legal news 30.09.09

Shopian: Bar disassociates from PIL

Srinagar: High Court Bar Association Wednesday disassociated itself from the Public Interest Litigation, moved by it in alleged rape and murder of Nelofer (22) and her sister-in-law Asiya (17), asserting nothing was expected from Central Bureau of Investigation.

Informing the High Court, monitoring the case, about the disinterest to plead the case, the KHBA President, Mian Qayoom, in his argument held that handing over the case to CBI, which took over probe from SIT on September 17, was against the directions of the High Court.

He maintained that there were no orders by the division bench, comprising of Chief Justice Barin Ghosh and Justice Mohammad Yaqoob Mir, to handing over the case to CBI.

“In its previous orders the court has no where permitted the government to hand over the case to the CBI. Court had only deferred the hearing and there were no orders to transfer it to other investigating agency,” he said, maintaining that it was tantamount to contempt of the court.          

Senior advocate, Mian Qayoom declared that there was no hope from CBI as, he said, the investigation agency wants to close the chapter forever.  

“They (CBI) have declared Asiya a virgin. It is what was expected from it as they just want to close the chapter,” he said.

The KHBA president, quoting a doctor of Forensic Science, also questioned the rationale behind the exhumation, stating that it was very unlike that anything would come up from autopsy after four months, as has been done incase of the Shopian victims.    

KHBA, which questioned the jurisdiction of CBI in Valley, also questioned the inclusion of Dr. Ghulam Qadir Khan, who accompanied AIIMS on behalf of Majlis-e-Mashawarat, spearheading the agitation for justice in Shopian.    

“His inclusion was against the directions of the Court as it had made mandatory for the investigation agency to select any doctor with the permission of the principal of Government medical College Srinagar,” he said.

Contending the arguments from KHBA, Advocate General Ishaq Qadiri held that the court orders were “misread” and that the government, he said, the government decision was legitimate. “The SIT was not functioning properly and it was after the court had fully agreed that the transferred the case was transferred to CBI,” he said.

 After hearing the arguments, the division bench said that the case would continue and listed it for hearing on October 13.


Posted on 30 Sep 2009 by Webmaster







Sewa files PIL opposing AMC’s move

TNN 30 September 2009, 02:21am IST

AHMEDABAD: The Swashrayi Mahila Seva Sangh of Self-Employed Women’s Association (SEWA) has filed a PIL in Gujarat High Court opposing AMC’s decision to award contracts to collect domestic waste from door-to-door to private companies.

Members of the NGO have contended in the PIL that without providing women, who are doing the work at present, with proper alternative, the corporation can not snatch their jobs.

Moreover, they have also demanded a national-level policy on the issue of civic bodies awarding contract for collection of domestic waste and its disposal.

During a hearing on Tuesday before a division Bench headed by Chief Justice KS Radhakrishnan, it was contended by advocate Bhushan Oza on behalf of SEWA that poor women must not be dissociated from the work they have been doing traditionally. This particularly in absence of any planning that who would be the others to carry out this job.

AMC is expected to present its view on the issue on Wednesday.







Black-money: SC issues notice to Centre–SC-issues-notice-to-Centre


New Delhi, Sep 29 (PTI) The Supreme Court today sought a response from the Centre about the possibility of disclosing vital documents in connection with the issue of black money stashed in foreign banks amidst allegation that it was withholding them.

The court said government will be at liberty to decide which of the 21 documents sought by the petitioners could be declared as “classified” and which could be made public.

“If in the process of investigation, it (Centre) decides that it may not be possible disclose certain documents, it can do so,” a Bench of Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan said issuing notice to the Centre by posting further hearing in December.

The court was hearing the PIL filed by eminent jurist Ram Jethmalani and others who have alleged government inaction in bringing back the black money from foreign banks.







Court asks CBI not to leak Shopian probe details

by IANS on September 30, 2009

The Jammu and Kashmir High Court Wednesday directed the Central Bureau of Investigation (CBI) not to share details of its probe into the rape and murder of two women near Shopian with the media but reveal it only to the court.

“The CBI should not reveal anything to the press about the investigations part of the Shopian case and should present status reports to the court,” a division bench of Chief Justice Barin Ghosh and Justice Mohammad Yaqoob Mir observed.

The bench was hearing a public interest litigation (PIL), in which the local bar association is a party.

CBI counsel assured the bench that details of the investigation would be divulged only to the court through reports.

Nilofar Jan, 22, and her sister-in-law Asiya, Jan 17, were raped and murdered and their bodies were found near Shopian town of north Kashmir May 30. Villagers have alleged that security personnel had committed the crime.

The court strictures came after reports in a section of the media Wednesday that quoted forensic experts as saying that one of the victims died a virgin.

After the probe was handed over to the CBI, the two bodies were exhumed from the Shopian graveyard this week and forensic experts collected samples from the bodies.

Meanwhile, the bar association moved an application before the court saying it was dissociating itself from the PIL.

Bar association president Mian Qayoom said: “The CBI was selectively leaking misinformation about the Shopian case to the media to mess it up.”

The court fixed Oct 13 as the next day of hearing and observed that it would continue to monitor the investigations till the mystery was solved.








HC notice on PIL seeking to regularise PG courses

TNN 30 September 2009, 05:05am IST

CHENNAI: About a year after the Supreme Court upheld a Madras High Court order that the direct post-graduate degree programme offered by open universities cannot be considered on a par with regular PG degrees, a new public interest writ petition has been filed on the matter.

A division bench comprising justice D Murugesan and justice M Jaichandren has ordered notices on the PIL, filed by A Ramesh of Perungudi here.

In his petition, Ramesh said that the Tamil Nadu Open University had 142 study centres in the state and that lakhs of students were on its rolls. Noting that it was a government-established institution, the petitioner said the direct PG degree offered by the university is invalid as per the UGC norms.

Noting that the course was legal when the students joined it all these years, Ramesh said, adding that for the no fault of theirs it had now been rendered illegal. He said he, like many others, had completed his legal degree on the basis of the open university PG degree and that he was awaiting results.

He wanted the court to directed the authorities to regularise the open university degree, and ask the Bar Council of Tamil Nadu and Puducherry to enrol him so that he could practice law in the state.








Cops keen to enforce HC pandal rules during Kali Puja

TNN 30 September 2009, 06:12am IST

KOLKATA: The norms set by Calcutta High Court for pandals could not be fully implemented during Durga Puja as the order was issued only a few days before the festival. Now, the cops are determined to implement the order during Kali Puja. Police commissioner Gautam Mohan Chakrabarti said a meeting would be held with puja organizers on October 9 to discuss the issue.

“We want to implement the order. Instructions are being issued to the organizers about the restrictions imposed by the court,” Chakrabarti said. On Wednesday, the police brass will hold a meeting with divisional deputy commissioners and officers-in-charge of all police stations about the new rules. Booklets on the restrictions will also be distributed among the organizers.

Police arrested 1,272 people during Durga Puja 1,119 were nabbed for disorderly conduct while the others were criminals with pending cases.







No ulterior motive in mobilising force during HC clash, says police counsel

TNN 30 September 2009, 05:02am IST

CHENNAI: Mobilisation of the police force in the Madras high court on February 19 was just a precautionary measure, and senior officials neither indulged in nor ordered any violence that day, senior advocate Rajeev Dhawan argued on Tuesday.

Commencing his submissions on behalf of 12 senior officials, Dhawan, however, extended an unconditional apology to the bench comprising Justice FM Ibrahim Kalifulla and Justice R Banumathi, and added that it was the government’s stand that those responsible for the violence would be dealt with in an appropriate manner.

Dismissing the allegations of conspiracy and malafide intention on the part of police officials to unleash violence on the court campus, the senior counsel said police would be held responsible if something happens to court. Dhawan said the court could lay down a set of guidelines for the police to follow in similar situations.

Noting that 10 of the 12 officials were transferred out of Chennai after the incident, the senior advocate said lawyers were not satisfied with the action as they wanted the officials to be humiliated’ further with punishments.

Dhawan submitted a long list of “incidents of misbehaviour” by advocates, besides the criminal cases registered against them since 2001, and said the threat perception was serious enough for the police to bring in additional reinforcements and maintain strength at 292 on the campus. Claiming that only 147 additional police personnel were brought to the campus on February 19, Dhawan asked, “are you saying 147 is too high and that they should not have been brought?”

In this regard, Dhawan wanted the court to consider two key questions: Whether the presence of police in the court premises was uninvited and what was the level of threat perception? Referring to the recent classification of court premises as high-risk targets, Dhawan said the February 17 incident wherein Janata Party president Subramanian Swamy was pelted with eggs too contributed to the escalation of threat perception.

“This is a situation which should never have happened. Punishing police officials or lawyers is not the way to solve it,” said Dhawan, adding that if the case was allowed to prolong further it would lead to further deterioration of atmosphere in courts. “Some balance has to be worked out. It must be borne in mind that there is a limit we can go in this particular case,” he added. Dhawan will continue his arguments on Wednesday.









HC asks dyeing units to obtain TNPCB approval within a month

TNN 30 September 2009, 05:01am IST

CHENNAI: The Madras High Court has asked scores of dyeing and bleaching units dotting the Amaravathi river in Karur district, to obtain statutory consent from the Tamil Nadu Pollution Control Board (TNPCB) within a time frame.

A division bench comprising justice SJ Mukhopadhaya and justice N Kirubakaran, passing orders on a petition filed by farmers affected by the release of untreated effluents into the river and cultivable lands, asked the unit-owners to apply for PCB consent within a month. The Board will take a decision on the matter within three months thereafter. The Board will also give sufficient publicity in the area for this initiative.

The judges further warned that if units now functioning without any PCB consent failed to file applications for consent within the stipulated time frame, the court would direct the closure of the units concerned.

The petitioner-association contended that dyeing and bleaching units were releasing effluents into the Amaravathi river and Amaravathi channel, besides lands in the villages of Karukkanpalayam and Chettipalayam. In January, two High Court-appointed committees – Monitoring Committee and Experts Committee — submitted their reports. They suggested various measures including establishing common effluent treatment plant and reverse osmosis facilities for the units.

Taking the rerport on file, the judges asked the PCB to go through the report and submit a time frame within which it proposed to take corrective measures.








Hosp bldg: Firm drags ex-min to HC

Swati Deshpande, TNN 30 September 2009, 02:40am IST

MUMBAI: Former Union minister A R Antulay has been dragged to the Bombay high court by a private company in a low-key, but high-stake legal battle over the construction of super-speciality hospital on a prime Worli plot.

The state had leased the land in 1981 at an annual rent of Re 1 for 99 years to a Mumbai-based public charitable trust-Konkan Unnati Mitra Mandal-which has Antulay as its president.

Milan Commercial Pvt Ltd, in a suit against Antulay and 22 others has challenged as “illegal” termination, by the trust, of a 2004 joint venture agreement that gave Asian Health Care Services Ltd the right to develop the hospital on the 7,000 sq-m plot. Milan, a 10% shareholder in Asian Health, is fighting to “redress a wrong done by the mandal and its nominee directors-AR Antulay and six others-in deliberately creating a situation to prevent Asian Health from constructing the super-speciality hospital”.

The mandal, denying that the termination of joint venture was illegal, said the suit was “misconceived on law and facts” and that it has already sought the appointment of an arbitrator.

The legal fight began last year, but has come up for a detailed hearing before the high court now. Milan’s case is that the mandal is keen on developing a large hospital and medical college in Worli. In 2004, after the charity commissioner gave Antulay’s trust the permission to develop the property with the help of Delhi-based Shristi Infrastructure Development Corporation and Kolkata-based Opulent Venture Capital, a joint venture was set up and Asian Health Care-with Antulay as its chairperson-was formed with the mandal having 50% shares.

Milan said Antulay was approached in November 2006 by the Hinduja Foundation, which expressed an interest in constructing the hospital. “Discussions with Hinduja Foundation were, however, kept concealed from the company. Antulay acted contrary to the best interest of the company,” the court was told. Later, in February 2008, the mandal terminated the joint venture and claimed that the land was never handed over to Asian Health.

Milan’s plea is that the land is shown as the fixed asset of Asian Health and it has asked the HC to allow it to be in possession of the land and to develop the hospital whose work has come to a virtual standstill because of the “delinquent directors who are nominees of the mandal”. It has challenged the third-party rights being created by Antulay’s trust which claims it entered into a MOU with two other companies last year.







HC shows the door to 799 ‘illegal’ staff of MCD library

Krishnadas Rajagopal

Posted: Wednesday, Sep 30, 2009 at 0057 hrs New Delhi:

Seven hundred and ninety-nine “illegal” employees of Hardayal Municipal Public Library, the Capital’s oldest library, have finally been shown the door after the Delhi High Court dismissed petitions filed by a section of employees.

The High Court called the mass appointment of these employees by then honorary secretary Ashok Jain “stinking, conceived in fraud and delivered in deceit”.

The decision to axe them would save the Municipal Corporation of Delhi (MCD) about Rs 7 crore annually.

Justice Sunil Gaur dismissed petitions of 96 ousted employees who claimed “individual innocence” about illegality of their selection. “Individual innocence has no place as fraud unravels everything,” he observed in a recent judgment. “The only proper course open to us is to set aside the entire selection.”

The court also directed the library to “compensate” within four months employees who possessed the required qualifications for their posts and had worked sincerely during their tenure.

There were violent protests after a High Court-ordered inquiry by retired Additional District and Sessions Judge G P Thareja in July 2009 found that Jain had fraudulently appointed 799 employees, from ages 15 to 50, towards non-existent permanent, temporary and contractual posts in the library. The appointments, between April 2006 and June 2007, were made with zero budgetary provision or sanction.

“The allocation of funds for expenditure of the library is made in the House of MCD,” Justice Gaur observed.

“There is nothing on record to show that any budget was prepared or financial sanction of MCD was taken prior to making appointments. An assessment of the financial implications of appointments indicates that there would be recurring expenditure of Rs 6 to 7 crore per year.

“There is no sanction from the Finance Department of the MCD for such expenditure.” The inquiry found that the new ‘employees’ did not get their salaries during 2006-2007 due to lack of funds.

Finance records revealed that MCD had given only the usual annual grant of Rs 1.1 crore for that fiscal, proving that no extra budgetary allocation was made.

The library, though, had hiked its annual budget demand to Rs 9 crore for the next year, 2007-2008.

Library facts
The library was set up in 1862 in Chandni Chowk and has 31 branches and over 1.5 lakh books in stock. Initially set up in the Town Hall, it was shifted to the present building and named after Lord Hardinge to commemorate his escape from a bomb attack at Chandni Chowk in 1912. In 1970, its name was changed to Hardayal Library, in honour of Lala Hardayal, who led the bomb attack on Lord Hardinge.







Fresh affidavit in Ishrat case, Centre ready for new probe


Posted: Wednesday, Sep 30, 2009 at 1657 hrs Ahmedabad:

The Centre on Wednesday filed a fresh affidavit in Gujarat High Court in the sensational Ishrat Jahan encounter case, saying it never justified the police action and indicating its readiness for an independent enquiry, a move aimed at pushing the Gujarat government on the defensive.

“The Centre is not concerned with the merits of the action taken by the Gujarat Police and anything stated in the (earlier) affidavit was not intended to support or justify the action of the state police,” the new affidavit says.

“If, on a proper consideration of the facts, it is found that an independent enquiry and investigation has to be carried out, the Centre would have no objection to this and would abide by the decision of the Court,” the affidavit filed by R V S Mani, Under Secretary (Internal Security) in the Ministry of Home Affairs, said.

Taking cover under the Union Home Ministry’s earlier affidavit that Ishrat and three others killed with her on the outskirts of Ahmedabad on July 15, 2004 had links to terror outfit Lashkar-e-Toiba, the Gujarat government had sought to justify their killing in a police encounter. The Gujarat police had claimed that the four were planning major terror strikes, including a mission to assassinate Chief Minister Narendra Modi.

However, Metropolitan Magistrate S P Tamang, who probed the encounter and submitted his report earlier this month, held the Ahmedabad police guilty of perpetrating the “cold blooded murder” of 19-year-old Ishrat, Javed Ghulam Sheikh alias Pranesh Kumar Pillai, Amjad Ali alias Rajkumar Akbar Ali Rana and Jisan Johar Abdul Gani.

In his 243-page hand-written report, Tamang not only rubbished the police claim of their LeT links but also accused the then Police Commissioner K R Kaushik, Crime Branch Chief P P Pandey, his then deputy D G Vanzara, who is at present in jail in connection with the Sohrabuddin Sheikh murder case and encounter specialist Tarun Borat of killing the four for personal interest like promotions and earning the appreciation of Chief Minister Modi.

However, rejecting Tamang’s report that it termed as “bad in law”, the Gujarat government moved the High Court, which stayed it following which Union Home Minister P Chidambaram slammed the state government saying it can’t justify the killings using the “shield” of central intelligence inputs.

“If a state government acts as though intelligence inputs are evidence or conclusive proof, I am sorry for that state government… Certainly no one suggested that based on an intelligence input you should kill someone,” Chidambaram had said.

The fresh affidavit filed by the MHA has said, “the Central Government in the said affidavit did not address any issue relating to the merits or otherwise of the police action”.

It was essentially concerned with the dealing of allegations relating to the intelligence inputs which were available with the Central Government and which are shared on a regular basis with the state Governments, it said.

“It should be clear to all that such inputs do not constitute conclusive proof and it is for the state government and the state police to act on such inputs,” the new affidavit said, adding “the Central Government is in no way concerned with such action nor does it condone or endorse any unjustified or excessive action.”

Meanwhile, reacting to the additional affidavit filed by the Centre, the Gujarat government dubbed it as a “nervous” action.

“Why is the UPA government so nervous in this matter? By filing the affidavit, it has virtually triggered a media trial instead of waiting for the decision of the Gujarat High Court which has formed a committee to investigate whether the incident was a fake encounter or not,” its spokesman Jaynarayan Vyas said.

“We would have liked if the four killed were caught alive so that we could have questioned them about the actual person behind the conspiracy of killing the Gujarat chief minister,” Vyas said.







Law to make essentials available at subsidised rates


Posted: Wednesday, Sep 30, 2009 at 1847 hrs Itanagar:

The UPA government would enact a law to make essential commodities available at a subsidised rate to six crore poor families in the country, Union Finance Minister Pranab Mukherjee said here on Wednesday.

“Making available 25 kg of rice or wheat at Rs 3 per kg to BPL families is the aim of the law. We have requested the state governments to ensure that the poor people get adequate food and essential commodities at a subsidised rate,” Mukherjee told reporters here.

“We are giving subsidy of Rs 131 per LPG cylinder and Rs 17 and Rs 31 per litre of diesel and kerosene oil, respectively,” Mukherjee said.

Those who were above the poverty line were compensated by the recent release of additional dearness allowance by the government and the private sector, he said.

Those not covered by the price index-based DA, he said, would be taken care of when the supply of commodities were enhanced to allow market forces to bring down the prices.

Asked about the reason for spurt in prices of essential commodities after the Lok Sabha election that has become an issue in poll-bound Arunachal Pradesh, Mukherjee attributed the rise in prices, particularly of rice and wheat, to increase in minimum support prices (MSP) effected by the UPA government to encourage farmers to produce more.







Court issues notice to police, Tihar on Kobad Gandhy’s plea


Posted: Wednesday, Sep 30, 2009 at 1632 hrs New Delhi:

A Delhi court on Wednesday sought response from city police and Tihar jail authority on arrested CPI (Maoist) Politburo member Kobad Gandhy’s plea which seeks a direction to them to refer him to a specialised hospital for treatment.

Additional Chief Metropolitan Magistrate Sanjay Bansal issued notice to city police and jail authority and posted the case for tomorrow for further hearing. Gandhy, who was arrested on September 21 and sent to judicial custody till October 6, also pleaded that he should be provided a copy of the FIR lodged by police against him. Gandhy, who is in charge of spreading the banned organisation’s influence in urban areas, has been found suffering from prostrate cancer and cardiac problems.

He is currently lodged in Tihar jail. An alumni of the prestigious Doon School, Gandhy was in the top echelons of the erstwhile CPI (ML-PW) from 1981 and continued as Central Committee member in CPI (Maoist). He was elected to the CPI (Maoist) Politburo in 2007.








Delhi wins case against Maya govt, to acquire 21 acres for key Games route: UP link road

Express News Service

Posted: Wednesday, Sep 30, 2009 at 0050 hrs New Delhi:

The Delhi government has finally won its case against the Uttar Pradesh government on acquiring 21 acres on the Delhi-UP border for the UP link road.

The Delhi government had acquired the land using a special Act as the UP government was not responding to its requests.

In reply to the acquisition, the UP government filed a petition in the High Court, which was dismissed on Tuesday. The decision has given a fresh lease of life to the project as the work is slated to begin this week itself.

The development of the link road has been planned to decongest the prime junction near the Games Village. Under the project, two flyovers will be constructed and the existing six-lane road will be widened to eight lanes. While the first flyover with a single carriageway will cover the stretch at Mayur Vihar Phase-I traffic intersection, the second flyover with a dual carriageway will do away with two traffic intersections — one at Samachar Apartments and the other near DND toll road. There will be a cycle track and footpath on either side of the road.

The Rs 334-crore project is essential for the Commonwealth Games, according to the Delhi government.

The Public Works Department (PWD) plans to add two more lanes to the existing six-lane road and make it signal-free for smooth traffic flow. It needs, rather quickly, 21 acres of land running along the western stretch of this four-kilometre corridor to construct it in time for the Games.

“The UP government was not ready to give up the land till Delhi returned the favour by handing over land close to Okhla. This land is technically under the UP Revenue department but has been earmarked by the Urban Development Ministry of the Centre for construction of a freight depot,” a senior Delhi government official said.

Despite several letters shot off to the UP chief secretary, the government refused to oblige. That was when the Delhi government revoked a special Act to acquire the land. The acquisition was to begin on Tuesday.

Following approval from the DUAC and the DDA Technical Committee in June 2008, the project was eventually finalised in February 2008 after being in the pipeline since 2006.

The project deadline is April 2010.








Maya Govt ‘misled & confused’ SC on statues row, allege affidavit

Posted: Wednesday, Sep 30, 2009 at 1848 hrs New Delhi:

The Mayawati goverment in Uttar Pradesh “misled” and “confused” the Supreme Court and filed a “false” affidavit denying further construction activities at the memorials for BSP founder Kanshiram and other Dalit leaders, a fresh counter-affidavit stated on Wednesday.

In the counter-affidavit, Mithilesh Kumar, one of the petitioners on whose petition the construction was stayed by the apex court on Sepember 8, charged that the recent affidavit filed by the state government had deliberately coined new names for some of the structures to claim that they were not the subject matter of writ petitions in the Allahabad High Court.

The apex court had earlier termed “unsatisfactory” the UP government’s affidavit which, while denying any fresh constructions, also offered “most profuse apology for any transgression.”

“To mislead this hon’ble court and to create confusion, the state through its Chief Secretary has split one composite site into different projects and coined new names for them in an attempt to show that the projects with newly coined names are not covered under the writ petitions and on that basis continue construction at the disputed sites in the teeth of restrain orders,” the counter-affidavit stated.

According to it, Bhagidari Bhawan, Library, Police Chowki, are all part of the Dr Bhimrao Ambedkar Sthal on which the apex court had stayed all further construction activities. It was, however, alleged the state government went ahead with the construction, inviting the wrath of a bench comprising Justices B N Aggrawal and Aftab Alam.








Court acquits three accused in a 1984 anti-Sikh riots


Posted: Wednesday, Sep 30, 2009 at 1742 hrs New Delhi:

A Delhi court acquitted three persons accused of leading a mob that lynched a man during 1984 anti-Sikh riots in New Delhi on Wednesday.

Additional Sessions Judge Pinki acquitted Jagdish Singh, Sajjan Singh and Ishwar Singh, who were charged with leading a mob which allegedly killed Gurbakshish Singh outside his residence in Paschim Vihar locality on November one, 1984, during the riots that followed the assassination of the then prime minister Indira Gandhi.

The police had registered an FIR almost eight years after the incident under various sections of IPC dealing with rioting, looting, arson and murder.

Father of the victim, Swaran Singh Bhatia, who was forced to leave the country after the incident, had come from Canada last year to depose in the case.

Bhatia had testified that the mob, which had besieged his house, was not stopped by the policemen who remained mute spectators during the entire episode.









26/11 trial: Kasab confessed to magistrate, wanted to inspire others


Posted: Wednesday, Sep 30, 2009 at 1515 hrs Mumbai:

A city Magistrate told the 26/11 trial court that prime accused Ajmal Amir Kasab had confessed before her voluntarily, his role in the terror attacks, saying he wanted others to draw inspiration from his confession.

Additional Chief Metropolitan Magistrate Rama Vijay Sawant Vagule said Kasab was produced before her on February 17 where he said he wanted to confess.

He was given 24 hours to reconsider if he wished to confess, she said.

“On February 18, when Kasab was produced again before me, he reiterated that he wanted to confess. He showed no remorse for his crime and told me that he wanted to confess so that others may derive inspiration from his action,” Vagule told the Court.

“I also asked him whether there was any promise or force exerted upon him to confess and I also reminded him again that it was not obligatory on his part to confess and also that it would be used against him in the trial for sentencing him,” the Magistrate who deposed as a witness told Public Prosecutor Ujwal Nigam.

The Magistrate was examined as a witness because Kasab had retracted his confession saying that he had made it under police duress.

“I also conducted a physical examination on Kasab and found that he had two injuries on his wrist which he said he had sustained during firing in the attacks, the Magistrate said.

Kasab was again given 48-hours to reconsider and was produced before the Magistrate on February 20. He once again reiterated that he wanted to confess voluntarily but since the Court time was over, he was asked to come the next day.

Finally, his confession was recorded on February 21 when he was produced without handcuffs before the Magistrate, the Court was told.

“I enquired from Kasab that whether 48-hours time was sufficient and he said yes. I also enquired whether anybody from the police had met him in the last 48-hours to which he replied in the negative. He was once again reminded that the confession could go against him,” the Magistrate told Judge M L Tahiliyani.

“After questioning Kasab, I was satisfied that he was ready to confess without any force and was doing so voluntarily. His confession was then recorded by me,” she said.

Since some words were in Urdu, the confession was recorded in question-answer form, she said. All pages have signatures of Kasab and the Magistrate.

The confession of Kasab was shown to the Magistrate and she said that it was the same confession that she had recorded that day.

The move to examine the Magistrate is considered significant because Kasab had retracted his confession in the trial court saying his statement was recorded under duress and that he had not given a voluntary confession.

The Prosecution is relying on confession made by Kasab before the Magistrate and upon the guilt plea made by Kasab mid-way during the trial.

However, in the guilt plea Kasab has not accepted his entire role. For instance, he has admitted to have fired at the Chhatrapati Shivaji railway terminus (CST) but said he was only following the instructions of Abu Ismail who was leading the team.

Kasab has also not admitted in the guilt plea that he had planted a bomb in a taxi and said it was Ismail who had done it. Besides, Kasab denied having fired at slain police officers Ashok Kamte, Hemant Karkare and Vijay Salaskar.

However, in the confession, Kasab had admitted his role in the CST attack, firing at the police officers and planting bomb in the taxi. Therefore, it is important to examine the Magistrate, Nikam had said.

Kasab had also bared the role of Lashkar-e-Taiba in his confession saying that LeT chief Hafeez Muhammed Saeed, the outfit chief of operations Zaki-Ur-Rehman Lakhavi and its member Abu Hamza had trained the accused in various parts of Pakistan in military exercises and intelligence training.

Kasab had said that Sayeed had told them that time had come for ‘jehad’ and their ultimate goal of capturing Jammu and Kashmir could be achieved by attacking India.

They were told to go to Mumbai and indiscriminately fire at people killing as many as they could. Mumbai was the target because it is a financial hub and attracts foreign tourists.

The attack, in which over 160 people, including some foreigners were killed, was a proxy war on India and aimed at destabilising the country, Nikam said.

Kasab is involved in seven cases– murder of crew of marine vessel ‘Kuber’, including its navigator Amarsingh Solanki, CST firing, Cama Hospital firing, gunning down three police officers, taxi bomb explosion in Vile Parle, theft of Skoda car and a policeman’s murder at Chowpatty.

Kasab’s team mates, killed by security armed forces, were involved in firing at Taj Mahal Hotel, Oberoi Hotel, Leopold Cafe, Nariman House and the taxi bomb blast at Mazgaon. Kasab has been charged with conspiracy in these cases.








Ready to tolerate other woman to save marriage: Lady to HC


Posted: Wednesday, Sep 30, 2009 at 1055 hrs Mumbai:

‘The other woman’ in husband’s life normally becomes a ground for seeking divorce, but in a poignant case, a woman told High Court recently that she was ready to tolerate husband’s affair to save her marriage.

The husband had obtained divorce from family court, alleging that the wife and her parents were treating him with cruelty. But the Bombay High Court, in the order last week, cancelled the divorce.

Deepa and Sandip (names changed) got married in 2002.

Sandeep filed suit for divorce in the family court last year. He argued that Deepa’s parents wanted him to become a ‘Ghar-jamai’, and live with them.

He also argued that Deepa was too suspicious. Deepa, on the other hand, argued that he was having an affair with another woman, and that was why he wanted divorce.

The family court upheld Sandeep’s case in May this year, saying that suspecting the husband’s character in this way amounted to cruelty, and granted him divorce.

Deepa filed appeal in the Bombay High Court, seeking to quash the divorce.

Her lawyer told the court that in order to save the marital relationship, and for the sake of minor daughter, “she was ready to tolerate husband’s relationship” with the other woman.

The High Court, while reversing the divorce order, accepted that Deepa had enough evidence to prove husband’s extra-marital affair.

In the given circumstances, it was natural for the wife to make inquiries about husband and to become suspicious the High Court held; adding that this did not amount to cruelty.

Before Family court granted divorce, Deepa had also filed a complaint of assault against her in-laws under Domestic Violence Act. Sandeep had argued that this complaint was false, and this too amounted to cruelty on her part.

But High Court said that filing a criminal case – which was prima facie genuine – would not amount to cruelty.

The division bench led by Justice P B Majmudar restored the marriage.








Moily defends Govt decision to drop case against Quattrocchi


Posted: Wednesday, Sep 30, 2009 at 1530 hrs London:

Union Law Minister M. Veerappa Moily has backed the Centre’s decision to drop the case against Ottavio Quattrocchi admitting that there was nothing left to do in the case.

“The case is going on since very long…If Quattrocchi could be brought back or any conviction could be held… and the case could be pursued with a positive result. All this has been examined. But ultimately it was found that nothing was positive…,” Moily was quoted as saying by the TV channels.

Pointing out to a court ruling in 2002 which termed the case as “a waste of time”, Moily said the then ruling BJP-led NDA coalition had not filed any appeal in the case during its tenure.

The Law Minister also lauded the “positive role” of the CBI in the case, an issue which the opposition alleges that the UPA government had misused the intelligence agency.

“There was no appeal at all filed during the NDA regime. Thereafter, the case went to the CBI which has taken all together 22 years… They have been playing a positive role,” he said.

Rejecting opposition’s charges of protecting Quattrocchi, he said, “it is not a question of protecting. We are not interested, we are least interested in Quattrocchi…”

“The Attorney General, the Solicitor General and our law officers and also the CBI, everybody feels that there is no basis for proceeding. There is no point in proceeding just to satisfy the opposition.”







HC relief for JNU seat aspirant

TNN 29 September 2009, 11:44pm IST

NEW DELHI: Delhi High Court has directed the Jawaharlal Nehru University (JNU) to admit a student whose qualifying exam results were delayed. Nikhil Jain moved the HC after he was denied admission in JNU.

Nikhil had cleared the JNU entrance test in April 2008 and deposited the fee. But since one of the papers of the qualifying examination was pending, he requested the university to defer his admission to the winter session. The university had accepted his plea, but when Jain approached it after clearing the qualifying examination, he was denied admission.

Coming to the rescue of Jain, Justice Anil Kumar ruled in his favour and directed the JNU administration to grant admission to the petitioner in MA (political science) course from 2009-10.

The JNU counsel had argued that the student had appeared in one of the supplementary papers for the qualifying exam after August 14, 2008, and was thus not eligible for admission. Jain, however, placed on record the certificate from the principal of Sri Aurobindo College stating that he had appeared in all the BA third year exams before August 14, 2008, though the result of the supplementary examination was declared after that date.

“The plea of the university that the petitioner had appeared in the qualifying examination of the graduation course after August 14, 2008, is based on their own assumption. Merely because the petitioner was placed in the supplementary for one paper of the BA course, it could not be assumed by the respondent that the petitioner had not appeared in the papers of qualifying examination prior to the due date,” the judge noted while allowing Jain’s plea.

“If a candidate is placed in the supplementary in one of the papers, it cannot be stated that the candidate has failed in the qualifying examination. The decision to cancel the deferred admission on the assumption that the petitioner did not appear in all the papers of qualifying examination prior to the due date is irrational and not based on sound reason rather no reason has been disclosed,” the court said.








HC orders status quo on Sirsaim Communidade land

HC orders status quo on Sirsaim Communidade land
The persons who were allotted plots by the Communidade of Sirsaim have now got themselves into deep trouble. A Division Bench of Bombay High Court at Goa on Tuesday directed authorities concerned to maintain status quo in respect of construction in plots allotted “illegally” by Sirsaim Communidade.
Altogether, the ex-managing committee of Sirsaim Communide which remained in office for about ten years – allotted 306 plots in sixteen survey numbers, without the approval of the government.
The Court has also directed the administrator to submit a status report on constructions done in plots allotted illegally by Sirsaim Communidade.
North Goa Collector Mihir Vardhan, in his inquiry report submitted to the High Court, had reported that financial fraud running into crores of rupees has been committed by the old managing committee of Sirsaim Communidade.
The counsel for the Administrator, S R Rivonkar submitted that the report has clearly revealed plots were allotted illegally. As per the Collector’s report, in some of the plots, houses have already been constructed, while in other cases, constructions are in progress.
He urged the court to issue an appropriate order under the light of the collector’s report indicting old managing committee headed by Agnelo Fernandes.
The Division Bench of Justices S B Deshmukh and N A Britto was hearing a petition filed by Rantnakar Parab and others.
The petitioners were nominated by the government on managing committee of Sirsaim Communidade after new committee that came to be elected for a triennium 2007-2010 did not take charge and old committee continued in the office.
The managing committee headed by Fernandes was first elected for a triennium 1998-2001 and later for 2001-2004.
For the next triennium 2004-2007, a new committee was elected however it did not take the charge and old committee continued to hold sway.
In March 2008, the government approved the proposal to dissolve the managing committee elected for triennium 2007-2010 (for not taking the charge) and nominated a new committee under Article 41 of the Code of Communidade.
However, this decision of the government was challenged by old managing committee of Agnelo Fernandes and obtained stay on the operation of the government.
Aggrieved by this situation, Parab approached the High Court. The ex-managing committee had raised its objections as to allegations in the petition but in the meantime pursuant to today’s court order, the parties concerned will have to maintain status quo.
While the “fraud” committed by Sirsaim Communidade runs into crores of
rupees, the government, as reported by Herald, so far has managed to recover only Rs 10.95 lakhs from fraudulent committee.
“It is evident from findings and analysis, the extend of financial fraud is running into crores of rupees. The figures indicated are only approximate.
It is necessary that the erring committee members disclose all the facts and figures about all the illegal transactions carried out, to the court in order to uncover the exact extend of misappropriation or diversion of money. 
The Rs 10.95 lakh recovered from them constitutes only the
tip of iceberg” observed District Collector in his report. The matter would be next heard on November 5.








Banks may have to return funds meant for disabled

Dhananjay Mahapatra , TNN 30 September 2009, 03:20am IST

NEW DELHI: Banks pursuing defaulting borrowers is common. But, in the Supreme Court on Tuesday the borrowers turned the tables on all nationalised banks, which to start with may have to pay Rs 50 lakh each.

It’s the doggedness of the Association of Borrowers of Karnataka which appears to have paid off in taking to task the financial institutions and banks, who have been pocketing an estimated Rs 724 crore annually by rounding up interest tax collections since 1993.

Petitioner association’s counsel Kiran Suri drew the attention of a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and B S Chauhan to a 2004 judgment of the SC directing the Comptroller and Auditor General (CAG) to recover this money, now totalling nearly Rs 10,000 crore, to create a corpus for utilisation in implementation of the Multiple Disabilities Act, 1999.

