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Friday, February 29, 2008

Better judgement

India is a land of great promise. While there are many things going for us, the judicial machinery has not kept pace with the demands of India on the march. The fact that there is a backlog of 20 million civil disputes in the Indian courts that will take another 20 years to complete under the present system does not augur well for our judicial system. The courts are simply unable to cope up with the volume of workload partly due to lack of resources and due to their style of functioning. Every malady, however, has a cure. For starters, the Supreme Court of India should establish regional benches in Mumbai, Kolkata, Chennai and only take up matters of constitutional importance. The High Courts need to establish a bench in one city other than the capital of respective states and be the highest judicial forum for all civil cases. Senior Counsels should be made to serve as Judges for a certain minimum period, say one quarter every year, and the compensation package should be good enough to attract qualified and successful lawyers. In matters of Arbitration & Conciliation, the system should provide statutory recognition to conciliation proceedings. Arbitration needs to be made litigant friendly in terms of costs, time frame and ease. Adjournments are the bane of our judicial system and we need to impose restrictions on the number of adjournments . Dates of hearings must be agreed to by the lawyers and marked in the court calendar accordingly. Final and third hearing of the main case should be held not later than three months from the date of the first notice to both the parties. Lawyers who absent themselves or cause unnecessary delay should be penalised. And finally, the types of appeal need to be regularised and disposed off within two months of the first hearing. To achieve all this, our courts need to adopt the latest in technology to improve efficiency. Mere tinkering will not yield the desired results. Bold and substantial steps need to be taken to transform the judicial system by the year 2012.
ThKarti Chidambaram Age: 36 Managing Director, Chess management services THE ECONOMIC TIMES 29 Feb, 2008, 0423 hrs IST, TNN

High court quashes Chhattisgarh's ban on chewing tobacco sale

After an almost two month long ban, gutka or chewing tobacco Friday returned with a bang to shops and kiosks in Chhattisgarh following a high court order.
Vendors hung up rows of gutka pouches in front of their shops after the Chhattisgarh High Court in Bilaspur Thursday quashed a five-year ban imposed on the sale of gutka by the state government on Jan 1.
As per an official estimate, around Rs.100 million worth of gutka is sold in the state per month.
The court order came in response to an appeal filed by gutka traders challenging the ban. The high court remarked in its order that such a ban can only be imposed by the central government and declared the state government's prohibitive notification illegal.
Chhattisgarh's Bharatiya Janata Party (BJP) government had issued a notification Dec 31, 2007 for a complete ban on manufacturing and sale of gutka in the state from Jan 1, 2008. It said violators would face up to three years of imprisonment besides being fined under the Prevention of Food Adulteration Act of 1954.
Official sources said the state government was waiting for the formal copy of the high court order to decide on the further course of action.
From correspondents in Chhattisgarh, India, 11:31 AM IST
(Staff Writer, © IANS)
India enews

High court reserves order on spectrum allocation

The Delhi High court on Thursday reserved its order on a petition filed by GSM operators challenging the central government's decision to allow use of dual technology in mobile telephony and allocate radio spectrum required for wireless communications.Judge Gita Mittal reserved the order after hearing both parties.
In its petition, Cellular Operators Association of India (COAI) had requested the court to quash the department of Telecommunication's Oct 18 and 19 decisions to permit the use of dual technology and acceptance of Telecom Regulatory Authority of India's recommendation for adoption of an enhanced subscriber-linked criteria for allocation of additional radio waves.
The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) Dec 12 had refused to stay the allocation of spectrum.
COAI has also challenged TDSAT's order before the Delhi High Court.
Indo-Asian News Service
New Delhi, February 28, 2008

