that the actor had raped her at his residence. The wife and child of the actor were not at home when the alleged incident occurred.

Earlier, the actor’s bail plea had been rejected twice by the lower court. Being aggrieved, he moved the High Court.

The actor may be released from Arthur Road jail this evening after he pays the surety, his lawyer said. Shiney has five films in hand, namely, ‘Migration’, ‘Har Pal’, ‘Chalo Movie’, ‘Accident’ and ‘Take two’, Bollywood sources said.

Police has filed a 109-page chargesheet against Shiney accusing him of raping his domestic help at his residence.

Shiney’s lawyer Shirish Gupte and Srikant Shivade argued that evidence indicated a consensual sexual intercourse between the actor and the complainant girl.

“I (Shiney) am not a saint in a sense, but not a rapist,” said advocate Gupte, representing Shiney.

Gupte argued that medical and other evidence suggested that intercourse was entirely with the girl’s consent. “She was habituated to this (intercourse)”, he contended, saying that “she had history of closeness to men”.

Gupte said that as per medical reports, there were no injuries on Shiney’s body, barring one between two fingers of hand. “It could be love-bites… or she clutched his hand very hard,” he said, adding that had the girl resisted, she could have scratched Shiney’s face, or upper body, and face.

Gupte also alleged that on the night before the incident, the girl had called on Shiney’s landline number 10 times from her cellphone.

Gupte said that there were no injuries on the girl’s body, nor were there any signs of damage to her clothes, to suggest use of force.

Also, no body fluids were found on her clothes, he pointed out. The girl’s “pattern of behaviour” shows that she was a consenting party”, Shiney’s lawyer argued.

The girl had told the police that on June 13, a day before the incident, Shiney had touched her in a wrong way when she had clambered on basin to turn on overhead water tank.

She did not tell this to other maid servants, or to anybody else, Gupte pointed out.

Even in the statement recorded before magistrate, the girl used the word ‘atyachar’ (atrocity) and did not mention rape,” he argued.

Gupte also mentioned that though the victim’s vaginal swab was taken for examination, medical report talks about ‘slide’, and not a swab. “What happened to swab?” he asked.

Refuting the lower court’s observation that Shiney was “influential person”, and he may pressurise victim if released on bail, Gupte said, “he is not on high pedestal of acting… he is a small-time actor.

Shiney’s wife Anupam, reacting to High Court order, said “I’m overwhelmed to hear that Shiney has been granted bail. We’ve full faith in judicial system.”







Plea to oppose move to close case against Quattrocchi


Posted: Thursday , Oct 01, 2009 at 1834 hrs New Delhi:

Ahead of the crucial hearing in a Delhi court against Italian businessman Ottavio Quattrocchi in Bofors gun deal payoff case, an application was on Thursday filed opposing any possible move by CBI to close the case against him.

The hearing before the Chief Metropolitan Magistrate on October 3 assumes significance as the government had on Tuesday told the Supreme Court that it has decided to withdraw the case against Quattrocchi and CBI is likely to move an application in this regard.

Advocate Ajay Agrawal, who has been pursuing the Bofors case in the Supreme Court, filed the application seeking rejection of any such move by the investigating agency alleging that the Centre has been trying to bail out the 69-year-old Italian businessman against whom “there is ample evidence for his prosecution”.

The advocate referred to a case of 1984 anti-Sikh riots in which a trial court had in 2007 rejected a closure report against former union minister Jagdish Tytler and directed CBI to re-investigate his alleged role. Agrawal had filed an appeal in the apex court against the Delhi High Court’s May 31, 2005, decision to quash charges against all other accused in the case after CBI failed to challenge it within the mandatory 90-day period.

In his 27-page application, the advocate pleaded that he should be allowed to participate in the proceedings in the court and be treated as a complainant in the case.

“I should be treated as complainant in the matter and may be allowed to participate in the proceedings of the case and the court may consider all the aspects and rejects such closure report that may be filed by CBI before it,” Agrawal said.

Solicitor General Gopal Subramanium had on Tuesday told the apex court that the government has decided to drop the case against Quattrocchi, the sole accused left in the case as the Delhi High Court on May 31, 2005 quashed charges against all other accused.

He had said that the case against the Italian businessman could not be kept pending forever as two attempts by the government to extradite him have failed.

The case against Quattrocchi is scheduled for hearing before the Chief Metropolitan Magistrate here on October 3.








How Quattrocchi walked free

Coomi Kapoor

Posted: Thursday , Oct 01, 2009 at 1338 hrs

The manner in which investigations and prosecutions in the Bofors case were consistently and spectacularly bungled is proof enough that whoever took the Bofors money is supremely powerful.

Over the last two decades, there was always someone in the CBI, the courts, the law ministry who was batting for the accused rather than the government. Somehow, Ottavio Quattrocchi always managed to be a step ahead of our law enforcement agencies. And despite the sound and fury in the media and in the Parliament, the suave Italian businessman has ended up laughing all the way to the bank.

Quattrocchi’s final triumph came on Tuesday when the Solicitor General announced that the Indian government planned to withdraw all cases against him. Quattrocchi has been let off even though many legal experts considered his involvement in the Bofors scam to be an open and shut case. Not because of the investigative skills of our CBI but because the Swedish government, the Swiss courts and investigative journalist Chitra Subramaniam had provided a wealth of documentary evidence against him. In how many corruption cases can you actually succeed in finding out the number and name of the owner of the bank account into which the money was paid? All this evidence was sufficient for Interpol and the Swiss and British courts, but not the Indian authorities.

Here is a brief run-down of the cover-up:

Though the scam came to light in 1987, no FIR was registered as long as Rajiv Gandhi’s government was in power. The FIR was registered only in 1990 during the Janata Dal regime and a letter rogatory sent to Swiss and Swedish authorities.

In November 1990 during the Congress-supported Chandrashekhar government, the CBI moved court to quash the FIR on the ground that it did not disclose any offence.

In 1993, then foreign minister Madhav Sinh Solanki wrote an aide memoir to the Swiss authorities urging that the case be closed and no documents sent to India. Solanki had to resign following the leak of the memoir.

In 1993, the Swiss authorities confirmed Quattrocchi’s name as the beneficiary of the kickbacks from Bofors, but the CBI did not seize his passport immediately. Instead it waited 72 hours by which time Quattrocchi had fled India.

The Delhi High Court held that the Swiss documents were not properly authenticated, on the ground that they were not original documents but photocopies. The court took the curious position that because of this no offence against the accused could not be made out. During Manmohan Singh’s first tenure, the law ministry advised the CBI not to appeal against the court’s erroneous order.

In 2004, the Delhi High Court held in another judgment that no allegations could be proved against public servants accused in the case. The High Court came to this conclusion without a trial. The law ministry once again advised the CBI not to appeal in the Supreme Court.

In 2006, the law ministry secretly dispatched an officer to UK to inform the Crown Prosecution that no case was made out against Quattrocchi and the two erroneous High Court orders were cited to establish this. The law ministry’s move was to facilitate Quattrocchi to defreeze his bank accounts and withdraw the alleged Bofors bribe money. By the time the news leaked and the Supreme Court ordered that efforts be made to re-freeze Quattrocchi’s bank accounts, the Rs 23 crore in bank account had been spirited away.

In 2007, Quattrocchi was detained in Argentina because of an Interpol Red Corner Notice pending against him. The CBI flew to Argentina, brandishing the judgments of the High Court, which the government had declined to appeal against, to facilitate his release from prison. Incidentally, the automatic appeal was also withdrawn by the law ministry, without even the token formality of consulting the CBI.

The Bofors story has been popping up in the media at regular intervals for over 20 years. The rights and wrongs of the case are lost on the new generation, some of whom were born after the Swedish Radio first broke the story back in April 1987. With the matter dragging on endlessly, indignation over bribery in the Bofors purchase has somewhat eroded. One defence put forward is that during Kargil conflict it was established that the Bofors gun at any rate was first class. Others try to deflect the issue by pointing out that the total amount of the bribes, Rs 64 crore, was chicken feed by today’s standards of corruption. Some even argue, falsely, that more money was in fact probably spent on investigations in the case. A few of those who have been at the forefront in pressing the Bofors corruption charges, such as V P Singh and Ram Jethmalani, did a volte face when it suited their political interests.

The Bofors case illustrates that Indian democracy has yet to mature to the level where the law is blind and applies in the same manner to one and all. In India those in high places know how to work the system to their advantage, even if it takes more than two decades to complete the process.








-K court awards death penalty to militant for killing 5 Hindus in 2005

Express news service

Posted: Thursday , Oct 01, 2009 at 1746 hrs Jammu:

Within less than a month, a court in Jammu Kashmir awarded death penalty to another militant for killing five Hindus in border Rajouri district four years ago.

Announcing the sentence to the convict Taj Mohammad of Raj Nagar in Budhal, Principal Sessions Judge at Rajouri, Subash Chander Gupta held that the accused deserved no leniency as he is considered not only a menace to the family of deceased persons, but also to the society at large. He along with three unidentified militants committed the murder not out of any earlier animosity, but with a motive to demoralize the suspected informers of the police/security forces, to terrorize innocent people and to disturb public peace and tranquillity in the area.

Taj Mohammad along with three unidentified militants had on the intervening night of October 9 and 10, 2005, slit the throat of nine Hindus at two different places at Raj Nagar in Budhal. While he had been awarded death sentence for the murder of five people, he was still facing trial in respect to the killing of four other Hindus.

Rejecting the defence plea to have a lenient view in view of accused not having any past criminal record and his young age, the judge observed that in the instant case, “it can be held unmistakably that the role of Taj Mohammad is not less than of a dreaded/hardened criminal who adopted the path of the crime and decided to live upon it’’.