She said the SC had realised that the recovery process would take time and had hence directed the nationalised banks to pay Rs 50 lakh each which would constitute the initial funds for the implementation of the Act.

When additional solicitor general Indira Jaising conceded that it was not for the government to collect the money due from the banks, the Bench issued notice to 27 nationalised banks seeking their response as to why they have not complied with the 2004 verdict of the apex court.

In 2004, the SC had directed: “Despite the progressive stance of the court and the initiatives taken by the government, the implementation of the Disabilities Act is far from being satisfactory. The disabled are victims of discrimination in spite of beneficial provisions of the Act.”

“We are therefore of the opinion that in the larger interest a fund for the aforementioned purpose be created with the amount at the hands of the Union of India and the appellants and other concerned banks, which may be managed by the CAG,” it had said.

“We would request the CAG to effect recoveries of all the excess amount realised by the Union of India by way of interest tax and interest by the banks and other financial institutions and create the corpus of such fund therefrom. The appellants and other concerned banks are also hereby directed to contribute to the extent of Rs 50 lakh each in the said fund,” the SC had said in its 2004 judgment.

The CJI-headed Bench said at least the banks should have paid up Rs 50 lakh to start with. “Now individual banks have to be pursued and the money due from them have to be extracted,” the Bench observed.








SC temporarily suspends HC order

Spl Correspondent
 NEW DELHI, Sept 29 – In a major relief to the officiating and former chief executive officers of Guwahati Metropolitan Development Authority (GMDA), Preetom Saikia and Ashish Bhutani, respectively, besides a builder Guna Tamuly Phukan, the Supreme Court today temporarily suspended Gauhati High Court’s detention orders. The trio heaved a sigh of relief, when a three-member Bench of the Supreme Court headed by Chief Justice of India, K G Balakrishnan responding to their petition decided to give them temporary relief until the next date of hearing.

The case is likely to come up for further hearing for admittance and issue of notices after the ensuing vacations. The complainant of the case had not filed any caveat in the apex court and Assam Government too was absent, as it was not issued any notice.

All the three indicted by the Gauhati High Court, hired top-notch lawyers to defend them in the case that has created ripples in Assam. Attorney General, Goolam E Vahanvati, Soli Sorabjee and Mukul Rohtagi represented Bhutani and Saikia besides the builder.

Their counsel made an urgent mentioning before the CJI, seeking relief.

Bhutani and Saikia’s counsel, the Attorney General contended that a demolition drive had been undertaken by the GMDA following the High Court’s Order. Saikia, on the other hand, pleaded that he was not with GMDA, when the High Court’s order was issued and had joined as CEO later.

Last week, a Division Bench of the Gauhati High Court of Justice Ranjan Gogoi and Justice Amitava Roy in a contempt case held Bhutani, Saikia and a city-based builder Phukan, guilty of wilful and deliberate violation of the orders passed by it, sentencing each with simple imprisonment of two weeks. The Court also imposed a fine of Rs. 25,000 to each of the three.

The contempt proceeding has been registered on May 18, 2007 on the basis of a representation to the Chief Justice by Ashok Medhi, a resident of Dighalipukhuri East, alleging deliberate violation of its earlier orders passed in response to a Writ Petition.

The Court had on September 21, 2006 directed the builder to demolish the construction, which is made at sixth floor of the apartment situated at F C Road, Uzan Bazaar, Guwahati, within a stipulated period and also directed GMDA to make periodical inspection to ensure demolition of the construction and to submit status report to the High Court.

Subsequently on December 7, 2006, the writ petition was listed before the court and the court among others took into consideration the affidavit filed by the GMDA professing that the inspection of the work of dismantling of the sixth floor was carried out by it in terms of the order. The inspection report was laid before the court.

However, the Court acting on the basis of the representation initiated contempt proceedings and appointed an Advocate Commission for inspection of the building and to submit a report.

The Advocate Commission reported existence of some portion of the roof of the sixth floor including water tanks. The report accompanied by photographs of the building, apparently showed existence of structures on the sixth floor of the building.

On the basis of the Report, the court held that its orders were wilfully disobeyed.







Who watches the watchmen?

29 September 2009, 11:57am IST
It has been a long, hard summer for the judiciary and there is no respite on the horizon. From a heated debate about the declaration of judges’ assets, it has stumbled directly into an ugly controversy regarding the elevation of P D Dinakar. As reported in The Hindu on September 16, a letter of complaint by several lawyers from the Chennai Bar has made allegations against him relating to “land grabbing and other irregularities”.

Cue the claims and counter-claims . The report reveals that eminent lawyers like Fali S Nariman and Shanti Bhushan have weighed in on the complainants’ side. Dinakaran himself has denied the allegations of course, saying, as quoted by Nagendar Sharma and Satya Prakash in Hindustan Times on September 17, “I come from a rich agrarian family… My legal career is an open book and I do not need to indulge in such wrongdoings”.

The Dravida Kazagham and certain advocates of the Madras High Court have mounted a more unusual defence on his behalf. A September 23 Financial Express report reveals that that they “have counter-charged that he was a victim of a vilification campaign, for being ‘a South Indian and a Dalit’.”

The most interesting aspect of the entire affair is the way it has gone beyond a specific allegation of corruption to re-examine judicial accountability as a whole. As Vinay Sitapati points out in the Indian Express on September 21, “a collegium of the five senior-most Supreme Court judges shortlist nominees themselves, then decide among these names. There is no political oversight – either executive or legislative – nor is there a forum for the public to air grievances”.

Nariman has been particularly vocal, raising several important issues in an interview with Shekhar Gupta carried in the Indian Express on September 21. Among the more troubling points he makes is that “the greatest problem with our courts, high courts particularly, is the problem of caste. If you are a lawyer belonging to a particular caste appearing before a judge of such and such caste, you will either lose or win depending upon your caste”. He goes on to push the idea of a judicial ombudsman as a check built into the system to “inquire into the complaints against High Court judges and Supreme Court judges. Keep it to himself, quietly consult the Chief Justice, take his views and move in a particular direction”. There are opponents to this point of view, such as former CJI J S Verma. Ajmer Singh reports in Mail Today on September 22 that Verma believes an ombudsman would challenge the CJI’s authority, and instead recommends a “national judicial commission, headed by the vice- president and with members from the executive and judiciary”. While the collegium debates what to do about Dinakaran, the only consensus seems to be that there are serious lacunae in the Indian judicial system.







KPT land scam: Shipping Ministry, Trust get High Court notice

Hiral Dave

Posted: Sep 29, 2009 at 0109 hrs IST

Rajkot Two years after a multi-crore land scam rocked the Kandla Port Trust (KPT) in Gandhidham, the Delhi High Court recently issued notices to the Ministry of Shipping and the KPT in this regard. The notices are returnable by October 9.

Taking cognisance of a public interest litigation (PIL) filed by the Centre for Public Interest Litigation (CPIL), the court, on September 9, also asked the KPT not to execute or renew any lease on the land in question further. The Trust, the biggest public sector port in India, handles 70 million metric tonnes cargo annually.

At the heart of the controversy is nearly 16,000 acres owned by the KPT. It was leased out to a few salt companies at throw away prices four decades ago.

“The scam has cost the KPT several crores. The land had been exploited for 40 years for salt production, which is not even a port-related activity. According to the Shipping ministry rules, the land can be used only for port related activities,” said Pranav Sachdeva, a senior lawyer on behalf of CPIL.

Even as the lease period expired in 2004, the companies allegedly continue to use the land, causing the KPT a loss of Rs 200 crore each year, which, incidentally, is even more than the Trust’s turnover of Rs 180 crore. The PIL says the land was leased out to 26 companies, which are owned by a group of some six families.

The KPT has been charging only Rs 145 per acre/per annum, even though rules say the lease should be 6 per cent of the cost of the land. The current price of this land in bank documents filed seeking loans by these companies was put at Rs 1.78 lakh per acre.

This means the annual lease amount should be at least Rs 7,000 per acre/per annum. This suggests the KPT has been incurring a loss to the tune of Rs 6,855 per acre/per annum

In 2007, the then deputy chairman and chief vigilance officer of KPT, Manoranjan Kumar, had unearthed the scam, and brought it to the notice of the Shipping ministry and the chief vigilance commission. Later, the ministry asked four officials —Manoranjan, the then chairman A Janardan Rao, financial advisor A Krishnan and chief accounts officer A Gadakar — to proceed on leave. After this, neither the ministry nor the CVC took any action. Manoranjan, who was on leave without pay, then moved the Central Administration Tribunal (CAT) in March. The CAT ordered the Shipping ministry to pay him compensation, besides berating the CVC for not shielding an honest officer.

The next hearing on the petition by a team of senior lawyers led by Prashant Bhushan is on October 14. The petitioners have requested a probe by a Special Investigation Team.






NHRC team may probe Vadodara arrests

Maulik Buch / DNA

Wednesday, September 30, 2009 9:13 IST

Vadodara: National Human Rights Commission (NHRC) is likely to send a team to the city to probe the arrests, and alleged torture, of five youths on the charges of planning to bomb visarjan yatra (immersion procession) of Ganesh Puja early this month, by the local police.

This was stated at a media briefing in New Delhi, organised by social activist Shabnam Hashmi and her associates. After the arrests, the city police had claimed that it had recovered country-made rocket launchers, bombs and explosives from the youths.

The family members of the arrested accused have demanded independent investigations by the NHRC and National Minorities Commission. They have alleged that the youths were illegally detained and forced to confess their involvement in the case.

Shabnam Hashmi told DNA that the NHRC has agreed to send a team to Gujarat soon to investigate the matter. According to sources, the team is expected to come to Vadodara within a week.

The Vadodara police had announced to have seized desi rocket launchers, sutli bombs and explosives from Hathikhana on September 7. The arrests were said to have been made on the basis of information received in course of investigations into a case of bomb explosion that had taken place at Hathikhana on October 8 last year.

The police claimed that one Zahir Abbas Amruddin Sheikh was picked up by them in connection with the bomb explosion. During interrogation, the police got clues about arms and ammunition. Further investigations revealed the involvement of Usmangani alias Nawab Abdul Gaffar Ansari, Amin Razzak Shah, Iqbal alias Ikku Majidbhai Shaikh and Mustaq Ismail Shaikh in the plan to bomb the visarjan yatra.

The police arrested them and took them on 12-day judicial remand for detailed investigations. Currently, the youths are in judicial custody. According to a release by the NGO, Anhad, a team comprising of social activist Shabnam Hashmi, Harsh Mander, Rahul Rastrapal and others met the family members of the accused, who claimed that the youths had no criminal record.

They were allegedly picked up by people in civvies, sometimes using force and sometimes under false pretext. They were taken blindfold to a farm and subjected to torture. The family members said they were not informed about the whereabouts of the youths. They searched for the youths in various police stations and hospitals.

Then, a local leader took a delegation to the ACP, Rakesh Sharma. It was then that they were told that the youths were safe and in police custody, though even then it was not divulged where they had been kept or why they were picked up.

According to the families of the youths, in late evening the same day, 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. The police took them on varying periods of police remand, followed by judicial custody.

While the youths were allegedly threatened with dire consequences if they told the judge about torture, the families were asked not to contact anyone; else, more cases would be slapped on the youths.

When Rahul Rashtrapal, Dushyantbhai, Sachin Pandya and Shabnam Hashmi went to the Vadodara jail and met two of the youths, Zaheer and Iqbal, on September 25, the two narrated in detail how they were tortured.






From London to ‘torture’ chamber


New Delhi, Sept. 29: Families of five Muslim men picked up for an alleged plot to bomb Vadodara have accused Gujarat police of illegal detention and torture.

One of them, a tailor who returned from London a month ago, was given electric shocks all over his body and couldn’t walk when relatives met him at a police station, his family claimed.

The allegations come close on the heels of a magistrate’s report that said state police killed a 19-year-old college girl in a staged encounter five years ago, though Gujarat High Court later stayed the report.

The five men — all from Fatehpura Hathikhana, a lower-middle-class, Muslim-dominated area in Vadodara city — were picked up days before Ganesh Visarjan on September 3 and the Gujarat bypolls a week later, and booked under the arms act and the explosives act.

Their families have moved the National Human Rights Commission (NHRC) and the National Commission for Minorities (NCM), alleging that all five had been kept in illegal custody for several days and tortured before being produced in court. None of them had a police record.

The minority panel has sent a team of officials to Vadodara to probe the allegations.

Tailor Iqbal Hussain, 40, was whisked away by four men, allegedly cops. Zahir Abbas, 22, was picked up the same day and detained for four days.

“He had just come back from offering namaz on September 2 when a man came and said he was wanted downstairs. He went outside and as soon as he crossed the road, he was manhandled by at least 20-25 men who pushed him into a waiting car. For four days we didn’t know anything about his whereabouts,” said Zahir’s mother Rehmat Abbas.

“It was on September 6 that we finally met him. He couldn’t speak. He just told me, ‘Amma, mere liye duwa karo (Mother, pray for me). His lips had swollen and he had to be carried by two policemen.”

Mustaq Ismail Shaeikh, 34, was picked up on September 1, Amin Razak Shah, 39, on September 2, and Usmangani Ansari, 35, on September 3.

All the arrests were shown to be on September 6, a day before Vadodara police commissioner Rakesh Asthana told a media conference that the five were part of a group that had planned to bomb areas in the city during Ganesh Visarjan.

The commissioner said the five were arrested with rocket launchers and sutli bombs, but none of these was on display.

Shabnam Hashmi, a social activist who met Iqbal and Zahir in jail, said the duo told her they were taken to a farmhouse outside the city and tortured. “Iqbal said two men stood on his thighs, legs stretched wide, and beat him up brutally. He was given electric shocks from the waist down.

“Zahir said he was stripped naked and given electric shocks all over his body. They were beaten up with lathis and forced to sign confessional statements.”

The families of the five later travelled to Delhi to take their grievances to the NHRC and NMC.

“We got threat calls asking us not to go to Delhi. We thought of not going but changed our mind,” said Usmangani’s brother Ghansar.








– Advocate Nibedita Roye answers your queries


Q: In June 2008, we rented out the ground floor of our house as per a registered leave and licence agreement for 11months and 29 days, with two months’ notice period on either side. Our agreement period ended in May, 2009. When asked about renewal, the tenant said that he’d vacate the house in a month or two. However, till date he has not vacated the premises. He has also stopped paying his rent since August, citing monetary difficulties. How can we get the premises vacated?

Rajat Dutta, Calcutta

A:A: You can send your licencee a notice to quit on grounds that the licence period as stipulated in the agreement has terminated. Thereafter, you may file a suit for eviction against him as per the provisions of the Transfer Of Property Act, 1882.

Q:My tenant is a 90-year-old man whose wife has expired. His son lives with him. After my tenant dies, if I issue a rent receipt in his son’s name, will that mean that I have accepted him as a tenant? Can I file an eviction suit against the son immediately?

Debashish Ghosh, Calcutta

A: Whether you recognise your tenant’s son as a tenant or not, according to the provisions of The West Bengal Premises Tenancy Act 1997, he will inherit the tenancy of his father since he has been residing with him and can remain on the premises for five years from the time of his father’s demise. Hence, you cannot immediately file an eviction suit.

Q:My sister, who has no children, has bought a flat in a co-operative housing society in West Bengal.She has made my son the only nominee for membership to the housing society, despite the fact that her husband and other legal heirs are alive. I would like to know if the nominee will have undisputed ownership of the flat after her demise or will her legal heirs have to forgo their claim to the said property?

Keka Mitra, Calcutta

A: According to the West Bengal Co-operative Societies Rules, 1984, a member of a co-operative society may nominate, in writing, any person belonging to his family to whom the share shall be transferred upon his death. But if the member has no such family he may nominate any other person. The term “family” includes sons and daughters. Since your sister has no children she can nominate your son. But since her husband is alive he may challenge the nomination. However, it may not stand in a court of law since the co-operative society has accepted her nomination.

Please send your legal queries with your name and address to Legal FAQs, The Telegraph (Features), 6 Prafulla Sarkar Street, Calcutta 700001. Or email us at









Despite the Supreme Court guidelines on safety regulations for schools, few institutions have implemented them. Devlina Ganguly reports

A needless tragedy occurred in Delhi recently when five girls were killed and 27 others seriously injured in a stampede at their school. Heavy rains had flooded the premises of the school and a rumour went around that there was a short circuit somewhere. Panic-stricken children rushed down the narrow staircase in order to get out, and five lives were lost in the ensuing stampede.

Of course, this is not the first time that such a tragedy has occurred in an Indian school because of a poor crisis management system. In July 2004 a fire swept through a school in Kumbakonam, Tamil Nadu, killing 93 children. The building caught fire while students were sitting in their thatched-roof classrooms. What made matters worse was that the school had only one small exit.

The country does, however, have laws that make it mandatory for schools to implement proper safety regulations. For instance, the Right to Free and Compulsory Education Act, 2009, lays down that a school building has to be an “all-weather” one (which will withstand extremes of weather) and that there should be “barrier-free access” to the school.

What’s more, in a significant ruling in April 2009, the Supreme Court ordered all government and private schools to instal fire-extinguishing equipment within six months. The apex court also ordered all schools to adhere to the safety measures prescribed in the National Building Code of India in 2005. The code provides detailed instructions on how to construct fire-safe buildings. Tables and drawings set standards for schools in particular, including the number and types of fire extinguishers, the quantity of water necessary for a proper fire fighting system and other safety measures.

The ruling came in response to a writ petition filed in the Supreme Court in the aftermath of the Kumbakonam tragedy in 2004. The petition had sought that the state should ensure that a government-certified engineer visits each school at least once in two years and issues a ‘stability certificate’ if the building is found to be in good condition. It also demanded that schools should restrict the number of students they admit in accordance with the facilities available.

At that time the apex court had observed, “Flagrant violation of school safety regulations continues in the entire country even four decades after the government pledged to enforce them when a private school building in Madurai caved in, killing 35 school girls and injuring 137.”

As the stampede in the Delhi school shows, little has changed since then. Following the incident, the Supreme Court came down heavily on the Delhi government and other state governments for their utter disregard for the safety of students. “Most schools do not have emergency exits,” a two-judge bench said.

One of the guidelines set down by the Supreme Court in April this year was that every school should carry out a structural evaluation periodically. However, Malini Bhagat, principal, Mahadevi Birla Girls’ Higher Secondary School, Calcutta, says, “Till date, no external authority has come to inspect our school. We have our own internal body that advises us on the safety guidelines.”

The Supreme Court had also ordered that regular fire drills be conducted in schools so that students know what to do in case of a fire. But experts point out that even this is not being followed in most schools. Says Shireen Vakil Miller, director, advocacy and policy, Save the Children, an organisation that fights for children’s rights in India, “With the exception of some elite private schools, most schools have not undertaken proper safety measures for children. For instance, how often are children required to do fire drills in schools? This should be a mandatory exercise once a term.”

In the UK, for instance, safety measures in schools are mandatory and the principal is required to inform the board of governors about fire drills, how long they took, and other relevant details.

But in our country, despite the Supreme Court guidelines and the safety norms laid down in the Right to Free and Compulsory Education Act, there’s been very little effort to implement them. Says Shanta Sinha, chairperson, National Commission for the Protection of Child Rights (NCPCR), “The commission has not taken up the issue of safety in schools in terms of physical infrastructure as a policy matter. We tackle the issue only on a case by case basis. But we will certainly have to frame some rules. As of now, though, there is no comprehensive policy on the issue.” According to the Right to Education Act, NCPCR is the body entrusted with the responsibility of monitoring the rights of children in schools across the country.

Some say that the need of the hour is to make a new law that clearly spells out safety norms for schools and also punitive measures for those who flout them. Says Joy Sengupta, advocate, Calcutta High Court, “The judiciary has its limitations. The judges can only interpret existing laws, they can’t make new ones. In this case, the legislature has to make some new laws whereby the guidelines will have to be followed by all schools. They should also be penalised if they flout the guidelines. At present, erring schools can only be hauled up for contempt of court.”

Clearly, it is time the state took stringent action to ensure that at least the Supreme Court guidelines on safety standards in schools are maintained. Otherwise, more young lives may be lost all because we were too callous to keep them safe.






Social activist flays Gujarat Police


New Delhi, Sept 29 (PTI) Social activist Shabnam Hashmi today accused Gujarat police of “illegally detaining” several Muslim youths in Baroda early this month ahead of the bypolls in the state on charges of plotting terror attacks during Ganesh immersion and demanded action against them.

She maintained five youths were picked up between September 1 and 3 “randomly” by plainclothes policemen on charges of “planning to bomb the Ganesh Visarjan Yatra” and were “brutally tortured in farm houses” on the outskirts of Baroda.

“The intention of the police was to create a sensation before the by-elections in the state,” Hashmi, flanked by victims’ family members, claimed.

The youths were charged with possessing bombs and rocket launchers, she alleged.

Hashmi said the National Commission for Minorities, to whom the victims approached apart from NHRC, has agreed to send a team to Gujarat to look into the matter.






A new institution in the making

G. Mahadevan

The proposed Centre for Disability Studies is expected to develop new educational technologies for different categories of the differently-abled persons.

In order to focus academic and social attention on the challenges faced by differently-abled persons, the Department of Education has drawn up a proposal to institute a Centre of Excellence for Disability Studies.

Education Minister M. A. Baby chaired the first meeting of a high-level committee constituted to explore the idea of setting up such a Centre.

Now, the government is likely to constitute a core committee that would draw up a detailed project for setting up the centre and for offering graduate, postgraduate, and research programmes in disability studies. The core committee is also expected to give the government an idea of the budgetary support required for instituting the centre and other means of mobilising funds for the Centre sustained operations.

Those who were present at the meeting include Dr. G. N. Karna member, NHRC Core Group on Disability and Chairman, Working Group on Disability for 11th Five Year Plan (Planning Commission), Dr. G. Lokanadha Reddy Dean, School of Education and Human Resource Development, Dravidian University, Kuppam and K. N. Panikkar the Vice-Chairman of the Kerala State Higher Education Council.

“The centre shall focus on studies pertaining to the social, cultural, political, economic and psychological studies of the differently abled.

The centre should also provide the government with necessary academic and documentary support for policy formulation and for designing specific programmes for the disabled,” the concept note for the Centre prepared by the government reads.

The government initially wanted to name the new centre as one for the ‘study of the differently-abled’. At the committee meeting however, Dr. Karna told Mr. Baby that the appropriate name would be a centre for disability studies. Officials who participated in the committee’s meeting in Thiruvananthapuram told The Hindu-EducationPlus that the government does not see the proposed centre as just an academic body. “There are plans to have a resource and information centre, a rehabilitation centre, counselling centre and capacity building centre at the proposed centre of excellence. So in addition to attracting the best of talents for disability studies, the centre would also be a platform for reaching the fruits of such study and research to persons with disabilities,” an official present at the meeting explained.

According to the concept note, the Centre is expected to develop new educational technologies for different categories of the differently-abled persons in both the vocational and general education streams.

“The Centre could work in close collaboration with the newly-formed Centre for Engineering Research,” the concept note says.

The Centre, proposed to be set up under the LBS, would also be the nodal agency for developing curricula for disability studies and would also provide academic backup to various social inclusion programmes of the government.

If the government’s plans materialise, public universities in the State would have a major role to play in disability studies.

The proposed Resource and Information Centre would, in all probability, have a presence in all universities in the State. There would also be such a centre in one institution affiliated to a university in every district in Kerala.

Inter-disciplinary centres for disability studies would initially be established in one or two universities in the State.

Moreover, there would also be an inter-university centre for disability studies which will coordinate academic activities in this discipline. Undergraduate and postgraduate students would be allowed to take one or two credits pertaining to disability studies from such centre.







Tough law in the offing to check practice of capitation fee


If an educational institute indulges in malpractices like failure to deliver on its promises and charges capitation fee it will face the prospect of closure, according to a tough law being prepared by the Human Resource Development (HRD) Ministry.

Seeking to bring an end to the illegal practice in technical professional colleges, the ministry has prepared a draft legislation which prescribes cancellation of registration of an institute for charging capitation fee.

“Capitation fee will be covered under the legislation prepared by the ministry to curb educational malpractices.

Institutions will be under the pain of loosing their recognition if they resort to such malpractices,” HRD Minister Kapil Sibal told PTI.

The anti-malpractice law is being prepared in view of large number of complaints against institutes indulging in malpractices like not providing the kind of education and other facilities as promised in their prospectus.

A government-appointed committee recently said these institutes have a free run as regulatory bodies have failed to check the illegal practice, partly due to a reluctance to sort out the problem.

The committee on Renovation and Rejuvenation of Higher Education, headed by Prof Yashpal, also said that private professional institutes were charging up to Rs. 40 lakh from a student as capitation fee.

“If an institute promises something and delivers something else, that will amount to malpractice and the institute will face cancellation of recognition.”

Mr. Sibal said the major reason for capitation fee is that there is a mismatch between demand and supply in professional education. The government is opening new institutes and expanding the education system to sort out the problem.

“If there is a balance between demand and supply, there will not be any capitation fee. When there are more colleges, people will not go to the colleges charging capitation fee.

Capitation fee is given when the children have no merit and parents have money,” he said.

The government will make accreditation mandatory for institutes to ensure quality. The IITs, which were reluctant to the idea, are now willing for accreditation, he said.

When pointed out that poor students were unable to afford the high fee in professional colleges, he said government will help them with loans.

“Professional education has to be costly. The cost is high because you need high quality equipment. Being a poor country, in principle we do not accept that the child whose parents cannot afford full fee is denied admission to a professional course,” he said.

The state has to devise a system that no child should be denied admission for lack of paternal resource. So there will a funding scheme under which the institute gets a fee to maintain quality and the child gets the money to pay to the institute without having to worry about his or her parents, Mr. Sibal said.

However, he said, the cost of higher education in the country is less expensive than that in any other country.

“The fee in St Stephens today is Rs. 18 per month…

Children have to pay Rs. 5,000 a month in a school. Paying Rs. 18 in colleges is not right. If you want to go to higher education, you have to pay some amount of money,” he said.

He said the government wants to conduct an all India exam after class 12 for admission into universities.

“It will apply to medical, engineering colleges and also commerce stream as there is no diversity in these subjects.

This will happen in two to three years time,” he said.






Travel firm fined for negligence

Staff Reporter

The Coimbatore District Consumer Disputes Redressal Forum (CDCRF) has fined Thomas Cook India Limited Rs. 60,000 for deficiency in service causing mental agony to a traveller and his family members. The company has been asked to pay Rs 1,000 too towards cost of litigation.

Orders were issued by the Forum president, S.A. Sree Ramulu, and Member K. Rathinam.

European tour

Arunkumar Bhavani and five members of his family in his petition said that he had approached the firm to make travel arrangements for a tour of Europe and furnished the passports for all the six.

The passports of two children, Saloni and Anmol, were carrying photographs taken when they were aged five and three.But the passports were valid till 2008. The travel firm stated that it was not a problem and promised to process the applications and arrange for visa.

Mr. Bhavani remitted Rs. 4,29,600 and the remaining was to be paid on May 30, 2007. With hardly five days left for the travel, the firm told the applicant that visa could not be processed for the two children.

Mr. Bhavani told the firm that new passports could not be procured in five days time and it was difficult to reschedule the travel programme. The travel firm deducted Rs. 1,59,600 towards processing charges and refunded only the remaining amount. This was contested by the petitioner.

The petitioner contended that he had written to the travel firm stating that as he could not postpone the travel, he had expressed his willingness to travel next year and had asked the travel firm to retain few thousands of rupees as advance money and refund the remaining balance rather than deducting the processing charges and refunding the money to him.

For which, there was no response from the travel firm, the petitioner said.

The firm contended that they only process the visa applications and never offer any consultation or help in obtaining the visa.

The decision to grant visa or deny was a prerogative of the consulate concerned and stated that there was no deficiency in service on the part of the travel firm.


As against the normal processing charge of Rs. 55,000 a passenger for cancellation of trips within a short time span before the commencement of the journey, the travel firm said that only Rs, 26,000 was deducted a passenger.


The forum concluded that failure to respond to the letter from the petitioner was also a deficiency in service and non-application of mind about the mismatch of the photographs in the passport despite being pointed out by the applicant was again carelessness amounting to deficiency in service.

The forum directed the travel firm to refund Rs. 1,59,000 deducted from the applicant along with 12 per cent interest from the date of filing of the petition – December 18, 2007 – till the date of settlement, Rs. 60,000 towards mental agony caused to the consumer and Rs. 1,000 towards the cost of litigation.

Two months

The settlement has to be effected within two months failing which the petitioner was at liberty to execute the orders under section 25 and 27 of the Consumer Protection Act, the order said.





26/11 accused Kasab confessed voluntarily: Magistrate

PTI 30 September 2009, 03:25pm IST MUMBAI: A city Magistrate on Wednesday told the 26/11 trial court that prime accused Ajmal Amir Kasab had confessed about his role in the terror attacks voluntarily before her, saying he wanted others to draw inspiration from his confession.

Additional Chief Metropolitan Magistrate Rama Vijay Sawant Vagule said Kasab was produced before her on February 17 where he said he wanted to confess.

He was given 24 hours to reconsider if he wished to confess, she said.

“On February 18, when Kasab was produced again before me, he reiterated that he wanted to confess. He showed no remorse for his crime and told me that he wanted to confess so that others may derive inspiration from his action,” Vagule told the Court.

“I also conducted a physical examination on Kasab and found that he had two injuries on his wrist which he said he had sustained during firing in the attacks, the Magistrate said.

Kasab was again given 48-hours to reconsider and was produced before the Magistrate on February 20. He once again reiterated that he wanted to confess voluntarily but since the Court time was over, he was asked to come the next day.

Finally, his confession was recorded on February 21 when he was produced without handcuffs before the Magistrate, the Court was told.

“I enquired from Kasab that whether 48-hours time was sufficient and he said yes. I also enquired whether anybody from the police had met him in the last 48-hours to which he replied in the negative. He was once again reminded that the confession could go against him,” the Magistrate told Judge M L Tahiliyani.

“After questioning Kasab, I was satisfied that he was ready to confess without any force and was doing so voluntarily. His confession was then recorded by me,” she said.

Since some words were in Urdu, the confession was recorded in question-answer form, she said. All pages have signatures of Kasab and the Magistrate.

The confession of Kasab was shown to the Magistrate and she said that it was the same confession that she had recorded that day.






Encounter cop wants magistrate report annulled

TNN 30 September 2009, 02:22am IST

AHMEDABAD: One of 21 policemen held responsible for the killings of Ishrat Jahan and three others in magistrate SP Tamang’s inquiry report has appealed to Gujarat High Court to nullify the report.

Superintendent of police GL Singhal of city crime branch who was DySP then and is now promoted to IPS cadre, filed a petition demanding Tamang’s report be declared null and void.

Justice KS Jhaveri had immediately stayed execution of the report on the ground that the process of initiating the inquiry into the case was like over-reaching the high court’s order for probe.

Metropolitan magistrate Tamang submitted his inquiry report into the encounter killings of Ishrat, Javed Shaikh alias Pranesh Pillai, Zeeshan Johar and Amjad Ali Rana on June 15, 2004 near Kotarpur waterworks. He initiated the probe on orders of chief metropolitan magistrate issued on August 12.

The high court also constituted a special investigation team on the next day of the encounter. The magistrate, meanwhile, came out with the report clearly stating that the alleged Lashkar-e-Taiba operatives were shot in cold-blood. Former director general of police KR Kaushik, DG Vanzara, DSP NK Amin, inspector Tarun Barot and Singhal are among those whom Tamang has blamed for the killings.

The HC stayed execution on the report but had refused to entertain similar application by Singhal on September 9.








KTC bus driver gets 6-month jail term

TNN 30 September 2009, 04:30am IST

PANAJI: A JMFC court convicted and sentenced a KTC bus driver to six months imprisonment for causing an accident that injured 14 passengers at Four Pillars near St Cruz on January 11, 2006.

Panaji police had filed a chargesheet against Jeromine Fernandes — who was driving a bus with 30 passengers in it along the Panaji-Vasco route — for driving in a rash and negligent manner.

During the trial, six passengers who sustained injuries said that the accused was speeding when he rammed into a pillar. Three of the passengers told the court that they had even pleaded with the driver not to drive fast.

Assistant public prosecutor S Mandrekar pointed out that the passengers’ evidence clearly brought out that the accused was driving the bus at “high speed”. He was unable to control the bus while negotiating the turn and rammed into the pillar causing injuries to the passengers, the APP said.

The defence contended that the accident took place after a tyre of the bus burst. The condition of the bus was bad, hence the accused cannot be held responsible for the accident, the defence counsel said.

Whize holding the accused guilty, judge Edgar P Fernandes observed, “The evidence brings out that the accused drove the vehicle at very high and uncontrollable speed even after being requested by the passengers not to do so.”







Mickky arrested, released on bail

TNN 30 September 2009, 04:38am IST

PANAJI: Tourism minister Francisco “Mickky” Pacheco was arrested by the crime branch on Tuesday in connection with a case of extortion and criminal intimidation filed against him by the management of a casino in a South Goa hotel.

However, he was released 15 minutes later upon payment of a bail amount of Rs 5,000. The incident occurred on the night of May 31 and the crime branch registered the case on September 16. Crime branch sources said Pacheco arrived at their office in Dona Paula at 10am, was arrested at 11am and released on bail a quarter of an hour later.






Family sentenced to 10 years imprisonment

TNN 30 September 2009, 06:36am IST

KANPUR: The additional district and session judge of Kanpur Nagar Surendra Pal Singh on Tuesday sentenced six persons of a family, including a father and his four sons, to 10 years rigorous imprisonment in a kidnapping and rape case. The judge also imposed a fine of Rs.10 000 on each accused.

Those sentenced were identified as Shiv Bachan Singh, Shiv Singh, Shiv Karan Singh, Charan Singh — all sons of accused Subedar, and Rani Devi, wife of Shiv Singh. The accused belong to Barra 2 in Kanpur Nagar.

According to the prosecution, advocate Anika Yadav, a resident of Govind Nagar, in an FIR lodged had stated that the accused, armed with country-made pistols and guns, had barged into her house on August 17, 2001. They had assaulted her family members and kidnapped her younger sister Prastuti Singh. The police had registered a case under sections 147/148/452/323/366 IPC against the accused.

The police managed to recover Prastuti after 19 days on September 6, 2001. The victim had told the police that the accused had kept her hostage in the house of one Ram Lotan. She was asked to marry Shiv karan and when she refused the accused tortured her. Shiv Karan even raped her. Prartuti’s statement was recorded four days after she had been recovered by the police.

After going through the entire evidence and arguments the judge found the accused guilty and sentenced them.







Law-&-order rider in biz pact

Swati Sengupta, TNN 30 September 2009, 06:09am IST

KOLKATA: If you want to set up industry in Bengal, you must be aware of the prevailing “law-and-order” and “political” situation. In case the project fizzles out because of this, you must take responsibility. The government is in no way to blame.

Singed by the Singur fiasco, the government is currently scripting an extraordinary clause that will incorporate words to this effect. According to sources, the clause will be part of the pact between West Bengal Industrial Development Corporation (WBIDC), the nodal agency for promotion of industry in the state, and Bengal Aerotropolis Projects Ltd (BAPL), the conglomerate that will develop a Rs 10,000-crore airport city over 3,500 acres in Burdwan’s Andal.

The first tranche of land 450 acres is to be handed over to BAPL around mid-October and officials are now preparing the details of the agreement. The land is to be given on a long-term lease.

According to a senior official, it becomes difficult to get the land back in case a project does not materialize. “If  a political stir over land stalls projects, companies blame us. As private firms have a knowledge of the situation in the state and a stake in the project, they, too, must share some responsibility,” he said.

Contracts with private companies usually have a “force majeure”, which frees both parties from any liability or obligation when events beyond their control stall a project.

But it is not intended to excuse negligence or non-performance by a party. A clause mentioning political or law-and-order problems is usually never mentioned in contracts.

Though officials refuse to spell out the reasons for incorporating the clause, it is

evident that the state government has acted on the Singur experience that saw Tata Motors pull out after Trinamool Congress’s agitation demanding return of land to “unwilling” farmers.