Cops, Todis abetted suicide: CBI

KOLKATA, Feb. 28: Rizwanur Rehman, whose body was found near the railway tracks at Dum Dum on 21 September last year a month after his marriage with Ms Priyanka Todi, had committed suicide, according to the CBI report placed before Mr Justice Dipankar Dutta of Calcutta High Court today. The report sought permission, inter alia, to start criminal proceedings against Mr Ashok Todi and Mr Pradip Todi, father and uncle of Priyanka, Mr Anil Saraogi, Priyanka’s maternal uncle for abetting Rizwanur’s suicide, Similar permission was sought to start proceedings against Mr Ajoy Kumar, the then deputy commissioner of police (detective department), some officers of the Kareya police station, Mr Sukanti Chakraborty and Mr Krishnendu Das, both officers of the anti-rowdy wing, and Moinuddin alias Pappu, stated to be a friend of the Rehman family. The state government was recommended to take departmental action against Mr Prasun Mukherjee, the then commissioner of police for his involvement in this matter. Major disciplinary proceedings were recommended against Mr Gyanwant Singh, the then deputy commissioner (headquarters) of the city police. The matter will come up for hearing on 12 March. The report follows an interim order of the court in October directing the CBI to probe the cause of Rizwanur’s death and the police officers who were accused of being involved in the intimidation of Rizwanur Rehman, including Mr Prasun Mukherjee, were transferred from their posts. The home secretary, Mr Prasad Ranjan Roy, said the government would abide by the directions of the High Court. Some time back the city witnessed violence over Rizwanur’s death when some people laid a virtual siege to bridge No.4 and set a few passing cars ablaze demanding a CBI probe. A large cross-section of people supported the demand in a no less forceful but non-violent way. A candle-light silent protest before St Xavier’s College, the deceased’s alma mater, as well as a signature campaign underscored the demand. Even as pressure mounted following a series of talk shows and opinions by civil rights activists, lawyers and social scientists, the Rehman family moved the High Court seeking a CBI probe. The state government announced a judicial probe but even as the matter was pending before Mr Justice Soumitra Pal, the Rehman household in Tiljala saw several senior politicians dropping in to console Mrs Kishwar Jehan, the bereaved mother. They included Miss Mamata Banerjee, Trinamul Congress chief, Mr Rabin Deb, former local MLA of the CPI-M and several other leaders. Even chief minister Mr Buddhadeb Bhattacharjee called on Mrs Jehan amid tight security. Meanwhile, in the long legal battle Mr Kalyan Banerjee put forth his submissions for the Rehman’s cause while Mr Balai Roy, advocate-general, pleaded for quashing of the petition. Ordering a CBI probe, the court held that CID investigation was not possible as some of the accused mentioned in the petition were in positions of authority. The popular mood surfaced when people in the court room burst into applause on hearing the verdict and then became silent again in keeping with the dignity of the court.The Statesman (Statesman News Service)

No leniency in rape cases: apex court

New Delhi: Holding that no leniency should be shown in rape cases, the Supreme Court has declined to interfere with the sentence of life imprisonment awarded by the trial court and the High Court to an accused .
A Bench consisting of Justices S. B. Sinha and V. S. Sirpurkar said, “There would be no question of taking a lenient view particularly because of the daring dastardly act on the part of the accused persons in which the appellant took active part in as much as out of the six accused persons, he was one of the three accused who had committed rape on the lady.”
Writing the judgment, Justice Sirpurkar said, “We cannot ignore the fact that the lady was a married person and was tricked into accompanying the accused, who obviously had an evil design. Here was a defenceless married person, who was tricked out of her house taking advantage of the drunkenness of her husband, and then ravished in a most dastardly manner by as many as three persons, one of whom was the appellant before us. Under such circumstances we do not think that any leniency can be shown in the matter of sentence.”
Veer Bhan, Ajmer Singh and Ramesh Kumar gang-raped the wife of Lalchand, in the early hours of February 6, 1999 in Haryana’s Rajapur village after taking her to the fields on the pretext that her husband was lying there in a drunken state.
The Sessions Court awarded life sentence to the three accused and 10 -year imprisonment to the other three . On appeal, the Punjab and Haryana High Court confirmed the life sentence on the three accused and let off the others with the sentence already undergone by them.
The present appeal by Ramesh Kumar is against this judgment.
Two others who were sentenced to life did not prefer an appeal.
Dismissing the appeal and confirming the life sentence, the apex court Bench said: “It cannot be forgotten that out of the three accused only one has come up by way of an appeal. He cannot be treated differently from others who are serving their life sentence.”
Legal Correspondent/The Hindu; Friday, Feb 29, 2008