Earlier on September 4, Principal Sessions Judge, Reasi, A K Koul had awarded death penalty to a Hizbul militant Abdul Rashid for having killed a 70 year old man and two minor girls in Mahore last year.

“The accused deserved no leniency as the crime committed by him was rarest of the rare,” had observed the judge while announcing the sentence.








CBI case against hospital, promoter for bank fraud


Posted: Thursday , Oct 01, 2009 at 1739 hrs New Delhi:

CBI has registered a case of forgery and cheating against a leading hospital in NCR and its promoter for allegedly siphoning off over Rs six crore extended to it as loan by a bank for construction of a building and purchase of medical equipments.

Official sources said the case was registered against Raghuvir hospital and its promoter Dr Kewal Krishan Sood.

The case has been registered on the allegation that “The hospital was sanctioned a term loan of Rs 6.5 crore by State Bank of India, Commercial Branch, Nehru Place, New Delhi in 2006 for setting up a 150 bed hospital at Delhi Hapur bypass, Ghaziabad,” the source said.

“The loan which was to be used for construction of a hospital building and purchase of medical equipments was not utilised for the intended purpose and instead the promoter of the hospital diverted or siphoned off the loan amount through the accounts of two of his companies,” a CBI spokesperson said.

He said false invoices of both these companies were submitted to the bank to show purchase of medical equipments by the accused promoter. On default in repayment, the loan amount of the hospital turned into Non-Performing Assets (NPA) in 2008 with total outstanding of Rs 6.44 crore.

“Search was conducted at the residence of the hospital promoter in which several incriminating documents were seized,” he said.








Delhi HC bars resort from playing music

1 October 2009, 05:50am IST

PANAJI: The Delhi high court on Monday temporarily stopped Goa Marriott Resort from playing music, live or recorded, until it renews its licence with the Indian Performing Right Society Limited (IPRSL), which is the copyright society for musical works registered with the government of India.

“We have an injunction from the Delhi high court against Marriott Resort, Goa, stating that they can’t play music in the hotel, whether live or recorded, till they renew their license. They had a license till December 2005, but the hotel made regular payments only till December 30, 2003,” said chief licencing manager of IPRSL G G Prasad.

When contacted, a spokesperson for Goa Marriott said, “We have contested the same in the court and therefore we can’t comment.”

IPRSL in its petition had alleged that the hotel was playing music without permission and without paying royalties, which amounts to infringement of the society’s public performing rights. “Though we produced an invoice dated December 17, 2003 towards license fee for the year 2004 and an invoice dated December 17, 2004 towards the license fee for the year 2005, both remain unpaid,” said Prasad.

The hotel in its reply to the Delhi HC to the petition filed by the IPRSL admitted payment of license fees to IPRSL till December 31, 2003, but said it was done under protest. They also stated having entered into separate agreements with various broadcasters to play their music.

The hotel also made reference to two writ petitions filed in the Delhi HC and the high court of Bombay at Goa by the Federation of Hotels and Restaurants Association of India (FHRAI) and the Travel and Tourism Association of Goa (TTAG), questioning the right of the society to collect license fees for the performance and communication of musical works. Marriott said it is a member of both associations.

The Delhi HC observed that there is no mention of any order being passed by either court, restraining the society from collecting fees under the license agreement.

Marriott, however, is not the only hotel that provides multi-channel music, interactive television and live music to its guests without permission from the society, disclosed Prasad.

“In Goa, there are about 5,000 premises which play music, but only 500 have licenses from us for the year 2009. We have approached another 1,500 and asked them to obtain the license before playing music in their premises. Some of them are famous nightclubs in North Goa and we intend to initiate action against them,” added Prasad.

IPRSL, is a society that has been assigned “performing rights”, which includes the right of performing in public and the right to communicate the work directly to the public or by means of display or diffusion, regardless of whether anyone actually sees, hears or otherwise enjoys the work so made available, said Prasad.

Communication to public includes communication through satellite or cable or any means of simultaneous communication to more than one household or place of residence, including hotel and hostel rooms.






Doctors in service to get additional marks: HC

TNN 1 October 2009, 06:17am IST

CHENNAI: In a significant ruling, the Madras High Court has upheld the legal validity of Tamil Nadu government’s policy decision to give additional marks to service candidates seeking admissions in super-speciality medicine courses.

The state government, as policy, awards additional marks at the rate of one mark for every year in service. A doctor-candidate in service is eligible to be given a maximum of 10 marks.

Assailing the clause, the petitioners said it would dilute the quality of super-speciality courses where merit alone should count. When service candidates are already given 50 per cent of total seats, the additional marks based on their experience would amount to further leniency to them, they argued.

Additional advocate-general P Wilson, however, submitted that it was a policy decision and that it had been cleared stated in the prospectus. Having known about the contents of the prospectus fully, it is not open to the petitioners now to raise the doctrine of legitimate expectation at this stage, he said.

R Sureshkumar, counsel for some of the selected candidates, said awarding marks for experience would in no way be detrimental to the interests of anyone as it was a recognition for the candidate’s long and useful experience while in service

Concurring with the submissions, justice P Jyothimani said the petitions were misconceived and the petitioner-doctors had not put forth any acceptable grievance for redressal. While dismissing the writ petitions, the judge also vacated an earlier interim order of the court directing the authorities to keep three super-speciality seats vacant for the petitioners.








HC issues notice to Chidambaram challenging his election from Sivaganga

TNN 1 October 2009, 06:33am IST

CHENNAI: The Madras High Court on Wednesday issued notice to the union home minister P Chidambaram and others, on a petition challenging his election from the Sivaganga constituency in Tamil Nadu.

Justice K Venkataraman, before whom the former AIADMK minister RS Raja Kannappan’s election petition came up for admission, issued notice to the home minister returnable in four weeks.

Alleging commission of corrupt poll practices such as bribing the voters, Kannappan had said that government officials on election duty too unfairly credited the votes obtained by Kannappan to the tally of Chidambaram. According to the AIADMK leader, most of the irregularities took place during the counting of votes polled in the Alangudi assembly segment.

Kannappan wanted the court to declare the election of Chidambaram from Sivaganga as null and void, and instead declare him (Kannappan) as winner from the parliamentary segment.









Send DMC back to state: HC to Phatak

Clara Lewis & Swati Deshpande, TNN 1 October 2009, 04:22am IST

MUMBAI: In an embarrassment for the state government, the Bombay high court on Wednesday observed that an officer being foisted on the BMC appeared to be either a man of “high political influence” or one who had bought his post.

The court was referring to R D Shinde, who had been appointed as a deputy municipal commissioner (DMC) despite the HC’s orders. The HC on Friday slammed civic chief Jairaj Phatak for trying to overreach the court’s orders by appointing Shinde as DMC. Shinde was sent by the state government to the BMC on deputation in July.

The court gave Phatak a last opportunity to immediately vacate the post and send Shinde back.

A bench of Justices D K Deshmukh and R G Ketkar said they were “shocked” that despite an order restraining the BMC from appointing anyone to the post of the DMC without its sanction, Phatak went ahead and appointed Shinde.

“Why is the state compelling the BMC to appoint a specific person when the civic administration had not requisitioned one?,” the judges wondered.

The case at hand was a petition filed by assistant municipal commissioner (AMC) Anil Khoje in 2007 seeking directions to the BMC to appoint DMCs according to the recruitment rules. Khoje claimed that as the seniormost AMC, he was the most eligible candidate.

DMCs come from two pools: 75% from AMCs and 25% from feeder cadres of heads of department, direct recruits from MPSC or on deputation from state.

On April 16 this year, the HC allowed the BMC to go ahead with the selection process but restrained it from appointing anybody. However, on July 10, the state unilaterally issued an order posting R D Shinde as Joint Municipal Commissioner. Senior counsel K K Singhvi representing the association of AMCs as well as Khoje’s counsel R R Shetty, argued that no such post as a Joint Municipal Commissioner.

On July 16, Phatak had moved court seeking its approval to appoint Shinde as DMC but two days later without waiting for a judicial nod, he went ahead and appointed him DMC (Improvement), popularly known as Joint municipal commissioner.

It turned out that Phatak had, before moving court, written to the state stating that were he to appoint Shinde he could be in contempt of court for flouting court’s order. The letter shown to court by BMC counsel Ram Apte caused Justice Deshmukh to say in deep anguish, “You are trying to overreach the court and this is nothing but contempt.” The matter will come up for hearing on Thursday.







SC refuses to tinker with HC order

TNN 1 October 2009, 04:05am IST

BANGALORE: The ordeal which students went through for months over their admission to medical colleges ended on Wednesday with the Supreme Court refusing to tinker with the seat-distribution order passed by the high court on September 29 with respect to Nitte and Yenepoya universities.

Karnataka high court on Tuesday held that deemed universities are bound by the UGC’s guidelines on admissions, as they have statutory force.

The three-judge Bench of the apex court headed by Justice B N Agarwal refused to interfere with the high court division Bench order of Tuesday as far as the accommodation of the students are concerned.

N Khetty counsel for Medical Council of India (MCI) told TOI that the MCI contention is vindicated with the apex court order. The MCI, in its special leave petition, contended that the interim order of the Karnataka high court on August 19, directing KEA to accommodate all the students including the 47 allottees, who were turned away by these two universities, was nothing but allowing excess admission, which is not permissible as per various orders passed by the apex court.






Doctors issue: HC asks for suitable plea

1 October 2009, 04:06am IST

The high court did not pass any restraint order against government doctors for resigning en masse.
However, it has given liberty to city advocate S Vasudeva to file a plea with an enabling prayer, which will help the court to act.