During a recent visit to the city, Ratan Tata made it clear that Tata Motors was not keen to sit on the Singur land and was willing to return it if compensated for the investment made on the ground.

But he did not quantify the compensation amount. Nor did he come clear on whether Tata Motors would renew the lease for the land next year. The company has paid the annual lease rental till March 2010 and had entered into a 90-year agreement with the government.

While BAPL officials did not want to comment on the clause, officials in the state commerce and industries department said BAPL authorities have no objections to it “because they are extremely serious about the project” and “the aerotropolis will certainly come up”.

Union minister and Trinamool Congress leader Saugata Roy felt the new clause would not project the state as industry-friendly but refused to take responsibility for the current stalemate, which has made industries requiring land shy away from Bengal.








16 cases referred from courts to PHCMC

Ravi Dayal , TNN 30 September 2009, 03:23am IST

PATNA: The Patna High Court Mediation Centre (PHCMC) has received as many as 15 matters from various courts to settle the disputes out of court with the help of impartial mediators. Even the Supreme Court has sent a matrimonial dispute to the PHCMC.

A senior lawyer and trained mediator at the PHCMC, Rajeeva Roy, said though figures may suggest that the efforts for mediation, an important tool for alternative disputes redressal mechanism (ADRM), are still at their infancy, mediation as a movement has the potential to check the explosion of cases in courts.

All cases, referred to the PHCMC, came under Section 89 of the Civil Procedure Code and were mostly matrimonial in nature. Roy said property and land disputes, matrimonial cases, dowry torture cases, matters relating to cheque dishonour, civil disputes of any type and compound criminal offences for which short sentences are provided, can all be solved through out-of-court mediation. Due to this, precious time of the courts would be saved and utilized in hearing cases of a more serious nature, he added.

The Bihar Legal Services Authority (BLSA), headed by Justice Shiva Kirti Singh, and the PHCMC, comprising five HC judges, are running the PHCMC situated on the high court premises with suitable infrastructure. At present, there are 10 trained mediators in the state, including the lawyers, Roy, Chakradhari Sharan Singh and judicial officers of the rank of additional district judge, sub-judge and judicial magistrate.

PHCMC has two specially designed chambers for mediation, the matters of which are kept confidential. The Supreme Court Mediation and Conciliation Project Committee (SCMCPC) has been sending master mediators to various states to create awareness about the importance of mediation as well as train the mediators.

Recently, two master mediators of SCMCPC took part in the mediation awareness conference organized by PHCMC and BLSA. At the conference, Justice Singh had announced the move to open around a dozen mediation centres at the district level in the first phase.

The opening of mediation centres in all the districts and training of an army of mediators would start the mediation movement in right earnest, Roy pointed out. While the hearing of cases at the pre-mediation stage has helped in the out-of-court settlement of a huge number of cases in the United States, it has worked in wonders in China.

He added that in India the mediation centre at Delhi’s Tis Hazari Court has done appreciably well, thus reducing the backlog of cases in courts.

The essence of mediation lies in facilitation of mediation by the impartial mediator, who promotes amicable settlement by facilitating communication and understanding between the parties in dispute within a given time frame, said Roy.


LEGAL NEWS 29.09.09

Sentence in drugs case upheld by HC

TNN 29 September 2009, 12:51am IST

PANAJI: The high court of Bombay at Goa upheld the sentence of 10 years rigorous imprisonment imposed by a special court on Kamal Pun, a Nepali, for possessing charas.

The accused was nabbed by the anti-narcotic cell at Baga on March 21, 2005. While 60 gm of charas was found on him, another 1.825 kg of the contraband substance was recovered from a bag that he was carrying.

The accused had claimed that he was falsely implicated in the case by the police. However, the trial court held him guilty and sentenced him to 10 years rigorous imprisonment. He was also directed to pay a fine of Rs 1 lakh.

Subsequently, he challenged the trial court’s order in the high court.

When the petitioner’s lawyer asked the panch witness to repeat what the police officer had said to the accused in Hindi when he was apprehended, he could not repeat the statement. Thereafter, the appellant’s advocate told the court that the panch witness could not be relied upon.

The court however observed, “The panch witness may not have been very fluent in Hindi and may have been unable, with passage of time, to reproduce the exact Hindi words used by police officer. This cannot be taken as a ground either to doubt his presence or the veracity of his version.”

HC seeks details of action against tainted officers

Manvinder Singh, TNN 28 September 2009, 09:54pm IST

LUDHIANA: With Punjab and Haryana High Court calling for details of action taken against chargesheeted officers of building branch of municipal corporation (MC), trouble is brewing for the top brass of the branch that has been enjoying power despite being chargesheeted a number of times.

Amar Vivek Singh, counsel of the petitioner, Rajesh Inder Pal Singh and others said the court has told the civic body to furnish details of action taken against officers who have been chargesheeted for irregularities in the past.

The court order has landed the civic body authorities in an embarrassing position as in the last few years, vigilance cell of local bodies department has issued chargesheets against more than a dozen officials of the branch posted at key places for discrepancies in construction of buildings.

Officers against whom the chargesheets have been issued include senior town planner (STP) Balkar Singh Brar, municipal town planner (MTP) Hemant Batra and SS Bhatia, assistant town planners (ATPs) Kanwaljeet Kaur, Harpreet Singh Ghai, Monica Anand, building inspector Aitbaar Singh, head draughtsman Madanjeet Singh and draughtsman Ashok Kumar.

Action on these chargesheets continues to hang fire as owing to patronization of political leaders, these officers, who are facing charges of irregularities, enjoy plum postings in the civic body.

Against ATP Kanwaljeet Kaur, four chargesheets are pending, three are pending against MTP Hemant Batra, two against STP Balkar Singh Brar, MTP SS Bhatia, ATPs Monica Anand and Harpeet Singh Ghai while one each is pending against head draughtsman Madanjeet Singh and draughtsman Ashok Kumar. However, despite such record of chargesheets, all these officers continue to be in positions of power, getting postings in the city. While Brar, Bhatia and Batra are retaining their posts, ATP Kanwaljeet Kaur was appointed at A-zone and Ghai at C-zone whereas Monica Anand is on long leave and has gone abroad.

Official machinery under scanner

l MTP Hemant Batra and SS Bhatia, ATPs Kanwaljeet Kaur, Harpreet Singh Ghai along with others, have been chargesheeted for discrepancies in construction of Leela Hotel (old name Walia Guest House) in the city

l STP Balkar Singh Brar and building inspector Aitbaar Singh have been chargesheeted in a case of building violation in Janta Nagar

l STP Brar, ATP Monica Anand and Harpreet Singh Ghai have been chargesheeted for alleged building violation in Model Town locality

l ATP Kanwaljeet Kaur has been chargesheeted for alleged violation of building bylaw at Mata Rani Chowk.

l ATP Kanwaljeet Kaur, along with others, has been chargesheeted in another case pertaining to construction of a building at Fountain Chowk that ignored bylaws

l ATP Kanwaljeet Kaur, along with others, was suspended for allowing building bylaws violation at Hambra Road. However, later, all of them resumed their work.

In a case of discrepancies in construction of a multiplex, MTP SS Bhatia, ATP Monica Anand, draughtsman Ashok Kumar and junior draughtsman Madan Jeet Singh were chargesheeted

HC slams fine on 3 BJP councillors for abusing law process

Express News Service

Posted: Sep 28, 2009 at 0417 hrs IST

Ahmedabad The Gujarat High Court has imposed fine of Rs 25,000 each on three BJP members of Morbi Nagarpalika for abusing the process of law.

The three BJP councillors were disqualified from the Nagarpalika membership by a competent authority under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act.

The trio had approached the Gujarat High Court five times after the defection proceedings were initiated against them. The three councillors have been identified as Devabhai Avadia, Nirmalaben Hadiyal and Geetaben Rathod.

According to the details of the case, one Anupsinh Jadeja had filed a petition to initiate defection proceedings against four BJP councillors who did not follow the mandate of the party in the election of the president of the civic body in July 2007.

Following the petition, the designated officer conducted hearing of the same and ultimately disqualified the four from the membership of the Nagarpalika under the provisions of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act.

Interestingly, some members had filed petition against the four under the provisions of the Anti-Defection Law before Jadeja also. However, the petition was rejected then on technical grounds.

Now, during and after the proceedings of the two petitions, three of the four members approached the Gujarat High Court five times which played a role in delaying the defection proceedings against them.

On the fifth time, they challenged the order of the designated authority to disqualify them under the provisions of the Anti-Defection Law.

Taking a very serious view of their abuse of the legal process which delayed the anti-defection proceedings against them and giving detailed reasons for his judgment in the matter, Justice D A Mehta upheld the disqualification of the three members.

“Considering the history of litigation virtually resulting in frustration of the intent, purpose and object of the statute, the petition deserves to be rejected with costs. Each of the petitioners shall pay costs quantified at a sum of Rs 25,000 each,” Justice Mehta further ordered.

Govt may seize properties of corrupt babus

Dhananjay Mahapatra, TNN 29 September 2009, 06:05am IST

NEW DELHI: Unable to arrest corruption among government officials despite a special criminal law, Prevention of Corruption Act, 1988, the Centre is now planning to take a drastic step — amend the Act to allow confiscation of properties of tainted babus.

The PC Act, which provides for a maximum jail term of seven years for a convicted official, has no provision empowering the government to seize the unaccounted for property.

“We are seriously considering a proposal for amending the PC Act to allow the state to confiscate an official’s property obtained through corrupt means after a court convicts him,” law minister Veerappa Moily told TOI.

However, the law ministry is still examining when to invoke this drastic measure — after a court convicts a corrupt official or after the convicted official exhausts his appeal remedy.

In either case, the amendments will not be as drastic as demanded by Bihar chief minister Nitish Kumar. Kumar had recently met Moily over a proposed state law envisaging confiscation of property by the government immediately after the police files a chargesheet against an official accused of corruption.

The law ministry officials fear that such a provision would surely be misused by vindictive politicians after a regime change to wreak vengeance on officials close to the previous government.

Section 12 of the PC Act provides for a jail term between six months and five years along with a fine for government officials found guilty of corruption charges for the first time. However, the punishment gets a little stringent for habitual offenders under Section 14, which provides for a minimum two years imprisonment and a maximum of seven years in jail.

Chief Justice of India, K G Balakrishnan, at a seminar organized by CBI on September 12 had said that though the PC Act covered substantive acts of corruption among officials, the quantum of punishment appeared inadequate. He had echoed persistent demands for enhancing penalties and punishments under the Act.

“One prominent suggestion is the inclusion of a statutory remedy that will enable confiscation of properties belonging to persons who are convicted of offences under the PC Act. The rationale behind it is that if a public official amasses wealth at the cost of public, then the state is justified in seizing such assets,” Justice Balakrishnan had said.

However, adding a note of caution, the CJI had said: “Such proposals need to be thoroughly examined for their constitutional compatibility before being enacted in the form of legislation.” This is what the law ministry is doing at present.

SC sticks to its guns

Abraham Thomas | New Delhi

Despite demand to increase working days

Despite demands by the Law Commission and Parliamentary Standing Committees to curtail the rather “long vacations” enjoyed by judges of the apex court, Chief Justice of India KG Balakrishnan has approved the 2010 calendar with less than seven months of working days.

Compared to last year when the Supreme Court had 190 working days, the calendar for the coming year has exactly the same number of working days with the total holidays (besides Saturdays and Sundays) totaling 93 as compared to 92 the previous year.

The Law Commission had lately recommended that with the new pay scales available to judges from this year, there must be commensurate increase in the number of working days as well.

The calendar adopted for 2010 has been prepared by the Chief Justice of India under the Supreme Court Rules 1966. As per the Order II, Rule 4(2) of the Rules, the period of summer vacation “shall not exceed ten weeks.” The Rules even provide for the total number of holidays not to exceed 103 (excluding Sundays not falling in the vacation and during holidays).

Since the rules do not permit the court to sit on Saturdays or gazetted holidays, it was in 2006 that the summer vacation of the court got reduced from eight weeks to seven weeks and the total number of working days increased from 185 to 190 days, the same which continues till date. During the vacations, the court does provide skeletal service by appointing vacation Benches, a Bench of two judges to decide old appeals and attend to urgent matters.

This measure has often been presented as an antidote for the mounting pendency.

But after judges have begun to get more pay through the recent law brought in by the Government, the issue of long vacations has got revived. The Law Commission in its 230th report submitted in August this year stated, “With the increase in salaries and perks of the judges, it is their moral duty to respond commensurately. Considering the huge pendency of cases at all levels of judicial hierarchy, it has become necessary to increase the number of working days.”

The Government had lately passed a law granting three-fold hike in the salaries of Supreme Court judges from Rs 30,000 per month to Rs 90,000, in keeping with the revised pay scales of Government servants under the Sixth Pay Commission. The Chief Justice of India got a revised pay scale of Rs one lakh per month.

Creating a link between vacations and pay hike, the report went on to suggest, “Considering the huge pendency of cases, vacations in higher judiciary must be curtailed by at least 10-15 days and court working hours should be extended by at least half-an-hour.”

Successive parliamentary reports even linked the “long vacation” of the Supreme Court with the colonial legacy and recommended that in the modern era long leave by judges was not reasonable taking into account the huge pendency.

But the counter argument presented by those subscribing to the Supreme Court’s calendar suggest that judges work through the holidays, often writing judgements and studying material linked to the cases presented before them.

By refusing to alter the working days of the apex court judges, the message emanating from the judiciary is clear – pendency has to be resolved by adding more courts and appointing more judges and not by making the higher judiciary work for more number of days.

Speaking at the Chief Justices and Chief Ministers Conference held in August this year, the Chief Justice of India had stressed this aspect and sidestepped the controversy surrounding long vacations of the Supreme Court. The CJI insisted on augmenting judicial infrastructure and filling up posts as the solution to overcome judicial arrears. Till January 1, 2009, he indicated a shortfall of 280 judges in the High Courts and 3,129 judicial officers in subordinate courts.

At present, the average disposal per judge in the High Court comes to 2,504 cases in a year. The similar figure per judge in the subordinate courts comes to 1,138 cases. Compared to countries abroad, this is far beyond the total disposal rate of the entire judges of a court taken together.

Lower courts told to return cases outside their jurisdiction

Express News Service

Posted: Monday , Sep 28, 2009 at 0235 hrs New Delhi:

The Delhi High Court has directed Metropolitan Magistrates in the Capital who are dealing with cheque bounce cases to return the cases in which they have taken cognizance without having territorial jurisdiction to entertain them.

The court order was made in connection with a PIL filed by Delhi Legal Services Authority (DLSA) which said Magistrates dealing these cases were not able to dispose off any as they were flooded with cheque bounce complaints mostly filed by banks and financial institutions even though the “cause of action” and the accused persons were outside Delhi.

A Division Bench of Chief Justice A P Shah and Justice Manmohan said, “We direct return to the complainants for presentation in the court of competent jurisdiction all those criminal complaints filed under Section 138 of the Negotiable Instruments Act that are pending in court of Metropolitan Magistrates in Delhi in which cognizance has been taken by them without actually having.”

Centre decides to withdraw case against Quattrocchi


Posted: Tuesday , Sep 29, 2009 at 1743 hrs New Delhi:

The two-decade old Bofors pay-off case may finally be buried with the Centre on Tuesday telling the Supreme Court that it has decided to withdraw case against Italian Businessmen Ottavio Quattrocchi.

Solicitor General Gopal Subramanium told a bench, headed by Chief Justice K G Balakrishanan, that all efforts to extradite Quattrocchi, an accused in the case relating to payment of Rs 64 crore as commission in the Howitzer deal, have failed.

He said the CBI has taken the decision to close the case by also taking into account Delhi High Court judgement of 2004 which had held that no case of corruption was made out in the Bofors deal.

Subramanium said the Government came to the decision after taking into account all the facts of the case.

The Solicitor General’s statement in the court came under immediate attack from the BJP and the lawyer who is pursuing the Bofors case in the Supreme Court while the Congress Party said that after all the case has to come to a closure.

Advocate Ajay Agrawal, who had moved the apex court in January, 2006, against the defreezing of Quattrocchi’s bank account in London, opposed the stand of the Centre and the CBI.

“Quattrcocchi has been treated by this government as the son-in-law of this country,” he said about the businessman, who is now the sole accused in the case after the Delhi High Court on May 31, 2005 quashed charges against other accused.

“CBI and the entire government is trying to close the case,” the advocate, who has challenged the High Court’s 2005 verdict after CBI decided not to go for an appeal against the decision, said.

The Solicitor General, who once objected to the description of Quattrocchi as “son-in-law”, said the CBI had tried to get him extradited following the Red Corner Notice issued against him but failed in its efforts.

He said a call had to be taken for the closure of the case and the CBI and the Centre took into consideration the February 4, 2004 verdict of the High Court which held that there was not a rubble of evidence under the Prevention of Corruption Act and as such no appeal was filed against the decision.

Subramanium said nothing survived in the appeal filed by Agrawal against the May 2005 verdict of the High Court.

“The Central Government has consented for withdrawal of the prosecution of Quattrocchi,” the Solicitor General said adding that “we have to take a call on the matter and government has taken a call after considering all aspects”.

The Bench, also comprising Justices P Sathasivam and B S Chauhan observed that “if the matter is not alive in trial court what can we do. Then there is no necessity to keep the matters pending in this court. It appears that they (CBI) want to withdraw the case.”

However, Agrawal said that the petition and his applications have to be heard by the apex court which during the previous hearings have considered the case as “serious”.

“The entire government is trying to protect Quattrocchi. Somebody has to protect the rule of law. My petition and applications have to be heard by this court,” he said assailing the two verdicts of the High Court.

He alleged that CBI was not serious in its effort to extradite the Italian businessman against whom the Red Corner Notice was withdrawn a year ago.

Agrawal submitted that the May 31, 2005 verdict of the High Court was illegal and the then Attorney General offered an advise not to challenge the decision in the High Court.

The verdict was challenged by Agrawal after CBI failed file an appeal within the mandatory 90-days.

Quattrocchi, 69, has never appeared in Indian Courts.

The apex court was informed that Quattrocchi’s case was coming up for hearing before the Chief Metropolitan Magistrate on October 3.

SC halts illegal construction of new places of worship


Posted: Tuesday , Sep 29, 2009 at 1500 hrs New Delhi:

The Supreme Court on Tuesday directed that there shall be no fresh construction of places of worship at public places throughout the country.

The restriction would apply to temples, mosques, churches, gurudwaras and places of worship of all other communities, a Bench of Justices Dalveer Bhandari and Mukundakam Sharma said in an interim order.

The Bench said its order would be enforced till the issue relating to construction of places of worship at public places is finally resolved by the apex court.

The apex court also said that the fate of existing places of worship shall be dealt by the respective state governments on a “case to case” basis.

The Bench passed the direction after Solicitor General Gopal Subramanium informed the apex court that the Centre and the states had reached a consensus that there shall be no fresh construction of places of worship at public places.

The apex Court had on July 31 directed the government to ensure no place of worship is allowed to come up by encroaching public place.

The direction to the Centre came during the hearing of a petition challenging the Gujarat High Court order of May, 2006, by which the Municipal corporations in the state were directed to demolish all illegal structures including places of worship on public roads.

SC issues notice to Centre on black money related docs

Agencies Posted: Tuesday , Sep 29, 2009 at 1144 hrs New Delhi:

The Supreme Court on Tuesday issued notice to the Centre on a plea seeking disclosure of certain vital documents in connection with the issue of black-money stashed in foreign banks.

The apex court sought the response from the government on allegations by eminent jurist Ram Jethmalani and others that authorities were withholding vital documents relating to the case.

Meanwhile, Solicitor General Gopal Subramanium placed before a bench headed by Chief Justice K G Balakrishnan, the status report, in sealed cover, relating to investigations carried by the Enforcement Directorate against Pune-based businessman Hasan Ali Khan against whom the Directorate has lodged a complaint for violating the Foreign Exchange Management Act (FEMA).

During the hearing, the SG said the status report will indicate that Letters Rogatories have been issued to some countries in connection with the case of Khan.

The court posted the matter for hearing in December.

The PIL filed by Jethmalanai and five others, including former Punjab DGP K P S Gill and former Secretary General of Lok Sabha Subhash Kashyap, have alleged that the government was not taking action to bring back black-money stashed in foreign banks.

Judicial Accountability – an Illusion or a Reality

Name: Sukant Vikram

Class : 5th Year BBA LLB

College : Symbiosis Law School, Pune , India

Topic—-                Judicial Accountability- An illusion or a reality

Introduction —-

“Rex non potest peccare” —- The King can do no wrong

In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system. The accountability must be  comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with public power. Power and position in the society come attendant  with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty.

Accountability of the judiciary at every level, in a democracy cannot be doubted. The need of an effective mechanism for the enforcement of judicial accountability, when needed, is a felt need and must be accepted.The method by which judges are selected has become a matter of considerable concern for the citizens of our state. Although judicial elections may always has been important and vital process, the selection process is now coming under particular scrutiny. Some believe that although imperfect, the process in place works well enough to need only minor adjustments; others claim that a major overhaul, even scrapping, of the system is necessary. Certainly attention to the issue is warranted: The provisions in place for judicial accountability all threatened by the spread and deepening of problems that, if left unattended, will erode the public’s confidence in our judiciary.

Objective —- A democracy is highlighted by the fact that each and every part of it is accountable to each other. In this situation, an independant judiciary which is the backbone of the efficient functioning of the democracy in India has come under a lot of scrutiny.  How far do we go to ensure the independance of judiciary when transparency is the shrill and persistent demand of the Time. The judiciary – especially the higher judiciary – has put itself up on Cloud Nine, wrapping itself in a cloak of inviolabilityHow are Judges appointed? Why are they appointed? What are their short-comings? How are these dealt with?These are some questions, the answers of which we would endeavour to reach analysing the various relevant provisions of The Constitution Of India.

Main Text —-

Appointment of Judges—

The High Court judges are appointed by the president after consulting the chief justice of India, the governor of the state concerned and, in case of appointment of a judge other than the chief justice, the chief justice of the high court to which the appointment is to be made as provided by the article 217(1).

Every judge of the supreme court shall be appointed by the president after consultation with such of the judges of the supreme court and of the high court’s as the president may deem necessary for the purpose as laid down under article 124(2).

The words “appointed by the government in consultation with the Chief Justice” in the Constitution were interpreted as “appointed by the government on the advice of the Chief Justice” in the various judgments by the Supreme Court as cited:-

S. P Gupta—-

A seven Judges Bench of Supreme Court extensively considered the issues of Independence of Judiciary in relation to the appointment and transfer of Judges, the issue of appointment of the Additional Judges of the High Court, the issue of the privilege of the Government against disclosure of State documents and the scope of judicial review of the powers exercised by the President.

While deciding the issue of the locus standi of the petitioning lawyers who had challenged the Circular of the Law Minister and short-term extensions of Additional Judges on ground of attack on the independence of the judiciary, Justice P.N. Bhagwati while upholding their right to do so held that where the effected persons are really helpless, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause. The Court will readily respond even to a letter addressed by said individual espousing the public cause.

A bunch of cases were decided together in the present case which were raised in two batches of writ petitions filed in different High Courts which were transferred under Article 139-A to the Supreme Court since they raised common issues of great constitutional importance. One writ was also filed in the Supreme Court. Several more related issues were raised and discussed during the hearing. Each of the Judges delivered a separate judgment.

Supreme Court Advocates-on-Record Association Vs. Union of India

This case directed to constitute a Bench of nine Judges to examine the two questions referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation primacy, and justiciability of fixation of Judge strength.


Removal of judges can be done through an impeachment procedures provisioned in the article 124 hereinafter stated as -:

Article 124 (4) of Indian Constitution: A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

But the practical problems faced during the impeachment of any judge has been highlighted in the following instances.

The first ever impeachment—-.

Justice V. Ramaswami

The first-ever impeachment motion against a SC judge, Justice V. Ramaswami, was signed by 108 MPs in 1991. A year later, an inquiry found Ramaswami “guilty of willful and gross misuses of office… “While serving as the Chief Justice of the Punjab and Haryana High Court”. Ramaswami survived the impeachment process as Parliament got divided along regional lines, southern MPs strongly supported him. Only 196 members of Parliament, less than the required two-thirds, voted for his ouster.

Justice M.M. Punchi

This charge sheet was prepared by the Committee on Judicial Accountability in 1998, when Justice Punchhi was a judge of the Supreme Court of India. It was signed by 25 MPs of Rajya Sabha. However, before it could get the signature of the requisite number of 50 MPs of Rajya Sabha, Justice Punchhi was appointed Chief Justice of India. After this, it became virtually impossible to get the Notice of Motion signed by any MPs. Consequently, Notice of Motion could not be presented to the Speaker. The imp lesson of this exercise was that it is very difficult to get the MPs sign the impeachment motion unless three conditions are satisfied. Firstly, the charges must be very serious; secondly they must be provable by documentary evidence which is annexed to the Notice of Motion and finally, the charges must have been given substantial publicity in the media.

In the absence of all the three conditions been satisfied, MPs are afraid and reluctant to sign a charge sheet against a sitting judge. It is normally exceedingly difficult to get documentary evidence to prove charge against sitting judge, particularly in the absence of a statutory investigation by an agency having powers of investigation. Moreover, the bulk of the main stream media is afraid to publicise charges against the sitting judge for fear of contempt. In Ramaswami’s case, the above three conditions were satisfied. Documentary evidence was available against Ramaswami because of the report of the Accountant General who audited the purchases made by Ramaswami as Chief Justice of Punjab and Haryana High Court. This is why, impeachment of judges, however corrupt they might be, is not a practical remedy in discipling them.


Free and fair investigation is one of the basic pre-requisite of a free democracy. In consonance with this principle, the free and fair investigation of judiciary has become of an immense significance in contributing to the public faith in the effectiveness and impartiality in of the judiciary.

Justice K.Veeraswamy the then Chief Justice of Madras High Court was charged for possession of assets disproportionate to his known sources of income and a case was filed against him by the CBI under the Prevention of Corruption Act. The High Court of Madras dismissed his Petition for quashing of the Case against him and referred the matter to the Supreme Court for deciding certain questions of law. The Supreme Court while deciding the case against the delinquent Judge laid down strict guidelines to protect the independence of Judiciary according to which no F.I.R. can be registered against a Judge or Chief Justice of the High Court, or a Judge of the Supreme Court without the sanction of the Chief Justice of India in the matter. It was held that the Supreme Court is not a court of limited jurisdiction of only dispute settling, and that the court has been a law maker and it is the courts responsibility and duty to apply the existing law in a form more conducive to the independence of the judiciary. It was also said that any complaint against a Judge and its investigation by the CBI, if given publicity will have a far reaching impact on the judge and the litigant public therefore there is need of a judicious use of taking action under the Prevention of Corruption Act.

Right to Information & The judiciary—-

There was a time when the Courts in India, particularly the Supreme Court waxed eloquent about the “Right to Information”, being a part of the Constitutionally enshrined right to speech and expression. It was on the basis that the Right to Information is a fundamental right of people, that the Court ordered that even candidates contesting elections would be obligated to publicly disclose information about their criminal antecedents and their income and assets etc. Yet, though the courts general pronouncements on the right to information have been very liberal, it’s practices have often not been in conformity with the declared right. The double standards of the Courts on Right to Information have become even more obvious after the Right to Information Act has come into force. Though the Act clearly applies to Courts which are obviously included in the definition of Public Authorities, most High Courts did not even appoint Public Information Officers (PIOs) even months after the Act came into force. The Supreme Court has recommended to the government that so far as the Supreme Court is concerned, the decision of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. They have further recommended that the Chief Justice should have the unfettered right to interdict the disclosure of any information, which in his opinion, might compromise the independence of the Judiciary. The Chief Justice has already gone on record to say that even the disclosure of income and assets by judges or the formation of any independent disciplinary authority over judges, would compromise the independence of the judiciary. Going by this, it is obvious that no information about complaints against judges or about their incomes and assets would be available under the Right to Information.


Middle class Indians love their Judiciary.If someone were to draw up a list of institutions that they still believe in, I suspect only two would qualify — the Indian Army and the judiciary. If soldiers protect the nation’s physical well-being, the courts are the gatekeepers of its conscience. And we hate our politicians so reflexively that in any battle between the government and the judiciary, even if we don’t quite follow the contours of the debate, we cheer the courts on.

Small wonder then that we blindly support every attempt by the judiciary to insulate itself from external control. This is because we believe in the independence of the judiciary.

But should this independence mean freedom from accountability?

It may be a worn-out cliché, but after all these years, it’s a question still in search of an answer: who will judge the judges?

Recently the cabinet approved a Bill to amend the Judges Inquiry Act and to create a National Judicial Council that will examine all complaints of corruption and misdemeanours against judges. It has been sold as an example

of cleaning up the system and making it more transparent. But other than some stray comments by a handful of lawyers, no one has dared question the new terms by which India’s judges will judge themselves. There is going to be a setting up of a judicial council.It is to be made up of five senior judges of the Supreme Court, who will handle complaints related to the Supreme Court. Three Supreme Court judges will be assisted by two chief justices of the high courts for all other cases of corruption.

In other words, the judiciary will remain answerable only to itself.

Then, there are the omissions in the new Bill: the Chief Justice of India is entirely exempt from the scrutiny of the judicial council and the council’s powers will not extend to complaints against retired judges.

But for the short comings of the composition of the commission it may be very easily said that it is an absolute necessity to put in place a transparent system for selecting judges for appointment. They should also have an investigative machinery at their disposal, through which they can evaluate complaints against judges and proposed candidates investigated.  Such an institution is more likely to result in the selection of proper candidates and would introduce at least a modicum of urgently needed accountability in the judiciary. So maybe we can have a way of treating corruption in higher judiciary. Such measures have to be institutionalised. And they can be only institutionalised without damaging the general credibility of the judiciary as a body by having in place (with almost immediate effect) an office called the office of “Judicial Ombudsman”. I believe this is the only way in whic h we can accommodate the need for keeping clean and bright the image of our High Judiciary. Once people know that legitimate complaints are being entertained in confidence, they will be made to the authority concerned in confidence. And once they see something is done we will no longer have to see the sorry spectacle of scandalous and un-substantiated allegations being made openly in the press about individual Judges.

However, one must appreciate that the immunities provided to ensure judicial independence are intended for the benefit of the litigants in particular and the citizens in general. Therefore it is also acknowledged that judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. Relying on the strong tradition of sharing of ideas and experiences amongst the judiciary across the commonwealth is perhaps one of the optimum methods of arriving at such a balance.

So, it becomes even more imperative that the men and women we trust so implicitly should not be scared of our collective judgment.

Explaining the decision to drop the archaic and colonial prefix of ‘Your Lordship’ from the court rulebook, India’s Chief Justice famously said, “The Lord is only one and he is God above all of us. I am not God, judges are not gods.”

Let’s take that image further. Only God is above the law. All human beings — even those we admire and respect — must be held accountable.

And finally, judges are as human as you and me

Human trafficking from India to be probed

(Source: IANS)
Published: Mon, 28 Sep 2009 at 17:09 IST

F Prev Next L

// <![CDATA[// New Delhi: With growing incidence of poor and vulnerable women from India being lured into the flesh trade, the National Commission for Women (NCW) has constituted teams to investigate trafficking channels from various districts in Uttar Pradesh, Gujarat, Rajasthan and Delhi to the Middle East.
“The NCW has been been deeply disturbed with the recent spurt of missing girls in NCR (National Capital Region). In view of this, we have taken up this issue and inquiry commitees have been constituted,” a senior official at NCW told IANS.

The official said a probe committee will look into the alleged trafficking of women to Middle-East countries from Azamgarh in Uttar Pradesh while the other will inquire into the mysterious deaths of women in south Gujarat’s cotton fields allegedly trafficked via Udaipur and Dungurpur districts in Rajasthan.

“The NCW has found that Nepali women were also trafficked to and from Delhi and Uttar Pradesh,” the official added.

Recently, NCW chairperson Girija Vyas said 62.5 percent of 378 districts were affected by trafficking of women and children for commercial sexual exploitation.

“There are 1,794 identified places of origin or source areas from where women are trafficked and 1,016 places where the commercial activities thrive,” Vyas had said.

As per the last national level report on human trafficking by UNDP in 2007, in India 44 percent of women, mostly poor, are caught in the flesh trade. At least 43 percent of these were minors before they enter the net.

Around 66 percent women in Gujarat, 64 percent in Tamil Nadu, 55 percent in Maharashtra and 49 percent in Uttar Pradesh were caught in the vicious network, the report said.

Ex-CFO of Satyam, PW auditors guilty: ICAI

PTI 29 September 2009, 10:25am IST

MUMBAI: The Institute of Chartered Accountants of India (ICAI) has found two top officials of Satyam Computer and four auditors of Price Waterhouse prima facie guilty in the Rs 7,800-crore fraud case, a top ICAI official said on Monday.

Besides, the apex body of chartered accountants has also found audit firms — Price Waterhouse, Kolkata and Price Waterhouse, New Delhi — prima facie guilty of misconduct.

“The director (discipline) has found two officials of Satyam Computer, Price Waterhouse and its four auditors prima facie guilty of professional misconduct in the Satyam case,” ICAI president, Uttam Prakash Agarwal, said.

The opinion of director (discipline) was considered and has been approved by ICAI’s disciplinary committee, Agarwal said. Two Satyam officials found “prima facia guilty” are ex-CFO V Srinivasu and senior V-P, internal audit cell, V S Prabhakara Gupta.

The disciplinary committee also found four auditors from Price Waterhouse, Bangalore — S Gopalakrishnan, Srinivas Talluri, P Shiva Prasad and C H Ravindranath prima facie guilty of professional misconduct, Agarwal said.

Hyderabad-based Satyam Computer plunged into a crisis after its founder-Chairman B Ramalinga Raju admitted to fudging of accounts of his company to the tune of 7,800-crore.

Agarwal said that Srinivasu failed to carry out the statutory duties as Satyam’s CFO, while Gupta failed in carrying out the internal audit of accounts of the firm.

Prasad and Ravindranath were part of the audit team for Satyam Computer while Gopalakrishnan and Talluri signed the balance sheet, he said.

The disciplinary committee will now issue notices to all those found prima facie guilty for their written statements which are to be submitted within 30 days,” Agarwal said.

If any person found prima facie guilty do not submit statements within the stipulated period, ICAI would further start the process of personal hearing by issuing notices, he said.

2 new cases against City group, but some investors still back firm

C Unnikrishnan and Shreya Bhandary, TNN 29 September 2009, 02:14am IST

MUMBAI: Two fresh cases against City Limouzines and its sister concern City Realcom have been registered at Amboli and Cuffe Parade police stations in the last two days. The company has been accused of cheating by defaulting on its payments to the investors.

The cases were registered on the complaint of investor Kirti Patel. The company, under various schemes, offered 48% returns on investments but began defaulting in August this year.

Sources said that the fresh FIRs would give a boost to the investigations as till now there was only a single case against City Limouzines registered by the economic offences wing (EOW) in 2007. The Supreme Court has imposed certain restrictions on the conduct of probe in this FIR.

Meanwhile, on Monday a huge group of investors gathered at the company’s Nariman Point office to extend support to the firm’s chairman, S M Masood. Every member present at the meeting sported a headband bearing the firm’s name on it, embodying the fight to save the reputation of the company which has been blamed of duping all its investors of lakhs of rupees.

Prasad Mhatre, who organised the meeting, said, “We have had no complaints with this company ever since we started investing with them and promptly received our returns every month. If the company was fraudulent, S M Masood would have escaped to another country by now. He is still here and facing all the flak, so we are here to support him,” he said.

They demanded that EOW de-freeze the company’s account. “If this is done, then our problems will be solved because the investors will keep getting their returns,” said one of the investors present at the meeting. Their second demand was for the government to appoint a special team to investigate this matter. “The EOW has been investigating this case for quite sometime now and we have no results as yet.

Additional commissioner of police (EOW) Sanjay Saxena said, “We have not imposed any ban on the company’s business. Our investigations are on.”

Graft-accused cops charged with extortion too

TNN 29 September 2009, 02:34am IST

MUMBAI: The anti-corruption bureau (ACB) has added the serious charges of extortion, kidnapping and wrongful confinement against three policemen from Oshiwara police station, who are being investigated in a bribery case.