Justice Khanna was a crusader for civil rights

New Delhi: The Supreme Court Bar Association paid glowing tributes to Justice H.R. Khanna, former judge of the Supreme Court, who passed away on February 25 at the age of 95.
Presiding over a condolence meeting on Wednesday, SCBA president P.H. Parekh described Justice Khanna as a crusader of civil and human rights. His passing away was a great loss for all those championing the cause of civil liberties and independence of the judiciary, he said.
Quoting eminent jurist Nani Palkhivala, Mr. Parekh said Justice Khanna’s statue must be installed in every street corner of the country for the yeoman service rendered by him for the cause of justice.
The meeting resolved to unveil a portrait of Justice Khanna in the Palkhivala library in the new chamber block.
Justice Khanna was a judge of the Supreme Court from September 1971 to March 1977, when he resigned after Justice M.H. Beg superseded him as the Chief Justice of India.
A Bench of five judges of the apex court heard what has come to be known as the habeas corpus case (ADM Jabalpur Vs Shiv Kant Shukla). The only question before the court was whether a petition for habeas corpus and other similar petitions under Article 226 of the Constitution were maintainable, notwithstanding the suspension of the fundamental rights following imposition of Emergency.
On April 28, 1976, four judges decided in favour of the government, holding that the petitions were not maintainable. Justice Khanna, in his dissenting judgment, held that the petitions were maintainable.
In 1977, on the principle of seniority, Justice Khanna should have been appointed Chief Justice. His dissenting judgment in the habeas corpus case sealed his fate. On January 28, 1977 Justice Beg, who decided in favour of the government, was appointed the CJI.
Equally noteworthy is his stand in the famous Kesavananda Bharati case (1973). In the 13-member Bench, six judges ruled that Parliament’s power was limited because of implied and inherent limitations of the Constitution, including those tagged to the Fundamental Rights. Six others held that there were no limitations at all on Parliament’s power to amend the Constitution.
Justice Khanna, however, held that because Parliament had the power only to amend the Constitution, it must leave the basic structure of the Constitution intact.
Mr. Parekh said Justice Khanna’s ruling still held the field.
He said there would be a full court reference in the Supreme Court next week.
The Hindu: National Legal Correspondent
Friday, Feb 29, 2008

EUROPEAN COURT REAFFIRMS BAN ON TORTURE

The European Court of Human Rights has re-affirmed the absolute prohibition of torture and other inhuman or degrading treatment or punishment. In the court's ruling in the case of Saadi v Italy on Thursday, it found "substantial grounds had been shown for believing that there is a real risk" that Nassim Saadi would be subjected to torture or other ill-treatment if he were deported, relying heavily on reports by Amnesty International and Human Rights Watch. The Italian authorities sought to deport Mr Saadi to Tunisia under the "Pisanu Law" that was originally adopted in 2005 as "an urgent measure to combat terrorism". The Italian authorities argued that he posed a security risk to Italy. The Court deemed the reports by Amnesty International and Human Rights Watch to be credible, consistent and corroborated by numerous other sources. Amnesty International's research indicates that torture and other ill-treatment by the security forces in Tunisia are widespread.The practices reported, including against people charged with terrorism-related offences, include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns. Allegations of torture and ill-treatment in police custody are not investigated by the relevant Tunisian authorities. "Confessions" extracted under torture may be used as the principal evidence in trials that result in long prison sentences or the death penalty. Consequently, the European Court of Human Rights ruled that sending Nassim Saadi back to Tunisia would violate the Italian government’s obligations under the European Convention on Human Rights. "This judgment should serve as a reminder to all states: not only they are not allowed to commit torture themselves, but they are forbidden from sending anyone to countries where they would be at risk of torture or other ill-treatment," said Ian Seiderman, Amnesty International’s Senior Legal Adviser. The case took on additional significance when the United Kingdom intervened in an attempt to persuade the European Court to change its long-established case-law in a way that would have significantly weakened the absolute prohibition on torture and other ill-treatment. The Court rejected as "misconceived" the arguments advanced by the UK, with which the Italian government had agreed. While the Court acknowledged the immense difficulty states face in protecting their communities from terrorist violence, it affirmed that the danger of terrorism "must not however call into question the absolute nature of [the prohibition of torture and other inhuman or degrading treatment or punishment]."
28 February 2008