“We appreciate the cause and concern shown by you. But no material is shown indicting that they (doctors) are not working. According to reports, they have given their resignation papers, indicating they will serve till October 14,” observed the vacation division Bench headed by Justice Jawad Rahim.

“There are also reports about a meeting on October 4. Can we say that you (doctors) should not resign? This application (for action) won’t help and it can’t be acted upon. We can act only within the limits of an appropriate application,” the Bench observed.







SC leaves it to CBI to act against Subba

1 Oct 2009, 0604 hrs IST, ET Bureau

NEW DELHI: The Supreme Court on Wednesday refused to direct CBI to register cases against former Congress MP M K Subba, though the investigating agency made a series of charges against him. A bench comprising Chief Justice K G Balakrishnan, Justice P Sathasivam and Justice B S Chauhan left the matter to CBI to lodge appropriate cases against the three-time MP. CBI in its reports submitted to the apex court had indicted Mr Subba for obtaining his birth certificate in a fraudulent manner.

“The verification undertaken has revealed a prima-facie commission of cognisable offences punishable under Section 420 (cheating), 468 (forgery), 471 (using forged document as genuine) and 193 (giving false evidence in judicial proceedings) of IPC and Section 12 of the Passports Act, on the part of Subba and others,” CBI said in one of its report.

It had submitted three reports in response to the court order which came on a PIL alleging that lottery baron Subba had come to India after a murder case was registered against him in Nepal in the early 1970s.

The petitioner’s counsel pointed to CBI’s reports on the nationality of Mr Subba to ask the apex court to direct it to lodge cases against him. Advocate A K Sinha, appearing for petitioner, a Noida resident, said, when the three reports of CBI clearly indicated that there was a clear case of forgery made out against the Congress leader, the apex court should not hesitate to order registration of a case against him by CBI. He said the case in hand was one of perjury as Mr Subba violated all democratic norms.

The bench said, “we are not going to give direction to CBI for lodging of FIR but you (petitioner) are at liberty to take initiative with CBI for taking action against him on the basis of reports. The reports are against him.”
The court, which wanted to close the matter, was, however, persuaded by advocate Sinha to keep the case pending as CBI had swung into action only on its order to verify the documents made available by Mr Subba to prove his Indian nationality. The former MP had claimed that he was born in Dadgram village in Darjeeling district of West Bengal and his parents had migrated from Singtam village in Sikkim.

The PIL had alleged that he changed his name from Mani Raj Limbo to Mani Kumar Subba after leaving Nepal.








Witness protection plan gets nod

TNN 1 October 2009, 03:00am IST

NEW DELHI: The Supreme Court on Wednesday okayed the witness protection scheme envisaged in a recent amendment to the Indian Penal Code that provides for a maximum punishment of seven years imprisonment for anyone trying to induce or influence a witness to give false evidence.

It disposed of a PIL filed by NGO `Country First’ which had in 2005 moved the apex court in the wake of a string of acquittals in high-profile cases as witnesses turned hostile in the face of influential and powerful accused persons.

A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan accepted the plea of additional solicitor general Mohan Parasaran that the amendment to IPC, introducing a new section 195A, was adequate to protect witnesses from being influenced by accused.

Though petitioner’s counsel Prashant Kumar argued that the new provision did not provide any protection to witnesses, the Bench found it adequate and said it was impossible to provide security to each and every witness in criminal cases.

“Nearly 70% of the 2.7 crore cases pending in trial courts are criminal cases and it would not be possible for state governments to give protection to all witnesses,” the Bench said while disposing of the PIL, which was filed after trial courts in Delhi had acquitted the accused in cases pertaining to murders of Priyadarshini Mattoo and Jessica Lal.

The new section 195A IPC provides, “Threatening or inducing any person to give false evidence: Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to 7 years, or with fine or both.”









Is Namma Metro on a safe track?

Experts and officials respond to questions and concerns around the safety and design controversy surrounding the Bengaluru Metro’s construction.

By Supriya Khandekar

30 Sep 2009, Citizen Matters

bookmark email print

Recently, an incident of pillar-bending at a Bengaluru Metro construction site and its consequential casualties shook everyone. The days following saw press conferences, public meetings, officials giving clarifications and a number of people looking at Metro construction with scepticism.

In August 2009, an over-six-metres-tall pillar stooped and caused two causalities and four people were injured. It happened on CMH road, Indiranagar, where  ‘Reach 1’ of the Metro is being constructed by Bangalore Metro Rail Corporation Ltd (BMRCL). There were immediate allegations of unsafe working conditions for the workers and faulty design being followed. But the question about who should be held accountable for checking the construction work was not settled clearly.

At a press conference, Leo Saldanha, coordinator of the city-based NGO Environment Support Group (ESG) says, “The Metro authority is least bothered to pay attention and is calling all this mere accidents. How can so many incidents be called accidents? There has to be some fault, otherwise it wouldn’t happen so frequently.”

Earlier this year, coincidentally on the same metro site, the rubber gloves kept inside a pillar caught fire while welding, but no casualties were reported. “This is shocking, how can pillars catch fire?” Saldanha asks. Safety should ideally be the first concern while constructing Metro, Saldanha adds. He says that there have been several cases of deaths and injuries with people working on the site in the past couple of years.

In August 2009, an over-six-metres-tall pillar stooped and caused two causalities and four people were injured. Pic: Supriya Khandekar.


Responding to this, B L Y Chavan, BMRCL’s Chief Public Relations Officer says, “For quality check BMRCL has appointed a general consultant (GC) — a consortium of independent consultants.” This includes RITES – a government of India consultancy, Orient Consultants Ltd. (OCL), Japan, PB Group (USA) and SYSTRA, also a US based global rail and transit consultant. The GC consortium has posted a multi-tier organisation of engineers and inspectors on the construction sites.

The bent structure was being constructed for the upcoming station at CMH Road. The contractor for construction of CMH road and Byappanahalli stations is the Hyderabad-based IVRCL Infrastructure and Projects. R Dinesh, Senior Product Manager at IVRCL, the official incharge at the CMH Road site is open in talking to Citizen Matters about the soil testing but declines to comment on the pillar-bending incident. He further adds that around 15 to 18 section engineers are on site from IVRCL.

Chavan says that in the CMH road incident, the pillar bending happened because no scaffolding (a temporary frame used to support people and material in the construction of a building) was provided for the pillar structure. It was a fault on the contractor’s side, says Chavan, because he misjudged the height of the pillar and allowed the labourers to work beyond a certain height on the pillar without scaffolding. “BMRCL has slapped a notice and a fine on the contractor,” he adds, and declines to disclose how much the fine was.

In the same vein, a top ranked engineer at one of the major private-sector construction firms building the Metro, under condition of anonymity says, “The bent pillar incident does not look like a design failure. For pillars of that height pillar reinforcement rods and support mechanisms are necessary to support the structure. If there is no arrangement to crop it then events like bending of pillars are bound to happen. Storms and heavy rains can also make the pillars to bend.”

Furthermore, he says that the sequence of incidents that have happened so far in a way show the carelessness on part of the contractor. “Any huge structure when under construction needs to be temporarily made safe so as to avoid any accidents. Like we see barricades along the whole stretch of roads where metro construction is happening, similarly even inside the barricades proper safety measures need to be maintained,” he explains. For a project like this where construction work will be done in public areas and amidst heavy traffic, safety should be the prime necessity, he says.

Explaining further about the safety aspect this engineer opines that presently, for most infrastructural projects, there is a rush to finish things and in this rush the most neglected is the safety and quality aspect. Poor work conditions for the labourers can be seen on most construction sites.  Sometimes work conditions and the quality assurance also differs from one contractor firm to another.

Tussle between contractor and BMRCL on safety practices

Safety issues also came to head recently at a tussle between a Navayuga Engineering, another Metro contractor and BMRCL. Navayuga also one of the main contractors working on the ‘Reach 1’ of the Metro construction filed a PIL in the High Court of Karnataka earlier this year claiming that it was not possible to ensure safety of structures and there was inability of moving heavy equipment on CMH Road. Navayuga Contractors are constructing the viaduct for ‘Reach 1’.

“We had approached BMRCL/GC many times complaining about unsafe working conditions but our views and records were not appreciated by BMRCL for the reasons beyond our comprehension and against the contract provisions,” explains, A S R Murthy, GM, Navayuga Contractors.

In July, the Karnataka High Court had dismissed the PIL filed by Navayuga Engineering, with an observation to BMRCL and other authorities that they should take adequate safety measures during the construction of the railway. Pic: Supriya Khandekar.


In July, the Karnataka High Court had dismissed the PIL filed by Navayuga Engineering, with an observation to BMRCL and other authorities that they should take adequate safety measures during the construction of the railway.

BMRCL and Navayuga maintain different interpretations of the case and how the High Court handled it. N Sivasailam, MD, BMRCL said that the Navayuga PIL was ‘dismissed’ at the very first hearing, and that it was Navayuga’s responsibility to ensure safe construction. “Therefore he cannot file a PIL on a matter in which he is primarily responsible for execution of the contract. On his failure to submit a safe working plan for CMH road viaduct construction, the work has since been taken away from him for execution at his risk and cost. We are aware of the High court instructions in the matter and we are following it in letter and spirit,” says Sivasailam, in an emailed response to ESG, on the PIL issue.

On the contrary, Murthy of Navayuga does not agree that case was ‘dismissed’. “The court has not felt so. The honourable court has patiently heard our submissions and has directed BMRCL to take full responsibility for the safety measures in public interest. The petition has thus been ‘disposed off’ to its intended conclusion.”

Murthy says that the total contract value for Navayuga as of now is about Rs.105 crores and they have completed about Rs.70 crores of work and have received about Rs.65 crores till July. “Our claims to the tune of Rs.20 Crores are pending settlement from BMRCL.”