The police had arrested constable Yashwant Patil and middleman Ajay Thakur on Saturday when sensing trouble they tried to return Rs 2 lakh to Vishwas Parsanjit, allegedly involved in video piracy. The duo besides assistant police inspector Rajesh Padvi and constable Patekar had allegedly kidnapped Vishwas and extorted money from him, a police official said. Padvi, Patekar and their `close aide’ Rafikbhai are still at large.

Patil and Thakur had come to return money to Vishwas after learning that deputy commissioner of police (Zone 9) K Prasanna was conducting a departmental inquiry into Vishwas’s allegation.

ACB officials said this could be just the tip of the iceberg as Vishwas has mentioned the names of 21 video pirates and the amount the police collected from them. The list is part of the FIR.

Padvi is the nephew of former deputy commissioner of police Sudesh Padvi. The accused policemen had allegedly extorted Rs 4 lakh from Vishwas, his brother Samel and his friend Patre.

Padvi was the investigating officer in the video piracy case and had arrested two persons in July this year. The police picked up four others who were employees of another suspect Chandan Patre. Meanwhile, Patre contacted his friend Vishwas who approached Rafikbhai for help. Rafik collected Rs 2 lakh to be passed on to the police for the release of four suspects. The police, however, put them in custody saying Rafik did not pass on the amount.

When Vishaws turned up in court for the release of his employees, Patil and Patekar took Rs 70,000 from him and detained him in the police station. Vishwas managed to cough up another Rs 1 lakh. The police released him but picked up his brother Samel and demanded another Rs 1 lakh for his relase. He paid the amount and lodged a complaint with commissioner of police D Sivanandhan who ordered an enquiry.

TN’s first pvt forensic lab opens in city

TNN 29 September 2009, 03:20am IST

CHENNAI: In June, when Shanthi (name changed) began feeling weak by the day, she thought her husband was causing her some harm for the sake of her property. The local police told her they would not be able to register a complaint against him.

Forensic expert Dr R Selvakumar then suggested she test her hair, nail and blood for toxicity. Two days later, the lab report showed an increased lead content in her blood, an indication that she was being slowly poisoned. Armed with the medical report, she again went to the police who arrested her husband. The case is being investigated.

Almost the same week, an insurance firm asked Dr Selvakumar to say if one of its clients, whose family had submitted a claim saying he was hit by a train, had really died in an accident. “When a person is accidentally hit by a moving train, he would be thrown off and the kind of injuries are different. In this case, we saw a clear cut in the leg and neck. He was lying down on the track attempting suicide,” said Dr Selvakumar.

He and his colleague Dr N Srinivasa Ragavan decided to set up, for the first time in the state, Synergy medico legal Foundation (, that was launched on Monday. It will, they claimed, help men scientifically clear doubts about their wives’ fidelity, help clients claim insurance bills, help insurance firms weed out fake claims, assist doctors draft counters in courts in negligence cases and even help lawyers frame questions for cross-examination in criminal cases.

“We have been working in the sector for several decades. We often notice that advocates do not cross-examine doctors. We can even offer key questions and points to lawyers and the relevant Sections of IPC or CRPC they can be mentioned under. The reports foundation gives a report that may not be valid in the court but as experts we can be produced as witness. But as experts, we can be produced as witness,” said Dr Ragavan.

LEGAL NEWS 28.09.09

Anti-doping regulations & privacy

Soli J. Sorabjee

Posted: Sunday , Sep 27, 2009 at 0232 hrs

Doping in sports is unpardonable. It is the worst form of cheating. Doping is a scourge which has afflicted sports, including cricket, and undoubtedly it must be eliminated. The objective of the World Anti-Doping Agency (WADA) regulations to achieve this end is certainly laudable. The problem lies in some of its provisions and especially the whereabouts clause as a result of which a cricketer who is included in the International Registered Testing Pool (IRTP) has to provide several details of his/her whereabouts prior to the first day of each quarter ie 1st January, 1st April, 1st July and 1st October respectively including periods where the cricketer is not participating in any sports competition. In addition, a cricketer must for each day during the following quarter provide in writing one 60-minute time slot between 6:00 am and 11:00 pm each day where the cricketer will be available and accessible for doping test at a specific location. International cricketers have a packed tour schedule every year and spend approximately nine to ten months of every year playing competitive cricket much of which is outside India. This leaves a very short period for out-of-competition testing.


The fatal flaw is that during “out-of-competition” periods of rest and time with friends and family, which are few and far between, it is unreasonable that players have to disclose their precise whereabouts and schedule for three months in advance for each and every day of such period. Besides they are subject to random testing at any time and place between 6 a.m. and 11 p.m., as required by the whereabouts clause. As a consequence the players are virtually kept under surveillance from 6 a.m. to 11 p.m. throughout the year.

That is clearly violative of the players’ right to privacy at least for the limited period when they can spend time with their family and friends. Privacy is one of the most cherished rights in a civilised society—“the right to be let alone—the most comprehensive of rights and the right most valued by civilised men”. The requirements of the whereabouts clause are overboard, excessive and impose disproportionate burdens. The breach of WADA regulations is visited with drastic consequences to the players. Besides, in case of a player like Tendulkar who has Z-category security, the mandatory disclosures may cause severe security concern. No doubt, the end of WADA regulations is commendable but laudable ends can be achieved only by legally permissible means.

Humour is dead

Sadly, we have lost our sense of humour, the capacity to laugh at ourselves. Shashi Tharoor’s twitter as the Prime Minister rightly said, “was just a joke” seen in the context and the circumstances in which it was said. Some persons may not relish a joke. However, to read sinister meanings and insinuations into it and to demand his resignation as a minister or for other disciplinary action against him is the height of absurdity. It betrays a lack of sense of proportion which is the mark of humourless persons. Poor Shashi probably did not anticipate such a hysterical reaction. In future, he may well observe a self-imposed restriction on his freedom of expression. One of the yoga practices for maintaining good health and preserving mental balance is to laugh loudly in company with others. Some ministers and others who were outraged by Tharoor’s twitter could do with a bit of yoga. I recall another incident which caused a ruckus. Field Marshal Sam Manekshaw, the hero of the Bangladesh war, could not resist giving vent to his mischievous sense of humour, when asked by a journalist as to what would have happened if he were commanding the Pakistan Army. Sam said, “Well, I would have defeated India”. There were demands for depriving him of his Field Marshal-ship and for disciplinary proceedings against him. Manekshaw did go over the board but the reaction was disproportionate. We should have laughed away this irreverent statement instead of accusing one of our greatest and most loved military heroes of harbouring anti-nationalist sentiments.







Expedite disposal of maintenance cases: Guj HC to judges

Updated on Sunday, September 27, 2009, 19:42 IST

Ahmedabad: The Gujarat High Court has directed all the district judges and family court judges to dispose expeditiously the cases under Section 125 of the Code of Criminal Procedure (CrPC) which deals with maintenance for wives, children and parents.

The order was passed last week by a division bench of Chief Justice K S Radhakrishnan and Justice A S Dave while acting on a PIL (public interest litigation) filed by an NGO Yogkshem Foundation for Human Dignity (YFHD).

Section 125 of the CrPC enables divorced or deserted women, parents or children to claim maintenance amount from husbands, children and parents respectively.

Based on the PIL, which stated that there is delay in cases of maintenance and sought appropriate directions, the High Court had asked for records from family courts across the state last month.

After assessing records Court ordered, “since several cases are pending for more than nine years, we are inclined to direct the concerned District Judges and the Judges in-charge of Family Courts to take appropriate steps to see that cases under Section 125 of CrPC are disposed of expeditiously after completing the process.”

The Court has asked the district judges and family courts judges to call for meeting of the Re-Vamping Committee within a period of one month from the date of its order and ‘take appropriate steps’.

According to Rajendra Shukla president of YFHD, a family court or magisterial court has to complete proceedings and decide on an application filed under CrPC section 125 within 60 days of issuing notice.

“But there are cases pending since 1995. A delay of more than a decade in dispensation of justice is nothing but to deny justice to a person,” Shukla said.

He said that the committee would ensure quick disposal of petitions filed by deserted or separated women seeking maintenance amount from their husbands or other kin.

The YFHD in its PIL had cited some cases pending for a couple of years even after issuance of notice.

“But when the High Court enquired with courts, the issue appeared much more serious,” Shukla said.

Bureau Report






Allahabad HC judges decide to declare their assets

Vijay Pratap Singh

Posted: Sep 28, 2009 at 0609 hrs IST

Allahabad After the Supreme Court judges decided to declare their assets, the Allahabad High Court judges have decided to tread the same path.

The rider: they will only declare it to the chief justice.

The decision, which has not been made public, was taken on September 12 in a full-court meeting, presided by Chief Justice Chandramauli Kumar Prasad.

The judges unanimously agreed to declare their assets, but they were not in favour of disclosing it on the official website like some other high courts have done.

Registrar General Dinesh Gupta said: “A resolution was passed unanimously by the judges in the meeting.”

Asked if the assets of the judges would be made public, he said: “The judges will declare the details of their assets to the Chief Justice of the Allahabad High Court, not on the official website.”

As for the decision not being made public even after a fortnight, Gupta said confidentiality has been the main ingredient of the full-court.

The high courts of Kerala, Mumbai, Delhi, Punjab and Haryana have reportedly decided to put the assets of their judges on their respective websites.







Go door-to-door to find disabled children denied education: HC

Krishnadas Rajagopal

Posted: Monday , Sep 28, 2009 at 0233 hrs New Delhi:

The Delhi High Court has asked the state’s Education department to knock on every door in the Capital to identify disabled children who are denied their right to go to school.

“Map Delhi to find out disabled children. You have to take a home-to-home account of the number of disabled children who are not going to school,” Chief Justice A P Shah directed Education Secretary Rakesh Mohan, who was summoned to the court for the hearing recently.

The Bench clarified that mere counting the heads of disabled children enrolled in government schools would not suffice to give a complete picture of how many such children are denied education, the “Constitutional right of every child in the country”.

The court said that a door-to-door survey is a necessity as many parents have a “tendency to not disclose the disability of the child”.

“What is to be done immediately is to give us a plan,” the Bench told Mohan. “Explain what we need in infrastructure for the disabled. Ascertain how many children require transport facilities to reach school and back — give us a complete picture of what is needed to be done to have disabled children in school,” the Chief Justice said.

The government is to prepare a proposal by October 21, the next date of hearing.

The court also added that it understood that it would be difficult for the government to equip all schools in Delhi with disabled-friendly features, so the state would do best by picking certain sample schools to begin with.

“Remember, innovation is necessary for these measures. Experiment with sample schools, may be by next year you can start with other schools,” the Bench said.

A government report filed before the High Court in May this year said over 10,000 disabled students in government and the MCD schools do not have even a single special teacher.

None of the 650 Delhi government schools or 1,800 MCD schools employ a teacher specially trained to teach disabled students, though a government status report filed before the Delhi High Court on Wednesday identified 10,065 “children with special needs” studying in schools run by the Directorate of Education, the MCD and the NDMC.

The government admits that of the 10,065 disabled students, 7,523 need 1,505 special educators at a ration of 1:5. Again, the MCD alone has 2,087 disabled children in its schools.

A training programme for orienting 51,000 teachers in “inclusive education and various issues related to children with disabilities” in May and June 2009 could not take off owing to then Lok Sabha polls, the report had stated.










Follow Executive Council norms to recruit teachers, HC tells DU

Express News Service

Posted: Sep 28, 2009 at 0217 hrs IST

New Delhi The Delhi High Court has directed the Delhi University to shortlist applications for the posts of lecturer and professor as per the criteria laid down by its Executive Council and not according to that of the Screening Committee.

The court passed the order while considering the applications of two persons for the posts of professor in Chemistry. The university had earlier rejected the applications on the ground that they did not fulfill the eligibility criterion of having at least 10 published works in internationally reputed journals.

A Division Bench of Chief Justice A P Shah and Justice Manmohan set aside the rejection order passed by the Screening Committee last year against Doctor Ramakant and Doctor Shrikant.

“The university is directed to ensure in future that shortlisting is done either in accordance with the criteria stipulated in advertisements or, if it is not so mentioned, then in accordance with the criteria determined by the selection committee (Executive Council) and not by the Screening Committee,” the Bench said.

“Delhi University is directed to forward their names to the Executive Council for appointment to the posts of professor in Chemistry,” the Bench said in its judgment.

According to a joint petition filed by the lecturers, they had applied for the posts of professor in Chemistry in March last year through the open selection procedure.








SC/ST forum slams Shanti Bhushan for anti-dalit

Express News Service

First Published : 27 Sep 2009 04:03:00 AM IST

Last Updated :


BANGALORE: The Karnataka State Schedule Caste and Schedule Tribes Advocate Forum attacked former law minister and Supreme Court senior counsel member Shanti Bhushan for his alleged anti-dalit remark against Chief Justice of India KG Balakrishnan and the Karnataka Chief Justice PD Dinakaran.

The forum president M Kumbaiah told reporters, “Bhusan has virtually accused the CJI of having a soft corner for Justice Dinakaran because he, like Justice Balakrishnan, is a also dalit.”








Justice Dinakaran issue: CJI’s authority and independence of judiciary

Sunday, September 27, 2009

In recent years, the issues of appointment and that of accountability of judges have touched off storm in the legal and political circles. The two are inextricably liked together and the Prime Minister had rightly suggested to improve the quality of appointment to overcome the problem of corruption in the judiciary. The controversy surrounding the proposed elevation of Justice D. P. Dinakaran, chief justice of the Karnataka high court, to the Supreme Court, is the latest body blow to the credibility of the judiciary. He has allegedly amassed huge wealth and grabbed several hundred acres of land. As per press reports, Dinakaran met the Chief Justice of India and rebutted all charges levelled against him. This raises a third issue whether the CJI is the boss of other judges. It is also related to the other two issues. Recently, Justice Shylendra Kumar of the Karnataka high court created sensation by questioning the authority of the CJI to speak on behalf of all judges in regard to declaration of assets.
So, it will be desirable to examine the authority of the CJI vis-à-vis other judges of the higher judiciary as it has serious implications for the independence of the judiciary. Justice Kumar’s stand that the CJI is not authorized to speak on behalf of all judges amounts to questioning the status of the CJI as the head of the judiciary. Constitutionally speaking, the high court is not subordinate to the Supreme Court. On this premise, Justice Sabyasach Mukherjee, then a judge of the Calcutta high court, had rebuffed the Supreme Court which had directed it to dispose of Indira Gandhi’s petition within the stipulated time period. He clearly wrote in the judgment that the Supreme Court has just got an appellate jurisdiction over the high courts, but has no right to direct them. In a way, it is true that high courts do not become subservient just because their orders can be challenged before the Supreme Court. Even in the high courts, Letters Patent Appeals lie against the order of a single judge before a division bench of the same court. It does not mean that the single-judge bench is subordinate to the division bench. In the Supreme Court also, the larger bench overrules the smaller bench. It is a method of correction as individuals may go wrong.
However, the Supreme Court is not just the apex court in the normal hierarchy of courts, but is much more than that as it has original, appellate as well as advisory jurisdictions. Further, Article 144 clearly mandates that all authorities, civil and judicial, shall work in the aid of the Supreme Court. The term, judicial authorities, also covers high courts. Moreover, the Chief Justice of the Supreme Court is called the Chief Justice of India (Art. 24 of the Constitution). This nomenclature is meaningless if he is not the head of the judiciary. So, by convention, he is the paterfamilias of the judicial fraternity even though the Supreme Court has no supervisory jurisdiction over any court.
However, in matters of appointment and transfer of judges, the CJI plays the most crucial role. Under Articles 124 and 217, consultation with the CJI is a must for the appointment of judges. In 1993, the Supreme Court, in its controversial decision in the Second Judges’ case, ruled that the recommendation of the CJI would be binding, but clarified that the opinion of the CJI means the opinion of the collegium consisting of the CJI and two senior most judges. The Third Judges’ case upheld most of the formulations of the Second Judges’ case but ruled that in case of appointment to the Supreme Court, the collegium would consist of four senior most judges besides the CJI. In fact, the snatching of power of appointment and transfer of judges from the hands of the executive and transferring it to the collegium by judicial interpretation has virtually made the high court judges subservient to the CJI and other members of the collegium as they have to keep them in good humour for getting promoted as chief justices of high courts and elevated to the Supreme Court. Justice Dinakaran has made the position of other judges more vulnerable by meeting the CJI to explain his position.
This is not a healthy trend for the judiciary. Fear of supersession is bound to affect the independence of judges. Here again comes the question of the independence of the judiciary which faces threat not only from without but also from within. A high court judge has the same protection as the CJI under the Constitution. But the fear of being left out makes high court judges feel insecure. In the words of Milton, ambition is but the last infirmity of a noble mind. Judges also nurture the ambition of promotion and elevation. Earlier, if the CJI visited a state, the chief justice of high court did not go the airport to receive him. If both, the CJI and the chief justice of the high court, were invited to some party, the two would enter from opposite doors at the same time so that none of them would receive each other. But the situation has undergone a colossal change after the introduction of the collegium system. Independence of judges must be maintained, and obviously then, the CJI cannot speak on behalf of all judges, even though symbolically, he may represent the judiciary as its head.
Earlier, the Standing Committee of Parliament attached to the Ministry of Law and Justice in its 21st Report made many recommendations for making the judges of the Supreme Court and High Courts accountable. But the members of the Committee felt that for it the system of the appointment of judges to the higher judiciary has to be rectified first. So the crux of the problem lies in the process of the appointment of judges. If competent and honest people are appointed judges it will address the problem of accountability, overreach and delay. The Committee has recommended that the power of appointment of the judges should be in the hands of the executive as was the position till. In 2006, two Parliamentary Committees made the same recommendation to restore the pre-1993 position.
Justice J. S. Verma, who is the author of the majority judgment in the Second Judges’ case, recently wrote to the Chief Justice of India that the system of collegium had failed and a new system needed to be invented. The Administrative Reforms Commission headed by Veerappa Moily has recommended the constitution of a National Judicial Council (NJC) for the appointment and removal of judges. The previous National Democratic Alliance government had introduced the Ninety-Eighth Amendment Bill, 2003 for the setting up of an NJC which lapsed.

Posted by SUDHANSHU RANJAN at 8:14 AM











No villages in Gujarat, declares CM Modi

Dhananjay Mahapatra, TNN 28 September 2009, 09:48am IST

NEW DELHI: It’s unimaginable in a predominantly rural set up of India. But, there are no villages in Gujarat, if one believes chief minister Narendra Modi.

This is recorded in the minutes of the “Conference of chief ministers of states and chief justices of high courts”. Though the conference was held last month, the minutes prepared by the judiciary and vetted by the law ministry were recently uploaded onto the official website of the Supreme Court.

Modi’s remarks find mention under the heading “Operationalization of Gram Nyayalayas”, a project very dear to law minister Veerappa Moily, who feels it is one of the finest ways to reach the justice delivery system to the doorsteps of poor litigants.

Only two chief ministers — Sheila Dikshit of Delhi and Modi — pointed out that there were no villages in the territory under the administrative control of their governments.

Dikshit may have been correct when she informed the conference that “in stricto senso (strictly speaking), there is no rural area within Delhi” as the villages in Delhi have been consumed by rapid urbanization.

But, what was attributed to Modi in the minutes appeared unbelievable. It said: “The chief minister of Gujarat, while agreeing, in principle, with the establishment of Gram Nyayalayas, stated that there is no village in the state of Gujarat and, therefore, operationalization of such Nyayalayas may not be a viable proposition.”

“He, however, emphasized need for mobile courts for effective dispensation of justice instead of Gram Nyayalayas at the grassroot level,” the minutes showed.

Moily had recently told TOI in an interview that he wanted to operationalize the first lot of Gram Nyayalayas (village courts) on the birth anniversary of Mahatma Gandhi on October 2. It’s only a paradox that the chief minister of the state where the Mahatma was born, had a different idea on implementation of the Gram Nyayalayas.






Shopian rape and murders: CBI exhumes bodies of victims

PTI 28 September 2009, 11:27am IST

SHOPIAN, J&K: A special CBI forensic team on Monday exhumed the bodies of the two women allegedly raped and murdered here, nearly four months after the incident that sparked massive protests in the Kashmir Valley.

The team, which comprised senior doctors of All India Institute of Medical Sciences, began the process of exhuming the bodies at 7am after the necessary approval of the family of the victims — 22-year-old Neelofar and her 17-year-old sister-in-law Aasiya — was obtained.

The village, about 51 km from Srinagar and famous for Ambri apple, was agog with activity since midnight with police erecting screens around the graveyard and para-military forces setting up barricades that kept the general public and media away.

The team had brought some modern equipment that would help determine anti-mortem and post-mortem injuries on the bodies, officials said.

Bodies of Neelofar and her sister-in-law Asiya were recovered from a stream on May 30 after they went missing in town the previous evening.

Their deaths had led to 47 days of protests in this town with locals alleging that security personnel were responsible for the crime.

Ahead of the exhumation, a doctor, who was part of the second post-mortem team from neighbouring Pulwama district hospital and had prepared the vaginal slides of the victims, had told CBI that no samples from the duo had ever been taken.

The doctor broke down during questioning and narrated the entire sequence of events to the CBI officials, official sources said, adding she claimed that the samples were taken from gloves used in the gynaecological ward of the district hospital and the slides prepared.

The CBI took over the investigation into the case on September 17 and a team headed by deputy inspector general Satish Golcha has been camping here since then.

The agency’s special director S C Sinha had also visited the village recently and taken stock of the situation.

It had come to light last month that the vaginal swabs of the two victims sent to Central Forensic and Scientific Laboratory did not match with that of Neelofar and Aasiya.

Ahead of the CBI investigations, the state government had appointed one-man commission headed by Justice (retd) Muzzafar Jan which among other things had recommended a detailed questioning of the relatives of the victims including Neelofar’s husband Shakeel Ahnger and her brother Zirar Shah.










Woman fails to prove 3-decade marriage

Kartikeya, TNN 28 September 2009, 02:57am IST

MUMBAI: A division bench of the Bombay high court has rejected the claims of a village woman from Kolhapur who said that a school teacher from Mumbai had married her three decades ago but left her to fend for herself. Instead, the court said that the man’s assets would go to another woman he married when he moved to Mumbai in 1982. The woman from the village had no evidence to back her word of marriage.

Justice P B Majumdar and R V More heard the case of Radha who said that Ramesh Patil, who worked as a school teacher in Mumbai, married her at a village called Sarvade in Kolhapur in June 1978. Subsequently, Patil moved to Mumbai but Radha never came to the city. The court was told that Patil would go to the village during vacations and Radha gave birth to a daughter in 1990.

On the other hand, Shreya, a resident of Borivli, said she was working as Patil’s colleague at a school in Mumbai and married him in December 1982. They had two sons and Shreya lived with him until 1999 when Patil left home because he had contracted AIDS. He was traced to Virar and Shreya said she looked after him until he died in July 2002.

Radha said that it was eight days after Patil’s death that she came to know of it in the village. She then wrote to the school where he worked, asking for his gratuity and pension. Shreya, too, asked for the same and the dispute reached the court.

Radha’s advocate said she was an “illiterate village lady” who would “not tell lies” about her marriage to Patil. He placed on record statements by two brothers of Patil who said Patil had married Radha in 1978. Thus it was argued that by virtue of Patil’s first marriage to Radha, his subsequent marriage to Shreya was void.

However, the court considered that there was no material evidence to show that Patil and Radha had been married. There were no photographs of the marriage ceremony and there was no evidence that Patil ever sent money to his village for Radha’s maintenance. The priest who had suppposedly performed the marriage was also not brought as a witness. Moreover, there were no letters or correspondence between Patil and Radha to show that they were a couple and in touch all these years.

The high court observed that scanned copies of some photographs that were shown as evidence of Radha’s relationship with Patil seemed like “trick photographs”. Radha could not even point out Patil in a photograph given by Shreya’s advocates despite claiming that he was her husband. The judges felt that attempts had been made to “create evidence” to show that Patil had married Radha.

In contrast, Patil’s marriage to Shreya was well documented. While marrying her in Mumbai in 1982, he had clearly stated that he was a “bachelor” and later named her as his nominee for getting his retirement benefits. Thus on the basis of all the evidence, the high court held that Shreya, and not Radha, was the lawfully wedded wife of Patil and thus the true claimant of his property and assets.








Fresher course to help law grads ‘argue’ better

Ajay Sura, TNN 28 September 2009, 02:23am IST CHANDIGARH: Legal rookies’ first step into the profession would soon constitute a freshers’ course that would aim at sharpening skills before their entry into the courtroom. The Punjab and Haryana High Court Bar Association has prepared a blueprint for the module, which new entrants would have to attend for becoming its members.

“The course is aimed at removing the initial hesitation that beginners feel while entering the profession. It will also boost their confidence,” said bar association president S S Bahal. He added the activity would serve a two-pronged purpose. “Not only will we be able to welcome the new members formally but also solve their basic problems,” Bahal said.

Besides attracting newcomers to the practice, the course would also disseminate tricks of the trade, knowledge about HC proceedings and courtroom behaviour. A placement agency would also be constituted to help freshers find senior lawyers of their choice. “The cell will keep a record of advocates who need junior lawyers for assistance,” Bahal said.

Around 40 to 50 lawyers apply for bar body membership every month. With Punjab, Haryana and UT having a combined HC, most of the fresh graduates come from remote areas, making it difficult for them to make a confident entry. Approximately 500 starters stop practising after a couple of months due to the initial hiccups.








Panel to probe child worker deaths in Gujarat

Rao Jaswant Singh, TNN 28 September 2009, 05:42am IST

JAIPUR: Taking serious note of deaths of tribal child workers in Bt cotton fields of Gujarat, National Commission of Women and National Commission of Protection of Child rights have constituted a high-power committee to look into the issue.

The Times of India first reported the death of five tribal workers in the cotton fields in its report Life is cheap in the killing BT cotton fields of Gujarat’ dated August 28 and death of five more Bt cotton field workers in the second report Five more die in Gujarat Bt cotton field’ dated September 6.

Gujarat High Court advocate Ami Yagnik, one of the four members of the committee, said that the panel has been constituted after several cases of child labour and death of minor workers were reported. The committee members would visit the affected areas in Rajasthan and Gujarat and submit their report, she said.

Around 1.5 lakh tribal children from Dungarpur and Udaipur districts of Rajasthan go to work in Bt cotton fields in Bansakantha and Sabarkantha village of Gujarat. Around 75% of them are below 14 years of age and the rest below 18. Nine children and one adult worker died while working in the Bt cotton fields in Gujarat during August. There were around 15 deaths in 2008.

Yagnik said the panel would visit Dungarpur and Udaipur districts, from where maximum number of child workers migrates to Gujarat every year. The committee, apart from meeting the family members of victims in Rajasthan, would also visit the Bt cotton fields in Gujarat and study the working condition.

The panel formation has left the Bt cotton farm owners red-faced and they running from pillar to post to find a way out. They are raising voice against government agencies claiming agriculture as a whole cannot be put in the list of hazardous occupation, as all the processes are not hazardous and children might work in their own fields.









‘Judges should actively participate rather being a spectator’

TNN 28 September 2009, 06:16am IST

LUCKNOW: It is the duty of the judges to introspect over various problems being faced by the judiciary because they (judges) discharge divine duty in dispensing justice to the aggrieved persons, said Justice B S Chauhan, judge, Supreme Court of India. He was delivering keynote address on the second day of the ongoing 3-day regional conference of the National Judicial Academy, Bhopal on `Enhancing timely justice: strengthening criminal justice administration’ at the Institute of Judicial Training and Research, UP here on Sunday.

Stressing on the need for timely administration of justice, he said that in the ancient past the king used to observe fast for a day if he failed in delivering justice to any person. Quoting several instances of delayed delivery of justice in criminal matters, Justice Chauhan emphasised that speedy trial of criminal cases is the constitutional right of an accused and reminded the judges of the trial courts not to be silent spectator to the proceedings in their courts but to actively participate during the trial of the cases to elicit truth from the accused and the witnesses.

Expressing concern regarding the taking up of criminal appeals after 25 years for hearing at the Allahabad high court when many convict appellants were already dead, he cautioned the judges that patience of society should not be tested.

Justice S B Sinha, former judge of the supreme court speaking on the occasion said that the role of courts is to protect the rights of citizens at all levels of proceedings and exhorted the judges that erosion of faith of society must be checked. Justice Devi Prasad Singh, judge, Lucknow bench of Allahabad high court said that the courts should be cautious in awarding adequate sentence to the convicts, particularly to those convicts who are found guilty of commission of heinous crimes. Justice S N Shukla, another judge of Lucknow bench of Allahabad high court said that the qualities of a noble judge are: To hear patiently, to behave soberly, to consider wisely and to decide impartially.









UN set to treat caste as human rights violation

Manoj Mitta, TNN 28 September 2009, 06:10am IST

NEW DELHI: If the recent genome study denying the Aryan-Dravidian divide has established the antiquity of caste segregations in marriage, the ongoing session of the UN Human Rights Council in Geneva looks set to recognize caste-based discrimination as a human rights violation. This, despite India’s opposition and following Nepal’s breaking ranks on the culturally sensitive issue.

Nepal has emerged as the first country from South Asia — the region where untouchability has been traditionally practiced — to declare support for the draft principles and guidelines published by UNHRC four months ago for “effective elimination of discrimination based on work and descent” — the UN terminology for caste inequities.

In a side-event to the session on September 16, Nepalese minister Jeet Bahadur Darjee Gautam said his county welcomed the idea mooted by the UNHRC document to involve “regional and international mechanism, the UN and its organs” to complement national efforts to combat caste discrimination. This is radically different from India’s stated aversion to the internationalization of the caste problem.

Much to India’s embarrassment, Nepal’s statement evoked an immediate endorsement from the office of the UN high commissioner for human rights, Navanethem Pillay, a South African Tamil. Besides calling Nepal’s support “a significant step by a country grappling with this entrenched problem itself”, Pillay’s office said it would “like to encourage other states to follow this commendable example”.

The reference to India was unmistakable especially since Pillay had pressed the issue during her visit to New Delhi in March. Pillay not only asked India to address “its own challenges nationally, but show leadership in combating caste-based discrimination globally”. The granddaughter of an indentured labourer taken to South Africa from a village near Madurai, Pillay recalled that in 2006, Prime Minister Manmohan Singh had compared untouchability to apartheid.

Adding to India’s discomfiture, Sweden, in its capacity as the president of the Europeon Union, said, “caste-based discrimination and other forms of discrimination based on work and descent is an important priority for EU”. If this issue continues to gather momentum, UNHRC may in a future session adopt the draft principles and guidelines and, to impart greater legal force, send them for adoption to the UN General Assembly.

The draft principles specifically cited caste as one of the grounds on which more than 200 million people in the world suffer discrimination. “This type of discrimination is typically associated with the notion of purity and pollution and practices of untouchability, and is deeply rooted in societies and cultures where this discrimination is practiced,” it said.

Though India succeeded in its efforts to keep caste out of the resolution adopted by the 2001 Durban conference on racism, the issue has since re-emerged in a different guise, without getting drawn into the debate over where caste and race are analogous.









Mahato charged under UAPA

Sukumar Mahato, TNN 28 September 2009, 02:55am IST

JHARGRAM: People’s Committee against Police Atrocities (PCPA) leader Chhatradhar Mahato, who was arrested on Saturday, has been charged with sedition and remanded in five days’ police custody. He also faces charges under the stringent Unlawful Activities Prevention Act (UAPA).

A grim looking Mahato was produced before the Jhargram assistant chief judicial magistrate on Sunday, along with eight suspected Maoists arrested from Kantapahari and Kumarbandh on Saturday. No civilians, including journalists, were allowed into the court premises that was ringed by heavily armed securitymen.

Koushik Sinha and Prashanta Roy, counsels for the accused, claimed police had tortured Chhatradhar and the eight others so badly that they were unable to walk properly. The prosecution, however, argued that they were injured when they ‘‘fell down while trying to escape’’. Chhatradhar has been charged under various of the UAPA and is accused of raising fund for a terrorist organization, attempting to murder members of security forces and conspiring against the state to create terror. He also faces charges under IPC like sedition, waging war against the state, etc.

Some of these cases relate to ransacking and setting fire to Ramgarh police camp on June 15, and the explosions at Dalilpur and Kantapahari on Saturday, soon after his arrest. The other eight — Gorachand Hembram, Sajan Murmu, Subir Hansda, Hiralal Murmu, Baburam Kisku, Sagun Murmu, Ranjit Murmu and Sambhu Soren — have been arrested for allegedly triggering IED blasts after Mahato’s arrest.

LEGAL NEWS 27.09.09

An opaque judiciary

A Surya Prakash

The ugly controversy that has erupted over the proposed elevation of Chief Justice PD Dinakaran of the Karnataka High Court to the Supreme Court is illustrative of the wide-ranging dissatisfaction across institutions and professions over the present system of appointment of members of the higher judiciary. It is indeed rare to see so many Bar Associations (Karnataka, Tamil Nadu, Delhi and the Supreme Court) raise their voice against an appointment and to press for a system of selection of judges that is transparent and fair.

The frustration that is visible in the reactions of lawyers via these fora is understandable given the inaction in judicial and executive quarters even to the weighty opinions of important national commissions, standing committees of Parliament, eminent jurists and professional bodies, all of whom have been pleading for a more broad-based system to select judges.

While under the law as it exists today, it is entirely up to the collegium of judges to take a call on the allegations levelled against this particular judge, the hullabaloo over Justice Dinakaran’s elevation only highlights the inadequacy of the procedure that is in vogue ever since the Supreme Court accorded primacy to the opinion of the Chief Justice of India and the collegium of judges in choosing members of the higher judiciary.

The National Commission to Review the Working of the Constitution, which was headed by former Chief Justice of India MN Venkatachalaiah, declared in 2002 that it was not satisfied with the present arrangement in regard to judicial appointments in which the opinion of the collegium of Supreme Court judges would have primacy over the opinions of others, including that of the President. It called for a more participatory mode which would ensure effective participation of both the executive and the judiciary. It noted that on a plain reading of Article 124 of the Constitution, the power of appointment of judges vests in the President and the President is expected to perform this function “after” consultation and not “in” consultation with the Chief Justice of India.

The Commission recalled how the law in regard to judicial appointments had undergone change over the years. For example, Article 217(1) of the Constitution requires the President to consult the Chief Justice of India, the Governor and the Chief Justice of the High Court while appointing judges to the High Courts. In SP Gupta’s case (First Judges Case), the question arose as to whether among the three judges to be consulted, the Chief Justice of India had primacy. The court said that Article 217(1) placed all the three functionaries on the same pedestal.

In the Second Judges Case (1993), the court said the Chief Justice of India must take into account the opinion of two senior-most judges of the Supreme Court to ensure that the opinion is not merely his individual opinion but is in fact “the collective opinion of the body of men at the apex level in the judiciary”. Also, the opinion of the Chief Justice of India so formed “should be determinative and almost binding on the President”. The court favoured an “integrated participatory consultative process” for selecting the best and most suitable persons available for appointment. However, in case of a disagreement between the President and the Chief Justice of India, “the opinion of the latter must prevail”. Later in 1998, the court described the collegium as the Chief Justice of India and four senior-most judges when this issue came up yet again via a presidential reference under Article 143.

The NCRWC felt that the post-1993 arrangement for appointment of judges needed improvement. It said that a National Judicial Commission headed by the Chief Justice of India and comprising two senior-most judges of the Supreme Court, the Union Law Minister and an eminent person nominated by the President in consultation with the Chief Justice of India should select judges. The NCRWC said, “It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations.” In other words, it wanted the consultative process to be more broad-based.

Parliament has been exercised over the complete monopoly of the judiciary in regard to appointment of judges ever since the Second Judges Case. In 2006, the Parliamentary Standing Committee on Law and Justice expressed its dissatisfaction with the procedure adopted since 1993. It urged the Government to come up with an alternative mechanism which would ensure the involvement of both the executive and the judiciary in the process of selecting judges.

More recently, the Second Administrative Reforms Commission has come out strongly in favour of a National Judicial Council to select judges. Though the Second ARC differed from the MN Venkatachalaiah Commission on the composition of this body, the central theme remained the same. It said the NJC should be headed by the Vice-President and comprise the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India, the Union Law Minister and the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha. It said the appointment of judges should be a bipartisan process above day-to-day politics.