Govt. leaves Ram Sethu issue for Court to decide

New Delhi (PTI): After months of differences within, the government on Thursday decided to seek vacation of stay in the Supreme Court on the controversial Sethusamudram project noting that no study has been conducted to determine whether or not the bridge between India and Sri Lanka was man-made.
The Cabinet Committee of Political Affairs (CCPA), chaired by Prime Minister Manmohan Singh, which met for a second time in three days, cleared the affidavit to be filed in the Supreme Court next week.
In the 90-page affidavit, the government maintains that no archaeological study has been undertaken to determine whether Ram Setu is man-made or natural and without any such survey no final conclusion can be drawn, sources said.
The affidavit seeks vacation of the stay on the work on the Sethusamudram project leaving the decision on clearing the project to the court, sources said.
The Shipping Ministry has been pressing for pursuing the project urgently but the Culture Ministry has been seeking to tread cautiously considering the associated religious sentiments that could flare up.
"By not taking a clear cut stand on the issue, the government will leave it to the Supreme Court to decide on the matter now," they said.
The CCPA was also attended by External Affairs Minister Pranab Mukherjee, Power Minister Sushil Kumar Shinde, Culture Minister Ambika Soni, Law Minister HR Bhardwaj and Shipping Minister TR Baalu.
The Hindu; Friday, February 29, 2008 : 0300 Hrs

Duncan Grant case : HC reserves judgement.

By: Vignesh Iyer
A division bench of Bombay high court consisting of justices Bilal Nazki and Sharad Bobade reserved its judgment for more than one month in the paedophilia case that was registered in 2001against an Indian and two British nationals – Wiliam D’Souza, Allan Waters and Duncan Grant.
The defense team appearing for all the three convicts argued that the statements of the two victims could not be relied upon and that the principle of IPC Section 377 (unnatural sex) cannot be applied in this case.
The HC had started the final hearing in the case on Januray 15.
Four children of the orphanage had complained that the trio, between October 2000 and October 2000, abused them. The sessions court, in March 2006, had sentenced the British nationals to six years imprisonment and slapped a fine of Rs 16 lakh (£ 20,000) on each for sexually abusing young boys at the shelter. The manager of the home D’Souza was found guilty of abetting the sexual abuse and sent to three years in jail.
27.02.08 09:08

Traffickers on the prowl : NGO/ The Sentinel

GUWAHATI, May 22: Trafficking of girls from different parts of the country to Haryana and Delhi has been reportedly increasing for the past few years and the maximum number of such girls are from Assam. This was revealed by Kamal Kumar Pandey, secretary of Shakti Vahini, a non Government organization based in Delhi, which has been pursuing the case of Kanika Das, a 16-year-old girl from Assam. Kanika was lured and taken to Rewari, Haryana in 2000 by a local woman Deepa Das from Keyajeni village of Kamrup District. Now Kanika is feared dead or sold.Addressing a press conference here today, Mr Pandey said that the NGO has submitted a letter to the Governor of Assam demanding for immediate registration of a FIR by the police and bring the case of Kanika to a conclusive end. It could be mentioned here that both the Assam Police and Haryana police refused to register any FIR and only "informal" investigation is on. Attempts to file FIRs were made both by the NGO as well as family members of Kanika Das. The case of Kanika has already been published in detail in The Sentinel. According to the NGO, four other girls from different villages under the Hajo Police Station and Tamulpur Police Station have been reported as brought to Haryana. They are, Mina Das, daughter of Narayan Das (missing), Pramila Das, daughter of Harakanta Das from Gerua village under Hajo Police Station, Vinita Das, daughter of Late Amrit Ch Das (missing since 1996) and Bimala Das, daughter of Dharani Basumatari from Gandhibari village under Tamulpur Police Station. It could be mentioned here that in all the cases, either Deepa Das or her family members are involved and all girls are minor (below 18). Deepa who was married to a man from Haryana has been acting as the mediator in all the above cases. Mr Pandey said that as per their enquiry, money is exchanged in almost all the cases by the mediator who enjoys a part of the fortune. The mother of Kanika was paid Rs 1500 for her daughter.When the NGO workers visited Hajo and Tamulpur area, one Muhiram Bodo said that everyday many dalals who are strangers to them, visit their village and offer money in return of girls. Guniram Mohan Das of Tamulpur area said, girls from Latibari and Gandhibari village have been taken away to Haryana or Delhi who never returned. The Communication manager of Shakti Vahini Mr Rishi Kant said that some cases of selling girls to brothels and call girl rackets have also been noticed.A two-member police team from Haryana accompanied the NGO workers in their investigation in Hajo and Tamulpur recently. The NGO has demanded that the State Government must take up a comprehensive and detailed study on the issue and to collect data and build up mechanism to check trafficking.
By a Staff Reporter