Quality assurance of construction

In his emailed communication, Sivasailam says that BMRCL will not shirk its responsibility and it will do whatever it can to ensure that Metro structures are designed well and constructed well. “We have in place a good system of quality assurance. There is a requirement to compile test reports for the commissioning of any line and BMRCL is compliant with the requirement,” he says.

BMRCL PRO Chavan adds that there is a quality check at each and every level. “Right from selecting the raw materials to the concrete mixture, everything is tested at each step and samples are sent to labs by the BMRCL.” A third party, i.e., an independent party does all the testing, says Chavan, and declined to disclose the name of the testing firm.

For Reach I there are four resident engineers, four to five executive engineers for the stations and one chief resident engineer to monitor the work, from the GC consortium. Apart from these there is one Chief Engineer from BMRCL to supervise, explains Chavan.

The Bengaluru Metro has a major linkage with the Delhi Metro. Pic : Supriya Khandekar.

Chavan says that the BMRCL Managing Director meets with the GC every week to get an update on quality checks. Chavan takes the line that no major complaints about the quality of work have been reported to BMRCL. “Complaints about inefficient or careless workers have come and we had to remove the labourers who were either not working or were not following the set safety guidelines for working,” says Chavan.

On this Leo Saldahna of ESG asks, “Safety should ideally be the first concern while constructing Metro and when the Comptroller and Auditor General of India (CAG) report has found flaws in the Delhi Metro design why should we go ahead and adopt the same design for our city?”

The CAG report mentions that there are serious design flaws in the Metro structures in New Delhi and that the rush to implement that project to meet unhealthy deadlines probably contributed to the recent disasters. The report was systematic and systemic failures in ensuring quality work in the Delhi Metro (particularly in Phase II).

Comparison of Bengaluru Metro’s design with Delhi Metro

ESG’s Saldanha claims that the Bangalore Metro is absolutely modelled on lines of the Delhi Metro. Consequent to the release of the recent CAG report, it was imperative for the Karnataka Government to immediately stop work and conduct a thorough review of the Bangalore Metro, he says.

The Bengaluru Metro does have a major linkage with the Delhi Metro. Delhi Metro Rail Corporation (DMRC) in partnership with RITES prepared the original Detailed Project Report (DPR) for the Bangalore Metro’s Phase I, back in 2003, at the instance of the state government.

BMRCL though, disagrees that Namma Metro’s design is a copy of Delhi’s. “Designs cannot be copied verbatim”, reacts Sivasailam, MD BMRCL. He explains that, “The design of structures in Namma Metro is based on the soil and strata of Bangalore. The design is to be done based on the operational loads and also the construction loads. These aspects have been taken into account in respect of every design of all structures.” He further adds that designs are independently done by experienced designers and further checked by international consultants who have substantial experience.

Some clarity amidst the confusion about whether Bengaluru’s design is copied from Delhi comes from a top ranked engineer who spoke to Citizen Matters under condition of anonymity, because his firm is one of the major construction firms building the Metro. He says that design for a project like the Metro has two major aspects. One is the Alignment: this involves work to design, measure and make a mechanism in which trains can move at a particular speed along a particular route. A train cannot take sharp turns like other vehicles on road, therefore a proper route and mechanism is built for that.

The second aspect is the structural design. This describes the way a metro will be constructed, whether it will be an elevated corridor or underground.  Designing of the deck, the corridors, the pillars and so on.

He explains that the Bangalore Metro has copied the deck and pillar design from Delhi. A pillar design deals with the shape of the concrete, where and how it will be put, the dimensions of the concrete, the dimension of the pillar (which in turn depends upon how much load it will be taking, on the height and on the location), spacing of the pillars and so on.

Creation of the pillars also depends on the place/location. It varies depending on a number of factors, one of which is the earthquake susceptibility of the place. “Delhi is more earthquake prone than Bangalore, so in a way if we are adopting that design for Bangalore we are making a safer decision,” this engineer adds.

With experts clearing the air around the design copy issue and the BMRCL officials claiming ‘foolproof’ quality monitoring and testing, NGOs and activists are still worried about how safe Namma Metro is? And they have a reason too. Accidents at Metro sites have also not stopped: the last one was as recent as less than a month back, when a hydraulic rig crashed at MG Road.

In the meantime, Chavan says Namma Metro is on schedule and the first train will roll along the tracks by December 2010.

Supriya Khandekar

30 Sep 2009

Supriya Khandekar is a staff journalist at Citizen Matters.









Law for Witness Protection in Place: Centre Tells SC


Government today told the Supreme Court that suitable amendments have been made by Parliament in laws to ensure protection of witnesses in the criminal cases to prevent them from turning hostile.

The Centre said amendments have been introduced in the Indian Penal Code and the Code of Criminal Procedure to empower witnesses against threat and inducement and to evolve a scheme for providing compensation and rehabilitation to the family members of victim of crime.

Additional Solicitor General Mohan Parasaran told a Bench headed by Chief Justice K G Balakrishnan that section 457A and 195A have been introduced in the CrPC by criminal amendment Act 2009.

He said section 195A will empower the witnesses or any other persons to file a complaint in response to the offence covered under IPC for threatening or inducing any person to give false evidence.

Further, section 195A has been inserted in IPC which provides for punishment upto seven years of imprisonment for threatening or inducing any one to give false evidence, he said.

The ASG said the introduction of section 457A seeks to empower framing of a scheme for compensation to victims under which the state government, in co-ordination with the Centre, would prepare the model for providing funds for compensation to the victims.

The scheme will also cover dependents of the victims who had suffered loss or injury as a result of the crime and require rehabilitation, he said, adding that during the course of trial courts can make representation to the District Legal Services Authority or the State Legal Services Authority for deciding the quantum of compensation.

Taking on record the affidavit of the Centre, the Bench, also comprising Justices P Sathasivam and B S Chauhan, said the grievances raised in the PIL for streamlining the criminal justice system have been taken care of.

The court was told that the amendments for protection of witnesses was considered after taking into account the reports of the Law Commission and Malimath Committee which had recommended measures in this regard.

Expressing satisfaction over the amendments in criminal laws on the issue, the court disposed of the PIL filed in 2005 by NGO Country First.

The NGO had sought a legislation on witness protection in view of the growing “menace” of witnesses turning hostile.

The debate for evolving the laws to protect witnesses have intensified as in many of the sensational and high profile cases, the witnesses had turned hostile leading to the acquittals.

Some of the cases which found reference during the pendency of the matter in the apex court were the cases relating to Gujarat riots, model Jessical Lal murder case, Nitish Katara murder case, Uphaar fire tragedy and others.






UP Govt Moves SC Challenging HC Order on Land Acquisition

The Supreme Court today sought response from the Centre on Uttar Pradesh government’s petition challenging a Delhi High Court order which had directed it to provide 21 acres of its land for widening the UP link road connecting Commonwealth Games village to Mayur Vihar and Noida.

A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan issued notice to the government and asked it to file its response by October 23 when the case will be further heard.

The Mayawati government pleaded that a state government cannot acquire land belonging to other state without its approval.

“How can one government acquire land belonging to another government without even giving an opportunity to the latter,” the state government contended while pleading to stay the High Court’s order.

“There could be a problem if such forced acquisition was allowed,” the state government pleaded in its petition.

The acquisition of the land would allow the Public Works Department (PWD) to widen the existing six-lane road to an eight-lane one and make it signal free by constructing two flyovers along the four-kilometre stretch.







Acid Attack: SC Rules Out Total Ban on Free Sale of Acid

Concerns over growing instances of acid-hurling on women notwithstanding, the Supreme Court today ruled out ordering a total ban on free sale of acid saying such an action is not possible as various state governments have expressed their reservations about it.

“The ban on free sale of acid is not possible. There can be restrictive and permissible sale as state governments have different view,” a Bench comprisng Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan said.

“The issue falls in the state subject. Unless state governments co-operate, little could be done,” the Bench said asking the petitioner’s counsel to implead state governments in the matter and posted the hearing after three weeks on October 30.

The remarks by the Bench on the issue came after Additional Solicitor General Mohan Prasaran said the idea of complete ban on free sale of acid has not found favour with state governments.

However, advocate Aparna Bhat, who is pressing for complete ban on free sale of acid since 2006, alleged the Centre has not done anything when incidents of acid attacks increased manifold.

She said now the roadblocks have come from state government without realising that in the last four months there have been many incidents when young girls became victim of acid attacks.

“The Centre is not taking corrective steps,” she charged.

Bhatt said she was not against industrial sale of acid but favoured its ban in retail market.

The advocate said that in the past, the apex court had banned sale of egg in the religious places and use of plastic bags.

The court was hearing a PIL filed in 2006 by a Delhi-based minor girl Laxmi whose arms, face and other body parts were disfigured in an acid attack.

The advocate said the girl has now become an adult and is still undergoing treatment which has so far entailed a cost of Rs seven lakh.

The Centre had during the last hearing on July 6 indicated it was considering regulating free sale of the corrosive substance after the apex court favoured a similar action.

The Centre, which till March this year had failed to come up with a clear stand of making acid attack a “serious offence” and curbing the sale of acid, later said the new government was working on the issue.

“There will be some positive development,” Parasaran had assured the court.

He had said Home Minister P Chidambaram has taken up the issue on a priority basis and “something can be done on it”.

The Centre, which was also asked to consider a law similar to the one in Bangladesh to regulate and restrict the sale of acid to check its use as a weapon, had said such a step would not be practical and it would lead to “inspector Raj”.

“As regards banning free sale of acid, the state governments’ representatives were almost unanimous against the proposed ban for the reason that the same is not practical since acid is needed for many purposes in and around the household.