However, all these suggestions and the unanimous opinion against the present system of appointment of judges have just not been acted upon. Apart from the commission headed by Mr Venkatachalaiah, committees of Parliament, the Administrative Reforms Commission, the Forum for Judicial Accountability, eminent jurists and legal luminaries like Mr Shanti Bhushan, Mr Fali Nariman and Mr Ram Jethmalani, and Bar Associations are seeking a more transparent and credible system to appoint judges.

The judiciary, however, seems unwilling to shed its insular approach to judicial appointments and the executive appears to lack the moral courage to make law on the lines suggested by Mr Venkatachalaiah and others to overcome the limitations imposed by the Supreme Court in the Second Judges Case. By resisting change, the higher judiciary is giving the impression that it is still not ready to apply the principles of transparency and accountability which it enforces in other organs of the state. If this impasse continues, we can be certain that the current rumpus over a judge’s elevation to the Supreme Court will not be the last. Over to the Chief Justice of India.






Reforms: where to begin?

Udayan Namboodiri

The UPA’s new Companies Bill smacks of insincerity — fraudulent practices in auditing will continue to breed more Satyams and resultant misery for millions

In Untouchables (1987), the Kevin Costner character based on the life of Elliot Ness, the US Treasury Department official who went after Al Capone in the heyday of prohibition era gangsterism, discovers half way through the film that his quarry has an Achilles heel. His bookkeeper. The only way to get Capone behind bars is to prove in a court of law that the leader of the Chicago mob was a tax defaulter. After an exciting shootout, the bookkeeper is caught and Capone is put away.

Another Hollywood thriller, albeit played out in undertones, The Shawshank Redemption (1994), has Tim Robbins in the role of a tax lawyer serving three life sentences in a penitentiary where the warden routinely skims off the cream from the prison’s earnings from a social project in which the inmates work in public construction projects.

Robbins is engaged to ensure that the moneys are hidden well and deep. So Robbins conjures up characters with social security numbers, driving licenses and yes, bank accounts. Over decades, millions of dollars are stashed away in accounts all over town.

Both movies are set in pre-computerisation America and tell much about the powers that society and government invest in auditors. Such operations may be impossible in today’s paperless world of American finance, but the moot point is that in the world’s most powerful democracy, the men and women who are trained to read balance sheets and ensure that the State is not cheated of its rightful share of revenue are bound by a strict code of professional honour. They may owe their earnings to private persons and entities, but their fundamental loyalty is to Uncle Sam. An auditor, or ‘chartered accountant’ (CA), who places personal enrichment before the national interest, stands to lose his license, apart from facing stiff prison terms.

In India however, recent experience has revealed that the economic reforms process has quite bypassed this crucial area. Our CAs operate much like Al Capone’s recorders and since there are hardly any Elliot Nesses around, their machinations get blown only when the Boss makes a mistake. Something like that happened in the case of Satyam Computers. A long story cut short, B Ramalinga Raju, the much feted-by-government and pampered-by-media, promoter-chairman of Satyam Computer Services, confessed early January that he had cooked the books of his companies like there was no tomorrow. As more facts come to light, it becomes clear that Raju and his family have been spiriting cash out of the company since 2001, if not earlier, through an elaborate, well-ramified set of arrangements and manoeuvres, including forgery, inflating expenses, stripping assets, and manipulating income, inventory value and profits.

Some rushed to conclude that the Rs 2,700 crore ($1.5 billion) scam hurts the image of the IT sector, which is the pride of 21st century India. But actually, the people who should have gone underground in shame are our CAs. But nothing happened to them. Reason: clever auditors are indispensable for the high and mighty. For the nth time since the beginning of the neo-liberal reforms process, the country’s financial bottomline, and along with it the investments of thousands of people — not to mention jobs — were put to peril by this class of professionals. The Harshad Mehta scam, the MS shoes affair and hundreds of little others, both exposed and otherwise, were all results of a serious flight of ethics from a profession once respected for its old world solidity and conservatism.

This week, Saturday Special revisits the economy via the financial sector. We feature IIT alumnus and Supreme Court lawyer Somnath Bharti (main article) to shear the false rhetoric off the recently introduced Finance Bill, 2009. The gravity of the problems afflicting the country’s financial well-being by morally profligate CAs is either not appreciated fully by the media or deliberately concealed. How many billions are evaded in taxes year after year is just the tip of the iceberg. The credibility deficit that has resulted is something far more serious. At this January’s Pravasi Bharatiya Sammelan of economic and political leaders drawn from the Indian diaspora, the Satyam scam was talked about as something worse than a terrorist attack. “Who in his right senses will think of investing in India now?” a visiting desi said. Sam Pitroda, chairman of the Knowledge Commission was reported saying: “The Satyam scam shows some major manipulation of accounts, not just by its chairman but also the management and auditors. I have a question: what were the board members doing?”

According to many people, equal blame was due to the Securities and Exchange Board of India (SEBI), the Institute of Chartered Accountants of India and the Reserve Bank of India. But what is easily overlooked is that the hand of the unprofessional auditor is omnipresent in whichever institution you go to looking for the culprit. The various committees set up by the government to suggest roadmaps for financial sector reforms harp endlessly on ombudsmanship and independent regulators. After Satyam, where we saw one of the most respected Indian audit firms, Price Waterhouse, compromise its vaunted tradition of maintaining high standards, little is left to the imagination as to the workability of this idea.

It is against this background that the schizophrenic nature of the UPA Government becomes clear. On the one hand it talks about the need for an ‘inclusive financial system’ (Rajan Committee recommendations), yet, on the other, it winks at the empire of lies that routinely rips off poor and middle class investors. Of course, even the NDA Government had to bow before pressure from India Inc when it tried to give ‘whistleblowers’ within organisations the legal teeth they crucially lack. But then, the UPA, which introduced the

Companies Bill, 2009 this week in the Lok Sabha, killed off any hope of transparent corporate governance. Not only was the JJ Irani Committee’s suggestion to have watchdogs given the pass, the government also refused to dovetail this with the outstanding issues of regulation and closures.

This Saturday Special owes its genesis to the hard work put in by a young CA aspirant from Vadodara, Chirag Sawant, who has started asking awkward questions ( The Other Voice) even before making the grade. Thanks to his persistence, we have today a growing movement of young CAs all over India who are keen to see reforms in the profession which could in the long run lead to India cleansing itself of the shame that Satyam, PW Coopers and others have wreaked.

The writer is Senior Editor, The Pioneeer)






Arrest of teacher for boy’s suicide hasty, says HC

TNN 27 September 2009, 04:32am IST

CHENNAI: Holding that the Cholavaram police had acted hastily in arresting a woman teacher on the charges of abetting suicide of a student, the Madras high court has ordered her immediate release on bail.

Justice T Sudanthiram, holding a vacation sitting on Friday, ordered the release of B Vijayalakshmi who was arrested by the Cholavaram police on September 18, after a class V student committed suicide moments after returning from school.

The boy, Antony, told his parents that the teacher had disallowed him from writing his quarterly examination, and had warned him that he would be sent back to class IV if he did not study well. When his mother, who is the complainant in the case, went away the boy committed self-immolation. Cholavaram police had registered a case for offences punishable under Section 306 (abetment to commit suicide) of IPC against the teacher and arrested her.

Allowing her bail plea, Justice Sudanthiram pointed out that there was no material to prima facie show that the teacher had intentionally instigated the boy to commit suicide. The ingredient to abet suicide is not made out in this case, he observed, and added that it was unfortunate to note that the investigating officer had acted hastily and arrested the teacher, who was a widow.

Noting that the court understood the pain and agony of the boy’s parents, the judge pointed out that the boy had written two pages during his quarterly examination, disproving the claim that the teacher had disallowed him from writing the examination.

The judge then granted bail to the teacher, and allowed her to execute a personal warrant for Rs 25,000 to the satisfaction of the Puzhal Central Prison authorities. She shall appear before the Cholavaram police as and when required for inquiry.








Warring sides must attend dispute hearings: HC

Swati Deshpande, TNN 27 September 2009, 03:01am IST

MUMBAI: In a judgment that would make parties to arbitration disputes take the hearings more seriously, the Bombay high court has held that it would not interfere with an award when one party deliberately avoids participation in the arbitration process.

Justice Anoop Mohta recently upheld a decision passed by an arbitral tribunal in a dispute between West Bengal-based Ratan Garg and Sulochana Agrawal from Bhuleshwar in Mumbai. Garg had challenged an arbitration award on the grounds that he was unable to attend the hearings in Mumbai for “insufficiency of time” and said that since “full opportunity was not given” to him, the decision be set aside.

The court, however, noted that in May 2008, the arbitration proceeded in Mumbai according to rules laid down by the Bharat Merchants’ Chamber that all arbitration of its members would take place in the city. Garg had made part payment for certain goods, but was denying the transaction.

The high court held that part payment by Garg was proof that the transaction took place and observed that he had “for one reason or the other” avoided appearing personally before the arbitrator. When a party has accepted the terms of the Chamber that all arbitration would take place in Mumbai, then “the excuse of want of time to reach the city” holds no water, said Justice Mohta.

The high court, relying on a 2009 Supreme Court judgment, said, “The arbitral tribunal is empowered to pass such an award, especially when the party deliberately avoids participation in the arbitration proceedings in order to frustrate and delay the claim.”








1,500 cases being filed in Allahabad HC daily

TNN 27 September 2009, 04:46am IST

LUCKNOW: Regardless of lack of resources, we have to develop our capacity in expediting the pronouncement of judicial decisions, specially in criminal administration of justice because quick and timely administration of justice is a subject of our fundamental right, Justice Chandramauli Kumar Prasad, chief justice of Allahabad High Court said while inaugurating a 3-day north zone judicial conference on `Enhancing timely justice: Strengthening criminal justice administration’ which began at Institute of Judicial Training and Research here on Saturday.

Highlighting various problems being faced by the judiciary, Justice Prasad said that about 1,500 cases are filed every day in the Allahabad High Court. Out of total pending cases in the country at various levels, nearly 20 per cent cases are from UP alone.

He advised the judges to enhance their knowledge of laws, skill and calibre to speed up the process of disposal of cases so that delivery of timely justice without any undue delay may be possible in cases, particularly in criminal matters.

Justice Pradeep Kant, senior judge of the Lucknow bench of Allahabad high court, who is also incharge of judicial education in UP, said that delay in disposal of cases had been the burning problem in modern times but no single agency or reason could be blamed for it as the different agencies of the government, the bar and others were also responsible to some extent for the delay.

During the post-lunch session of the conference, various groups of the delegates from North Indian states were formed, who discussed the issues and suggested solutions by presenting their views through the group leaders in the presence of Justice SB Sinha, former judge of the Supreme Court of India and Justice Vishnu Sahai, former acting Chief Justice of Allahabad High Court and presently member of the State Human Rights Commission.

Earlier, during the inaugural session, director of the institute VK Mathur welcomed the chief guest and other dignitaries and the participants while Rekha Agnihotri, deputy director of the institute conducted the programme.









Prove that women are equal to men: Bombay HC

Mayura Janwalkar / DNA

Sunday, September 27, 2009 2:47 IST

Mumbai: Are men and women equal? Apparently, the debate is not yet settled. In perhaps a first, the Bombay High Court has sought documentary evidence to support the ‘claim’ that men and women are equal.

The Womanist Organisation of India (WOI) and the Bhartiya Bar Girls’ Union (BBGU) had filed a petition seeking the quashing of a provision in the Shops and Establishment Act, 1948 that forbids women from working in any establishments like restaurants and bars after 9.30pm. The HC has now asked them to produce documentary proof of gender equality to support their petition.

“We are looking up various studies carried out by reputed institutions which show that men and women are equal,” said Vishal Thadani, advocate for WOI and BBGU. Thadani said that the court asked for documents that speak of gender equality in general and not just in the realm of labour laws.

The WOI and the BBGU had filed a petition contending that the 9:30 deadline deprived women working in bars as waitresses or singers (not bar dancers) the right to earn their livelihood.

The state government, in an affidavit filed before the court earlier, had refused to compromise with the provision in the Shops and Establishment Act, stating that “women employed in these establishments are from the poor strata of society and are prone to illegal exploitation at the hands of the male customers, hotel staff, etc. And hence they are not allowed to work after 9:30 pm.”

The affidavit, filed by Pandit Kale, senior inspector of police, hotel branch, further said, “The waitresses working in these establishments can never be equated with women in other fields, such as air-hostesses and lady staff in the hospitality industry.”

The police had supported the 9:30pm deadline for women employed in bars as the owners do not take the responsibility to drop them home and ensure their safety. Hearing the case last week, the court had remarked that if women and men were equal, why did the women working late need protection? It is then that the division bench of Justice DK Deshmukh and Justice RG Ketkar sought documents pertaining to the equality of men and women.

Brushing aside the wishes of nearly 2,835 women working in 292 bars in the city, Kale also said that “most of the bar premises are not suitable for ladies to work as they are not provided with basic amenities.”

Going a step further, Kale, in his affidavit, has stated, “It was found that … bar owners are exploiting the lady waitresses for immoral and illegal activities, which are against the public interest and society. I say that several lady services bars are mushrooming in the city, endangering the public morality and culture.”








HC raps police for harassing one in false case

Rahul Tripathi , TNN 27 September 2009, 12:05am IST

NEW DELHI: A Delhi court came down heavily on the police in Delhi and Ghaziabad for allegedly implicating a youth in a false case and harassing his family. Vinit Shukla, a student of Bachelor of Arts at Delhi University and a resident of New Usmanpur, was reportedly picked up by the police in April in connection with a cellphone theft.

Though he got the bail, Shukla claimed police from New Usmanpur and Ghaziabad kept on harassing him and his family members. After Ghaziabad police failed to prove involvement of Shukla in any criminal case, the court told police in both the states to refrain from “harassing” the victim and intimate his family three days in advance if they want to question him.

“(For now) no case has been registered against the victim… In case of registration of any case, three days notice (should) be given to him in the event of arrest,” the court said in its order.

The incident once again highlights dubious way in which law-enforcing agencies sometimes work. When Shukla was arrested, he reportedly told police he got the mobile from one of his relatives who asked him to get it repaired. The Ghaziabad police also arrested two more persons in this connection, including one Rajesh Kumar who was Shukla’s relative.

Shukla was later released on the bail but police from New Usmanpur and Ghaziabad continued visiting his house. “We made several complaint to local police in Delhi and Ghaziabad but no one was ready to help us. The UP police threatened us, saying they will book my brother under gangster act and kill him in an encounter,” alleged Sunil Shukla, the victim’s elder brother.

” One day, around 8-10 policemen from Ghaziabad visited our house in New Usmanpur to question my brother but he was not at home. So they asked me to appear before them few days later at Ghaziabad. When I reached there, they detained me and told me that if I do not bring my younger brother to them, they will implicate me in a false case of narcotics,” added Sunil.

The family then filed an application in the court on 23 September. The court sought replies from both Delhi Police and UP police but the Ghaziabad police failed to appear in the court.

When contacted, the circle officer of Indirapuram at Ghaziabad, Rahul Srivastava, denied any illegal detention or high-handedness. He also claimed they have not received any court order. “In cases where more than one person is involved, we slap gangster act to prevent them from committing crime. When we arrest someone from Delhi or UP, we will always do it in legal manner,” said Srivastava.








Wife’s suspicion can’t be ground for divorce: HC–HC


Mumbai, Sep 26 (PTI) Observing that mere suspicion by a woman that her husband is allegedly having an affair with another woman cannot be the ground for divorce, the Bombay High Court has set aside a divorce granted to a techie and his lecturer wife by a family court in Pune.

After marriage, no wife will tolerate the company of another woman in her husband’s life, observed Justices P B Majumdar and R V More on Thursday.

Quashing the divorce, the judges asked the couple, Rajesh and Smita (names Changed to protect identity), to come together and learn to adjust with each other more particularly as they have a small child to raise.

Rajesh had sought divorce from his wife on the ground of cruelty alleging that she suspected him to have an affair with Reena, a family friend.








HC stay on Rs 64-lakh graft FIR against Panchamrut Dairy CMD

TNN 26 September 2009, 11:23pm IST

VADODARA: Gujarat High Court has granted an interim stay on an offence registered against chairman Panchmahal District Co-operative Milk Producers’ Union Ltd (Panchamrut Dairy) chairman and former Godhra BJP MP Bhupendrasinh Solanki and managing director R S Patel.

An offence, registered earlier this month at Godhra police station against the duo by the office of the district co-operative registrar, accused them of misappropriating funds to the tune of Rs 64 lakh.

It alleged misappropriation regarding a scheme to provide cattle to persons living below the poverty line from Jhalod and Fatehpura talukas of Dahod district.

“We pleaded that till a decision was given regarding quashing the FIRs, a stay should be granted on the investigations. HC has granted our plea,” Solanki said. He added that the cattle were procured and distributed in two talukas under a memorandum of understanding (MoU) with the state government. “We were to purchase the cattle and then furnish bills to state government,” he said.

The offence states that while Dahod district collector had given administrative clearance to the deputy director (animal husbandry) of Dahod district panchayat to go ahead with the purchase of cattle, no money was deposited for the purpose with Panchamrut Dairy. The dairy, which was the facilitator in the process, procured cattle worth Rs 64 lakh and distributed it under the scheme without the amount being given to it.

It has been alleged that the funds of co-operative dairies should not be used for such purposes. The dairy had moved the high court to quash the FIR.

Earlier, too, an offence was registered against Solanki and Patel for misappropriation of funds, but HC granted a similar stay on investigations. Assistant co-operative officer (audit) K V Katara had filed the previous offence stating that Solanki and Patel were involved in a fraud amounting to Rs 28,000 in purchase of cattle for four tribal residents of the district.








Judges under scrutiny

Despite recent concessions to be subject to Right to Information Act, the Supreme Court’s attitude to the sunshine law remains a matter of concern, writes Pradeep Baisakh.

25 September 2009 – In an apparent climb-down, the Supreme Court agreed on 11 August 2009 to disclose information under the Right to Information (RTI) Act what action has been taken by the Chief Justice of India (CJI) on a complaint against some judges of the Allahabad High Court. Earlier, the apex court had declined to provide this, claiming that such information is not available with its official registry. Its reversal of that stand is a welcome change of view.

Nonetheless, the overall attitude of the Supreme Court toward the sunshine law continues to remain a cause of concern. In the most recent development where a single judge bench of Delhi HC ruled that office of CJI comes under RTIA, the SC is planning to appeal against the order in a division bench of the same court.

Don’t look inside our house

P K Dalmia of Noida, Uttar Pradesh had sought information from the Public Information Officer of the Supreme Court on what action had been taken on three of his complaints made in 2007 and 2008 against the judges of Allahabad High Court on some matter of embezzlement. The PIO replied in negative as information relating to complaints against High Court judges were not part of the routine SC registry. Though such information was available with the ‘office of the Chief Justice of India (CJI)’, the PIO neither attempted to get it from there nor transferred the RTI application to that office. Dalmia appealed to the Central Information Commission (CIC), which ordered the PIO on 24 February 2009 to provide the information sought by him. At this stage too, the Supreme Court did not comply; instead, this order of CIC was challenged in the Delhi High Court.

During the hearing before the High Court, the Attorney General Vahanvati (appearing on behalf of the Supreme Court) agreed to provide the information sought. However, he maintained that he does not accept the correctness of the CIC‘s judgement on the matter.

Even an order by the full bench of the CIC delivered in January 2009 could not change the Supreme Court’s view on the ‘personal capacity’ of an office-holder.

• Are judges over-reaching?
• The balance of power
• Contemptible but true

This case has similarities to the much-highlighted case of S C Agrawal, where the applicant had sought information from the Supreme Court whether any declarations of assets have been made by the judges of the Supreme Court and the High Courts to their respective Chief Justices, as expected under the resolution passed by the All India Judges Conference in May 1997. The Supreme Court declined to provide this information , arguing instead that the May 1997 resolution was an ‘in-house mechanism’. Moreover, the court took the view that assets declared by judges to their respective chiefs, were given ‘voluntarity’, and received in the ‘personal capacity’ of the Chief Justices (implying, therefore, that they were not official documents subject to RTI ).

Even an order by the full bench of the CIC delivered in January 2009 could not change the Supreme Court’s mind on this – instead, the SC filed a writ petition in the Delhi High Court, and obtained a stay on the order. Since then, the CJI has reversed himself (see below).

Both these cases center around a key legal issue, namely, whether the ‘Office of Chief Justice of India, in his capacity as Chief Justice not sitting in a Court” is subject to the application of Right to Information Act, 2005. The Information Commission’s view was that the Chief Justice is a custodian of the information available with him, and that it is available for perusal and inspection to every succeeding office-holder. Therefore the information cannot be categorized as “personal information ” even if the CJI holds it in his personal capacity.

Legalising secrecy

The proposed legislation that rocked the upper house in recent monsoon session of Parliament was the “The Judges (Declaration of Assets and Liabilities) Bill, 2009”. The bill apparently aimed at brining transparency to the functioning of the higher judiciary by providing for declaration of assets and liabilities by the judges. Under it the judges of Supreme Court would declare their assets to the Chief Justice of India (CJI) and judges of High Courts to the concerned Chief Justice, the CJI would be required to declare assets to the President. Judges failing to declare their assets (in 30 days time) or providing a false declaration would be deemed to be misconduct and misconduct is a ground for removal of a judge.

But clause 6 of the draft bill prohibits such declaration from being made public. This exclusion was vehemently opposed by most political parties, as well as some legislators from the ruling Congress. Parliamentarians termed such a move violative of the Constitution and the RTI Act. Arun Jaitly of BJP wondered why, if candidates contesting elections are to divulge their assets and liabilities under the constitutional provisions , why cannot the judges; and argued that there cannot be two interpretations of Article 19 that gives fundamental right to citizen to know. Brinda Karat of CPI-M said [the proposed Bill] violates the equality of all citizens, a basic feature of Constitution. Noted Constitutional expert and Rajya Sabha MP Ram Jethmalani termed it as a “conspiracy of corruption”.

It would be pertinent to put here what exactly clause 6 of the bill reads. It says, “notwithstanding anything contained in any other law for the time being in force, a declaration made by a Judge to a competent authority shall not be made public or disclosed, and, shall not be called for, or, put into question by any citizen, court or authority, and, save as provided by sub-section 2, no Judge shall be subjected to any enquiry or query in relation to the contents of the declaration by any person.”

The higher Judiciary welcomed the bill in its totality. Responding to the bill, CJI K G Balkrishnan said “We [the judges] welcome it. We only wanted it”. Commenting on keeping the same information out of the purview of the RTIA, he said “We do not want the judges to be harassed.”

Public statements have been issued from time to time by the CJI, who has been in forefront in advocating the view of keeping the higher judiciary out of the purview of RTI , e.g. “no self respecting judge will accept compulsory declaration” (05/02/2007, The Hindu), “The Chief Justice is not a public servant. He is a constitutional authority. RTI does not cover constitutional authorities” (20/04/2008, TOI), “We do not want the judges to be harassed.” (26/07/2009, The Hindu) all of which are directly or obliquely concerned to the asset declaration case.

Since then, however, amidst views from some judges themselves that declaring their assets publicly is necessary, the Chief Justice has reversed himself owing to a unanimous decision taken by all the SC judges; now the Court will place the statements of assets on its web sites. Whether this amounts to accepting the jurisdiction of the RTI or if any action will be taken for non-declaration of assets, is unclear.

Disclosure and judicial independence

The second concern that bears examination is this: “will greater scrutiny of judges affect their judicial independence, or will scruinty become a tool of harassment by the public or by vested interests?”. I think not.

The SC and the High Courts already enjoy numerous protections to ensure that they are not unduly pressured, whether by other branches of government or by the public. The Constitution provides that the CJI will be consulted in judicial appointments, that judges will have guaranteed tenure, their salaries are not voted upon, their conduct cannot be discussed in legislatures, and they have absolute immunity from civil and criminal proceedings for acts done in discharge of their official duties. They also hold the power of ‘contempt of court’ to protect themselves from any malicious criticism and to enforce implementation of their decrees.

All these provisions make the higher judiciary immune from interference from legislative or executive organs of the state and also from any individual. Eminent jurist Fali Nariman has rightly said “If only the judges had relied on the Constitution of India to protect them, as when they decide individual cases, and disgruntled litigants sometimes make allegations against them, they would have had no need for additional protection from government or from Parliament”. Therefore any apprehension that judges would be harassed if their assets and liabilities are made public is only superfluous.

And among judges themselves, as we saw recently, there is divided opinion. Even earlier, progressive voices to include judiciary under the purview of RTI have come from former CJI J S Verma (January 2007) and the Parliamentary Standing Committee on Personnel, Law and Justice (April 2008).

The Judges Assets Bill would also, in all likelihood, be challenged in the courts if passed in its current form, and therefore it was wise that the government withdrew it for the moment. If the question of the constitutionality of the Bill were to be raised, it would have been uncomfortable for the justices to have sat in judgment of their own views. Instead, we now witness a compromise, by which the judges have agreed that their assets would be declared publicly on the SC’s web site.







HC refuses to hear writ against Rosaiah regime
Express News Service

First Published : 26 Sep 2009 07:58:49 AM IST

Last Updated : 26 Sep 2009 09:51:26 AM IST


HYDERABAD: A Division bench of the High Court, comprising Justice T Meena Kumari and Justice GV Seethapathy, today refused to hear a public interest writ petition questioning the governance of the State by a Cabinet headed by K. Rosaiah.

A.Ravi, a practising advocate, filed the writ in public interest, stating that there was no test of strength conducted on the floor of the Assembly.The bench listed the matter for hearing after the Dasara vacation.

Another writ petition seeking the issuance of a quo waranto filed by Bezwada Govind Reddy contending that in view of his not having the support of the majority of his party, Rosaiah could not continue as the chief minister was also filed and expected to be listed after the vacation.

Sathiveedu SEZ: GO on transfer of powers quashed A division bench comprising Justice Ghulam Ahmed and Justice Nooty Ram Mohan Rao suspended a government order with regard to the Sathiveedu SEZ. Under the impugned order made in February, the government delegated the powers of gram panchayats in the Sathiveedu Special Economic Zone to the Sri City authorities.

The village panchayats of Mallavaripalem (e) Metherimetha complained that such delegation of powers of a gram panchayat to the AP Industrial Infrastructure Corporation or the authorities under the SEZ township was unconstitutional and in violation of the constitutional amendment which envisages that power must vest with the elected bodies at the grassroot level.

SEZ dev. commissioner’s appointment set aside

A division bench comprising Chief Justice Anil Ramesh Dave and Justice Ramesh Ranganathan allowed a quo warranto writ petition and accordingly set aside the appointment of P.

Venugopal, president of Software Technologies Park, as development commissioner for special economic zone.

The bench was dealing with a writ petition filed in public interest by one Ahmed Ehtesham Kawakab complaining that the appointment was contrary to law and that the incumbent did not satisfy the prescribed qualification.

The bench upheld the contention that the law prescribed that the director should be an officer of the Central Government not below the rank of deputy director under Section 11 (1) of the Special Economic Zones Act and since the present incumbent was not a government employee he was not qualified to hold the post.








Legal notice to Sach Ka Saamna team

TNN 27 September 2009, 12:00am IST

Remember the National Commission for Women (NCW) had recently filed a complaint against the reality show, Sach Ka Saamna?
They had sent a legal notice to the producers of the show. So, when we met up with NCW’s chairperson, Girija Vyas, at an event recently, we asked her to give us her view on the show. “The show might have done really well in America, but the format in which it is being aired here does not fit in with our culture,” she said. Well, she feels that this sach is not going quite well with the Indian families. She added, “The families in our country stay together. I feel this show does not have a very good effect on the minds of an average Indian.” Also, she added, “I believe they have stopped the show now.”

However, the NCW chairperson may not be very happy to know that the channel insiders have said that the show will be back, next year. And not only that, it will have more episodes this time. Here’s what a source from the channel told us, “We are working on it and will have it on air again. It had a great response from the audience.” Guess, it is time for Vyas to do is sach ka saamna!








HC raps police for harassing one in false case

Rahul Tripathi , TNN 27 September 2009, 12:05am IST

NEW DELHI: A Delhi court came down heavily on the police in Delhi and Ghaziabad for allegedly implicating a youth in a false case and harassing his family. Vinit Shukla, a student of Bachelor of Arts at Delhi University and a resident of New Usmanpur, was reportedly picked up by the police in April in connection with a cellphone theft.

Though he got the bail, Shukla claimed police from New Usmanpur and Ghaziabad kept on harassing him and his family members. After Ghaziabad police failed to prove involvement of Shukla in any criminal case, the court told police in both the states to refrain from “harassing” the victim and intimate his family three days in advance if they want to question him.

“(For now) no case has been registered against the victim… In case of registration of any case, three days notice (should) be given to him in the event of arrest,” the court said in its order.

The incident once again highlights dubious way in which law-enforcing agencies sometimes work. When Shukla was arrested, he reportedly told police he got the mobile from one of his relatives who asked him to get it repaired. The Ghaziabad police also arrested two more persons in this connection, including one Rajesh Kumar who was Shukla’s relative.

Shukla was later released on the bail but police from New Usmanpur and Ghaziabad continued visiting his house. “We made several complaint to local police in Delhi and Ghaziabad but no one was ready to help us. The UP police threatened us, saying they will book my brother under gangster act and kill him in an encounter,” alleged Sunil Shukla, the victim’s elder brother.

” One day, around 8-10 policemen from Ghaziabad visited our house in New Usmanpur to question my brother but he was not at home. So they asked me to appear before them few days later at Ghaziabad. When I reached there, they detained me and told me that if I do not bring my younger brother to them, they will implicate me in a false case of narcotics,” added Sunil.

The family then filed an application in the court on 23 September. The court sought replies from both Delhi Police and UP police but the Ghaziabad police failed to appear in the court.

When contacted, the circle officer of Indirapuram at Ghaziabad, Rahul Srivastava, denied any illegal detention or high-handedness. He also claimed they have not received any court order. “In cases where more than one person is involved, we slap gangster act to prevent them from committing crime. When we arrest someone from Delhi or UP, we will always do it in legal manner,” said Srivastava.








Village courts to try pending cases

TNN 27 September 2009, 01:25am IST

BANGALORE: At least 5,000 grama nyayalayas will be set up across the country in three years. They will try to clear lakhs of cases pending in various courts.

“Two hundred grama nyayalayas will be operational from October 2 and they can help in clearing half of the pending cases in six months,” Union law and justice minister M Veerappa Moily said here on Saturday.

He was speaking at the inauguration of a regional conference on judicial and police reforms organized by the Indian Institute of Public Administration.

Judicial reforms sought by the public will be addressed in a year or two. “I will ensure court cases are up and running and don’t stay in the pending basket. Also, 90% of the proposed reforms don’t need amendments; they only need skills of the judiciary,” Moily pointed out.

Whenever law ends, tyranny begins, and this is what has been happening in many cases. “Let the system govern… Accountability in the judiciary is important and a comprehensive Bill for accountability and declaration of assets will be tabled and passed in the winter session of Parliament,” Moily said.

Former director general of police R Sri Kumar revealed how the police are treated like a football. “As per a Supreme Court order, a police officer must have a steady posting for two years (before moving on to another) under any circumstances. But this is not happening and it amounts to contempt of court,” Kumar said. “The draft of the Police Act is on the website to invite suggestions and comments but the government has not taken it forward.”

A movement to have `crime stoppers’, perhaps similar to `neighbourhood watch’ in other countries, and to act as a bridge between the police and citizens, has very few takers. “Project 100, through which police can come knocking at the door after just a phone call, is also a must. This requires high technical abilities,” Kumar summed up.






Panel frowns on hawkers selling public land to third parties for fancy price

Julie Mariappan, TNN 27 September 2009, 04:44am IST

CHENNAI: The hawking committee (implementation) appointed by the Madras high court has castigated hawkers for selling demarcated hawking area near the Lily Pond complex off Central railway station for a “fancy price” to third parties, through a general power of attorney. The unauthorised deal is said to have been registered at the sub-registrar’s office in Mannady.

Committee chairperson Justice A Ramamurthy told TOI that there was sufficient prima facie evidence to prove his point. About 20 to 30 hawkers who were evicted from Poonamallee High Road, Purasawalkam High Road, Park Station subway and Aminjikarai had sold to third parties 20 sq ft of land allotted to them under the hawking scheme. “The corporation’s licences to these hawkers have been misused by certain elements,” Ramamurthi said.

It was only last year that about 620 hawkers, who were hindering the flow of traffic, were shifted to the Lily Pond complex. Ramamurthi said that he would soon write to find out how many people had registered illegally in the sub-registrar’s office in Mannady. “I was absolutley shocked when I saw the documents, which showed that a small piece of land was sold for more than a lakh of rupees. The registration department has been directed to report on the issue,” he added.

According to rules, each hawker pays a montly licence fee of Rs 100 to the local body. By selling the land to third parties, the hawkers have conferred all ownership rights on them. The latter can pay a monthly licence fee, renew licences, get loans from nationalised and cooperative banks, obtain a no-objection certificate from the police department, sell the shop or rent/sub-lease the tiny plot of land for a premium amount.

Based on a report submitted by the hawking committee led by Justice J Kanakaraj, the high court appointed Justice Ramamurthi to head the implementation committee in 2006. Despite hawking spaces being demarcated by the committee, effective implementation of the report remains a challenge.

“The court wanted poor hawkers to lead a decent life but they make money by selling public land, which is shocking. I have also asked the corporation to enquire into the case before embarking on legal action,” Ramamurthi said. The committee submitted a report to the high court recently, pointing out the violations.

T Nagar hawkers: Following objections from the corporation and transport department to its previous orders, the Ramamurthi committee has suggested another area beneath the newly built South Usman Road flyover – from Nalli to Rangan Street – for relocating hawkers of Pinjala Subramanian Street in T Nagar. Tens of traders have encroached on the street for nearly a year, following the construction of a flyover. “The local body has not replied till date,” Ramamurthi said.






Warrant issued against a German for illegal cutting of trees in Goa

PTI 27 September 2009, 10:44am IST

PANAJI: While Goa police have issued non-bailable warrant against 73-year-old German national Ingo Grill, the state government has refused to give him visa, which has forced the accused to stay back in his homeland, his lawyer said.

Grill, a businessman who pioneered the concept of Saturday-night bazaar in Goa’s coastal village of Arpora, has applied for the visa in the Indian consulate.

Grills lawyer vikram varma said that the Indian government has consistently refused him the visa even as he is wanted in Goa for the case of illegal cutting of trees.

The Government had filed a case for the illegal cutting of a tree by some local persons, Varma said.

Even though this act was done without the knowledge of Grill and at a time when he was not even present in this country, he was made a co-accused, Varma said.

His presence is required by the Judicial Magistrate First Class (JMFC) court in Mapusa to defend himself and a non-bailable warrant has been issued in his name through Calangute police station, he added.

The businessman who has spent 27 years of his life in Goa had a bitter legal fight with the Goa government after deportation orders were served on him.

Grill won the case against the government in the Goa bench of Bombay High Court, which had ruled that the state had no grounds to deport him.








13 get life term for Nimdar murder

TNN 27 September 2009, 03:35am IST

CHANDRAPUR: Thirteen accused, including three women, were sentenced to life imprisonment for the murder of Parasram Nimdar at Nimdar Tola in Chamorshi teshil of Gadchiroli. The judgement was pronounced by Gadchiroli principal and district sessions judge GN Tadwalkar on Friday.

The victim Parasram Dadaji Nimdar (27) had been murdered on July 3, 2003, in Nimdar Tola village following old rivalry over tendu leaves collection contract owned by him. The prosecution case was that over 50 people, including over two dozen women and a couple of juveniles, conspired on the day of the murder and together attacked the members of the Nimdar family in the village.

Parasram and his brothers were chased along the lanes of the village and thrashed brutally. Parasram sustained critical injuries in the attack and died on the spot. The attackers later carried his body on sticks they had used in the attack and threw it outside the village along the road.

A complaint was lodged in this regard by Sagarbai Nimdar, and Ghot police had booked 51 people and two juveniles under relevant sections of the law. After investigations in the case, the Ghot police had charge-sheeted all the 51 accused in the court at Gadchiroli. During the course of hearing one of the accused died and hence the case proceeded against only 50 accused in the court of principal and district sessions judge.