Lid blown off girl trafficking racket

A STAFF REPORTER
Guwahati, May 22: The disappearance of a teenaged girl from Keyajeni village in Kamrup district in 1999 has blown the lid off a girl trafficking racket running from Assam to the heartland.
When Shakti Vahini, a Delhi-based NGO, came down to Kamrup recently to investigate the disappearance of Kanika Das, a teenager from the village, it found that 20 more girls were missing from the same area. The common thread linking these cases was that they had supposedly ended up in Haryana’s Rewari district.
The members of the NGO also found that at least two girls, Kanika and another named Pranita Das, were lured with jobs by Deepa Das of Keyajeni village. Deepa had returned to the village in 2001 and being pestered by Kanika’s parents for news of their child, had told them that their daughter was in Haryana, happily married.
She even gave Kanika’s family her contact number. But when nobody answered the telephone, Deepa told them that Kanika had died at childbirth.
Kanika’s desperate mother, who worked as domestic help in the house of the personal assistant to Union minister Santosh Gangwar, then threatened to go to the police. Her employer then got in touch with the NGO, which in turn tipped off theHaryana police.
A couple of months ago, a constable from the Haryana force along with two members of the NGO, came down on a fact-finding mission and stumbled on the racket.
Union minister of state for water resources Bijoya Chakravarti also took up the matter with the Delhi police. “The matter was also brought to the notice of deputy Prime Minister L.K. Advani in August 2001,” said Kamal Kumar Pandey, secretary of the NGO.
The Telegraph, Calcutta, India
Friday, May 23, 2003

Thursday, February 28, 2008

NRIs to get legal and medical assistance in embassies

Indians living abroad will soon get legal and medical services and financial advice from the local missions and embassies. The Ministry of Overseas Indian Affairs (MOIA) has begun implementing a proposal to set up Overseas Indian Centres in Washington, Dubai and Kuala Lampur to look after Indians staying and working in the region.
While the Dubai centre will look after Indians living in the entire Gulf region, the one in Kuala Lumpur will cater to the diaspora in Malaysia, Singapore and Brunei. The Washington centre will perform similar functions for the Indians living in the United States and Canada.
The idea behind setting up the OICs was to ensure that Indians staying abroad were not exploited and to make them aware about their rights and obligations.
“Legal services are required both to make them aware of their rights and obligations and advise them in cases of disputes with employers. Health services, including psychiatric counselling, are needed particularly for the women emigrant workers. Most overseas Indian workers also need financial advice on transfer of funds, savings and investments,’’ the MOIA minister Vyalar Ravi told Rajya Sabha on Wednesday.
The Minister added that the stations would guide NRI women, who are victims of fraudulent marriages and require legal and other forms of assistance. Since the inception of the Ministry in 2004, it has received 230 complaints from Indian women against their husbands in divorce and desertion cases.
Ravi said that to make the centres functional, six posts at the Consulate General of India in Dubai and High Commission in Kuala Lampur have been created. At the Indian Embassy in Washington, five such posts have been created as well. These include a post of a director, an assistant and three posts (two in Washington) of professionals with legal, medical and financial expertise.
Sutirtho Patranobis, Hindustan Times
Email Author
New Delhi, February 28, 2008

Govt likely to use 1897 Act to denotify Goa SEZs

A 111-year-old law is one of the key options the government could invoke to handle the challenges arising out of the possible denotification of three Special Economic Zones (SEZs) in Goa.