“Similarly, licensing the sale of acid was also opposed on the grounds that it could lead to inspector Raj,” the Centre had said in its reply to the suggestion.

Laxmi, through her counsel Aparna Bhat, has sought framing of a new law or amendment in existing criminal laws like IPC, Indian Evidence Act and the CrPC for dealing with the offence and also sought a compensation which has not yet been provided.

Acid was thrown at the victim by three youths near Tughlaq Road as she had refused to marry one of them.

The trial is going on for the offence of attempt to murder and two of the accused are out on bail.

The court during an earlier hearing had expressed displeasure over the reluctance of states to provide compensation to a victim of acid attack and had termed the act as “worse than murder”.

The court was told that the report of the Law Commission on the issue was supplied to all concerned parties and National Commission for Women has placed a draft legislation to make acid attack a serious offence.

The Centre had said most state governments were “in favour of strengthening the provisions of the IPC to take care of the offence of acid attack and attack by other corrosive materials as well as by hot water”.

The Centre had said at the conference of Chief Secretaries of state governments and Union Territories it was suggested that the IPC and the Code of Criminal Procedure (CrPC) should be amended to deal with acid attack as a “special offence”.

Suggestions for adding a new section 326A to IPC after the existing section 326 (voluntary causing grievous hurt by dangerous weapons) were also made”, it had said.

The National Commission for Women also proposed legislation to cover compensation for victims of acid attack and for a new provision in IPC making attempt to throw acid a serious offence punishable by not less than seven years imprisonment and a fine of Rs one lakh.







judiciary: assets

His Feudal Lordship?

In Justice Dinakaran’s village, the Dalits says he is a land-grabber

Sugata SrinivasarajuChandrani Banerjee


Property Allegedly Owned By Justice Dinakaran

  • Kaverirajapuram, Tiruvallur: 450 acres. This fences in government ‘poramboke’ land and land for the landless poor.
  • Tiruttani, Tiruvallur: 440 acres
  • Poovalai, Vellore: 50 acres of orchards
  • Modus operandi: The judge’s men fence off tracts of land and encroach upon it. When the judge was a lawyer he owned 90 acres. His land holdings went up after he became a judge in 1996.

A slow but definite polarisation on caste lines has begun in the legal fraternity and outside with regard to the Justice P.D. Dinakaran disproportionate assets case, now inextricably linked to his elevation as a judge of the Supreme Court. A number of voices—in both his native Tamil Nadu, where he was a judge of the Madras High Court for nearly 12 years, and in Karnataka, where he is the chief justice—have started forwarding  the argument that an “upper caste” lobby is working overtime and unfairly slinging mud to prevent the elevation of a Dalit judge to the Supreme Court.
However, at Kaverirajapuram village in Tiruttani taluka of Tiruvallur district, ground zero of the controversy and where Justice Dinakaran is said to possess close to 450 acres, the discussion is at an entirely different level. In this rain-fed village, just 60 km from Chennai, the controversy is being seen as not between Dalit and non-Dalit, but as between a landed Dalit and landless ones. People describe it as the case of a rich, empowered Dalit depriving poor, powerless members of his own community of designated common land. In fact, the one leading the charge against Justice Dinakaran here is V.M. Raman, a young Dalit and a native of Kaverirajapuram. The village has about 350 Dalit families and the rest of the population, nearly 2,000 members, either belong to the Irula tribe or other backward classes.

According to Raman, Justice Dinakaran began his land-purchasing spree in the village as a lawyer. “As an advocate he purchased close to 90 acres from one Daya around 1990-91, but his landholding went up dramatically after he became a judge in 1996. He now has close to 450 acres, including government land that has been progressively encroached upon over a period of time,” Raman alleges. Apparently the fenced lands of Justice Dinakaran in Kaverirajapuram include, besides his ‘patta’ (registered) land, government land or ‘poramboke’ land, under which category fall the village’s lakes, pathways, canals, streams, pastures and ‘anadhinam’ land meant for distribution only among the landless poor. Since the property is well-fenced and secured, villagers are denied access to these common properties. The fence is said to have come up in the last three years.

Raman also reels out some of the ‘patta’ numbers of the plots within the fenced area that he has accessed from the taluka office in Tiruttani: “Patta number 1372 is in the name of Justice Dinakaran; 1426 in the name of Amudam Garden, Dear Lands and Sujatha; 2345 in the name of his wife Dr Vinodini; 1427 in the name of Konan Garden; 1365 in the name of Paripoornam; 92 in the name of Krishnaveni; 990 in the name of Ashok….” Some of the names, he says, could well be benami.

Jaganathan, a landless Dalit of the village, says, “Some years ago, when we were grazing in what is clearly poramboke land, Dinakaran’s people not only chased us out, but also filed a complaint against us in the Kanakamma Chattiram police station, accusing us of stealing mangoes from his orchards. They made us sit in front of small heaps of mangoes and took pictures. Six of us were booked in the case.”

Other villagers point out that, a couple of years ago, they vehemently protested against the denial of access to grazing land and at that point Justice Dinakaran’s people had pointed to nearly 30 acres that was available to them for the purpose. But since these 30 acres are surrounded by his ‘private’ lands, the villagers had no chance of getting anywhere close to it.

The villagers say the local administration, elected representatives and the panchayat members have never come to their rescue or argued in their favour. In fact, on September 22, Indrasenan, the son of panchayat president Jayammal, accompanied by a former panchayat president, Narasimhalu, reportedly went round the village threatening people with dire consequences for having participated in a protest organised in Tiruvallur town against Justice Dinakaran’s “land-grabbing”.

Raman says, “Justice Dinakaran should have proved himself the second Dr Ambedkar, but it is unfortunate that he is treating his own people badly. After taking up this issue, I fear for my life. I also fear that false cases will be foisted against me.” Raman, who runs an organisation for children called Tallam Charitable Trust, has been seeking a plot in the village for the trust since 2005. But while denying him land, 13 acres (survey nos. 369/1 and 369/2) in the same locality was allotted to a “fictitious company”—Konan Pvt Ltd, which Raman says belongs to the judge.

In such an atmosphere of fear and near absence of support, the All India Kisan Sabha has in the past week decided to take up the cause of Dalits and the landless poor in the village. The protest they had organised in Tiruvallur town on September 22 drew modest crowds. Tulsi Narayanan of the Kisan Sabha says, “We have been demanding that the government should take action against the judge and other land-grabbers. We learn that, besides the judge, there is a retired tehsildar and a retired superintendent of police who have grabbed government land in the area. The local police, revenue officials, electricity officials are all in favour of the judge. We have sent a memorandum to the chief minister of Tamil Nadu on September 9 and have personally met the chief secretary on September 11. We hope there will be some action.”

Narayanan also made it clear that they were “not worried or concerned” about the Dalit identity of the judge. The Kisan Sabha has also done its homework, gathering survey numbers of government ‘poramboke’ land that has been encroached upon in the village with the exact number of acres against each of the survey numbers.

The members of the Forum for Judicial Accountability (FJA) in Chennai, who took the initiative to make a detailed representation on the disproportionate assets of Justice P.D. Dinakaran on September 9 to the SC collegium, refused to speak. But when enquiries were made about their antecedents in Chennai legal circles, it was revealed that the members of the forum were public interest lawyers appearing for the landless poor and Dalits for over a decade. “FJA members have always done credible work. In this case, they have done their job of raising questions. It is surprising that even after all this hullabaloo, Justice Dinakaran has not issued a single statement,” said a Madras High Court lawyer.

The next movement in the case will be after Chief Justice of India K.G. Balakrishnan returns from his Australia trip on September 26. The apex court collegium is expected to meet two days later. But lawyers don’t see any action being taken. Senior Supreme Court lawyer Rajeev Dhawan says, “There is no proper mechanism to investigate a judge of the higher courts. The judges only fear the collegiums that may block their elevation. Other than the collegiums, they do not care about anything.” Justice Dinakaran has also been summoned by the CJI to present his side of the case.

By Sugata Srinivasaraju in Tiruttani (TN) with Chandrani Banerjee






Attack on Indian prompts drafting of S Korea anti-racism bill

Updated on Wednesday, September 30, 2009, 20:51 IST

Seoul: A racial attack against an Indian professor in South Korea has led to the drafting of the country’s first anti-racism law.

28-year-old Bonojit Hussain, who is researching on the issue of racism in Asian society, took on a South Korean man who racially-attacked him by filing a racial discrimination suit against him.

A court here had recently indicted Park, the man, for calling Hussain “smelly” and “dirty” while he and his Korean friend were travelling on a public bus.

Hussain was today invited to speak at a “Consultative Public Hearing” organised by opposition Democratic Party and NHRC to debate the proposed Anti-Racism bill.

“I was disturbed and hurt by what Mr. Park did on that bus. But I am more disturbed and shocked by how the police behaved. They were clearly but implicitly racist towards me and they were totally gender insensitive towards Han,” he said.

There is one aspect of the incident on that bus which has not been paid enough attention. The incident was not only racist in nature but it was also much gendered, he said.

He also said the bill for anti-racism is a welcome step at least for the country’s 1.1mn strong migrant community.

Hussain came to South Korea in early 2007 as a graduate student.