The prosecution examined 18 people before the court during the trial and on Thursday judge Tadwalkar held 13 accused guilty of the murder and sentenced them to life imprisonment. The convicted accused are Nandkishor Dhodre, Bandu Dhanorkar, Yadav Shinde, Manoj Ogilwar, Sudhakr Marathe, Sanjay Ogilwar, Chandu Madpalliwar, Rumaji Wasekar, Bhagrath Ogilwar, Wasant Waghade and the women Pramilabai Gongle, Mayabai Mandhre and Kamlabai Madapalliwar.

Judge Tadwalkar also convicted the accused under various other sections of the law in the same case and the sentences pronounced against these will run concurrently with the life term. The judge however dismissed charges against 37 accused for lack of evidence and discharged them from the case.

The case against the two juveniles accused in the murder is still pending before the juvenile court, sources said. Additional public prosecutor R B Kunghadkar appeared before the court for the state.

LEGAL NEWS 26.09.09


Twice shy

flavia agnes

Posted: Saturday , Sep 26, 2009 at 0100 hrs

The recent Bombay High Court ruling delivered by Justice A.S. Oka brings to an end the prolonged ordeal suffered by a simple village woman, Suman Satav. The ruling upheld her right to maintenance to a paltry sum of Rs 500/- under Section 125 of the Criminal Procedure Code (Cr.PC). Though the sum may be paltry, it bestows on the woman, and thousands of others like her, dignity and status in a society where marriage continues to have a high premium for women, particularly in rural areas. Suman’s ordeal had started way back in 1991 when she was assaulted and thrown out of the matrimonial home along with her minor daughter, then aged four. The magistrate’s court and the sessions court had denied her maintenance, upholding her husband Nivruti’s contention that since he was already married, there cannot be a valid marriage between himself and Suman. However, since paternity was not denied, the daughter was awarded Rs 200/- per month as maintenance which was enhanced to Rs 400/- by the sessions court.

Nivruti’s contentions are not unique. Denying marriage on the ground of bigamy is a common ploy adopted by husbands to avoid maintenance to their women with whom they have cohabited for a prolonged period. In this context, the landmark ruling in Badri Prasad vs. Dy Director of Consolidation, in 1978, had laid down that prolonged cohabitation between a man or a woman leads to a presumption of marriage under Section 114 of the Evidence Act.

Though Justice Oka’s judgement is highly valuable, it is not a precedent for the Bombay High Court. It follows the tradition set by Justice Kania, way back in 1976 in Govindrao vs. Anandibai (AIR 1976 Bom 433), which had ruled that since the Hindu Marriage Act is a beneficial legislation, it would not be right to adopt a narrow approach and deprive a large number of women their rights of maintenance. This could not have been the intention of the legislature. Had the lower courts followed this ruling, Suman would not have been spared this ordeal. Justice Oka relied upon another judgement of the Supreme Court which had also upheld a similar position, Dwarika Prasad Satpathy v Bidyut Praya Dixit (AIR 1999 SC 3348) and had laid down that strict proof of a valid marriage is not necessary while deciding the issue of maintenance in summary proceedings under Section 125 of the Cr.PC.

Another important ruling on this issue was delivered by the Supreme Court in 2004 in Rameshchandra Daga vs. Rameshwari Daga, where the right of another woman in a similar situation was upheld. Here the apex court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The court had commented that though such marriages are illegal as per the provisions of the Act, they are not ‘immoral’ and hence a financially dependent woman cannot be denied maintenance on this ground. But a contrary and regressive view was expressed by another bench of the Supreme Court in 2005, in Savitaben Somabhai Bhatiya vs. State of Gujarat (AIR 2005 SC 1809) which denied the woman maintenance on the ground that it is inconsequential that the man was treating the woman as his wife. The court commented, “However desirable it may be to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section125 of the Cr.PC, there is no scope for enlarging it by introducing any artificial definition to include a woman not lawfully married in the expression ‘wife’.” Fortunately for women, Justice Oka did not endorse this view though this case was cited in support of the husband’s claim.

Perhaps I need to clearly state my position here, lest I be quoted out of context. I am not endorsing bigamy, but rather, making out a case in defence of women who are caught in this web of deceit by husbands who take advantage of the vulnerability of women and then try to escape from the financial liability by using provisions of an Act which was meant to be beneficial to Hindu women. Only under the Hindu law is it possible to blatantly plead an illegal act and gain financial advantage without any criminal culpability. This occurs so routinely that the apex court in Vimala vs. Veeraswamy, had laid down that when a man pleads an earlier marriage, he would have to strictly prove the same. In the present case, the husband could not prove that he was married earlier in 1978, prior to his marriage with Suman in 1980. But the bigamy was an admitted fact, since the wife herself pleaded that in 1982 he had married again. But he continued to cohabit with her and produced children at regular intervals. The two earlier ones had expired and only the daughter born in 1987 has survived.

These facts highlights another reality of Hindu women’s lives. Though women do have a right of divorce, most women in rural areas accept their husbands’ bigamous marriages and continue to reside with them despite domestic violence, so long as the husbands continue to cohabit with them and maintain them. Only when they are thrown out, they approach the courts for their basic right of survival. It is here that the trial courts have to be aware that they have a constitutional duty to uphold women’s right to dignity and survival.

The writer is a women’s rights lawyer and feminist legal scholar. She is also the director of ‘Majlis’ which provides legal advocacy and litigation support to women








Minutes on death row


Posted: Friday , Sep 25, 2009 at 0039 hrs

The Constitution protects several rights, including those of prisoners. Last week, the Supreme Court’s stern warning about expeditious disposal of mercy petitions revisits an issue the government is trying hard to ignore. Struggling to dispose of mercy petitions, the excessive delay on behalf of the government has compelled the judiciary to step in. Much ink is expended lamenting the delays in our justice system, and factors such as limited recourses and insufficient judges are often cited in response. But how do we account for the government taking over a decade to decide mercy petitions?

The delay in deciding on mercy petitions raises deep constitutional issues. Article 21 of the Constitution, which guarantees the right to life, applies to all stages of the legal process, not just the trial. For over three decades, “life” has been interpreted liberally and Article 21 has been held to apply to both legislative and executive action.

In Triveniben vs State of Gujarat (1989), the Supreme Court underscored the protection that Article 21 provided to prisoners. Cases of inordinate delays in the execution of a sentence would invite scrutiny under Article 21, and unjustifiable delays would alter the death sentence to life imprisonment. However, the court declined to provide a fixed period of delay that would convert the sentence; the issue would turn on the specific circumstances for the delay.

The rationale for granting protection against an inordinate delay is twofold. Most significantly, such a delay has serious mental and psychological implications; it is both an act of cruelty and a form of torture. In addition, the law posits that persons in appropriate cases should receive either the death penalty or life imprisonment. An inordinate delay seems to provide both forms of punishment.

Triveniben was not a case dealing with mercy petitions and the government’s power to grant clemency under Articles 72 and 161 of the Constitution. However, the court did observe that when “petitions under Article 72 or 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expeditiously”. It further emphasised that the principle of converting sentences would apply equally to mercy petitions, and that the time measured would be “the delay in disposal of the mercy petitions or delays occurring at the instance of the executive”. The few liberal democracies that still support capital punishment emphasise that it must be conducted with minimal cruelty. Triveniben makes it clear that keeping prisoners indefinitely on death row is in flagrant violation of this constitutional morality.

Although Afzal Guru’s mercy petition has attracted the most public attention, it is but one of 26 petitions. Some have been pending for over a decade. In certain cases (such as Afzal Guru’s), there could be important questions to consider regarding the soundness of the conviction. But Afzal was convicted as early as 2001, suggesting that the government’s reluctance to decide may be motivated more by political factors than legal complexities. In last week’s decision, Supreme Court Justices H.S. Bedi and J.M. Panchal reminded the government of the “dehumanising effects of the lengthy imprisonment prior to the execution”. They further warned against the usage of prisoners “as pawns in furthering some larger political or government policy”. If the government waits long enough, constitutional principles would empower the Supreme Court to convert several death sentences to life imprisonment. Ironically enough, placing the decision in someone else’s hands could well be what the government wants.

Deciding on certain mercy petitions is perhaps tricky, and the government’s decision could alienate some sections of the electorate. Yet the shocking delay that the apex court highlighted tells us a great deal about how the government views constitutional principles and fundamental rights. It is one thing for the government to test political limits, quite another to test legal ones. As the philosopher Ronald Dworkin once noted, “We must not confuse strategy with justice, nor facts of political life with principles of political morality.” Many have elaborated on how the delay in determining mercy petitions such as Afzal Guru’s is politically motivated and deeply unprincipled. As the Supreme Court clarified, it’s also unconstitutional.

The writer is a law student






Protestors in Agra block rail traffic demanding establishment of High Court bench

September 26th, 2009 SindhToday

Agra, Sept 26 (ANI): Protesters here on Saturday blocked rail traffic by staging demonstrations on the railway tracks, demanding establishment of High Court bench in the city.

Protestors said that their agitation would continue and intensify further until their demands are met.

‘Uttar Pradesh is a very big state and people of western Uttar Pradesh here are facing lot of problems due to unavailability of High Court. Our demand of High Court bench in Agra has been clearly mentioned in the report of Jaswant Singh Commission. For this demand, we have today announced rail and road jam. We would continue our agitation till Agra High Court bench is established,’ said P.K.Singh, a protestor.

The Government had constituted a commission under the leadership of former judge Jaswant Singh in 1981. But its recommendations, as per which High Court benches had to be established, have not been implemented yet. The Commission submitted its report in 1985.

Media reports say that the matter remains pending citing several excuses like getting recommendations from the State Government or the Supreme Court or the High Court.
The Agra High Court was shifted in 1857.

The recommendation of setting up a High Court Bench in Agra was considered as the restoration of city’s glory. (ANI)







Don’t cut trees in GKVK: HC

TNN 26 September 2009, 04:30am IST

BANGALORE: The Karnataka High Court on Friday directed the BDA and the BBMP not to cut tress in the GKVK campus. The vacation division Bench headed by Justice A S Bopanna passed this interim order on a PIL challenging the proposed 9.5 km link road connecting Yeshwantpur and Yelahanka and the BIA and cutting of hundreds of trees in the GKVK campus to build it.

Earlier, counsel for BBMP told the court that no more trees would be cut. The court posted the matter after the Dasara vacation.

Counsel for petitioners told the court that the road was opposed by the board of regents of UAS in its meeting on May 29, 2009. But, on August 18, it took a diametrically opposite decision. Vidyaranyapura residents opposed the road and cutting of trees. The governor asked the authorities to heed their plea. The BBMP moved men and machinery to cut the trees on September 5 and nearly 700 odd trees were already cut or felled.

Seven former vice-chancellors of UAS and UAS Employees Association are among the petitioners. The high court ordered a notice to the urban development department and the BBMP following a petition challenging the July 21 guidelines on reservation of wards for the forthcoming BBMP polls.

Counsel for petitioner Ramakrishna Pai told the court that the guidelines stated that reservation for SC/STs would be decided on the basis of population in the assembly constituencies which come under BBMP. Thereafter, those with the highest population of SC/STs within a particular ward would be considered for reservation. 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 reservation. The 1995 and 2001 reservations too were not taken into consideration. “All these mistakes seem to have been intentionally made,” the petitioner said.

A division Bench ordered a notice to the government and the BBMP on a PIL challenging the construction of a prayer/ meditation hall by Sree Adinatha Jain Shwethambara Temple Trust at OTC Road, Chickpet. The petitioners claim the trust is undertaking the project despite a status quo order passed by the Karnataka Appellate Tribunal.

The high court stayed the August 31 notification with regard to appointment of an administrator to the Manjunatheshwara temple in Kadri, Mangalore. “Section 25 of the Karnataka Hindu Religious and Charitable Act is not in force in view of the vacating of stay order by the apex court on July 31. The government cannot exercise its powers under Sec. 29 to appoint an administrator to a temple where they have not exercised their right under Sec.25. This move had stalled the ongoing works for building 30 rooms for devotees and VIP rooms and other developmental activities,” counsel for petitioner Harinath Jogi, a temple trustee claimed.

The high court stayed the cancellation of admission of 13 I year students of Jawaharlal Nehru Medical College run by KLE University. “These students were admitted in June-July. They joined the course and had submitted the originals and gone to their native places for a couple of weeks. The university has unilaterally cancelled admissions of 39 students without giving any opportunity to explain their position,” Rajendra Kumar Sungay, counsel for the petitioners, told the court.

A division bench has ordered notice to the government and the BBMP on a PIL challenging the grant of rajakaluve land near Ibbalur lake for forming a burial ground.







Probe alegations against HC Chief Justice

TNN 26 September 2009, 04:28am IST

BANGALORE: Allegations against the high court Chief Justice that he has accumulated `excess’ wealth should be examined by the Supreme Court collegium immediately, according to members of the Federation of Bar Association in Karnataka.

To push their demand, the members staged a symbolic protest in front of the city civil court on Friday. Two days earlier, the federation held an executive committee meeting to discuss the issue, and members had agreed that judges at all levels should disclose their assets.

They also decided that the salutary system of inter-state transfer of high court judges be revived and re-activated. Justice Shailendra Kumar’s decision to disclose his assets was lauded by federation members.

“There is uncertainty after the allegations against the Chief Justice surfaced. The collegium of the Supreme Court should examine them and take a decision on the elevation of the Chief Justice to the Supreme Court,” said federation chairman K N Subba Reddy. “Such a move will clear the confusion.”

According to Reddy, federation members will meet the Chief Justice of India next week to brief him about the situation and the seriousness of the matter.

The protest on Friday was also against a circular issued by the registrar of the high court, which prohibits display of portraits on the court premises, including at the Bar Association.

“Since the Bar Association is located on the court premises, there can be no portraits in the former too,” a federation member pointed out.

Then the members welcomed a suggestion by the Union law minister: discuss the accountability of judges in the winter session of the Parliament.







HC orders probe into affairs of Thanjavur juvenile home

TNN 26 September 2009, 03:50am IST

CHENNAI: Disheartened’ by the grave allegations of sexual exploitation of children lodged at a Juvenile Home in the state, the Madras high court has ordered a probe into the whole affairs of the home.

Justice TS Sivagnanam, referring to various statutory protections available to juveniles lodged in state-run homes, directed the Social Welfare Department to probe the alleged abuse of children at the juvenile home in Thanjavur and ascertain their health condition. A detailed report shall be submitted within six months, he said.

The judge was passing orders on a writ petition filed by one M Karthikeyan, whose father worked as a garden assistant at the home. In September 2008, his father was allegedly attacked and murdered by a group of six juveniles lodged at the home.

Doubting the official version, the petitioner said his father kept complaining about illegal activities perpetrated by four staff members at the home, including its superintendent. The murdered Munusamy had told his family members that children at the home were being forced into homosexual relationships and that lives of several children had been spoiled. The petitioner alleged that his father was not murdered by the juveniles, but the administrators of the home. He wanted the case to be transferred to the CB-CID for an impartial inquiry.

Justice Sivagnanam, rejecting the transfer plea, said there was not enough material to entrust the case to the CB-CID, and added that the Supreme Court had cautioned high courts against transferring cases casually. It should be done only in rarest of rare cases.

But, expressing pain at the grave nature of the allegations levelled by the petitioner, the judge said it was a fit case where a report could be called for. Noting that juvenile homes should help the child to build his self-confidence and self-esteem, justice Sivagnanam asked the secretary of the Social Welfare and Nutritious Meal Programme Department to form a three-member committee to conduct a detailed inquiry into the facilities available at the juvenile home.

If any such incidents had taken place in the past, the committee must find out what action was taken in such incidents. A report in this regard shall be submitted to the state advisory board within six months, he added.

The committee shall inquire about the health condition of the juveniles at the home and ascertain if there had been any incidents of exploitation or abuse reported there. While one member could be a government nominee, others should be eminent social workers and from a voluntary organisation, justice Sivagnanam said.







HC nod for save-year scheme, but with riders

Express News Service Posted: Saturday , Sep 26, 2009 at 0215 hrs Mumbai:

In a relief for the Maharashtra government, the Bombay High Court on Thursday partly upheld the government’s decision to introduce ‘allowed to keep term’ (ATKT) to obviate the high dropout rate in schools.

The court has, however, struck down the first part of the amended regulation 79 1 (A) of the Maharashtra Secondary and Higher Secondary Board Act as “unconstitutional and arbitrary,” whereby the government had proposed the system only for those who appeared for the SSC examination in March 2009.

Division Bench of Chief Justice Swatanter Kumar and Justice A M Khanwilkar held that students who have appeared prior to and after March 2009 will also be eligible for the scheme to avoid discrimination.

While reading out the judgement, Justice Khanwilkar said that while filling up the seats in schools and junior colleges, merit should be given preference and the left over seats can be given to ATKT students. “In other words passed students shall get precedence,” Justice Khanwilkar said.

The ABVP filed a PIL challenging the state’s decision to allow the students who have failed in one or two subjects in the standard 10 examination to take admission to class 11th. The ATKT facility is being introduced at standard 11 for the first time.

But ABVP’s petition said that this would add more than one lakh students to standard 11, and there was no infrastructure available to take them in.

The government had issued a notification for this purpose, amending the SSC board rules related to criteria for class 11th admission, on August 17.

According to the judgement passed on Thursday, till any other change is brought about by following due process, the eligible students would be free to avail of ATKT facility.

“We are inclined to uphold the validity of amended provision subject to striking down the offending part. Subject to that, the same is purely on merit and upon fulfilling the essential academic norms,” the judgement states.

It further reads: “the provision is only an enabling provision providing an opportunity or concession to the specified students to avail ATKT. ”








Justice Tarun Agrawal sworn-in as Uttarakhand HC judge


Nainital, Sept 25 (PTI) Justice Tarun Agrawal was today sworn-in as the judge of Uttarakhand High Court by Governor Margaret Alva.

Justice Agrawal was transferred to the Uttarakhand HC from Allahabad High Court.








HC orders police to hand over passport to Sami


Mumbai, Sep 25 (PTI) The Bombay High Court today directed police to hand over passport to playback singer Adnan Sami so that he could revalidate his visa and extend his stay in India.

Sami, a Pakistani citizen, had deposited his passport with Oshivara police after high court granted him anticipatory bail in a case filed by his wife Sabah Galadari alleging cruelty against him.

The singer’s visa expires tomorrow and if he does not revalidate it, his stay in India would be illegal and he would be liable to be deported, his lawyer Vibhav Krishna argued.

Sami contended that his wife had filed several criminal cases against him in various courts and his presence in India was therefore necessary. In his absence there was likelihood of courts passing orders ex-parte and hence he wanted to extend his stay in India







HC sets bank staff free from election duty

DNMUM148260 | 9/26/2009 | Author : Mayura Janwalkar | WC :165 | Politics & Governance

The Bombay high court on Friday struck down the order passed by the collector of Thane requisitioning staff of banks and financial institutions for poll duty.
The division bench of Justice SB Mhase and RM Sawant heard a group of petitions filed by Thane Janata Sahakari Bank, Dombivli Nagrik Sahakari Bank Limited, Kalyan Janata Sahakari Bank and Life Insurance Corporation. The petitioners contended that nearly all their staff, in some cases as much as 80%, have been assigned election duty. As a result, work has come to standstill, they added.
The judges were of the view that the collector has no power to issue such requisition orders and that the power to do so is vested only with the state’s chief election commissioner and the regional election commissioner. The order passed on Friday will be applicable to all requisition orders passed by collectors throughout the state. The court has allowed the chief election commissioner to issue fresh orders for requisition of staff for election duty.






Judge raises doubt over Ansari’s passport

Kartikeya, TNN 26 September 2009, 01:58am IST

MUMBAI: The 26/11 court on Friday questioned the authenticity of a Pakistani passport allegedly seized by the Uttar Pradesh ATS from accused Faheem Ansari. Judge M L Tahaliyani also wondered whether the passport could be considered a public document under the Indian Evidence Act and refused to take it on record.

“What evidence have your officers collected that it was issued by the Pakistani government?” Tahaliyani asked special prosecutor Ujjwal Nikam. When told it was a presumption made by the investigators, the judge quipped that presumptions were made only in the case of certified documents.

Deputy superintendent Ashok Raghav, admitted that he had not called anyone to act as an independent witness to the seizure of documents from Ansari when he was arrested last year. It is alleged that Ansari drew maps of Mumbai aided the 26/11 attackers to choose their targets.

Tahaliyani also summoned captain R K Sharma of the National Security Guard to court. Sharma had carried out the operation at Hotel Oberoi in which two gunmen were killed.







GO on retired law lectures’ tenure stayed

TNN 26 September 2009, 03:29am IST

CHENNAI: A government order which says retired law college lecturers, re-appointed by the government as a stop-gap measure, would hold the posts only till they turn 62 or permanent appointments are made, has been stayed by the Madras High Court.

A vacation bench comprising justice N Paul Vasanthakumar and justice T Sudanthiram granted the interim injunction on a writ appeal filed by one A Veerappan, who was re-appointed to a temporary vacancy recently. If the new government order, dated August 26 is enforced, he would become ineligible to continue in the post after September 23, when he turned 62.

Though the original notification issued by the state law department in April this year did not have any upper age limit for re-appointed lecturers, the August 26 order introduced this condition afresh.

In this regard, Veerappan pointed out that after the November 26, 2008 violence on the Tamil Nadu Dr Ambedkar Law College campus here, the High Court had directed the government to fill up all teaching positions and, if need be, engage retired lecturers till a permanent solution is found.

Though the college, which has about 2,000 students, shall have 60 teachers including the principal had only 29 when the order was passed in December 2008. Now, it has selected only seven retired teachers, but appointed only four, that too in different colleges.







Woman gets 5-yr jail for driving husband to suicide

TNN 26 September 2009, 03:45am IST

AHMEDABAD: In a rare conviction, a city sessions court on Friday punished a woman for causing mental harassment to her husband that led him to commit suicide.

An additional sessions judge, BU Joshi, awarded five-year jail term to 29-year-old Vandana Batul, a resident of Ghodasar, for exerting pressure on her husband Shreyas to follow instructions of her parents. Shreyas consumed poison on February 27, 2006 and died the next day in hospital.

After his death, a criminal proceeding was initiated against Vandana, her sister Varsha and parents Balkrishna and Tara Kanchani on the basis of the suicide note written by Shreyas accusing them of torturing him and driving him to end his life. During the trial, it was also revealed that Vandana had once tried to commit suicide a month before Shreyas died, because Shreyas allegedly refused to succumb to the pressure of his in-laws.

After assessing 26 documentary evidence and examining 24 witnesses, judge Joshi concluded that Shreyas committed suicide because of mental torture by his in-laws. The court acquitted Vandana’s family members for want of evidence against them, but punished her with five-year imprisonment and imposed a fine of Rs 500 on her.







Murder case: 1 of 5 accused guilty

TNN 26 September 2009, 02:30am IST

CHANDIGARH: The verdict in a trial connected to a nine-year-old murder case arrived in the court of additional district and sessions judge RS Attri on Friday. All five accused were acquitted of murder charges. However, one of them, Raman Kalia, was held guilty of culpable homicide and the punishment in his case will be pronounced during the next hearing on September 29.

The FIR in the case was registered on October 7, 2000. Later, victim Ramesh Kaushik’s father had filed a criminal complaint. The deceased was a law graduate, who owned a travel agency in the city. Prosecution stated that the night before his death, Kaushik had been having drinks with his friend Deepak Dutta, an inspector with Haryana excise department, and they had later gone to Sector-19 market to have paan.

At the paan shop, Kaushik met another friend of his, Raman Kalia. The two of them entered an altercation and Kalia, a rower, allegedly punched and pushed the victim. Kaushik fell and his head hit the pavement. His nose started to bleed. Another of his friends, identified as Trikha, arrived there with his family. He and Dutta helped Kaushik get up. Trikha took Kaushik, who stayed with his wife in Sector 44, to his (Kaushik’s) parents’ house in Sector 19.

The victim’s condition deteriorated during the night and in the morning, members of his family took him to PGI, where doctors declared him brought dead. Medical reports showed that he died of skull fracture. The FIR was registered against Kalia on Dutta’s complaint under section 304 (culpable homicide) of the Indian Penal Code.

The victim’s father, who is a lawyer, had stated in his complaint that his daughter-in-law, Neetu, had got his son killed in connivance with Dutta, Kalia, Trikha and another accused, Rajeev Sharma. Neetu had also accused her father-in-law of the same. However, court did not find merit in the criminal conspiracy theory and acquitted all of murder charges.








SC order a setback for mine owners

TNN 25 September 2009, 11:25pm IST

BELLARY: Mine owners who got buoyed by the steep increase in mineral price are now left in disarray, as the Supreme Court has ordered to stop mining activites in the state on September 11.

Bellary district, which has 92 companies that are operational, includes three government companies too. Most of the mining companies are operation in forest areas. If Supreme Court diktat is implemented, mining companies are likely to receive a setback. Most of the state political bigwigs have their share with mining companies.

Iron ore and manganese are found in abundance in 39,15,074 and 90,99,997 hectare of land respectively. Out of this, 90,99,997 metric tones of iron ore and 80,150 metric tons of manganese have been dug out.

According to environmentalists, the ban would protect wild animals in Sandur and Hospet region, ecological imbalance can be prevented and people can be free from dust, and roads and infrastructure facilities can be developed.








Court notice to 3 ministers

TNN 25 September 2009, 11:24pm IST

BELLARY: Bellary court on Friday ordered issue of emergent notices to 3 cabinet ministers and two others on a petition seeking a direction to authorities to drop acquisition of fertile land for the airport project.

Additional district judge B M Raju ordered issue of notices to health minister B Sreeramulu, tourism minister G Janardana Reddy and his brother and revenue minister G Karunakara Reddy, district deputy commissioner and Karnataka Area Industrial Development Board, the nodal agency for acquiring land.

The petitioners, Chaganur and Sirvara Neervari Bhoomi Samkrakshana Samithi, a forum spearheading the agitation against the acquisition of land, submitted that the government had been acquiring 6,000 acres of fertile land in two villages depriving farmers dependent on it for their livelihood.

The petitioners, who accused the three ministers hailing from the district of trying to influence the land acquisition process, prayed that authorities be directed to drop the acquisition proceedings.

The judge declined to pass interim orders to stay the project, but posted it for further hearing on October 6.

Aggrieved farmers of Chaganur and Sirvara villages have been protesting against land acquisition for some months. Opposition Congress and JD(S) had also been demanding scrapping of the project.

Janardhana Reddy had earlier ruled out dropping the project.









Torture without trace

The Physicians for Human Rights (PHR) have turned the spotlight on the complicity of medical professionals in the Central Investigation Agency’s recourse to abusive and unlawful interrogation methods during the post-9/11 ‘war on terror.’ The latest evidence, documented earlier as part of the horrors visited upon detainees at Guantánamo Bay, Abu Ghraib, and Bagram airbase, underlines the imperative need to further codify such methods as illegal under international human rights law. The PHR findings focus on the psychological abuses recorded in the CIA Inspector-General’s 2004 report, but made public only recently following a law suit by the American Civil Liberties Union. There was resort to mock executions and the threat of imminent death and assault on family members, including sexual assaults — betraying the intent to terrorise and intimidate detainees. The forcible shaving of heads and beards was clearly designed to inflict personal and religious humiliation and trauma. If the intended effect of the infamous ‘enhanced interrogation techniques’ such as water-boarding, stripping, sensory deprivation, and solitary confinement was the infliction of long-term bodily pain and injury, methods such as hooding gave interrogators anonymity and consequently impunity for their lawless actions.

While these means of mental torture were employed by the CIA, medical professionals, and psychologists actively colluded in the cruel and inhuman interrogations in cynical contempt for ethical and professional norms. Of particular concern are the extensive data they gathered on the basis of the reactions of detainees so as to determine the effectiveness of the interrogation techniques. The PHR rightly views this as amounting to unlawful human experimentation. The approach of the Obama administration to this dark chapter in contemporary American history has been to look ahead, rather than back, causing some consternation among civil rights groups and within the Democratic Party. President Obama’s more recent expression of a readiness to prosecute the architects of the torture laws, rather than those who merely enforced their criminal provisions, is perhaps an indication that the issue could become a political hot potato at home. What is absolutely clear is that how the people of the United States come to terms — or fail to come to terms — with the horrors inflicted on humanity in the name of the global war on terror will have a strong bearing on counter-terror strategies elsewhere.