Last week, the inter-ministerial Board of Approvals had recommended starting talks with the Goa government on denotifying the three SEZs following strong local protests in Goa last year, creating a precedent that is being closely watched by potential investors in India and abroad.

This is because the process of denotification itself is complex and could be long-drawn. The SEZ Act, 2005, does not have specific provisions for denotification.

The Act, however, has provisions empowering the central government to issue policy directions to the Board of Approvals (under subsections 5 and 6 of Section 9).

This power is derived from the General Clauses Act of 1897, an umbrella law covering all Acts and government notifications passed by the Centre. Section 21 of this Act empowers the government to add, amend, vary or rescind sections in notifications, orders, rules or bylaws issued by it.

This means the central government is, on reading the two laws together, empowered to override the SEZ Act to account for measures like denotification.

The other two denotification routes are amendment of the SEZ Act through Parliament and through a presidential ordinance.

The latter has been ruled out since Parliament is in session and there is nothing to stop the developers of the three SEZs from going to court if the government waits for the session to end.

An amendment of the SEZ Act will not only need approval from the commerce ministry, but also may provoke political opposition from the Congress itself. For this reason, the government is unlikely to follow this route.

There are, however, some aspects of the denotification that the government cannot escape – the state government will have to pay compensation to the developers who bought land in the hope of developing it into sought-after tax free zones.

Legal experts, however, said if the government denotifies the zones there could be serious legal consequences that could see the matter ending up in court for an unforeseen period.

“There are no problems if provisions on denotifications are implemented with prospective effect. However, it is the implementation from retrospective effect that presents a hurdle,” said Hitendra Mehta, head, Vaish Associates.
(Rituparna Bhuyan / New Delhi February 28, 2008)

Declaration of intent not final verdict: apex court

New Delhi: A judge’s declaration of his intention of what his ‘judgment’ will be, or of what final result it is going to embody, is not a judgment until he crystallises his intentions into a formal shape and pronounces it in open court as the final expression of his mind, the Supreme Court has held.
A Bench consisting of Justices Arijit Pasayat and P. Sathasivam said: “The Civil Procedure Code does not envisage the writing of a judgment after deciding the case by an oral judgment and it must not be resorted to. It would be against public policy to ascertain by evidence alone what the ‘judgment’ of the court was, where the final result was announced orally but the ‘judgment’ as defined in the CPC was finalised later on.”
Quoting Section 2 (9) of the CPC, the Bench said: “A judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. It should be a self-contained document from which it should appear what the facts of the case were and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.”
In the instant case, Prema filed a suit for specific performance against the respondent K.V. Rami Reddi in the court of Seventh Assistant Judge, City Civil Court, Chennai. It was stated that on March 24, 1999, the judge made an endorsement in the plaint docket that the plaintiff was not entitled to the relief of specific performance but was entitled to a refund of Rs. 2 lakh.
Revision petition
Against this, Ms. Prema filed a revision petition in the Madras High Court contending that only the operative portion was dictated in the court on March 25, 1999 and, therefore, the decision rendered the previous day was a nullity. The High Court set aside the order and remitted the matter back to the trial court for fresh disposal. Aggrieved, Mr. Reddi filed the present appeal.
Dismissing it, the Bench said: “The date of the judgment is never altered by the date on which the signature has been put subsequently. The mere fact that a major portion of the judgment has already been dictated will not by itself lead to the conclusion that the judgment had been delivered.”
Undisputedly, the trial judge had not completed the judgment before he delivered his decision. “That being so, the impugned judgment does not suffer from any infirmity to warrant interference,” the Bench said and directed the trial court to hear arguments afresh and deliver its judgment within three months.
(The Hindu, Legal Correspondent. Online edition of India's National NewspaperThursday, Feb 28, 2008)