Bureau Report






More Human Rights Violations In Gujarat

Press Release

30 September, 2009

In a pattern which has become increasingly familiar in many parts of India, but particularly in Gujarat, once again in the run-up to the assembly by elections in Gujarat, a number of Muslim youth were picked up by police officials in plain clothes, illegally detained and severely tortured, before they were sent to judicial custody. The youth who were picked up by the police were:

1. Zahir Abbas Amiruddin Shaikh resident of Hathikhana Patel Faliya , Opp. Bismilla Mutton Shop, Fatima complex,

2. Usmangani Alias Nawab abdulGaffar Ansari, residing at Kalriwad, B/s. H. M. Batliwala, Fatepura, Baroda.

3. Amin Razzak Sha, residing atB/208, Richmond tower, B/h. Convent School, Fatehgunj, Baroda

4. Iqbal alias Ikku Majidbhai Shaikh, Age – 39 years, residing at 109, Rashida Apptt., Hathikhana Patel Faliya, Baroda.

5. Mustak Ismail Shaikh, 34 years, residing at Gujarat Mention building , Hathikhana Patel Faliya

They were illegally picked up by plain clothes policemen:

Zahir illegally picked up on Sep 1, 2009 shown arrested on Sep 6, 2009

Mushtak illegally picked up on Sep 1, 2009, shown arrested on Sep 6, 2009

Usmangani illegally picked up on Sep 3, 2009, shown arrested on Sep 6, 2009

Iqbal illegally picked up on Sep 2, 2009, shown arrested on Sep 6, 2009

Amin illegally picked up on Sep 2, 2009, shown arrested on Sep 6, 2009

All of them produced in the court on September 7, 2009.

They were formally presented to the magistrate after a gap of 5 or more days, during which they allege that they were blind-folded and taken into a farm-house at Sivasi Gotri Road, in Village Sindhrot and brutally tortured. The police charged them for planning to bomb the Ganesh Vijarjan Yatra and for possessing Sutli bombs and rocket launcher. Police claimed to have recovered these items from a closed hand cart . Police Commissioner called for a Press Conference on September 7, 2009 and all local newspapers flashed the news in bold headlines .

A team comprising Shabnam Hashmi, Harsh Mander Rahul Rashtrapal met family members of many of the affected youth on September 25, 2009 and Gagan Sethi and Shabnam Hashmi met with the family members on September 26, 2009. They all testified to versions of the same story: that youth invariably with no criminal records, were picked up by people wearing plain clothes, sometimes using force, sometimes taking them under false pretences. They were taken blind-folded to a farm, and subjected to torture. Family members were not informed about their whereabouts. Family members searched for them in various police stations and hospitals. After Mohdbhai Vora, the local counselor took a delegation to the DCP Rakesh Asthana, he was informed that the youth were safe and in their custody, even then he did not divulge where they were kept or why they were picked up. The same late evening some parents were asked to meet their sons at the police station. They saw them from a distance and were not allowed to talk to them. It was visible from their appearance that they were badly tortured, some of them could not even walk on their own. Police secured varying terms of police remand, followed by judicial custody. The youth were threatened with dire consequences if they told the judge about the torture. The families were threatened not to contact any one otherwise more cases will be put on their sons.

It is relevant to point out here that the alleged terrorist attack on the Ganesh Visarjan processions never actually took place, and we have only the police version, that such attacks were planned, to rely upon. The fact, that the statements of the accused were obtained under duress and torture, the whole police case and the motives behind these become even murkier.

A team constituting Rahul Rashtrapal, Dushyantbhai, Sachin Pandya and Shabnam Hashmi went to the Baroda Central Jail and met two of these youth Zaheer and Iqbal on September 25, 2009. Both youth testified to grave torture. Zaheer and Iqbal were blindfolded and taken to a farm house about 10-15 kilometers away from Baroda. They were brutally beaten up along with three others who were also arrested. All of them were kept and tortured in different rooms. The police beat them all over the body with lathis, two men stood on Iqbal’s thighs, legs stretched wide and beat him up brutally, Iqbal was given electric shocks on his waste down-words, abused using the filthiest language possible. Zaheer was stripped naked and given electric shocks all over his body many times a day. They caught him by his hair and banged his head against the walls repeatedly. Abusing him, they called him a Taliban and a terrorist, and degraded his community and mother and sisters. Zaheer’s hands were tied to the roof and he was not allowed to sleep for days.

Both Zaheer and Iqbal were not allowed to break their rozas till 11pm. The youth alleged that the police kept on forcing them to admit that they were going to bomb the Ganesh Visarjan procession and kill people. Zaheer pleaded with the police to spare him as he was innocent and he had no idea about the allegations. The policemen taunted him and said if you are tired of torture we will shoot you dead and made him run across a field all the time aiming at him to shoot him down.

The team also looked at the newspaper coverage. Divya Bhaskar’s headline read accused picked up in possession of the rocket launcher had foreign connections. Sandesh newspapers wrote: ‘When the accused used to come out of the mosque after praying he used to get into frenzy to destroy the Ganpati’

Rakesh Asthana, the Police Commissioner, Rakesh Sharma the ACP, J. D. Ramgadia. PI Crime Branch, D.R. Dhamal, PI of Baroda city, Halsika PSI SOG were all involved in this illegal picking up, detention and torture of youth.

We have also heard that the Farm House where the youth were taken and tortured belongs to a close associate of the Police Commissioner Rakesh Asthana.

We urge the NHRC, NCM and the Govt of India therefore that these grave allegations are independently investigated and the guilty police officers severely punished.

We hope suo moto action will be taken against the Police Commissioner Rakesh Asthana for flouting the Supreme Court DK Basu guidelines and for using the premises of a private farm house for illegal detention and torture. Not following these guidelines constitutes a contempt of the Supreme Court, which is a serious offence, punishable by Imprisonment and fine


D.K.Basu Guidelines

In view of the increasing incidence of violence and torture in custody, the Supreme Court of India has laid down 11 specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person. These are:

l Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register.

l A memo of arrest must be prepared at the time of arrest. This should:

µ have the time and date of arrest.

µ be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made.

µ be counter-signed by the person arrested.

l The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness this is not required.

l Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned police station.

l The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.

l An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is.

l The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The “Inspection Memo” should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.

l The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.

l Copies of all documents including the arrest memo have to be sent to the Area Magistrate (laqa Magistrate) for his record.

l The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.

l There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest. The control room should prominently display the information on a notice board.

These requirements were issued to the Director General of Police and the Home Secretary of every State. They were obliged to circulate the requirements to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the requirements be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness.

Failure to comply with these requirements would make the concerned official liable for departmental action. Not following these directions constitutes a contempt of the Supreme Court, which is a serious offence, punishable by Imprisonment and fine. This contempt of court petition can be filed in any High Court.

These requirements are in addition to other rights and rules, such as:

*The right to be informed at the time of arrest of the offence for which the person is being arrested.
*The right to be presented before a magistrate within 24 hours of the arrest.
*The right not to be ill-treated or tortured during arrest or in custody.
*Confessions made in police custody cannot be used as evidence against the accused.
*A boy under 15 years of age and women cannot be called to the police station only for questioning.

The Constitution

The Constitution of India, which is the basic law of the country, provides protection to all persons from ill treatment and torture by the police and other state agencies.

Article 21
Guarantees the right to life and personal liberty to all persons.

Article 22
Lays down the rights available at the time of arrest and detention. These rights can be enforced by directly approaching the High Courts and the Supreme Court of India.







Mayawati govt rushes to SC over UP link road

TNN 1 October 2009, 05:57am IST

NEW DELHI: The Mayawati government on Wednesday took her battle against the Sheila Dikshit government over a large chunk of land in East Delhi to the Supreme Court.

It challenged an order of the Delhi High Court, which on Tuesday allowed the Delhi government to acquire 21 acres land belonging to the neighbouring state for widening the UP link road connecting the Commonwealth Games village to Mayur Vihar and Noida.

Not ready to give up its land that had been bothering the Delhi government for long as it formed a vital chunk in the road widening and flyover construction plan, the UP government moved the SC within 24 hours of the HC verdict.

Senior advocate Mukul Rohtagi sought a stay on the HC order saying the Delhi government officials were at the site ready to acquire the land belonging to the UP government. “How can one government acquire land belonging to another government without even giving an opportunity to the latter,” he asked while pleading for a status quo.

“There could be a problem if such forced acquisition was allowed,” Rohtagi told a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan.

It did not yield a favourable order. The Bench, while posting the UP government’s petition for hearing on Thursday, said: “It’s an immovable property which cannot be altered in a day’s time.”

The acquisition of the land would allow the Public Works Department (PWD) to widen the existing six-lane road to an eight-lane one and make it signal free by constructing two flyovers along the four-kilometre stretch.







Man charged of wife’s abduction, acquitted

TNN 1 October 2009, 02:15am IST

AHMEDABAD: A woman’s efforts to get her husband convicted in a case of alleged abduction landed her in a soup. A sessions court acquitted her husband and his family, while ordering proceedings against her.

Bharti Parmar had eloped with Hasmukh Parmar in 2005 and they got married before they were nabbed from Amreli district. On returning to Ahmedabad, she lodged a case against her husband accusing him of abducting her and forcing her into marriage. She demanded punitive action against him.

When the case came up for hearing earlier this year, Bharti was inconsistent in her statements and failed to identify people in her marriage photographs. At one point, she even refused to identify herself in a photo before judge PR Patel, who asked the Karanj police station officials to register a case against the woman for misguiding the court. The court observed that her statements were not trustworthy.

The court had in April this year ordered police investigation against her for making false statements in a desperate attempt to grill her husband. After completion of trial, judge VM Chaudhary acquitted Hasmukh and concluded that Bharti was making false statements. But the investigation against Bharti is still pending, and her case against lower court’s order will come up for hearing in Gujarat High Court soon, said Hasmukh’s advocate JJ Koradia.






IOC official sentenced to two yrs jail in 19-yr-old case

TNN 1 October 2009, 05:11am IST

CHANDIGARH: Deciding a 19-year-old case on Wednesday, special Central Bureau of Investigation (CBI) court held Indian Oil Corporation’s (IOC) former manager (LPG), RC Sawhney, guilty under various sections of Indian Penal Code and Prevention of Corruption Act while sentencing him to two years in prison. He was also told to pay Rs 14,000 as fine. Shital and Bhushan Kumar, co-accused in the case, were acquitted.