LEGAL NEWS 25.09.2009

Cops register fresh FIR in Limouzines case C Unnikrishnan, TNN 25 September 2009, 01:31am IST MUMBAI: The Economic Offences Wing (EOW) of the police is in the process of registering a fresh FIR in the City Limouzines case. This has been prompted by the barrage of police complaints being lodged against City Limouzines and its sister concern, City Realcom. On Thursday, an hour before the Bombay high court was to hear a PIL, demanding stringent action against the company management, the police delivered a letter to the petitioners, saying they were taking “suitable legal action”. One of the investors, Kirti Patel, had moved court, urging it to direct the police to register fresh FIRs and arrest the accused. Patel’s lawyer Bhavesh Parmar told the court that he was not pressing for the PIL following an assurance from the police. A division bench of chief justice Swatanter Kumar and justice A M Khanwilkar said they hoped that the “police would take action based on this letter”. The EOW had been examining if it was required to register fresh FIR as a case was already registered against City Limouzines in 2007, based on a complaint by Jalandhar Pansare. The Supreme Court had imposed restrictions on the investigations of this FIR, such as, ther should not be any hindarance to the company’s business. The EOW is now reportedly exploring the possibility of registering an FIR in the Realcom case where investors were promised huge returns. For instance, on an investment of Rs 1.39 lakh, people were promised a payment of Rs 7,775 every month for five years and Rs 50,000 at the end of the scheme. Additional commissioner of police (EOW) Sanjay Saxena said the department was deliberating on various options. Saxena is also coordinating with police in New Delhi and Chennai, where in a similar fashion, the company has defaulted on its repayments to investors. Delinquent officer need not be given inquiry report: HC TNN 25 September 2009, 04:22am IST CHENNAI: Non-furnishing of an inquiry report to delinquent government officials would not vitiate the penalty order issued against them, the Madras high court has held. Justice K Chandru, refusing to interfere with the punishment imposed on inspector of police D Swaminathan, said: “Non-furnishing of inquiry report to the delinquent officer will not vitiate the penalty order unless the delinquent officer proves prejudice.” The inspector assailed the punishment of censure imposed on him by the Nagapattinam police district administration, saying the deputy superintendent of police had not given any reasons for accepting the inquiry report, and that the punishment was vitiated by the fact that he was not furnished details of the report. The State Administrative Tribunal (SAT), which was abolished about four years ago, had granted stay in the case. The case was then transferred to the Madras high court after the abolition of the SAT. Justice Chandru, dismissing the petition, pointed out that the disciplinary authority needs to give reasons only when he disagrees with the findings of the inquiry officer and not when he agrees with the findings. As for non-furnishing of a copy of the inquiry report, the judge quoted Supreme Court rulings which dispensed with the production of inquiry report to a delinquent officer. HC tosses out PIL against IPRS warning TNN 25 September 2009, 03:34am IST AHMEDABAD: The Gujarat High Court on Thursday rejected a PIL apprehending disruption of Navratri garba by the police at the instance of Indian Performing Rights Society Ltd (IPRS) for alleged violation of copyrights during musical performance. Dismissing the PIL filed by Devendra Dwivedi, a division bench of Chief Justice KS Radhakrishnan and Justice AS Dave observed that the petitioner filed the plea more for publicity than for espousing any public cause or interest. Dwivedi raised objection to a warning published by IPRS, which has ownership of copyrights of musicians, lyricists and issues licences for public performances, that performing the music belonging to its members without permission during Navratri would amount to infringement of copyrights. Although the petitioner claimed that Section 52(1) of Copyright Act exempts performance of such musical work during religious festivities, he told the court that during the garba programmes entry fee is imposed on participants. The judges did not make any direct comment on whether such performances should be called religious or commercial, but made it clear that any such function where entry fee is charged is for commercial purpose. Upholding IPRS’s contention that playing music of its 1,500 members without permission would amount to breach of law and the IPRS’s rights must be protected, the judges refused to pass any order in favour of the petitioner. The court made it clear that the question of violation of law depends on the kind of performance, and without details of a case, it cannot be judged. The court dismissed the PIL terming it as based on presumption that the authorities would disrupt festivities, whereas the state government has not received even a single complaint in this regard. Failed SSC students eligible for ATKT: HC Shibu Thomas , TNN 25 September 2009, 01:48am IST MUMBAI: In a welcome relief for thousands of students who had failed their SSC examinations, the Bombay high court on Thursday gave its seal of approval to the Maharashtra government’s Allowed To Keep Terms (ATKT) facility. A division bench of Chief Justice Swatanter Kumar and Justice Ajay Khanwilkar, however, found the government’s decision to allow only students who had appeared in the March 2009 SSC exams to avail of the ATKT facility “arbitrary, unreasonable and unconstitutional”, implying that students who failed in 2008, too, were eligible. With this judgment, over 1.50 lakh students, who had failed the SSC exams, become eligible for ATKT. It allows them to get admission in Std XII subject to the condition that they clear the subjects by March 2010. Only SSC students who have failed in a maximum of two subjects can seek admission to Std XI under ATKT. The high court, however, cautioned the government against lowering academic standards and asked the authorities to put necessary infrastructure in place before commencing admission under ATKT. “The state will have to keep in mind that the norms regarding maintenance of quality of education are in no way compromised or relaxed either with regard to the hours or the opening of new or additional seats in schools and colleges (to accommodate the ATKT students),” the judges said. The court also made it clear that passed students would get precedence in admission. Only the vacant or leftover seats would be available for ATKT students. The court further said that admissions to ATKT students could strictly be on merit and such candidates would have no right to insist that they be given admission in the same school/junior college from where they appeared for SSC. During the course of the hearings, the state had clarified to the court that the ATKT system would continue along with its proposal to introduce the supplementary exams system. The court’s decision came on a public interest litigation (PIL) filed by student organisation Akhil Bharatiya Vidyarthi Parishad (ABVP) stating that the government had introduced the new rules in haste and for political reasons without bothering to verify if infrastructure was in place to accommodate around two lakh additional students. The state, in its affidavit, said that around 1.47 lakh students were eligible to take admission to FYJC with the help of the ATKT system. The state also informed the court that there were enough seats available; 1.85 lakh of the 10.03 lakh FYJC seats were vacant after the regular admissions. Around 16,000 students had already applied to avail of the ATKT facility. Couple separated by caste divide gets HC relief Rahul Tripathi, TNN 25 September 2009, 06:44am IST NEW DELHI: Coming to the rescue of a newly-married couple, the Delhi High Court issued notices to the Uttar Pradesh and Delhi Police to produce a woman who has allegedly been kept under forceful custody by her parents at Sahibabad in UP. It asked police to produce the girl on October 7, the next date of hearing. The direction was given by Justice Sanjeev Kishan Kaul and Justice Ajeet Bhariyog in connection with a habeas corpus filed on behalf of Gaurav Saini by an NGO, Nyay Bharti. Twenty-five-year-old Saini, a networking engineer, spent 32 days in Dasna Jail on kidnapping charges after marrying Monika Dagar (21), a BSc student, against the wishes of her family. The couple who met online in chat rooms during 2006-2007 got maried on July 6 this year at an Arya Samaj temple in Malviya Nagar. But on July 5, Monika’s brother Nitin Kumar filed a complaint at Sahibabad police station after which a case of kidnapping was registered against Gaurav. While Monika comes from an upper caste family, the boy belongs to the lower caste. In his complaint, Nitin alleged that Gaurav alias Neeraj had allegedly kidnapped his sister and he feared she might be killed or trafficked. Through technical surveillance, the UP police on July 12 reached Gaurav’s house in Gautam Nagar area of Defence Colony where Monika was staying with him. “Neither Delhi Police nor UP police were ready to listen to my wife’s plea that she had married me without any coercion,” Gaurav told Times City. The couple was taken to Gulmohar Park police post and from there to Sahibabad. Monika’s custody was handed over to her parents on July 12. The victims also alleged that UP police did not take Monika’s statement and instead took a statement similar to what her brother had alleged. On July 14, Monika’s statement was recorded in front of the magistrate in which she told the judge she had left the house voluntarily and Gaurav had not raped her. After an ordeal of 32 days, Gaurav was granted bail by a Ghaziabad court on August 11. The family of Gaurav, who also runs a coaching institute at Gautam Nagar, approached the NGO in September. The NGO then took up the couple’s case and filed a habeas corpus in Delhi High Court. Following the HC order, Gaurav wrote another letter on September 22 to Delhi Police saying he feared for his wife’s safety and asked them to rescue Monika before October 7 as her family might cause her harm. All students should be CET qualified: HC tells varsity–HC-tells-varsity STAFF WRITER 22:28 HRS IST Chennai, Sept 24 (PTI) The Madras High Court has directed Indian Maritime University not to admit students, who have not qualified through the Common Entrance Test (CET), for the Nautical Science diploma course. The interim injunction was issued by Justice P Jyothimani on a petition filed by the Maritime Institutes Association, which alleged irregularities in the admission process for the August 2009 batch. Submitting that IMU was established by an Act of Parliament on Novebmer 14 last, the petitioner contended that it held a CET on June 21 last and declared the results on June 27. Prior to its establishment, the Indira Gandhi National Open University conducted CET for admission to the diploma course in Nautical Science which leads to BSc (Nautical science). Can’t stop student from migrating: HC tells ‘unsafe’ RLA college Agencies Posted: Thursday , Sep 24, 2009 at 1842 hrs New Delhi: The Delhi High Court has said an educational institution cannot restrain a student from migrating to another college if the student does not find the campus environment safe and secure The court pulled up an evening college of Delhi University for not allowing a girl student to migrate to a day college on the ground that the campus environment was allegedly unsafe. Justice Anil Kumar directed Ram Lal Anand college to immediately give No-Objection Certificate to 19-year old Ayesha Chaudhary who is a second year graduation student. “The college in a way has admitted that law and order situation is not normal, as it should be. Therefore, the probability of a person having apprehension on account of law and order situation cannot be termed whimsical. In the circumstances, if the student in order to secure herself wants to migrate to a day college, the same cannot be termed a mere ploy,” Justice Kumar said. HC Directs MP Teachers to End Stir, Resume Duties September 24, 2009 news service Bhopal – A two member bench of Madhya Pradesh High Court comprising Justice Deepak Mishra and Justice RK Gupta, hearing a petition filed by Rupesh Kumar – a student of the Rani Durgawati University, on Thursday ordered striking teachers in the state to call off the agitation and return to their duties. Following the HC directives, Education Minister Archana Chitnis urged striking college teachers to report back on duty from September 25. Hailing the directive, Chitnis termed it in the larger interests of the students. She underlined that Chief Minister Shivraj Singh Chouhan has constituted a three member committee of ministers to find a solution to the demands raised by the teachers. College teachers across the state launched an indefinite strike to press for the implementation of the sixth pay commission recommendations, earlier this month. ‘Stop vilification of CJI, Dinakaran’ J. Venkatesan New Delhi: The National Commission for Scheduled Castes has taken a serious view of an alleged vilification campaign launched in the print and electronic media by some anti-Dalit and casteist elements in the Bar Council of India and various State Bar Associations in the Justice P.D. Dinakaran issue. (Allegations have been made against Karnataka High Chief Justice Dinakaran, whose name has been recommended for elevation to the Supreme Court.) The Commission, in a statement, said those “who are known for having a casteiest attitude towards the increasing strength of SCs and STs in judicial services” were spreading this campaign against Chief Justice of India K.G. Balakrishnan and Justice Dinakaran. The Commission would have welcomed any step taken by the government of India to preserve and protect the honour of the CJI, the Chief Justices of the High Courts and Scheduled Caste judges serving in various courts. But it was keeping silent and this gave the media room for playing on the constitutional rights of the SCs, the statement said. “The matter is so serious that the Commission would have taken into its hand the full investigation of the case but the Commission respects the judiciary and all members of the judiciary including the SCs. “Therefore, if the tirade against the SCs in the judiciary is not stopped, the Commission would be duty-bound to take stock of the situation which has arisen from the unabashed and continuous campaign of vilification against the CJI and Justice Dinakaran.” Defying the Indian constitution?: Letter to chief justice lands union minister in hot water * Minister denies any wrong-doing, insists his intentions were genuine By Iftikhar Gilani NEW DELHI: A senior minister in Prime Minister Dr Manmohan Singh’s cabinet has landed in hot water by writing directly to the chief justice of India (CJI). According to the Indian constitution, only the president is permitted to directly consult the CJI or the Supreme Court under article 143. Already in the dock over his performance, Union Rural Development Minister CP Joshi – a first-time parliamentarian – sought Chief Justice KG Balakrishnan’s advice on how to root out corruption from rural development programmes. He also sought an appointment with the CJI to discuss the matter. Legal experts said the CJI could render advice to the government through orders in any case presented before his bench, but his sitting with a minister to discuss any matter and giving advice would amount to meddling in governance. They said such an act was prohibited because of a clear demarcation of the roles played by the judiciary and the government. No wrong-doing: Joshi says he believes there is nothing wrong with approaching the CJI directly. He said he had sought a meeting with Chief Justice Balakrishnan to discuss corruption in programmes funded by his ministry and the steps he could take to curb malpractices in the flagship programme under the National Rural Employment Guarantee Act (NREGA). In his letter, Joshi is understood to have pointed out corrupt practices at the state level in implementation of the NREGA. He urged the CJI to suggest methods to curb such practices. He reportedly pointed out the difficulty his ministry faces in tackling corruption once it sends money to the states, which have to implement the programmes and ensure corruption-free processing. The minister, eager to show results, wrote to the CJI, believing the country’s top judge might have a solution to his problem. Of delayed justice and legal tangles (IANS Book Review – With Image) September 23rd, 2009 SindhToday New Delhi, Sep 24 (IANS) Senior advocate Arun Mohan has a mission in life: ensuring speedy justice. The senior Supreme Court lawyer, who has been associated with courts for 39 years, had taken time off from his work to write four volumes on the Indian judicial system and the problems that confront “everyday justice” as a public service project. The first two volumes of “Justice, Courts and Delays” were released in July at a function where the chief justice of India, the law minister and the attorney general were present. Mohan is now working on the remaining volumes that include a look at the criminal justice system and the relevance of law in the country’s economy. “Justice, Courts and Delays” attempts to analyse the causes behind delays in justice and recommends ways to get around the bottlenecks. “It is also an endeavour to familiarise one involved in litigation or affected by it with certain principles and facets that would possibly help one understand the situation and make known diverse thoughts that could help litigation,” the senior advocate told IANS. “Delays in justice have been criticised for years. I have tried to identify the root cause and put forward a solution that is both affordable and possible. Of the quantum of litigation in Indian courts, over 80 percent is uncalled for. “This occurs because our basic laws and court procedures mete out an incentive for the person who is in the wrong with the result that motivated by such ‘profit’, the person creates litigation (whether by himself or by forcing the other to go to court) and at the end of the day he makes a profit out of it. Resultantly, those with genuine cases get delayed. Moreover, because of delays, many people who need justice are unable to come to court,” Mohan said, explaining the reasons for writing the book. The senior lawyer said “the procedures and practices in our courts at the end of litigation do not take care to identify these factors and then pass orders that disgorge all such profits and compensate for the loss. There is also a high component of costs incurred by the party in the right which the court orders do not compensate.” Court procedures, said Mohan, needed subject-specific tailoring and an “approach by the courts which in practical terms enforces every party to ’stop-and-think-twice’ prior to putting one’s stand before the court.” “It ensures greater efficiency in judicial process,” Mohan said. The legal eagle said the country required a “central body to which all judicial officers can periodically send their thoughts for consideration”. Mohan said he decided in 1996 to do this research. “Seeing the frustration on the faces of the people coming out of court, some even with tears made me think that there must be a way out. I felt that to find a solution to the problems would be a more useful way of serving society than continuing with my lucrative law practice,” he said. Most of the law books in the country, the veteran lawyer said, generally narrate the law and current legal procedures. “On the other hand, my book is not about what the law and practice is, but analysing present laws and practices; it delves into the question as to what the law and practice should be so as to give the maximum utility of the rupee spent in the system and speedy accurate justice to the one craving for it,” he said. Mohan said that his forthcoming volumes include discussion on how an efficient judiciary will help raise the country’s GDP. “This will occur because if the law supports transactions, reduces motivation for breach of law and checks inefficiency, it will lead to economic growth. It is like agriculture production, which is dependent on environment. National productivity, similarly, is also dependent on the efficiency of the legal system,” he said. Mohan is a Delhi University law graduate of 1970. Published by Universal Law Publishing, the two volumes are priced at Rs.250 each. [LM1] NHRC’s intervention propels officials to act on kabrastan HERALD REPORTER MARGAO, SEPT 24 In an interesting development on the Muslim Community’s demand for a burial ground in Margao, the National Human Rights Commission has directed the Chief Secretary to take necessary action on the complaint received from a member of the minority community. In another development, the Director of Social Welfare N B Narvekar has requested the district collector, south to take necessary action on the complaint received from a city-based resident and general secretary of the Sirvodem Masjid, Abdul Matin Daud Carol on the long pending demand of the Muslim community. In fact, the Social Welfare Director has asked the Collector to dispatch the compliance report to the Department for transmission to the National Commission for Minority, Government of India. Incidentally, this is the first time the National Human Rights Commission has issued directions to the Chief Secretary to send the Abdul’s complaint to the concerned authority for such action as is deemed appropriate and dispose off the complaint at his end. The Muslim community has been requesting for a Kabrastan to bury the dead in and around Margao for over a decade, but in vain. The National Commission for Minorities has already issued directions to the Chief Secretary and the district Collector, South to send a detailed report on the status of the long pending of the Muslim community. And, now the issue has come to the centre stage with the National Human Rights commission asking the government to take action on the complaint lodged by the city based resident. Incidentally, the PWD Minister, Churchill Alemao had made a statement in his Navelim constituency stating that the government has identified suitable land for a Kabrastan for the Muslim community. Although Alemao contended that he along with the Chief Minister Digambar Kamat and Panchayat Minister, Babu Azgaonkar has seen the land, the land in question has keep in wraps so far, even though sources in the know say the government is eyeing a piece of land in the Housing Board area of Rumdamol village in Navelim constituency. Human rights What are Human Rights? ■ Human Rights are the moral claims which are inalienable and inherent to all individuals by virtue of their being humans alone. History ■ Throughout the history, there has been a conflict between the ruling elite and the ruled. e.g. Magna Carta-England 1215. ■ French Declaration of the Rights of Man and of the Citizen-1789. ■ American Bill of Rights. ■ Since the First World War, League of Nations took some initiative. ■ ILO was created in 1919. ■ International Slavery Convention was signed in 1926 ■ But during 1920s and 30s massive abuse of human life and dignity based on race, religion and nationality were there. ■ UNO was established after the World War II. ■ Art I of the UN Charter: ‘To achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language or religion.’ Universal Declaration of Human Rights The General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights on December 10, 1948. ■ Art 1: All human beings are born free and equal in dignity and rights. ■ Art 2: Everyone is entitled to all the rights and freedoms set forth in this declaration without distinction of any kind such as race, colour, sex, language, religion, nation, property, birth or other status. ■ Art 3: Everyone has the right to life, liberty and security of person. ■ Art 4: Slavery and slave trade is prohibited. ■ Art 5: No one shall be subject to torture. ■ Art 7: All are equal before law and are entitled to equal protection of law. ■ Art 9: No one shall be subject to arbitrary arrest, detention or exile. ■ Art 15: Everyone has the right to a nationality. ■ Art 18: Freedom of thought, conscience & religion. ■ Art 23: Right to work. ■ Art 26: Right to education. Indian Constitution and Human Rights ■ Art 13: Boldly declares that all laws in so far they are inconsistent with the Fundamental Rights, be void, to the extent of inconsistency, and further the State shall not make any law which takes away or abridges these rights and any law made in contravention, shall be void. ■ Art 14: Secures equality before the law to all persons. ■ Art 15: Prohibits discrimination among the citizens on the ground of religion, race, caste, sex or place of birth. ■ Art 16: Ensures equal opportunity to them in the matters of public employment. ■ Art 19: Assures freedom of speech and expression, right to assemble peacefully and without arms; to form association and unions; to move freely throughout the territory of India; to reside and settle in any part of the country, trade and business etc. ■ Art 21: Guarantees equal protection of the law and prohibits deprivation of life and personal liberty. ■ Art 23: Prohibits traffic in human beings and forced labour. ■ Art 24: Prohibits child labour. ■ Art 25-30: Assures freedom of conscience and right to manage religious institutions; as well as makes provisions for the protection of the minorities and their places of worship and educational institutions. ■ Directive Principles of State Policy (DPSP) provides for a lot of social and economic benefits for the citizens to be attained in future. ■ In addition to these, there are several laws of a reformative character like the Employees State Insurance Acts, the Dowry (Prohibition) Act, the Bonded Labour (Abolition) Act, the Minimum Wages Act, Workmen Compensation Act, the Protection of Civil Rights Act, the Environmental Protection Act, etc. which try to ensure safety and security against various evils. National Human Rights Commission ■ In keeping with the spirit of human rights movement all over the world, the National Human Rights Commission (NHRC) came into existence in India through an Ordinance promulgated on 28th September 1993 by the President of India. ■ However, soon the Ordinance was replaced by a statute called the Protection of Human Rights Act, 1993 which came into force in 1994. This Act provides for setting up the NHRC at the Centre as well as one Commission each at the State level. ■ The National Human Rights Commission is designed to protect human rights, defined as “rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International covenant and which are enforceable by the Courts in India” (Protection of Human Rights Act, 1993). Composition • The NHRC consists of a Chairperson and four members, all of them being full-time members. • Apart from these full-time members, the Commission also has its deemed members as the Chairpersons of the National Commission for Minorities, the National Commission for the SCs & STs and the National Commission for Women. • The multi-membership is intended to reinforce the independence and impartiality of the Commission. Of the five members including the Chairperson, three are to possess high level judicial background and the remaining must have knowledge of or practical experience in matters relating to Human Rights. • The Chairperson must be no less than a former Chief Justice of India. Functions • It can intervene in any legal proceedings involving an allegation of violation of Human Rights. • It can also, visit, with the prior approval of the State Government, any jail to study the living conditions of the inmates and make recommendations. • It can review the safeguards provided by or under the Constitution or any law for the protection of Human Rights and recommend measures for their effective implementation. • The Commission also reviews the factors, including acts of terrorism, that inhibit the enjoyment of Human Rights and recommends remedial measures. • It also undertakes and promotes research in the field of Human Rights. • Finally, it encourages the NGOs working in the field of Human Rights. Autonomy of the Commission • The autonomy of the Commission is derived from the method of appointment of its members, their fixity of tenure, and statutory guarantees. • The Chairperson and the members of the Commission are appointed by the President on the basis of recommendations of a committee comprising the Prime Minister as the chairperson, the Speaker of the Lok Sabha, the Home Minister, the leaders of the Opposition in the LS and the RS and the Dy. Chairperson of the RS as members. Working of the Commission • The Commission has all the powers of a Civil Court. • It has its own investigating staff for investigation into complaints of Human Rights violations. • It is open to the Commission to utilise the services of any officer or investigation agency of the Central Government or any State Government. • The Commission while inquiring into the complaints of violations of human rights may call for the information or report from the Central Government or any State-Government, or any other authority or organisation subordinate thereto within such time as may be specified by it. The Commission may take any of the following steps upon the completion of an enquiry: 1. Where the enquiry discloses the Commission of violation of Human Rights or negligence in the prevention of violation of Human Rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other function. 2. Approach the SC or the HC concerned for such directions, orders, or writs as that court may deem necessary. 3. Recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family. The authority or the State Government or the Some of the Programmes and Human Rights issues taken up by the Commission include: • Review of the Child Marriage Restraint Act, 1929 • Protocols to the Convention on the Rights of the Child • Preventing Employment of Children by Government Servants: Amendment of Service Rules • Abolition of Child Labour • Guidebook for the Media on Sexual Violence against Children • Trafficking in Women and Children : Manual for the Judiciary for Gender Sensitization • Sensitization Program on Prevention of Sex Tourism and Trafficking • Maternal Anaemia and Human Rights • Rehabilitation of Destitute Women in Vrindavan • Combating Sexual Harassment of Women at the Work Place • Harassment of Women Passengers in Trains • Abolition of Manual Scavenging • Dalits issues including atrocities perpetrated on them • Problems faced by Denotified and Nomadic Tribes • Rights of the Disabled • Right to Health . HIV/AIDS Central Government to whom the Commission recommends for action has to indicate its comments/ action taken on the report/recommendations of the Commission within a period of one month in respect of general complaints and within a period of three months in respect of complaints relating to the Armed Forces. __________________ it is not that I disagree with you, it is just that I’m not in full accord NHRC recommends Rupees 1 lakh relief for custodial death in Bihar New Delhi, Sep 25 : The National Human Rights Commission (NHRC) today demanded the Bihar Government to pay monetary relief of Rupees 1 lakh to the next of kin of a person who died in police custody. The Commission also asked for a compliance report with proof of payment to relatives of Mukhi Chowdhary, who was arrested on August 27, 2003 in a case of theft and died on the same day in police custody in Gopal Ganj district police station of Bihar. ”Chowdhary had became unwell on the same day and was taken to hospital but he could not be saved. The post-mortem and viscera report had confirmed that he had died due to consumption of Thimet poison,” an NHRC spokesperson said. He added that the Commission issued a showcause notice to the state government asking to explain as to how the poison became available to the deceased in police custody. ”Since the state government did not respond within the prescribed time, the Commission presumed that there was negligence on the part of the detaining authority. Either the deceased was not properly searched at the time of arrest or the poisonous substance was made available to him while he was in custody,” the spokesperson noted. The Commission had taken up the case in 2003 on the basis of intimation received from District Magistrate of Gopal Ganj. –UNI UNIFEM hopes to use CWG to draw attention to trafficking TNN 25 September 2009, 02:20am IST NEW DELHI: With international attention on India for the Commonwealth Games 2010, a global women’s rights body has suggested that the mega event be used to campaign against trafficking. With trafficking increasing in alarming proportions, the United Nations Development Fund for Women (UNIFEM) said on Thursday that it was important that sports celebrities used their popularity to speak on issues like trafficking of women in the subcontinent. “We plan to speak to authorities to use this opportunity to talk about social issues. We want to spread awareness in India,” Anne F Stenhammer, UNIFEM’s regional programme director, said. Noting that cases of trafficking and rape were on the rise globally, she said, “In South Asia, mainly in India, Bangladesh and Nepal, the situation is alarming.” The agency hoped that men could be roped in. “Men should advocate the cause. It requires a change in mindset,” Stenhammer said, adding that it was willing to partner with agencies like National Commission for Women (NCW) for the purpose. UNIFEM has also joined hands with NCW to kickstart an `NRI cell’ to provide assistance to complainants including conciliation, mediation between the parties and advising the complainant on related issues. It would also work towards associating and networking with NGOs, community organisations in India and abroad and state women commissions for wider area coverage so as to facilitate easy reach and provide support services. The commission has roped in counsellors and lawyers to offer consultation to women who are often left pregnant and shunned by their own parents. NCW NRI Women Help Cell Inaugurated Last Updated: 2009-09-25T10:25:25+05:30 The National Commission for Women has inaugurated its NRI cell to deal with the issues related to the cases of abandonment and divorce of women married to overseas Indians as there has been an increase in the number of such cases. It has received eight complaints on its first day. NCW chairperson Girija Vyas and project partner UNIFEM (United Nations Development Fund for Women) South Asia head Anne H. Stenhammer along with Planning Commission member Syeda Hamid opened the office that operates from the second floor of the NCW office at Deen Dayal Upadhyay Marg. The NRI cell is aimed at offering legal help and counselling to those women who are desolated by their NRI husbands. The NRI cell will also be providing the government with suggestions on such cases. Besides, the cell will also carry out awareness campaigns on the subject. Day one saw the cell being approached by eight anxious women having troubled relationships with their husbands abroad. “I am very happy to see that most of the girls were accompanied by a parent or relative. This area of NRI marriages needs to be looked at urgently. We have tied up with local service providers and NGOs in the US, UK, Canada as well as Australia to coordinate mediation efforts,” Vyas told reporters. Stenhammer stressed the need to expand the reach of the NRI cell. “We will soon look at how to expand the NRI cell in India and abroad. Embassy support is crucial for NRI women. That is where they first approach with a grievance. So, embassy officials need to be equipped and competent to deal with such complaints. In this direction, I feel the ministry and the NCW could apply for funds and UNIFEM’s technical advice cell can advise them.” The NCW had launched the cell in August after it was nominated as the coordinating agency for dealing with NRI marriages in April this year. Shiney Ahuja breaks down in court, medical treatment ordered PTI 25 September 2009, 02:09pm IST MUMBAI: A fast track court today directed the jail authorities to provide immediate medical relief to Bollywood actor Shiney Ahuja, arrested for allegedly raping his maid, on his application seeking treatment. The 36-year-old actor was seen crying and wincing in pain following a slip disc problem when he was produced in the fast track court here. Ahuja, who was unable to walk, was assisted into the court room by two constables. He was later brought outside and made to sit on a bench where he lay down, quivering following which his lawyer Sameer Nagre moved an application seeking medical treatment at the earliest. The court directed the jail authorities to provide the actor immediate medical relief and shift him to J J Hospital if necessary for further treatment. The court was expected to pass an order today on the application filed by Ahuja’s lawyer seeking copies of the forensic report but the matter has been adjourned till October 7. Key witness examined in Grover case Kartikeya , TNN 25 September 2009, 01:19am IST MUMBAI: Kannada film actor Maria Susairaj’s new advocate cross-examined a prime witness, Usha Ramulu, in the Neeraj Grover murder case on Thursday. Susairaj’s earlier set of lawyers had withdrawn from the trial earlier this month after Ramulu had alleged that they had asked her to turn hostile in court. Ramulu is a key witness as she was present when police had recovered the body of Synergy Adlabs’ creative head, Neeraj Grover, from the jungles of Manor. It is the prosecution’s case that Susairaj and her naval officer boyfriend, Emile Jerome, murdered Grover at Susairaj’s Malad residence in May 2008 and then disposed of his body in the jungles of Manor. The new advocate engaged by Susairaj, Sharif Shaikh, cross-examined Ramulu and asked her several questions regarding her affiliations to a political party and if she had ever been a complainant in a criminal case. Susairaj and Jerome have denied all charges. In fact, Susairaj has maintained that at most she could be charged with destruction of evidence, which is a bailable offence. High court grills EC over banks’ pleas Swati Deshpande, TNN 25 September 2009, 01:27am IST MUMBAI: The Bombay high court on Thursday expressed strong reservations over the manner in which the Election Commission had requisitioned staff from various banks and the Life Insurance Corporation (LIC). The court asked EC counsel Pradeep Rajgopal whether the requisitions made under Section 26 of the Representation of the People Act, 1951 without resorting to the other mandatory provisions were legally correct. Rajgopal said that Section 26 can be used for requisition of staff after connecting and collating information from various authorities mentioned in Section 159 of the Act and thereafter, it would be proper for the staff to be requisitioned directly under the provisions of Section 26. Both Sections had to be read conjointly, he said. The court was hearing a bunch of petitions filed by LIC, Thane Janta Sahakari Bank, Dombivli Nagari Sahakari Bank Ltd and Kalyan Janta Sahakari Bank, challenging the fact that a large number of their staff was roped in for poll work by the EC in violation of rules and even Supreme Court guidelines. Senior counsel Rafiq Dada appearing for LIC said that the entire requisition process was illegal and was hampering the corporation’s work. The court was informed that Thane district itself has 7,320 polling stations and that the district election officer requires staff of approximately 46,885 after randomisation at 125%. The collector also requires an additional staff of 7,491 persons for booth-level officers, zonal officers and micro observers. The court said the staff may be made available to the commission only if the EC demonstrates the law under which they have been asked to work. The EC said that booth-level officers, zonal officers and micro observers were appointed under the provisions of the Returning Officers’ Hand Book Folders Registration Manual. The court reserved the matter for judgment on Friday. CAT slams Ramadoss for ‘gross favouritism’ Dhananjay Mahapatra, TNN 25 September 2009, 06:43am IST NEW DELHI: The Central Administrative Tribunal (CAT) on Thursday slammed then health minister Anbumani Ramadoss for gross favouritism in giving extensions to Dr Sampath Kumar, even after his superannuation as chief of CTVS in AIIMS and said such decisions could be the reason for exodus of doctors from the prestigious institute. It said favouritism in promotions sets in demoralization and frustration among the rank and file, who might have been waiting in the wings for years for a promotion only to be denied by a cruel decision of the authorities. Referring to recent reports of exodus of doctors from AIIMS, not because of frustration over pay and perks but due to maladministration, the CAT said, “If the news reports are true, what shall happen to a prestigious institution of national importance, would it remain so? The authorities must ponder over it.” Given the tone of the CAT judgment, Ramadoss was rather lucky to have escaped a judicial censure because he was not a party to the petition filed by Prof Balram Airan of CTVS and Faculty Association of AIIMS challenging extensions given to Dr Sampath without following the rules and regulations. Setting aside the extensions given to Dr Sampath after his superannuation on March 30 last year, a CAT Bench comprising Chairman Justice A K Bali and Member R C Panda said, “Dr Sampath Kumar got the extension in service out of sheer favouritism. It is not possible to return finding of mala fides, particularly when the same are alleged against the minister and he has not even been made a party respondent, but based on records, it can well be said that Dr Sampath Kumar was indeed given favoured treatment.” The Bench also directed AIIMS to consider Prof Airan for the post of CTVS chief within a week. It also asked the institute to pay Rs 20,000 as litigation cost to him. While it agreed with Airan’s counsel senior advocate Maninder Singh that extensions granted to Dr Sampath was blatant favouritism, the Bench declined a high-level probe into it saying “it was not a case of a kind of scandal”. Justice Bali, writing the judgment for the Bench, said, “It is a case of giving favoured treatment to an individual. It is unfortunate that in prestigious institutes of national importance, such as AIIMS, a person like Dr Sampath Kumar should have been doled out a favour of continuation in service totally against law, and it can well be said in the facts and circumstances of the case, to the knowledge of the AIIMS authorities.” FAIIMS president Dr Manoj Singh was at a loss to understand why a premier institute known for its expert doctors should be getting a rap every time from judicial fora for indiscretion of the authorities. “It is time to streamline the decision making process, be it promotions or other administrative matter, and vet it properly through an institutionalized legal set up,” he said. Couple separated by caste divide gets HC relief Rahul Tripathi, TNN 25 September 2009, 06:44am IST NEW DELHI: Coming to the rescue of a newly-married couple, the Delhi High Court issued notices to the Uttar Pradesh and Delhi Police to produce a woman who has allegedly been kept under forceful custody by her parents at Sahibabad in UP. It asked police to produce the girl on October 7, the next date of hearing. The direction was given by Justice Sanjeev Kishan Kaul and Justice Ajeet Bhariyog in connection with a habeas corpus filed on behalf of Gaurav Saini by an NGO, Nyay Bharti. Twenty-five-year-old Saini, a networking engineer, spent 32 days in Dasna Jail on kidnapping charges after marrying Monika Dagar (21), a BSc student, against the wishes of her family. The couple who met online in chat rooms during 2006-2007 got maried on July 6 this year at an Arya Samaj temple in Malviya Nagar. But on July 5, Monika’s brother Nitin Kumar filed a complaint at Sahibabad police station after which a case of kidnapping was registered against Gaurav. While Monika comes from an upper caste family, the boy belongs to the lower caste. In his complaint, Nitin alleged that Gaurav alias Neeraj had allegedly kidnapped his sister and he feared she might be killed or trafficked. Through technical surveillance, the UP police on July 12 reached Gaurav’s house in Gautam Nagar area of Defence Colony where Monika was staying with him. “Neither Delhi Police nor UP police were ready to listen to my wife’s plea that she had married me without any coercion,” Gaurav told Times City. The couple was taken to Gulmohar Park police post and from there to Sahibabad. Monika’s custody was handed over to her parents on July 12. The victims also alleged that UP police did not take Monika’s statement and instead took a statement similar to what her brother had alleged. On July 14, Monika’s statement was recorded in front of the magistrate in which she told the judge she had left the house voluntarily and Gaurav had not raped her. After an ordeal of 32 days, Gaurav was granted bail by a Ghaziabad court on August 11. The family of Gaurav, who also runs a coaching institute at Gautam Nagar, approached the NGO in September. The NGO then took up the couple’s case and filed a habeas corpus in Delhi High Court. Following the HC order, Gaurav wrote another letter on September 22 to Delhi Police saying he feared for his wife’s safety and asked them to rescue Monika before October 7 as her family might cause her harm. Manu Sharma out on 30-day parole TNN 25 September 2009, 06:46am IST NEW DELHI: Manu Sharma, serving a life term in the infamous Jessica Lall murder case, has been granted 30-day parole by the Delhi government. Sharma reportedly walked out of the high-security Tihar Jail for the first time since his conviction on Wednesday. According to sources, the parole orders were granted by the Lieutenant Governor on the grounds that Sharma needed to attend to his ailing mother and also look after the family business which was suffering in his absence. The grounds were accepted after the Delhi Police and the superintendent of Jail 2 at Tihar, where Sharma is lodged, recommended parole after checking the convict’s past records and conduct while in jail. He was asked to furnish two sureties of Rs 4,000 each for the same and asked to report back to the prison after the parole period ended. Meanwhile, soon after the parole orders were received, Sharma was released from Tihar Jail. “He came out looking happy in a green T-shirt and blue jeans. His father was waiting for him outside the main gate and looked emotional. Sharma shook hands with his fellow inmates he is friendly with and told them that he was hopeful of an extension of parole after the 30-day period ended,” said a prison official, who is not authorized to speak to the media. This is the first time that Sharma has been let out of the jail since his conviction by the Delhi High Court in December 2006. Despite being acquitted by the lower court, the Delhi High Court held Sharma guilty on the basis of available evidence and sentenced him to life imprisonment. His father Venod Sharma is a senior Congress leader from Haryana who had to resign from his cabinet post when the trial was on. Sabarmati jail should be manned by SRPF: Advocate TNN 25 September 2009, 03:14am IST AHMEDABAD: Sabarmati Central Jail should not be manned by police but by State Reserve Police Force (SRPF). This is what amicus curiae appointed by the Gujarat High Court, advocate Shalin Mehta has suggested to the division bench as a measure to enhance jail security. A bench headed by the Chief Justice KS Radhakrishnan had in May asked advocate Mehta to submit a report on jail condition and come out with suggestions after an undertrial prisoner Suresh Kukadia was murdered by a convict Mahendra Vala in jail premise in March this year. The high court initiated suo motu proceedings on the issue of security in jail campus. In his report, Mehta had emphasized on quick separation of undertrial from convict prisoners, and separate administration for both campuses. But for jail security, the amicus curiae has insisted on removal of police and substitute them with SRPF personnel. He has suggested that SRPF jawans should be selected by a committee and their posting at jail premise should take place only once in a personnel’s career, so that development of vested interest can be avoided. During his earlier visits, advocate Mehta had highlighted pathetic condition of medical facilities made available to prisoners. But in a report placed on record on Thursday, he has reported remarkable development in health facilities. A diagnostic and treatment centre has been recently established with considerable facilities, and the jail authorities are planning to tie up with ISRO and Apollo Hospital to start a Micro Tele Medicine Clinic in near future. Mehta has also suggested quick filling up of the vacant post of medical staff so as to avoid shifting prisoners to the Civil Hospital, which the jail authorities consider root of all evil. The amicus curiae report has also suggested to stop outside food in jail premise for inmates. This could also reduce smuggling of prohibited goods like mobile phones, drugs, sharp instruments, guns and money inside the jail. Stressing on the need to stop prisoners going out of jail frequently for hospital visits or for regular production in courts, the amicus curie has called for extensive use of e-court and excellent medical facilities in jail compound. Judge, accused of graft, irregularities suspended TNN 25 September 2009, 03:22am IST AHMEDABAD: The Gujarat High Court has suspended additional sessions judge RH Shrama after getting more than 40 complaints of irregularities, corruption and high-handed behaviour over the past decade. Registrar general of high court PP Bhatt confirmed Sharma’s suspension because of the numerous complaints against him and said that a departmental inquiry would be conducted against him. Further action against the suspended judge will be taken after this inquiry is completed. When Mumbai was rocked by the 1993 serial blasts, CBI had sought Sharma’s help in the TADA case registered against the Bollywood star, Sanjay Dutt. Sharma went to Mumbai, but he was seriously injured in a blast that took place on a railway platform in November 1993. He was hospitalised, remained unconscious for four days and discharged after a month-long treatment. During surgery, the doctors removed all shrapnel but one lodged near his heart could not be removed. Information given by the high court reveals that complaints were made against Sharma by litigants, police officers as well as lawyers from almost all courts. Sharma was known for his quick disposal of cases, including criminal cases. While he was practising as an advocate CBI picked him up for its panel of special advocates. Advocate PR Agarwal had sought details of complaints filed against the judge under RTI. Change in law spurs chaos at UK visa office TNN 25 September 2009, 03:32am IST AHMEDABAD: Kirit Patel, 28, an applicant for UK student visa rushed all the way from Kheda to apply at VFS UK application centre in Paldi on Wednesday night before enforcement of a new rule from October 1. Patel was among hundreds camping at the centre to make the most of the opportunity. But trouble erupted when visa application office closed at 2 pm on Thursday without giving tokens. This was unlike their usual practice of giving tokens to persons with pending applications for next day. Chaos reigned as disappointed applicants came to blows with security personnel. An infuriated Patel said, “I have been waiting here since midnight. Authorities cancelled the token system without informing us. This will create more chaos among visa applicants.” The fact that the centre will be closed for three days starting from Saturday did not help. SK Pathan from Borsad too was standing in the queue to avoid the new clause. “There is complete mismanagement here and we fear that the situation is only going to get worse on Friday,” said Pathan, who wants to pursue diploma course in management from London. Later, Ellisbridge police station officials were called to control the situation. Inspector HM Kundaliya said, “This has become a daily affair. We have already served the centre a notice to keep daily number of applicants in check and also to deploy private security. A queue forms near the centre from wee hours. It causes inconvenience to nearby residents.” Academy to train consultants in GST law TNN 25 September 2009, 03:28am IST AHMEDABAD: Bracing up for the new Goods and Service Tax (GST) regime, state tax consultant organisations and government have decided to set up an institute to train 5,500 consultants in the law. The institute titled Value Added Tax and Goods and Service Tax Academy’ will be one-of-a-kind institute. The academy headed by retired justice DM Vasavda will have several eminent lawyers, retired judges of the high court and tax experts coming for lectures. It will begin functioning in two months’ time, according to Gujarat sales tax bar association president Mehul Gandhi. “We have been given a 9,000-square-yard space on the ninth floor of Bahumaliya Building at Lal Darwaza. For the time being, we will train consultants in GST and then trade bodies. We have 10 months to go before implementation of the new tax regime,” added Gandhi. Follow up all court cases, says Niwas TNN 25 September 2009, 01:38am IST CHANDIGARH: To ensure timely submission of replies in various pending court cases by different departments of the Chandigarh administration, home secretary Ram Niwas on Thursday asked all heads of UT departments to take up the issue on a priority basis. Niwas was of the view that whenever department receives any court case, the nodal officer should be asked to take up the matter in a time-bound manner. He further directed the HoDs to brief the nodal officer concerned regarding the implication of the case he is going to represent in the court and hold him accountable, in case court imposes any penalty or initiates actions against the department due to any delay in reply. The HoDs should be in constant touch with the advocates dealing with the particular case. Director information technology Manjit Singh Brar apprised that the intra website of the administration has a module for updating the status of the pending cases of the departments which could then easily be monitored by the LR. The home secretary also enquired from officials regarding pending cases. Teenager gets seven-year RI for raping minor T O Abraham, TNN 25 September 2009, 06:30am IST YAVATMAL: The additional district and sessions judge Mangesh Patil of Pandharkawda court on Wednesday sentenced a 19-year-old youth to undergo rigorous imprisonment for seven years and pay a fine of Rs 2,000 for raping a minor girl. According to sources, accused Shital Borkar of Indira Nagar locality of Pandharkawda Municipal Council had lured a minor girl of five years in his neighbourhood to his house in 2003 and raped her. After committing the heinous crime, the accused fled from the scene. The victim narrated the entire episode to her mother. The parents of the little girl then lodged a complaint at Pandharkawda police station. The police registered a criminal offence under section 379 of IPC against the accused and arrested him. The then PSO FU Rothe investigated the case and filed FIR before the court along with a list of witnesses. During the trial the court recorded the statements of nine witnesses and the victim as well. The court also heard the arguments of both the prosecution and the counsel for the accused. Finally, the court held accused Borkar guilty of committing rape on the minor girl and sentenced him to undergo rigorous imprisonment for seven years and pay a fine of Rs 2,000 and in lieu of fine undergo further RI for six months. Makarand Acharya appeared for the state while Gajanan Khairkar appeared for the accused. 1-yr RI for rash driver who caused death T O Abraham, TNN 25 September 2009, 06:34am IST YAVATMAL: The Pusad court on Wednesday sentenced the driver of a bus to one year rigorous imprisonment for causing the death of a pedestrian due to rash driving in 2003. The court records show that on May 20, 2003, one Ajmatulla Khan was walking towards the bridge on Pus river near Pusad at about 8pm. A bus bearing registration number MH 29/7322 coming from Yavatmal and going toward Pusad hit the pedestrian on the bridge and he sustained grievous injuries. Though Khan was rushed to the hospital, he succumbed to his injuries. The Pusad police had registered an offence under sections 304(A) and 279 of IPC against the driver of the bus Subhash Kalu Rathod and arrested him. The police filed charges after an investigation along with a list of five witnesses. Government pleader Subhash Rathod examined all five witnesses during the trial and the court held the driver guilty of reckless driving. The court sentenced him to undergo RI for one year under section 304(A) and pay a fine of Rs 1000. In lieu of the fine, the convict will undergo one month additional imprisonment. The court has also held him guilty under section 279 of IPC and sentenced him to undergo three months RI and pay a fine of Rs 300 and in lieu of fine undergo imprisonment for 10 days. The prisoner will undergo all the terms simultaneously. Leader of Opposition comes under RTI, says CIC TNN 25 September 2009, 04:11am IST NEW DELHI: After ruling that the office of Supreme Court of India comes under the ambit of the Right to Information (RTI) Act, the Central Information Commisison (CIC) on Thursday said the office of Leader of Opposition in Lok Sabha was also covered under the Act and should provide information as per its provisions. Chief information commissioner Wajahat Habibullah said “office of Leader of Opposition is a public authority” as it is created by a notification of the government but reserved his decision whether it was part of Lok Sabha secretariat or an independent office. Habibullah was hearing the plea of RTI applicant Subhash Chandra Agrawal who sought detailed information from L K Advani on the letter written by him to PM Manmohan Singh on the issue of black money allegedly stashed away in Swiss banks and the finance minister’s reply to it. Initially, Advani’s office did not reply to his queries but after the complaint notice was sent by CIC, his secretary Deepak Chopra provided the communication. Can’t remove Jaswant as PAC chief: Speaker Subodh Ghildiyal , TNN 25 September 2009, 03:58am IST NEW DELHI: Speaker Meira Kumar is unlikely to sack Jaswant Singh as chairman of Public Accounts Committee, saying there was a “definite rule” which permitted her to dismiss the head of PAC only in case he was “unfit to act”. Asked if Jaswant could be sacked yet as nothing had been heard from her since the controversy broke out, Kumar told TOI, “Rules do not empower me to remove any chairman unless he, for any reason, is unable to act.” The term “unable to act” is seen as vague and could be meant to convey inability to function because of health problems or physical absence. The Speaker’s interpretation of rules after Jaswant took a meeting of PAC despite boycott from BJP members may mean that the expelled leader is in for an uninterrupted innings. Ever since the Jinnah controversy and Jaswant’s expulsion from BJP amid heightened emotions over partition, the PAC chairmanship has become a contentious issue. The saffron anxiety revolves around the fact that Jaswant at the head of the crucial committee would undo a potent weapon in the hands of the Opposition party — as PAC is considered. Given that it vets the audit of government projects and deals, it is the best tool for an Opposition party to embarrass the government. No wonder, BJP made several attempts to dislodge Jaswant, even appealing to the Darjeeling MP himself, but there has been no sign of the deadlock unraveling in its favour. Now the Speaker’s words could see them reconcile to the loss. Kumar said, “As long as he is able to function as chairperson, the Speaker cannot remove him.” Interestingly, Kumar said she had not seen any written demand from BJP for Jaswant’s removal from PAC. This is surprising as BJP brass called on Congress troubleshooter Pranab Mukherjee to settle the issue in its favour. Ruling circles see two viewpoints on the issue. While one camp feels that Jaswant got the PAC chairpersonship by virtue of being a BJP man and should thus be sacked, others see it politically and would settle for saffron woes than relief. PM’s health is personal info, can be withheld under RTI: CIC Agencies Posted: Friday , Sep 25, 2009 at 1859 hrs New Delhi: Unlike the US where the state of the President’s health is made public annually, the Central Information Commission (CIC) has ruled that no information of any ailment of the Prime Minister can be disclosed under the Right to Information Act. It is personal in nature and disclosure will be an invasion of privacy, Chief Information Commissioner Wajahat Habibullah held on an RTI application by Mumbai-based Chetan Kothari. Kothari had sought details of ailments of Prime Ministers and expenses incurred on treatment on the ground that no information on the same was provided by the Prime Minister’s office. The Commission, however, said expenses incurred during the treatment should be disclosed since they are made from the public exchequer. “Insofar as expenses are concerned this is indeed information that is disclosable since the expenses made from the public exchequer are accountable. “However, ailment of the individual is personal information and in our view disclosure would indeed be in violation of sub-section (j) of Section 8 (1),” he said. Ther section exempts disclosure of personal information. This is in contrast with the practice in the US where they put in public domain information about the President’s health every year.

LEGAL NEWS 19.09.2009

PIL urges SC to monitor CBI’s probe in Aarushi murder case

PTI 19 September 2009, 05:47pm IST

NEW DELHI: A PIL was filed in the Supreme Court on Saturday urging it to monitor the investigations being conducted by CBI into the sensational murder of teenaged girl Aarushi Talwar and her domestic help Hemraj.

The petition filed by advocate Ajay Agrawal has alleged CBI and the Noida police have failed to crack the case even 16 months after the gruesome killings and have come out with conflicting versions on the motive and identity of the killers.

Aarushi and Hemraj were found murdered in the family’s Jalvayu Vihar apartment on May 16, 2008.

The petition said that besides a number of discrepancies in the investigations, there has been reports that the vaginal swab of the victim was tampered with to shield the accused.

It was pointed out that even the mobile phone of Aarushi was recovered by the Delhi police and not CBI which has been investigating the case from June 1, 2008.

According to the petition, it was ironical that while the Noida police had accused Aarushi’s father Rajesh Talwar, a dentist, as the prime accused and listed his compounder Krishna as a key witness, CBI had overturned the findings giving a clean cheat to the dentist while arraigning the compounder as a prime accused.

It was further alleged that CBI was embroiled in internal politics and a number of the officials associated with the investigations had been transferred.








Gauhati HC dismisses PIL against minister, fines petitioner

Gauhati High Court today dismissed the Public Interest Litigation (PIL) against state Health Minister Dr Himanta Biswa Sharma and instead fined the petitioner Padma Hazarika, an MLA of the Opposition.

A division bench of the court, comprising Justice Ranjan Gogoi and Justice Amitabh Roy, rejected the PIL filed by Mr Hazarika, seeking the reopening of two TADA cases against the Congress minister.

The Court upheld the earlier decision by the Supreme Court in a similar PIL against Dr Sharma by former Bihar MP Sukhdeo Paswan.

Paswan had filed another PIL against the minister in Gauhati High Court also but had later withdrawn it, though the court fined him Rs one lakh for filing litigation without sufficient grounds.

Dismissing Hazarika’s petition, the HC also imposed a fine of Rs 50,000 on the petitioner, who is a legislator of the Asom Gana Parishad.








Med college under HC radar

Shibu Thomas, TNN 19 September 2009, 04:55am IST

MUMBAI: The fate of over 2,000 medical students pursuing post-graduate courses hangs in balance following a public interest litigation (PIL) filed against the College of Physicians and Surgeons (CPS) in Parel. The court has asked the Centre to spell out its stand on the issue of recognition to courses run by the institute.

Filed by two medical practitioners Arun Date and Dhananjay Kshirsagar, the PIL has sought the court’s intervention on the Centre’s inaction.

CPS has been handing out degrees termed as Fellowship of the College of Physicians and Surgeons (FCPS) as well as diplomas. According to the petition, nine of its courses-six FCPS and three diplomas-were given deemed recognition. Eleven other courses run by it are not recognised by the Medical Council of India (MCI).

“The college has no hospital, no faculty or infrastructure,” claimed advocate V M Thorat, counsel for the petitioners. Thorat contended that since 1997, the MCI has been recommending to the Union government to withdraw the recognition to CPS, but the Centre has failed to act. The advocate cited admission figures to point out the magnitude of the problem: While the 12 government and nine private medical colleges in the state have 822 seats, CPS has around 2,012 post-graduate students pursuing various courses.

Sudhakar Sane, secretary-general, CPS, said, “For the nine courses which have deemed recognition, we sent our students to MCI-approved medical colleges.” With regard to the 11 unrecognised courses, Dr Sane said they were approved by the Maharashtra Medical Council, which means “the students can practice in any part of the state”.

Earlier this week, the Centre’s counsel informed the court that the union government had decided to derecognise CPS. The court has now asked the Centre to file an affidavit in this regard before September 29.








PIL challenges IPRS warning

TNN 19 September 2009, 05:56am IST

AHMEDABAD: The Gujarat High Court is to decide whether playing or performing songs having copyright during the Navratri festival is an infringement on somebody’s right.

Devendra Dwivedi has approached the court after Indian Performing Rights Society Ltd (IPRS) published advertisements warning people against usage of lyrics, songs and compositions on which their members have a copyright during the garba.

IPRS issues licences to users of music and collects royalties from them on behalf of its 1,500 members who are authors, composers and publishers of music. IPRS distributes royalty among them. This body came into existence in 1969, and is now a representative body of owners of music and the sole authorised body to issue licenses for usage of musical works and literary music within India, as it claims.

Following its warning issued for garba organizers, Dwivedi filed a PIL in the high court claiming that IPRS has not clarified which songs are not to be performed during the festival. Moreover, the performance during these nine days takes place as part of religious festivities, and playing music that has copyright is exempted under Section 52 (Z) of the Copyright Act during religious ceremony. Thus, the garba performances do not cause any infringement on anybody’s right on songs.

Besides this, Dwivedi has also raised objection to the warning issued by IPRS that anybody found infringing on music copyright would be sent to jail and fined. He has argued that imposing punishment is a court’s discretion and an organisation cannot issue such warning.

On Thursday, the state government told the court that it has not come across any complaint in this regard. Hence there is no question of taking any steps on organisers in this connection.

A division bench headed by Chief Justice KS Radhakrishnan heard the case at length on Friday and reserved its order for pronouncement on the subject.








Rights activists urge JK CM to constitute Child Rights Commission


News Agency of Kashmir

9/18/2009 8:25:37 PM


Press Release/Jammu, Sept 18(NAK): Chief Minister Omar Abdullah has said that J&K Government will soon look into the legalities for constituting Child Rights Commission in J&K for the protection of the child rights and make efforts for the strict implementation of the Juvenile Justice Act, 1997 that has not been implemented even after the passage of 11 years in the militancy infested state.

The was stated by Deeepika Thussoo, advocate and CRY Project holder Jammu in a press conference here today, She said that Chief minister made this statement while interacting with the delegation of Child Rights and You (CRY), an NGO working across 18 states in the country. Delegation met him at his residence here on Wednesday, urging him to constitute of the Child Rights Commission in the state and strictly implement the Juvenile Justice Act, 1997.

She said that after listening to the views of the delegation on the issue, Omar expressed concern over the non implementation of Juvenile Justice Act, 1997 during the three previous regimes since 1997. She said that Omar told them that he will pass on the necessary directions to the Social Welfare department and instruct them to work on the issue in a time bound manner.

She said that Omar expressed optimism that that by the time the durbar moves to winter capital Jammu later this year, Social Welfare department would have taken some positive steps regarding this pressing matter.

“Omar said that he will also discuss the issue with the Social Welfare minister and other concerned officials and see what can be done’’, Deepika added.

When asked about the constitution of the Child Rights Commission in the state, Omar assured that even if it calls for framing a new legislation, he will go ahead after discussing the legalities of the same with the concerned department and officials in the state government, added Deepika, a human rights activist and a freelance journalist.

Deepika Thussoo, a practicing lawyer in J&K High Court, has recently been awarded the Sanjoy Ghosh media fellowship by Charkha Foundation for year 2008-09 and Rippen Kapur fellowship for 2008-09 by CRY for her work on child rights violations in Jammu province.

Advocate Sheikh Shakeel Ahmed apprised the CM about the legalities of the Juvenile Justice Act 1997 and Child Rights Commission, stressing the importance on the part of the CM to intervene into the sensitive issue personally. Shakeel told Omar that the said Act was enacted by the state Legislative Assembly and as such it is the responsibility of the state government to implement it.

He informed the CM that a PIL by Deepika Thussoo stands admitted in the state J&K High Court on non implementation of Juvenile Justice Act, 1997. Shakeel said that as a prerequisite to the PIL, they had sent legal notices to the state government including the office of the chief minister on January 14 this year, but the government didn’t respond, following which they filed the PIL.

“The PIL has not only been admitted by the High Court, but also the Chief Justice of J&K High Court has asked the state government to reply through filing the affidavit regarding the present status of the Act in the state The case is now being heard in the next hearing of the chief justice J&K High Court, ’’Shakeel added.

Human Rights expert Dr Arvind Jasrotia, who teaches Law at Jammu University, told the CM how the child rights were being violated due to non implementation of the Juvenile Justice Act 1997. He said that there are no juvenile homes, juvenile courts, juvenile boards, or juvenile jails in the state, adding that juvenile delinquents are paraded handcuffed in the courts and kept with hardened criminals in jails, in gross violations of the set norms.

“If the Child Rights Commission had been set up in state, it would have looked into the violations of child rights, non implementation of laws providing for protection and development of children, non compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare of the children and to provide relief to such children or take up the issues arising out of such matters with appropriate authorities. But in the absence of the Commission most of the issues related to the child rights violations are being ignored in the state’’, he said.

Deepika Thussoo said that given the child rights scenario in the militancy infested J&K and the weak implementation of the child rights related legislations, CRY has decided to intensify its activism in the state and take up cause of the children in the state in a more vigorous manner. She said that CRY is a reputed NGO working towards restoring to underprivileged children their basic rights to- survival, protection, development and participation.

J&K, Atayandra Dass Gupta, CRY General Manager, Sheikh Shakeel, Dr Arvind Jasrotia, Saroj Razdan, senior correspondent The Indian Express, Vikram Sharma, from The Hindustan Times and Irfan Mohammad Khan, advocate . (NAK)







Taj Corridor case: High Court notice to Maya, Siddiqui

Express News Service Tags : taj corridor case Posted: Saturday , Sep 19, 2009 at 0540 hrs Lucknow:

The Lucknow Bench of Allahabad High Court issued a notice on Friday to Chief Minister Mayawati and PWD Minister Naseemuddin Siddiqui, seeking resumption of proceedings against them in the Taj Heritage Corridor case.

Hearing a petition filed by Mahoba residents Kamlesh Verma and Anupma Singh, a Bench comprising Justices Pradeep Kant and Shabihul Husnain observed that the prima facie evidence in the case is “worth arguable” and asked the duo to file their replies within six weeks.

While the PIL challenges the dropping of the case against the BSP chief and her cabinet colleague, it also questions the role of Central Bureau of Investigation (CBI) in failing to challenge the special judge’s order that relieved the accused.

Reacting to the court notice, BSP general secretary Satish Chandra Mishra said the government will file a Special Leave Petition in the Supreme Court. Earlier, the government had filed three petitions in the apex court on this issue but they were all dismissed.

 “It is not proper to get an order from the High Court when the apex court has already decided on the case,” he said.

The Taj Heritage Corridor scam worth Rs 175 crore was exposed in 2003. The then BSP-BJP coalition government, led by Mayawati, had drawn a grand plan of constructing a corridor around the Taj Mahal and other monuments in Agra for the convenience of the tourist. The award for the construction of the corridor was given to the National Building Construction Corporation.

Following a PIL in Supreme Court, in July 2003, the apex court directed the CBI to conduct an inquiry and file the status report within two weeks. The CBI conducted the inquiry and prime facie charges of corruption, violation of environment and forest law were upheld.  Based on the CBI report, the Supreme Court asked the Central investigation agency to conduct a detailed probe into the matter.

The CBI in its report said Rs 74 crore were spent though no actual civil construction was done and only stone boulders were dumped at the site. Findings of the CBI led to a political furor and Mayawati resigned from the office on August 23, 2007. Later, the CBI chargesheeted Mayawati, the then minister for environment Naseemuddin siddiqui, the then principal secretary environment RK Sharma and Rajendra Prasad, under secretary environment.

The CBI in 2007 filed the chargesheet in the Special Court in Lucknow. The CBI then approached the Governor TV Rajeswar in same year seeking sanction for the prosecution of Mayawati. By that time Mayawati had again taken over as the chief minister of UP on May 13, 2007. The state governor rejected the plea of the CBI.

The PIL, which was filed in Allahabad High Court on February 20, 2008, wanted to know why the agency after drawing a chargesheet sought Governor’s sanction to prosecute Mayawati.

The petitioner cited the case of Prakash Singh Badal versus state of Punjab in 2007, whereby the Supreme Court had stated that in cases of forgery and cheating, “no sanction is needed, irrespective of whether it is against a public servant because it does not come under the discharge of official duty”.

The state, however, contended that the Supreme Court ruling in one particular case cannot be treated as a general law. According to the law, if a public servant is charged under any section of the IPC, it is mandatory for the investigating agency to seek sanction from the competent authority, which is also the appointing authority, under Section 197 of Criminal Procedure Code. Besides, if the public servant is facing charges under the Prevention of Corruption Act, sanction of the competent authority is required under Section 19 of the Act. The petitioner — lawyer Rohit Tripathi—- said Mayawati was facing charges under Sections 420, 467, 468 and 471 and the court had issued notices after argument.








Indian Government Defers Decision on 377 to Supreme Court

Submitted by arvan on 18 September, 2009 – 14:58

The government of India decided on September 17, 2009 that it will not oppose the Delhi High Court verdict on Section 377 of the Penal Code, which decriminalizes homosexuality by “reading down” the section pertaining to same-sex relations between consenting adults in private. Indian activists are praising this decision as a symbol of tacit support for decriminalization in this landmark case.

Following the High Court’s ruling on July 2, 2009, a panel composed of Law Minister M. Veerappa Moily, Home Minister P. Chidambaram, and Health Minister Ghulam Nabi Azad was assembled to consider the advantages and disadvantages of changing the law. After reviewing the findings of the panel, the government has opted not to join the appeal and to let the Supreme Court determine the “correctness” of the High Court’s ruling. Upon announcing the decision, Information and Broadcasting Minister Ambika Soni added that the Cabinet would ask Attorney General Goolam Vahanvati to assist the Supreme Court in any way possible, suggesting that the government could still weigh in during the appeal.

The Cabinet’s deference to the judiciary effectively leaves the fate of Section 377 in the hands of the Supreme Court, which can be unpredictable or unwilling to intervene on moral issues. The Supreme Court has received several private challenges to the Delhi High Court’s verdict in this case, some of which are led by religious organizations using language reminiscent of Christian fundamentalism in the United States. The government’s neutrality on the issue – despite varying degrees of support for reading down Section 377 from all three members of its exploratory panel – suggests that the government may be reluctant to bear the furor of opponents from conservative political parties and unleash a backlash from conservative community groups.

Gay journalist and activist Vikram Doctor says, “We knew there was resistance from some members of the government but saner voices have prevailed, and this is a really important signal to the Supreme Court on how the government would like the case to proceed.”

While IGLHRC appreciates that the Cabinet has refused to join the appeal, the government must also be a proactive voice for vulnerable segments of India’s society who are targeted for their sexual orientation and subjected to all kinds of abuses, including sexual violence, physical assaults, blackmail and intimidation by unscrupulous members of the community and police force who use the presence of Section 377 to act with impunity. Unequivocal support for the Delhi High Court’s decision by the central government will send a powerful message that lesbian, gay, bisexual and transgender people in India are entitled to human rights.

As noted by Chief Justice A.P. Shah of the Delhi High Court in his ruling on Section 377, “Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are.” Enacted by the British in 1868 when they ruled India, Section 377 is inconsistent with the Indian Constitution, specifically Article 14 on equality before the law, Article 15 on non-discrimination on grounds of sex, Article 19 on freedom of expression, and Article 21 on right to life and personal liberty.

At a September 16, 2009 forum on HIV, human rights and MSM in Washington, D.C., Michel Sidibe, Executive Director of UNAIDS linked homophobia and continued criminalization of homosexuality to a lack of HIV-related services. According to Sidibe, “We have to remove these laws as they reflect deep-seated stigma and prejudice. Instead of universal access, we have universal obstacles. Gay people are the ones who brought attention to HIV and AIDS but as we moved on to generalizing services for people with the virus, we forgot them.” Sidibe added that India’s decision on 377 is a huge victory because “removing laws that criminalize and discriminate herald a new framework and new commitment and a new movement to universal access to health and human rights.”

Click to see the full text of the Delhi High Court decision.

Click to read the court proceedings on the 377 case.






Court ordeal for British woman: HC orders probe into goof-up

TNN 19 September 2009, 06:26am IST

AHMEDABAD: Gujarat High Court on Friday directed the chief metropolitan magistrate to conduct an inquiry into the case of British national Kaya Eldridge, who was allegedly humiliated by a lawyer during the hearing of a molestation case in a city court.
Taking serious note of the issue, Chief Justice KS Radhakrishnan has initiated an inquiry into how the proceedings commenced without the provision of ‘in-camera’, and why there was no interpreter to help Eldridge since everybody knew that she does not know Gujarati.

The chief justice expressed concern over the issue and sought a status report on the case following accusations by Kaya that she was humiliated in the courtroom by the lawyer on Monday. The issue was taken up at the HC by a group of NGOs.

High Court registrar general PP Bhatt said the chief metropolitan magistrate would inquire how metropolitan magistrate NM Bundelia allowed the trial to take place in open court and what were the factors that made the victim feel hu- miliated in the courtroom.

In her complaint last month, Eldridge had said that a plumber, Pragnesh Chhtrada, had molested her when he came to her flat to do some repaid work. In rape or sexual harassment cases, Supreme Court guidelines say that court proceedings should take place ‘in-camera’ to avoid embarrassment to the victim and to protect her identity.







HC directs CMO for inspection against private practice

TNN 18 September 2009, 10:46pm IST

ALLAHABAD: The Allahabad HC has directed the Chief Medical Officer (CMO), Allahabad to carry out inspections of all hospitals, nursing homes, clinics, diagnostic centres and drug stores in Allahabad to find out whether any teacher in the medical college was doing private practice at such places.

The bench, consisting of Justice S Ambawani and Justice Dilip Gupta has said that if any teacher of the medical college was found practising, the licence of such hospitals or nursing homes shall be cancelled by the CMO.

This order was passed by the bench, while hearing a PIL filed by Satish Chaturvedi, an advocate of the HC for the betterment of the medical college as well as government hospitals in Allahabad.

Before passing this direction, the court was of the view that the doctors of medical college were not entitled to do private practice under their service rules and they had also given affidavits that they would not do private practice as long as it was prohibited by the government. The court will now hear this case on October 9, 2009.









HC refuses to quash FIR against Ojha brothers

TNN 18 September 2009, 10:43pm IST

ALLAHABAD: A division bench of the Allahabad HC comprising of Justice Ravindra Singh and Justice Yogesh Chandra Gupta has refused to quash an FIR registered against builders of Leelakunj apartments in New Katra, Vijay Kumar Ojha and Sharad Ojha filed at Colonelganj police station. The FIR was registered under Sections 419, 420, 467, 468, 471 and 504 of the IPC.

The judges, however, clarified that in case the petitioners appeared before the court within 30 days from the date of delivery of the order (September 7, 2009) and apply for bail, the same shall be heard and disposed.

According to the facts of the case, Ananad Kumar Pandey, a practising lawyer in the HC had purchased a flat from the builders after making the due payment. The cheques were drawn in favour of Baba Sahkari Awas Samiti, owned by Vijay Ojha.

However, as the construction was declared illegal by the HC and the flats were accordingly demolished, Pandey sought refund of his money. At this juncture he was shocked to learn that the builders, in connivance of the then manager of Bank of Maharashtra had fraudulently transferred a cheque amounting to Rs four lakh to the account of Sharad Sahkari Awas Samiti, owned by Vijay’s brother, Sharad Ojha.

Counsels appearing on behalf of Pandey submitted that the matter relating to the case was purely criminal in nature as the cheque issued in the name of Baba Sahkari Awas Samiti had been transferred in a different account of Sharad Sahkari Awas Samiti, owned by real brothers.







Batla encounter: Delhi HC’s clean chit to police challenged in SC

PTI 19 September 2009, 06:39am IST

NEW DELHI: A petition was filed on Friday in the Supreme Court against the Delhi High Court’s order giving a clean chit to the city police in the controversial Batla House encounter case in which two suspected terrorists and a police officer were killed.
The petition filed by an NGO ‘Act Now For Harmony and Democracy’ submitted that the High Court has erred in accepting the findings of NHRC which had refuted the allegation that it was a fake encounter.

It pleaded that the High Court did not go into the merit of the case and only relied on the finding of the Commission’s report on the ground that it is a statutory body whose report cannot be questioned.

The petitioner argued an independent judicial inquiry is required in the case as serious doubts were raised by different groups of civil society on the conduct of the police officials in the encounter.

It also contended that NHRC has failed to conduct a proper inquiry in the case as its officials did not visit the site of the encounter and only made a report by accepting the police version.







Allahabad HC notices to Maya, Siddiqui in Taj corridor case

PTI 18 September 2009, 05:53pm IST

LUCKNOW: The Allahabad High Court today issued notices to the Uttar Pradesh Chief Minister Mayawati and her cabinet colleague Naseemuddin Siddiqui on PILs seeking resumption of proceedings against the two in the Taj corridor case.

A division bench of the Lucknow bench of the Allahabad High Court comprising Justice Pradip Kant and Justice Sabehul Hasnain passed this order on PILs filed by Anupama Singh, Kamlesh Verma and others challenging the special CBI court order dated June 5, 2007 by which the proceedings were dropped against the two in the case.

According to counsel for the petitioners C B Pandey, the the court has directed that these PILs be listed in the month of November for final hearing.

The petitioners had challenged the CBI court’s June, 2007 order saying that it was bad in the eyes of law as there was no need to seek the prosecution sanction from the UP Governor for proceeding in the case.

It may be recalled that the UP Governor had refused to grant permission for prosecution sought by the CBI against the two in the case on June 3, 2007.






CP shootout case: HC awards lifer to ex-encounter specialist

Agencies Posted: Friday , Sep 18, 2009 at 1726 hrs New Delhi:

The Delhi High Court upheld the conviction and life sentence of ten policemen, including a senior officer, for the killing of two Haryana-based businessmen in a fake encounter due to mistaken identity at Connaught Place here in 1997.

A Bench comprising Justices B N Chaturvedi and G S Sistani concurred with the trial court judgement of October 24, 2007 holding the dismissed Delhi Police Assistant Commissioner of Police S S Rathi and others guilty of murder.

The other nine convicts are Inspector Anil Kumar, Sub-Inspector Ashok Rana, Head Constables Shiv Kumar, Tejpal Singh and Mahavir Singh and Constables Sumer Singh, Subhash Chand, Sunil Kumar and Kothari Ram.

A Delhi Police Crime Branch team led by encounter specialist Rathi had on March 31, 1997 fired indiscriminately after suspecting that the businessmen were Uttar Pradesh-based gangsters wanted by the police.








HC adjourns Yogita

TNN 18 September 2009, 03:58am IST

NAGPUR: The Nagpur bench of Bombay high court on Thursday adjourned the hearing on high-profile Yogita Thakre death case till October 1. The seven-year-old kid was found dead inside a car belonging to state BJP president Nitin Gadkari.

The HC expressed surprise over police department’s efforts to file a case of negligence against Yogita’s mother, police guard and driver of the car. The court asked the cops to take a fresh look at their decision and inform about it by October 1. The petitioners — Vimal and Ashok Thakre, parents of the deceased — had prayed for a CBI inquiry into the death of their daughter.

According to the petitioners, Yogita’s body was found in the evening on May 19 inside a vehicle on the premises of Gadkari’s residence in Mahal while her mother Vimal, a maid servant, was busy in her work in the area. However, it took police over six hours to formally register a complaint. Even after that, the cops were allegedly found wanting in the investigations and led the evidence to get destroyed. They also failed to seize the vehicle in which the body was found. Shockingly, they first registered a case of accidental death, then making a U-turn, made it a murder case and again on Tuesday, the cops came back to their original stand stating that Yogita’s death was “accidental smothering”. And hence, the petitioners were pressing for a CBI inquiry into the episode.







No decision taken by SC collegium on Dinakaran row: CJI–CJI


New Delhi, Sep 18 (PTI) The Supreme Court collegium, met here today to discuss the issue relating to its recommendation for elevation of Karnataka Chief Justice P D Dinakaran, accused of amassing wealth, but did not arrive at any conclusion on the demand to review its decision.

“No decision has been taken on the issue,” said an official message sent verbally by Chief Justice of India K G Balakrishanan’s office to reporters waiting outside his residence.

The official of the CJI said he has been asked to communicate to the media that no decision has been taken on the issue of Dinakaran at the collegium meeting.






Lawyers differ on proposal to elevate Justice Dinakaran to SC

Published: September 18,2009

Advocates of the Madras High Court have expressed divergent views on the proposal to elevate Chief Justice of Karnataka High Court P D Dinakaran to the Supreme Court.

A section of advocates questioned the rationale of raising the issue of alleged malpractices by Justice Dinakaran now, after remaining silent when he was appointed as a judge of the Madras High Court and his subsequent promotion as Chief Justice of the Karnataka High Court.

However, the forum for judicial accountability, comprising some senior lawyers, has appealed to Chief Justice of India K G Balakrishnan not to elevate him. They also demanded a probe into the allegations of corruption charges against Dinakaran.

The Bar Council of India member, Dhanapal Raj, questioned the motive and timing of the forum’s memorandum to the CJI.

“I never expected a former Union minister to stoop to the level of tarnishing the image of the CJI. It is the decision of a collegium of five Judges of the Supreme Court (to elevate Justice Dinakaran) and not the individual decision of the CJI,” Ravindran said.

Senior Advocate R Vaigai, a signatory to the memorandum, said the forum had placed’disturbing’ materials before the CJI.”You (CJI) make an inquiry and see what is right or wrong.”

The forum has sufficient material to point out all is not well. There is a prima facie case of land grabbing which is not proper of a judge, she claimed.

Source: PTI








Collegium defers decision on Justice Dinakaran

J. Venkatesan

Moily urged to keep Judge’s elevation in abeyance

New Delhi: The Supreme Court Collegium headed by Chief Justice of India K.G. Balakrishan on Friday could not arrive at a decision on whether the elevation of Chief Justice of the Karnataka High Court P.D. Dinakaran as judge of the Supreme Court could be reconsidered or not.

The meeting was convened in the wake of allegations that Justice Dinakaran had acquired “huge assets,” including a large extent of land holdings. It lasted about 45 minutes and was attended by Justice B.N. Agrawal, Justice S.H. Kapadia, Justice Tarun Chatterjee and Justice Altamas Kabir.

An official at the CJI’s office said, “No decision has been taken at the meeting.” Without elaborating, he said the CJI had asked him to convey this to the media.

However, according to highly placed sources, a decision was deferred as some of the Judges felt that the matter required a detailed and thorough examination as fresh material about Justice Dinakaran had come to the notice of the Collegium.

Justice Dinakaran is one of the five Chief Justices of various High Courts recommended for elevation to the Supreme Court and the matter is now pending with the Union Law Ministry.

Meanwhile, senior lawyers Shanti Bhushan and Anil Divan and advocate Kamini Jaiswal met Law Minister Veerappa Moily at the Shastri Bhavan here and appealed to him to keep the elevation of Justice Dinakaran in abeyance till a proper probe was conducted and his name was cleared.

Fresh complaint

Talking to journalists after the meeting, Mr. Bhushan said, “We have handed over to the Minister a copy of a fresh complaint given to us by the Tamil Nadu Bar. A copy had already been sent to the collegium,” he said.

He said that while recommending Justice Dinakaran for elevation, the collegium had not consulted Justice Markandey Katju and Justice A.K. Ganguly, two Supreme Court Judges who were earlier Chief Justices of the Madras High Court and were familiar with the affairs of Justice Dinakaran.

Mr. Divan said, “Since it concerns the integrity of a person recommended to the high office, we have requested that the matter be referred to the retired Judge of the Supreme Court, Justice N. Santosh Hegde, Lok Ayukta in Karnataka, who will give a report one way or the other. Justice Dinakaran has to be given proper opportunity to defend himself in the probe.”

Asked whether the recommendation could be kept in abeyance, he said, “When new facts emerge and till they are properly enquired, Justice Dinakaran’s elevation can be kept on hold.”

He said, “We have to fashion a new system of Judicial Appointment Commission as in the United Kingdom. This will require a Constitutional amendment and the government will have to push for it.”






Maya says sorry for ‘violating’ SC order

Dhananjay Mahapatra, TNN 18 September 2009, 02:00am IST

NEW DELHI: A day before the crucial hearing, the Mayawati government on Thursday took the safety first approach and tendered a “most profuse” unconditional apology to the Supreme Court for alleged breach of its undertaking to stop work at the memorial sites in Lucknow, but added in the same breath that it had not violated its solemn promise.

It explained in detail the measures taken to scrupulously adhere to its September 8 undertaking, but in the face of the court’s stinging “playing with fire” observation on September 11, it left nothing to chance by offering an apology for any unintentional breach of the promise.

Meeting Thursday’s deadline to file an “unambiguous” affidavit detailing the nature of work that was carried out at the memorial sites after the September 8 undertaking, chief secretary Atul Kumar Gupta said: “Not only does the state government had highest regard for the orders passed by the Supreme Court, but has also issued appropriate instructions and directions to ensure that the undertaking given to this court would be complied in letter and spirit.”

“Notwithstanding this, it is respectfully submitted that if any transgression has occurred, I tender the most profuse apology for the same and humbly submit that (if any transgression has happened) the same was entirely unintended,” the chief secretary said.

It said the state’s undertaking applied to a limited number of properties and conceded that some work was going on only for removal of unutilised construction material and debris to clean up the sites and give it a tidy look since these have become functional recreation areas frequented by public.

It said the media mixed up the photographs of the sites where work was permitted and at those places where only cleaning work was going on to create an impression “that there was rampant breach of the undertaking given to the Supreme Court”.

It gave details of the status of work at each memorial site vis-a-vis the undertaking:

* Samajik Parivartan Sangrahalaya (Stupa): It was not a subject matter of any of the writ petitions pending in Allahabad High Court or the Supreme Court. Photographs of this site were shown to the court by the respondent and carried by the media

* Pratibimb Sthal and Pyramid (Drishya Sthal): Not subject matter of any writ petition. Photograph of this property was published by `The Times of India’ in its September 10 report

* Smriti Upvan: Construction permitted by the SC on December 12, 2008 and most of the work completed before the September 8 undertaking. Work done after undertaking related to repair of road, footpath, drain, toilet and finishing. Its photograph in `The Hindu’ does not depict any ongoing work

* Kanshiram Smarak Sthal: Only chiselling and finishing work of boundary wall outside the premises

* Dr Bhimrao Ambedkar Sthal and Ramabai Ambedkar Maidan: No construction activity was being carried out as is sought to be portrayed by the print and electronic media

After giving details of other properties as an abundant caution, the Mayawati government said: “The undertaking given on September 8, 2009, before the Supreme Court is being fully honoured and the question of the same being flouted does not arise at all.”

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