Domestic Violence Act comes into effect

Domestic Violence Act comes into effectTribune News Service
New Delhi, October 25Husbands be careful, as from tomorrow onwards beating or insulting your wife can land you in jail with a fine up to Rs 20,000.
The Protection of Women from Domestic Violence Act 2005 comes into effect from October 26, aiming to provide protection to wife or female live-in partner from the husband or male live-in partner and also his relatives.
The Act, passed by Parliament in August 2005, was approved by President A.P.J. Abdul Kalam on September 13, 2005, following which the Ministry of Women and Child Development issued a notification bringing it into force from tomorrow.
The notification issued by the ministry today to bring the Act into force stated that domestic violence under the Act included actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economical. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under the notification.
The ministry simultaneously issued another notification laying down rules framed for the implementation of the Act which will provide for, among other things, appointment of protection officers, service providers and counsellors.
However, some non-government agencies, dealing with crimes against women and child are not-so hopeful about successful implementation of the Act. Studies show that in India around 70 per cent of women are victims of violent Acts in one or the other form, making it a massive task for enforcing agencies to successfully implement the Act.
Advocate for Shaktivahini, an NGO, actively involved in women and child welfare activities, Kamal Pandey says history of most of the social legislations, whether related to women or children or bonded labour, shows that implementation of these Acts is usually a long delayed process.
“It is a step in the right direction. But I do not see any perceptible change in women's status overnight. Most of the social legislations are never implemented properly… It will take at least a decade before things change and that too provided the government puts proper machinery in place and the implementation agencies like the police and women are made adequately aware of the Act,” he said.
The government though is very upbeat and positive on the success of the Act. According to Minister of Women and Child Development Renuka Chowdhary, the law will go a long way to provide relief to women from domestic violence and get their due. To ensure this, the ministry has also asked all state governments and union territories to ensure that necessary administrative arrangements are immediately put in place for the commencement of the Act
As per the statement, the law will cover all those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or a relationship in the nature of marriage or adoption.
Besides, relationship with family members living together as a joint family is also included. Sisters, widows, mothers, single women or women living with the abuser are entitled to get legal protection under the proposed Bill.
In addition to physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence like forced intercourse, forcing his wife or mate to look at pornography or any other obscene pictures or material and child sexual abuse.
It also includes verbal and emotional violence such as name-calling and insults. Moreover, preventing one's wife from taking up a job or forcing her to leave job are also under the purview of the Act.
An important features of the Act is the women's right to secure housing. The Bill provides for woman's right to reside in the matrimonial and shared household, whether or not she has any title in the household. This right is secured by a residence order, which is passed by a court.
The Act provides for breach of protection order or interim protection order by the respondent as a cognizable and non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to Rs 20,000 or with both.
The other relief envisaged is that of the power of the court to pass protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both the parties.
(The Tribune Thursday, October 26, 2006, Chandigarh, India)

Balance personal liberty and societal interest

Wednesday, October 17, 2007
The Hindu October 17,2007Before issuing warrants, says courtNew Delhi: Issuing guidelines to trial courts and the High Courts, the Supreme Court has said a non-bailable warrant (NBW) should be issued to bring a person to court when a bailable warrant is unlikely to have the desired result.“This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or police authorities are unable to find the person to serve him with a summons; or it is considered that the person could harm someone if not placed in custody immediately,” said a Bench comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari.Order set asideThe Bench was setting aside an order of the Uttarakhand High Court, which issued NBWs to secure the presence of two office-bearers of the Sanatan Dharma Pratinidhi Sabha on the basis of a criminal complaint against them.Writing the judgment, Justice Bhandari said personal liberty was paramount. “Therefore, we caution courts to refrain from issuing NBWs. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants.”The Bench said, “There cannot be any straightjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of a heinous crime and it is feared that he is likely to tamper with or destroy evidence or is likely to evade the process of law, issuance of NBWs should be avoided.”It said, “As far as possible, if the court is of the opinion that a summons will suffice in getting the appearance of the accused in the court, summons or bailable warrants should be preferred. Warrants, either bailable or non-bailable, should never be issued without proper scrutiny of facts and complete application of mind, due to serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.”