Prosecution had claimed that in 1987-88, Sawhney along with the Kumars, who own an LPG agency in Barnala, had conspired to cheat IOC and issued gas connections that consumers had not actually booked.

The FIR had stated that 1,000 fake connections had been released. However, a CBI inquiry put that number at 369 after a close look at the case.

Public prosecutor PK Dogra said, “During his tenure, Sawhney issued maturity transfer vouchers asking gas agency to release connections without any requests (from consumers).” He added that the accused did so in connivance with Bhushan and some unknown persons.

The FIR was registered under sections 420 (cheating), 468, 471 (forgery) and 120-B (criminal conspiracy) of Indian Penal Code and Prevention of Corruption Act on November 28, 1990, against the accused. Charges were framed in 1994. Prosecution presented 90 witnesses in the case. However, Bhushan and Shital were released when witnesses did not support allegations against them.






Rules of senior citizen Act yet to be notified

TNN 1 October 2009, 06:04am IST

PANAJI: Even as world celebrates the international day for the senior citizen on Thursday, the state government is set to notify the rules of the “Maintenance and Welfare of Parents and Senior Citizens Act, 2007.”

The central Act was enacted in 2007 and the Goa government adopted the Act through a notification published on September 25, 2008. The rules for the same were yet to be framed. Official sources confirmed that the law department has just vetted the rules and sent to the directorate of social welfare for their publication.

The central Act provides for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution.

Under the Act, the obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. Any person who is a relative of a senior citizen and having sufficient means shall maintain the senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen. Either a senior citizen or parent may make an application for maintenance or if he is incapable, any other person or organization may make the application on his behalf. Also, a tribunal may take suo moto cognisance.

On receipt of the application, the tribunal shall start the process for procuring the presence of children or relative against whom the application is filed. For securing the attendance of children or relative the tribunal shall have the power of a judicial magistrate of first class. Where the children or relative is residing out of India, the summons shall be served by the tribunal through such authority specified by the central government.

The state government must constitute the tribunal for each subdivision within a period of six months from the. date of the. commencement of the act. The tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer (SDM). The maximum maintenance allowance which may be ordered by such tribunal shall be such as may be prescribed by the state government which shall not exceed ten thousand rupees per month.







Law college to merge with PG department

TNN 30 September 2009, 11:41pm IST

DHARWAD: The academic council of Karnatak University has decided to merge the University Law College with the PG department of law (as it was prior to 1994). This will enable teachers to teach both under-graduate and post-graduate classes.

The meeting held at Senate hall on Tuesday with vice-chancellor Professor S K Saidapur in the chair, decided to permit under-graduate (UG) semester students (arts and social sciences) who have discontinued their studies to appear in the correspondence mode (non-semester) and complete their degrees.

The meeting also decided to constitute a committee to work out the details for both UG and PG programmes of the University and affiliated colleges as to improve teaching programmess, appointment of guest faculty, orientation to teachers among others especially for professional courses such as BBA and BCA.

The meeting approved statutes pertaining to the recognition of research centres. This will enable research centers belonging to public/private/corporate sector-run institutions to undertake research leading to doctoral degrees at Karnatak University.

The meeting could not take a decision on introducing a certificate / diploma course (as suggested by the government of Karnataka) in astrology as all the members, except two, opposed the move. The matter was debated for a long time and finally it was resolved to constitute a committee of experts to prepare a document examining the pros and cons, availability of teachers, feasibility and credibility.







Court penalises docs for faulty treatment

TNN 30 September 2009, 11:08pm IST

KANPUR: The district consumer protection forum of Kanpur Dehat on Wednesday asked three doctors of the city to pay jointly or separately a sum of Rs 1.80 lakh to complainant Manish Kumar Sharma within 30 days of the order.

The presiding judges also asked them to pay interest at the rate of 6 per cent per annum from the date of filing of complaint. They, however, rejected the complaint against the insurance company. The punished doctors were identified as Anupama Nigam, Poonam Mehrotra and Rekha Garg.

According to the casefile, the complainant in his petition claimed that Dr Anupama Nigam was treating his pregnant wife. On May 27, 2005, she advised them to seek an ultra-sound report from Poonam Mehrotra, who operated an ultrasound clinic. After seeing the report, she said the pregnancy was of 13 weeks and a fibroid was attached with the foetus, hence a FNAC examination was necessary and she asked him to contact Dr Rekha Garg. Dr Garg conducted the FNAC test at the clinic of Poonam Mehrotra and twice she needled the womb and made several slides.

He further claimed that during the test, his wife’s condition became critical and he was asked to contact Dr Nigam, who administered her some medicines and injected. Instead of getting any relief, her condition deteriorated. The doctor advised her once again for an ultrasound at Dr Poonam Mehrotra’s clinic. There, doctors informed him that the case had turned bad due to faulty needling of the womb. Dr Anupama advised him to get his wife operated immediately.

Manish Sharma, an advocate, got his wife discharged and consulted other doctors who informed him that due to faulty needling the case had become so critical and the only solution was to remove the uterus, fibroid and foetus. He consulted another doctor who also confirmed the diagnosis. Thus, he filed a suit of Rs 4 lakh, including cost of treatment, damages and professional losses.

The three doctors refuted the charges and claimed that they had given best available treatment to the complainant’s wife. However, the court found the charges true and observed that Dr Nigam had given wrong advice and faulty needling in FNAC test amounted to deficiency in service, hence they were liable to pay damages to the complainant and awarded the petition in favour of Manish Sharma.








SC/ST Act slapped on teacher, his wife for assaulting maid

TNN 1 October 2009, 05:05am IST

LUCKNOW: District police on Wednesday increased the charges by slapping the SC/ST Act and UP Child Right Act on a music teacher and his wife arrested for brutally assaulting their 8-year-old domestic help for the past one year. The teacher Rajiv Verma, however, before being booked under the SC/ST Act was released on bail while his wife Rekha Verma was still in jail. While Rekha was arrested on September 26 last, Rajiv was arrested next day.

Rajiv Verma is a piano teacher in a private school in Ram Asre Ka Purva on the outskirts of city and lives in Vikas Khand of Gomtinagar. The victim, Shiva Devi, worked at Verma’s house and looked after their child. SP trans-Gomti Paresh Pandey said Shiva’s mother Dil Basha told the police that Shiva would often complain that Rajiv and his wife brutally assault her accusing her of theft.

When the police visited the Verma’s home on September 26 and asked about the whereabouts of Shiva, the couple told them that they had sent her to Patna. However, when the cops checked the house they found Shiva held captive in a bathroom with injuries inflicted all over her body.

Police freed the girl and admitted her to a hospital. They arrested Rekha and sent her to jail. Next day, Rajiv was also taken into custody but he managed to procure bail on Wednesday.

Meanwhile, the police got the medical tests of the victim done in which over half a dozen injuries which included cuts, infected wounds and boils were reported. But, Paresh Pandey added that, boils did not seem to have been caused by burns.

Police, however, have slapped the SC/ST Act on the couple and plan to arrest Rajiv on these charges.

“Since Rajiv is out on bail in the previous case lodged against him under section 323/344 of the Indian Penal Code (IPC), we are now preparing charges against him under the SC/ST Act,” said Vinay Gautam, station officer, Gomtinagar.









No. of attempts no criteria for LLB grades: MU

TNN 30 September 2009, 11:34pm IST

MANGALORE: Mangalore University has given some relief to LLB students who were denied grades as they failed to clear their subjects in semesters in the first attempt.

The university academic council meeting held here on Wednesday has approved the proposal pertaining to the amendment to regulations governing the five year LLB course.

The Times of India first reported how a clause in the regulations had put LLB students in the lurch. Following this there were agitations by the students.

The rule stated that LLB students, who do not clear papers in semesters in the first attempt, were not eligible for grades. It means that even if a student scores above 60%, he/she will not be eligible for first class and will have to be satisfied with a pass class. Interestingly, the varsity authorities first issued the marks cards with grades and later asked the students to surrender the marks cards issued with grades.

Presenting the amendment before the council meeting, Mangalore University V-C K M Kaveriappa said the clause was inadvertently added to the regulations and it was not correct to deny class to students who could not clear all papers in the first attempt.

The amended regulation said while declaring the class, the aggregate marks secured in 1st-6th semesters for BA Law and the aggregate marks in 7th-10th semesters for LLB should be considered irrespective of the number of attempts. However, Kaveriappa said the amended regulation would not apply for declaration of ranks.

About the delay in announcement of second semester results of five year LLB course, registrar (evaluation) Shivalingaiah said the results would be announced within a couple of days and the students taking supplementary examinations would be given additional time to apply.

The council has also approved the proposal to consider the 12 year high school diploma Clonlara School, Michigan, USA, equivalent to two year PUC for admission in arts and commerce programmes. However, it would not be considered as equivalent to PUC for admission in science programmes as the university science faculty dean has sought certain clarifications, he said. The meeting has approved the proposal considering the JOC in mechanical servicing (automobile) to PUC for admission to BBM course. The proposal to establish endowment fund for Kumari U Krishni Bai Gold Medal for the highest scoring woman student in post-graduate course in human consciousness and yoga science was approved by the council.







Pleas early, but HC wants status of Adani mines

Vaibhav Ganjapure, TNN 1 October 2009, 02:30am IST

NAGPUR: The Bombay high court’s Nagpur bench on Wednesday directed the Centre to file a progress report on the status of the proposed Adani coal mine near Tadoba-Andhari Tiger Reserve (TATR).

A division bench comprising justices AP Lavande and Pramod Kode, while terming the bunch of petitions against the proposed mines as `premature’, asked assistant solicitor general of India SK Mishra to reply within two weeks on the status of Adani proposal in various ministries. The court was of the opinion that since the Union government had not yet given its green signal to the project, the pleas against it are untimely.

Three different pleas had been filed by Bandu Dhotre of Eco-Pro organisation, Yogeshwar Dudhpachare and Ramdas Wagdarkar, expressing deep concern over the possibility of permission being granted to Adani to mine coal for its 1,000 MW power plant at Tiroda in Gondia. They claimed this will destroy ecology and the rich wildlife habitat around TATR. Senior counsel KH Deshpande and Anil Kilor held brief for the petitioners.

The petitioners had opposed the allotment of coal blocks and proposed mining activity by Adani as 1,750 hectare area will be destroyed. Of the total mine lease area, 92% is forest area, they said, adding that the mines will also damage the sacred Zarpat river, where hundreds of devotees of Mahakali take a holy dip during festivities.

The petitions have claimed that the proposed mining area has 18 animal species, nine of which are endangered, like leopards and tigers. The Lohara lake, where the heart of mining activity is proposed, attracts many migratory birds from Siberia, Nepal, Tibet, Russia and other European countries. It’s a suitable breeding place for birds and reproduction, they said. TATR along with Lohara lake constitute a twin place consisting of a national park and a bird sanctuary.

The petitioners pointed out that there are numerous natural waterholes in the core forest of the national park, which has underground water source through the lake. Due to such water bodies in the vicinity, animals in TATR get sufficient water throughout the year. Apart from Adani, 22 other companies are awaiting permission to extract coal near TATR. Unbridled mining will cut corridors from all sides and the tigers will have no future, all petitioners claim.







Child rights watchdog serves notice to channe

Kalyani Sardesai, TNN 1 October 2009, 01:25am IST

PUNE: The New-Delhi-based National Commission for Protection of Child Rights (NCPCR) has sent a legal notice to NDTV Imagine, directing the channel to immediately stop airing its newly-launched show Pati, Patni aur Woh’ and send a report of compliance within seven days, or face action.

Simultaneously, the NCPCR has also written to minister for information and broadcasting Ambika Soni seeking her intervention in the matter.

The NCPCR sent the notice after city-based child rights activist Anuradha Sahasrabudhe sent a complaint pointing out that the reality show, which has five celebrity couples handling babies completely unrelated to them, was a violation of child rights.

Sahasrabudhe is also the founder-director of Pune Childline, a member of the Juvenile Justice Board, Pune, and a member of the Monitoring Committee for TV Channels, Pune.

In a letter to NCPCR chairperson Shanta Sinha on September 9, Sahasrabudhe said: “NDTV Imagine is currently advertising a reality show that has celebrity couples competing to take care of babies unrelated to them. The show is called Pati, Patni or Woh’. The promo shows that the children are completely uncomfortable with these couples and are howling in protest.”

The letter adds: “Exhibiting babies thus, and using them to promote shows or as objects’, in our opinion amounts to exploitation. It also violates section 23/26 of the Juvenile Justice Act. The show amounts to exposure and use of children for monetary gains as well as exploitation. This, therefore, is to request you to take action against the producers of the show, the TV channel and the parents of children who have permitted use of their wards for the programme. A strong action is requested so that no one is tempted in future to launch similar shows.”

Speaking to TOI on behalf of Sandhya Bajaj, a member of NCPCR, to whom the matter was referred, an official said they had received the complaint.

“We first wrote to the director of ministry of information and broadcasting, asking for immediately stopping the show. A letter was also sent to the Maharashtra State Commission for Child Rights, Mumbai. Despite this, the first few episodes of the show were aired,” the official said.

“We have now sent a legal notice to the executive director, NDTV Imagine, asking them to immediately stop airing the show,” the official added.

Responding to the matter over an email, the channel’s spokesperson said: ” Pati Patni aur Woh’ is an adaptation of BBC’s popular format Baby Borrowers’ and has aired successfully in many countries. The BBC has full experience in ensuring the safety of the children. All through the show, parents of the children have been supervising the proceedings on TV cameras in adjacent rooms and are free to intervene if they perceive the slightest risk to their child. The BBC also has qualified nurses and doctors on call 24X7 for any emergency.”

The spokesperson added that “Imagine is a responsible broadcaster and BBC is the global gold standard in quality programming and production, and needless to say, ensuring the children’s safety.”

“We have received a notice from the NCPCR expressing their concern over children being used in the show, and we will be dealing with the issues raised,” the spokesperson said.






Nine cops jailed for 11-yr-old misdeed

TNN 30 September 2009, 10:04pm IST VARANASI: After a decade, nine policemen, who are accused of killing innocent persons in fake encounter, were sent to jail in Bhadohi district on Tuesday.

“Parivar ko bhukhey pet rakh ke case lada hai sahab. Nyayalaya pe pura bharosa hai hamein nyaya milega (We fought the case on empty stomachs. We have belief in judiciary),” says Pannalal Yadav, a native of Barwa village who heaved a sigh of relief for the first time in 10 years, when he got the news that the nine accused policemen out of 33 were sent to jail. His son Om Prakash Yadav alias Munna was killed in a fake police encounter.

Pannalal’s son and three other innocent youth- Shamim alias Natey, Kiran Dalit and Ajay Singh- were gunned down by the policemen in Sarroi area in Bhadohi district on October 17, 1998. After killing them, the Bhadohi police claimed that they had eliminated Dhananjay Singh, now a Bahujan Samaj Party MP from Jaunpur who was among the rewarded criminals of this region in 1998, with his gang members. Senior local Samajwadi Party leader Akhilesh Singh said: “We have not forgotten how the police had avoided handing over the bodies of the killed youth and cremated them secretly when we proved that instead of a wanted criminal, they had killed innocent youth.

Increasing resentment among people compelled the then government to engage the CB-CID in the matter. And the agency found that the encounter was totally fake as no criminal record of any of the killed youth was found. The CB-CID lodged an FIR against 33 policemen, including the then CO Akhilanand Mishra. Immediately after this development, Mishra and his three subordinates took shelter of the high court and succeeded in getting a stay orders to avoid arrest. One of the accused died in the meantime, while one constable surrendered before the court.

The CB-CID filed the charge sheet against the 33 accused policemen in the court in May 2007. The accused were booked under section 147, 148, 302, 201, 120(B), 218 and 34/409. Later, the court continued issuing warrants against other 27 policemen. However, none of them responded while the police also avoided arresting the accused. Finally, the court issued non-bailable warrant and ordered to initiate action under section 82 of the CrPC. To execute this order, notices were forwarded to the principal secretary home to ensure their execution. The same move resulted in the surrender of nine policemen including SI Ramayan Singh Yadav, constables Vijay Bahadur Singh, Ramjanam Bharti, Ravindra Kumar Tiwari, Kailashnath Singh, Ram Awatar Singh, Ram Jyoti Singh, Satyanarain and Samshuddin, before the court of chief judicial magistrate (Bhadohi) Intekhab Alam on Tuesday. The arrested were sent to jail.

This development generated a ray of hope for parents of fake police encounter victims. Pannalal said: “My struggle has not ended as many other killers of my son have not been arrested so far.” But, he is hopeful of justice and says his faith on judiciary has started yielding results. This elderly man and his family have kept the son and daughter of Om Prakash in dark by telling them that their father is serving some company in Mumbai. “Lekin ab bachchey sayane ho gaye hai. Puchhate hai baki sab ke papa aatey hai hamare kyo nahi (But now the kids have grown up and ask why their father dies not visits them),” said Pannalal with concern. The financial condition of the family has worsened due to court expanses.



Follow The Law

1 October 2009, 12:00am IST

How many times have we come across a place of religious worship smack in the middle of a thoroughfare or encroaching on the road in such a way as to hinder traffic? The Supreme Court has now banned unauthorised construction of places of worship in public places. In a landmark judgement a two-judge bench has said that no illegal construction of a temple, church, gurdwara, mosque or any other religious institution shall be permitted in public spaces.

The court’s directive won’t be easy to enforce given the reluctance of authorities to step in where the possibility of hurting religious sentiments is concerned. But in a rare show of consensus, all states agreed at a meeting held by the Union home secretary about the need to ban unauthorised religious structures. There is some ambiguity about existing illegal constructions. The court has rightly asked state governments to review each case separately and then take action. That such action is feasible was illustrated when chief minister Narendra Modi, who often behaves as Hindutva’s poster boy, backed municipal corporations across Gujarat as they demolished places of worship causing obstruction on roads and other places, despite widespread protests.

The Supreme Court ruling highlights one of the essential features of a secular state where freedom of religion is guaranteed so long as it does not clash with the laws of the country. Thus, there is a caveat of “public order, morality and health” to freedom of religion articles in the Indian Constitution. That is precisely why construction of a place of worship cannot be permitted if it is not authorised or causes inconvenience to the public.

A similar logic can be applied to other forms of religious expression or festivities that cause public inconvenience. The use of loudspeakers during religious festivals or prayers is one such example. There is no reason why a religious ceremony should be allowed to disturb the peace of people who are not involved with it in any way. Religious festivals and ceremonies are an integral part of Indian culture. Indeed, our secularism tolerates and encourages all forms of religious faith in the public sphere. But such displays must be mindful of the laws of the land. Diwali is a few days away. We have all become habituated to the noise and air pollution caused by Diwali fireworks despite inconvenience to the sick, elderly and young. But there is no reason why festivities, and construction of places of religious worship, should brazenly flout laws.

%d bloggers like this: