LEGAL NEWS 26.01.2009

Republic Raj
http://timesofindia.indiatimes.com/Sunday_TOI/Republic_Raj/articleshow/4028213.cms
25 Jan 2009, 0154 hrs IST, Manoj Mitta, TNN
This is how the first black occupant of the White House put it in his inaugural address last week. “A man whose father less than 60 years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.” India could have made a similar breakthrough in pluralism 30 years ago. It lost the opportunity when President N Sanjiva Reddy declined to swear in Jagjivan Ram, a Dalit, as prime minister despite the support he evidently had of more than 200 MPs from his own party. The jury is still out on whether Reddy was justified in dissolving the Lok Sabha in August 1979 rather than letting the leader of the largest party in the House take charge. The one-month-old Charan Singh government had collapsed. Ram could have been PM. But the episode demonstrates the intensely political role played on occasion by the President, despite being seen as a titular head. There is more to the presidency than occupying the most sprawling mansion in the Capital, taking the salute at the Republic Day parade, being the supreme commander of the armed forces, receiving credentials from ambassadors, granting pardon to those on death row on the government’s recommendation and delivering an annual address to Parliament on behalf of the government. In fact, there are at least three recurring situations in which the office of the President, which came into existence on January 26, 1950, exercises discretionary powers. One is obviously when the head of the state is called upon to decide between rival claimants to form the government. Reddy had the choice of either inviting Ram to become PM or dissolving the Lok Sabha at the request of other parties. That he took the second option influenced the course of India’s history, for better or for worse. The Andhra leader, incidentally, was the first President ever to have exercised this discretionary power. And he did so twice in 1979. The first was when Reddy acquiesced to the tail-wagging-the-dog arrangement in which Charan Singh became PM with barely 60 MPs of his own and the coalition was dependent on outside support from Indira Gandhi’s group. And when she withdrew her support within a month, Reddy rejected Jagjivan Ram’s bid. The President’s office exercised this discretionary power for the first time in 30 years of Independence. But, it became routine in the coalition era, post-1989. This trend has, however, embroiled Rashtrapati Bhawan in political controversy. President R Venkataraman’s conduct in 1989, for instance, was no less controversial than Reddy’s in 1979. Though Rajiv Gandhi lost his parliamentary majority in an election that threw up a hung House, it was he that Venkataraman first invited to form the government in a mechanical adherence to the largest-party principle. It was only when Rajiv declined that Venkataraman saw fit to call V P Singh. In 1996, President Shankar Dayal Sharma, followed the precedent set by Venkataraman and extended the first invitation to Atal Behari Vajpayee despite evidence that a majority of MPs were disinclined to support the BJP. But because Vajpayee did not follow Rajiv’s precedent of declining the invitation, he suffered the mortification of seeing his government fall in just 13 days. Another major discretionary power enjoyed by the President is giving assent to a Bill passed by Parliament. Regardless of their merit, hundreds of Bills have been signed by successive Presidents. It was in 2006 that any incumbent first exercised the option of returning a Bill for reconsideration by Parliament. APJ Abdul Kalam did so with the controversial attempt to bail out Sonia Gandhi and others hit by the office-of-profit rule. The intervention served little purpose — the Manmohan Singh government ensured that Parliament passed the Bill all over again, leaving Kalam with no option but to give his assent eventually. It was precisely to avoid such a setback that in 1986 President Zail Singh came up with the ploy of withholding his assent indefinitely to a Bill empowering the government to intercept letters. The third significant area of discretion relates to the appointment of constitutional office holders. Here again, Kalam was assertive: on more than one occasion, he objected to dubious recommendations for judicial appointments. But his intervention could only delay those appointments, not stop them altogether. In one such case pertaining to Justice S L Bhayana, who had acquitted the killers of Jessica Lall in a shocking miscarriage of justice, Kalam was forced to clear his promotion when the judiciary reiterated its recommendation. In the case of Justice Jagdish Bhalla, whose wife was found to have bought prime property in Noida at a throwaway price from the land mafia, the judiciary waited for Kalam to retire before making a fresh recommendation to promote him as chief justice of another high court. His successor, Pratibha Patil, has so far displayed no signs of assertiveness and may well end up reinforcing the stereotype that the President is a figurehead. In reality, the extent to which this high office fits into the larger scheme of checks and balances depends on the incumbent as well as the politics of the time.




Importance of liberty & democracy in India
http://www.hindu.com/2009/01/26/stories/2009012650640900.htm
Markandey Katju
Crime and terrorism cannot be eliminated by harsh and draconian laws, which will curb liberty, violate the Constitution, and impede India’s scientific and economic progress.
In view of the recent incidents of terrorism in some places in India, some people have started saying that to combat terrorism it is necessary to curtail civil liberties and introduce draconian laws. To my mind, this is a dangerous idea. Hence it is necessary to explain the importance of liberty and democracy for our country’s progress. Nobody denies the need to oppose terrorism. But in my opinion, by passing draconian laws, terrorism and crime will not be reduced. Instead our country’s progress will be obstructed.
What is our national aim? It must be to make India a highly prosperous country for all its citizens, not just for a handful of people of our country. For that, it is necessary to have a high degree of industrialisation.
Even setting up and running a single primary school requires a lot of money, for buying land, erecting the school building, and providing for the recurrent expenditure for salaries of teachers, staff, and so on. We need to set up not just one but hundreds of thousands of primary schools; tens of thousands of high schools and colleges; and engineering colleges, technical institutes, medical colleges, scientific research centres, hospitals and libraries.
Where is the money for all this to come from? It can only come from a highly developed industry. Rapid industrialisation alone can generate the wealth we need for the welfare of our people; abolish poverty and unemployment, which are the main causes of crime and terrorism; and give us respect in the world community.
For industrialisation, the development of science is absolutely necessary, and for that freedom is absolutely necessary — freedom to think, freedom to write, freedom to discuss with others, freedom to explain, freedom to criticise, and freedom to dissent.
Need for supportive values
The growth of science requires certain supportive values, particularly liberty. This is because the thought process cannot develop without freedom. The values of a scientific community, namely pluralism, tolerance, individual freedom, and free flow of information, are very similar to the values of democratic society (see Science and the Making of the Modern World, by John Marks, Heinemann, 1984).
A democratic society permits freedom of speech and expression, freedom to practise one’s own religion, which is based on tolerance, and freedom to dissent and criticise. These are precisely the values of the scientific community. In scientific matters authoritarianism and dogmatism are wholly out of place. Scientists must be left to govern themselves, and have large amounts of freedom, which is necessary for innovation and creativity. Democracy and liberty go hand in hand with the growth of science because both are based on tolerance, individual freedom, and the free flow of ideas. In democracy, as in a scientific community, there is freedom to speak, freedom to discuss, freedom to criticise, and freedom to dissent.
As early as 1927, Justice Louis D. Brandeis, of the U.S. Supreme Court observed in Whitney vs. California 274 U.S. 357: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary…They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form.”
In 1949, Justice William O. Douglas in Terminiello vs. Chicago (337 US 1) made a crucial point when he noted that a “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
Function of free speech
The method of Shastrarthas was developed in ancient India. These were debates in which the thinkers of those times had full freedom to speak and to criticise their opponents in the opponent’s presence, and also in the presence of a large assembly of people. There are thousands of references to such Shastrarthas in our epics and other literature. It was this freedom to freely discuss and criticise that resulted in a tremendous growth of knowledge — in philosophy and grammar but also in scientific knowledge in mathematics, astronomy, medicine, and so on. The names of Aryabhatt, Brahmagupta, Bhaskar, Sushrut, and Charak are well known. With the aid of science, we built mighty civilisations, beginning with the Indus Valley Civilisation at a time people in Europe were living in forests.
Modern European history is also instructive. England was the first country in the world to industrialise and modernise. This economic process was accompanied by the political struggle for liberty and democracy in the 17th and 18th centuries, which was particularly a struggle between the King and Parliament. Parliament’s triumph laid the foundation of freedom and civil liberties in England, which was necessary to create the atmosphere science needs to prosper. In pre-revolutionary France, the thinkers of the Enlightenment — Rousseau, Voltaire, Diderot, Holbach, and several others — who attacked feudalism and religious dogmatism paved the way for the Revolution of 1789, which destroyed feudalism and led to scientific progress.
On the other hand, in Italy, Spain, and some other countries, the Inquisition stifled free thinking and thereby scientific growth. All scientific ideas not consistent with the Bible were regarded as crimes, for example, the theory of Copernicus, which stated that the earth moved around the sun and not the sun around the earth. As a result, these countries were left far behind England and France, and remained in the feudal dark ages for centuries.
The struggle to establish the scientific outlook was not easy. Scientific ideas were initially condemned because they were regarded as opposed to religious dogma. Voltaire and Rousseau had to fly for their lives to other countries. The Church persecuted the greatest scientists with blind cruelty, burning them at the stake (for example, Bruno), torturing them (for example, Galileo), and forbidding or destroying their works. As recently as 1925, the teaching of Darwin’s theory of evolution was forbidden in the state of Tennessee in the United States and a teacher, John Scopes, was tried in the famous ‘Monkey Trial’ for teaching that theory. For centuries, the Church in Europe played an extremely reactionary role and fought pitilessly against the scientific conception of the world, and against the democratic movements.
In India, if we are to progress and rise as a world power, we must spread the scientific outlook to every nook and corner of our country, and destroy the superstitions, for example, the belief in astrology and palmistry, and the feudal ideas of casteism and communalism.
Science is that knowledge by which we can understand nature (and human society) and use the knowledge for our benefit. For doing so, the scientists rely on reason, observation, and experiment. This obviously cannot be done on the dictates of anyone (though the government can certainly create the atmosphere where these can flourish). Science and democratic values go hand in hand.
In science, there is no final word, unlike in religion. Science questions everything and does not take anything for granted. Obviously, this approach is not permitted in an undemocratic society, for example, a feudal society (which is governed by religion) or a fascist society (in which there is a dictator). Thus, Hitler, with his Nazi racial philosophy, caused an enormous setback to science in Germany by persecuting Jewish scientists and banning their works (for example, Einstein). We have, no doubt, to oppose the terrorism of modern times, which is, in fact, medieval obscurantism. What else is the bombing of schools or the closing down of existing girls’ schools by the Taliban? But to fight such terrorism, we must not give up our modern values of liberty and freedom. Obscurantism can only be opposed by modern scientific thinking.
In India, after the Constitution was adopted in 1950, there was an atmosphere of liberal freedom in view of the fundamental rights guaranteed by the Constitution: the right to free speech (Article 19), to liberty (Article 21), to equality (Articles 14 to 17), to religious freedom (Article 25), and so on. This helped the growth of science and technology, because it created an atmosphere of freedom where people, including scientists, could freely discuss and dissent. If we compare our country with our neighbours, it becomes clear that they lagged far behind in economic growth precisely because such freedoms were lacking.
Further, the advanced sections of society who want to take the country forward, and have the knowledge to do so, must have a lot of freedom to discuss, debate, and criticise each other. They are the pioneers and are entering into a new field, much of which is unknown. Hence, they must have freedom to think, discuss, and criticise.
Freedom to dissent
As John Stuart Mill argued in his celebrated essay ‘On Liberty,’ all progress, the advancement of knowledge and progressive change, and the improvement of old ways of thinking, old behaviour patterns, habits, customs and traditions can come only from free individual dissent, dissensions, and innovations, which are at first usually resisted by inert or conservative people (usually the vast majority), and by free competition between the old and new ideas. Ordinarily in any society, he pointed out, the majority shares old thoughts and traditions. There is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissent and innovation, and to tolerate only what the majority agrees with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative, tradition-bound majority, is indispensable to progress. The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even against the governing majority, is essential for progress.
The importance of the judiciary in India needs to be highlighted in this connection. In two key decisions, Govt of A.P. and others vs. P. Laxmi Devi [2008 (4) SCC 720, JT 2008 (2) 639] and Deepak Bajaj vs. State of Maharashtra and others [JT 2008 (11) SC 609], the Supreme Court of India has emphasised the importance of liberty for progress, and observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism.
India needs democracy and scientific knowledge, and that means patiently spreading scientific ideas among the vast masses, raising their cultural level, and involving them actively in the task of nation building.
To my mind, harsh and draconian laws will curb liberty. That will not only violate the right to liberty granted by Article 21 of the Constitution. It will also lead to great evils such as an increase in corruption in the police and other law enforcing agencies, which will have much more opportunity to extort money from the citizens, apart from impeding scientific and economic growth.
To my mind, crime and terrorism cannot be eliminated by draconian laws. They can be eliminated only by the abolition of poverty and unemployment, which are the main sources of crime. Only rapid industrialisation can abolish poverty and unemployment, which will largely eliminate crime and terrorism.
(Justice Markandey Katju is a Judge of the Supreme Court of India.)




Parliamentary Secretaries case, Caveat filed in SC
http://www.indlawnews.com/Newsdisplay.aspx?a16fc437-0df5-4cc8-b1f5-cee94e59aae6
1/24/2009
Social activist Aires Rodriges filed a caveat before the Supreme Court praying that no appeal filed by the Goa government challenging the High Court order here on the Parliamentary Secretaries be entertained without he being heard.It might be recalled that Goa-bench Bombay High Court had on January 22, in its 108-page verdict, had set aside the appointments of Parliamentary secretaries while disposing of a public interest litigation filed by Mr Rodriges.The high court, which held that the appointments were arbitrary, unjustifiable and unconstitutional, however, gave four weeks to the state government to file an appeal against the order in the apex court.Meanwhile, Mr Rodriges demanded the state government to recover entire expenditure incurred for over the last 18 months on the parliamentary secretaries Nilkanth Harlankar and Francisco Silveira. He said he was also moving the Supreme Court on the issue of cabinet status bestowed on EDC Chairman Agnelo Fernandes, Deputy Chairman of Goa Planning Board Wilfred De Souza and Commissioner of NRI affairs Eduardo Faleiro with the High Court not dealing at length on the issue in the January 22 verdict.The court in its order upheld the confermenty of cabinet status on the three politicians and rejected the plea of Rodriges for nullifying the appointments.‘If the trend of giving cabinet status goes unchecked, the government will appoint politicians as chairman of various corporations and confer them with cabinet status thus defeating the very intent of the 91st amendment to the Constitution by doing indirectly what cannot be done directly,’ Mr Rodriges averred.In his PIL, he maintained that the appointments were a ‘fraud on the constitution and a heavy burden on the state exchequer’.UNI




Clubbing of consumer cases necessary for quick trial: Judge
http://www.yahind.com/newsportal/uncategorized/clubbing-of-consumer-cases-necessary-for-quick-trial-judge_5437.html/
January 25th, 2009
Chandigarh, Jan 25 (IANS) In order to make the working of various consumer forums throughout the country faster and more streamlined, the consumer redressal commission is introducing a system of clubbing similar cases, a member of the judiciary said here Saturday.
“Although we try for an early disposal of cases coming to various consumer forums but still the number of pending cases is very huge. To address this problem we are introducing a system of clubbing of cases,” said Justice Ashok Bhan, president of National Consumer Disputes Redressal Commission.
“The verdict announced for one case in a particular category will be applicable for all other cases of that category. This will save precious time and make the trial process quicker,” said Bhan, a retired judge of the Supreme Court.
Bhan was in Chandigarh Saturday to inaugurate the second bench of the Punjab State Consumer Disputes Redressal Commission here.
“Some of the appeals and complaints are piled up in the courts for over five years. There is immense workload and we are also short of staff. Moreover working in a consumer forum is also not a lucrative job. So there is need for some changes and gradually things will certainly improve,” Bhan said.
Bhan said that the creation of the second Punjab bench was needed in order to give speedy justice to consumers.





[prpoint] Beware: Customer un-friendly ATM systems of Kotak Mahindra Bank and HDFC Bank
http://pr-discussions.blogspot.com/2009/01/prpoint-beware-customer-un-friendly-atm_25.html
Sunday, January 25, 2009
dear friendsI had circulated in prpoint and new media forum groups about the horrible experience of one of our journalist friends while using ATM card of Kotak Mahindra Bank in HDFC ATM Machine. I had also requested Ms Usha Thorat, Deputy Governor of Reserve Bank of India to examine the issue on a 'vigilance angle' as to why these banks are demanding45 days for settling the claim. We had also cautioned that India does not want to see another 'Satyam'. I am happy to inform you that she has responded to our mail saying that she was looking into it and would revert. (her mail given below)We are confident that RBI would take this matter seriously and prevent the Banks from harassing the innocent customers.We have also already published her speech in audio in one of the meetings organised by Indian Banks' Association and Consumers Association of India. For the benefit of our members, I am again giving the following link. Please listen to her presentation on therole and responsibilities of Banks and the customers.http://www.poduniversal.com/2008/10/rights-and-responsibilities-of-banks.htmlI am endorsing the copies of this mail to Ms Usha Thorat, and to the available email ids of Kotak Mahindra Bank and HDFC Bank.SrinivasanModerator---------- Forwarded message ----------From: Thorat, Usha <ushathorat@rbi.org.in>Date: Sun, Jan 25, 2009 at 4:21 PMSubject: RE: Beware: Customer un-friendly ATM systems of KotakMahindra Bank and HDFC BankTo: Prime Point Srinivasan <prpoint@gmail.com>am looking into it and will revert________________________________________From: Prime Point Srinivasan [prpoint@gmail.com]Sent: Saturday, January 24, 2009 11:44 AMTo: Prpoint Group; New Media New Media ForumCc: Thorat, Usha; Kotak Mahendra; Kotak.Mahendra; Desikan (consumergorup); cust.serv@kotak.com; n.premanand@hdfcbank.comSubject: Beware: Customer un-friendly ATM systems of Kotak MahindraBank and HDFC Bankdear friendsYesterday, I wrote about the horrible experience of one of our journalist friends with Kotal Mahindra Bank and HDFC ATM systems. Today, i found one more similar complaint in MouthShut dot com in the following linkhttp://www.mouthshut.com/review/Kotak_Mahindra_Bank-156571-1.htmlThe complainant says that when he had a similar expereince of ATM card of Kotak Mahindra in HDFC ATM machines, the account was debited without his getting cash. It took 50 days for Kotak Mahindra to re-credit the amount.It is surprising for me that how come similar complaints are seen uniformly in all centres and Kotak officials say that it would take 45 days for settling the amount.This raises an alarm bell. I think some where these two Banks must be playing wrongly. I am endorsing a copy of this mail to Ms Usha Thorat, Deputy Governor of Reserve Bank of India with a request that the ATM system operations of both these banks may be investigated thoroughly in a 'vigilance' angle.I am also endorsing this to Mr Desikan, Chairman, Consumer Association of India for his knowledge.If any of the Corporate communication Managers or PR Agencies or Media persons in this group, know the top Management of both these banks, kindly alert them. While I am able to get the RBI deputy Governor's email id, I am not able to get the id of any top officials of these banks. We cannot afford to have few more 'satyams'SrinivasanPrime Point94440 50273---------- Forwarded message ----------From: Prime Point Srinivasan <prpoint@gmail.com>Date: Fri, Jan 23, 2009 at 7:01 PMSubject: Beware: Customer un-friendly ATM systems of Kotak MahendraBank and HDFC BankTo: New Media New Media Forum <new_media_forum@yahoogroups.com>,Prpoint Group <prpoint@yahoogroups.com>Cc: "RBI Dy. Governor Usha Thorat" <ushathorat@rbi.org.in>, KotakMahendra <nodalofficer@kotak.com>, judy franko <judyfranko@gmail.com>Private sector Banks promises sky. When a problem comes, they are unable handle the issue smoothly.A Chennai based journalist friend of mine Mr Judy (see his mail below) gets the salary through Kotak Mahendra Bank. Kotak Mahendra Bank permits their ATM card users to use other ATM Machines. He wanted to withdraw money from his account on 9th Jan 2009 and went to HDFC ATM machine. After inserting his ATM card, he wanted to withdraw 14,000/-. He got the slip debiting his account. But the cash did not come out.Immediately, he lodged a complaint with Kotak Mahendra Bank, his banker. They had told him that it would take 45 days.When Judy telephoned to me this morning that even after 15 days, there is no response from Kotak Mahendra Bank, I accompanied him to the Bank to find out the problem. The desk Manager is helpless. He could not give any convincing answer. They lack experience.Normally, as a matter of rules, all the Banks are required to display a notice board prominently furnishing the names of senior officers with whom, you can appeal for redressal of grievances. Since, I could not see any notice board there prominently, I asked the Officer to show me the board.The board at their T.Nagar Chennai branch was displayed 10 feet from the ground, so that none could see the board. Also, the fonts were very small, one cannot read that. Mr Judy climed up and got the phone number of one Nodal Officer by name Milind Wagle (Mumbai) with his mobile number 9819466365. We spoke to him over mobile to know why there was a huge delay in settling the issue. He could not give proper answer. He was only telling that Judy was using HDFC ATM Machine, as if it was crime. We told him that only Kotak Mahendra Bank had been promoting that customers could use other ATMs also. He was going on telling us "please understand our position". I was surprised, why a customer with a genuine grievance should understand their position, instead of the Bank understanding the problem of the customers.Normally, in any public sector banks, you can get the contact details of even the highest official like Chairman. When we asked them, who were the next higher authorities, they were unwilling to give any contact details.Though these banks like Kotak, HDFC and others promise sky and moon, when the customer gets into difficulties, they are unable to handle them well.On enquiry with other Public Sector Banks, we learnt that they were able to settle such claims within four or five days. Even if there is some problem, a customer can go up to the Chairman level by getting the details from the branch or from website.Now, after the introduction of NEFT (National Electronic Funds transfer) system by all the Indian Banks, one need not restrict to one bank for salary purposes. Your account can be credited to any Bank within India within few minutes.I am endorsing a copy of this mail to Kotak Nodal Officer. If they give any response, we will share in the group. I am endorsing copy of this mail to Ms Usha Thorat, Deputy Governor of Reserve Bank of India who is handling customer grievances for the entire country. (Members may recall that we had even published her speech in our podcast)Please read the mail sent by Judy to me. (given below)srinivasanPrime Point94440 50273---------- Forwarded message ----------From: judy franko <judyfranko@gmail.com>Date: Fri, Jan 23, 2009 at 6:24 PMSubject: Customer un-friendly Kotak mahendra Bank and HDFC BankTo: Prime Point Srinivasan <prpoint@gmail.com>The private sector banks often promises world class service and claims to offer the fastest banking solutions.I too believed in this theory until this incident happened to me couple of weeks ago.on january 9, 2008, I tried to withdraw Rs 1,40,00 from HDFC ATM on the Anna Salai byusing my my Kotak Bank ATM card. Since Kotak has had given its customers the luxuryof using the Kotak ATM card across the HDFC ATM centres with any additional charge,I approached the ATM to withdraw money but to my disappointment, the ATM machine did not vent out cash. Though the transaction got processed, and the money I wanted withdraw got debited from my balance, the ATM did not vent out the money instead the money got credited in the bank. When I approached the bank saying that and narrated what happened, I was asked to give them formal complaint in writing which I did and the service manager at the T. Nagar branch of the bank said that that my case was not the first one and they had at lease two similar cases in the recent past and the HDFC bank usually take maximum of 45 days to solve issues like that. I was wondering like why should 45 days?Again I called the service manager after couple of days and he said that the HDFC would take would take 13 days to put the cash back to my account. However, when me and one of my friends approached the bank esquiring about the money and when it would be credited, the response from both the service manager and nodal officer, with whom I spoke over phone, was not positive. It's sad that that private sector banks which promises a lot fail to deliver in times of crises.




Profile: Subhash Chandra Agrawal
Sunday, January 25, 2009
http://lawandotherthings.blogspot.com/2009/01/profile-subhash-chandra-agrawal.html
Subhash Chandra Agrawal is an ordinary man with extraordinary determination. His RTI appeal to the CIC resulted in the latter's direction to the CPIO, Supreme Court, to share the information sought by him on the submission of details of assets held by the Supreme Court Judges. His latest appeal has resulted in another landmark decision from the CIC directing the Department of Justice, Government of India, to share information relating to the appointment of Chief Justice Bhalla of Himachal Pradaesh High Court. The latest decision cites Agrawal's original RTI application which recalls Paragraph 81 of the S.P.Gupta Judgment of the Supreme Court in its support to show that there is no immunity against disclosure of documents relating to appointment or non-appointment of a Judge. In response to my request to share with us the highlight of his RTI saga, he wrote as follows:"Delhi High Court is designated court to entertain writs against decisions of Central Information Commission. Counsels for public-authorities usually obtain ex-party stay-orders against CIC verdicts and thereafter continue getting adjournments after adjournments in our adjournment-based judicial system, thus harming the very cause of implementation of ‘Right-To-Information Act’ for providing a petitioner required information in a time-bound period. Otherwise also, many-a-times, cases against CIC verdicts do not come for hearing because of over-stretch of earlier cases listed for hearing on that day. "Necessary reforms are utmost necessary at Delhi High Court to overcome this situation at a time when RTI Act is getting momentum fast. Firstly since CIC verdicts provide sufficient time to public-authorities for implanting CIC order, RTI petitioners should be served notice first avoiding any ex-party stay-orders against CIC verdicts. Interestingly even caveats are not entertained from RTI petitioners in probability of public-authority filing a writ at the Court!"Secondly, a particular day in the month say first Monday of every month may be fixed at Delhi High Court when the concerned bench may hear writs only against CIC verdicts in a manner that next adjournment in any such case may not be more than a month. Department of Justice obtained an ex-party stay-order against CIC verdict on one of my RTI petitions in April 2007, and the case has not moved further even an inch in last 21 months with 12 adjournments! Central Information commission should be taken as role-model where requests for adjournments from public-authorities are usually not entertained till petitioner agrees."Surely, our readers will find a lot about him and his contribution from his website, which he shares with his wife, Madhu Agrawal, also an RTI activist. CIC's website carries one of his articles here. Two more recent landmark decisions from the CIC on the basis of his RTI applications can be read here and here.
Posted by V.Venkatesan





Supreme Court judges' two-day winter retreat concludes
http://www.hindu.com/thehindu/holnus/002200901252063.htm
New Delhi (PTI): The two-day winter retreat of Supreme Court judges concluded today with a clarion call from the Chief Justice of India K G Bala Krishnan for expeditious disposal of cases in the country.
The Chief Justice, who chaired the meeting, shared a wide range of views on the latest policy decisions and legislations with other judges.
At the close door meeting attended by several judges of the Supreme Court, eminent jurist K Parasaran and former Union Law Minister Arun Jaitly, experts from the National Judicial Academy submitted various policy inputs and recent research material for the benefit of the gathering.
According to the sources the retreat was essentially an academic exercise aimed at enriching the legal expertise of the judges to enable them deal with the day to day disposal of cases.
It was stated that since the judges had hectic workload with little time for getting acquainted with the government policies and legislations, the retreat provided a forum for honing up the requisite knowledge.
The sources said that focus of the retreat was mainly intended to bolster the administration of justice particularly the criminal justice system.




SC sowed seeds of right to information about assets in 2002
http://timesofindia.indiatimes.com/India/SC_sowed_seeds_of_right_to_information_about_assets_in_2002/articleshow/4030828.cms
26 Jan 2009, 0132 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: French poet, playwright and novelist Victor-Marie Hugo, exponent of `Romantic Movement', wrote the immortal words -- "invasion of armies can be resisted, but an invasion of ideas cannot be resisted" -- in his mid-19th century novel `The History of a Crime'. Exactly 150 years after Hugo wrote his book, the Supreme Court in 2002 delivered its path-breaking judgment on electoral reforms [Union of India vs Association for Democratic Reforms (2002) 5 SCC (294)]. It knew the necessity of new ideas to sustain the health of a democracy and sowed the first seeds of right to information. It mandated the Election Commission to seek information on the antecedents -- including assets, educational qualification and criminal background -- of candidates in the fray to enable voters to exercise informed choice. The central idea behind this judgment -- the voter's informed choice being the key to democracy -- was distilled long ago by Sir Winston Churchill, who had said, "At the bottom of all high-sounding tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper. No amount of rhetoric or voluminous discussion can possibly palliate the overwhelming importance of the point." Nonetheless, it sparked a brand new idea in the Indian context. It was about time to arm the voters, either muscled or misled by money, with information. And no one, not even an army of politicians, could resist it. For the idea was fortified by a sound legal principle -- "you be ever so high, the law is above you". The rapturous applause that followed the 2002 judgment had numbed even the most cunning among unscrupulously powerful politicians. Despite finding it unpalatable, they bowed before the idea of empowering voters. And the seed of the idea sown in 2002 has now grown into a huge tree through the Right to Information Act, 2005. In a short span, it has helped many citizens to dig out hitherto forbidden official data to apprise themselves of the perspective, mindset or hidden agenda behind important decisions touching their daily lives. Now, the fruits of the apex court's effort have come back to haunt it in the form of a directive from Central Information Commission (CIC) wanting to know whether judges of Supreme Court declare their assets periodically to the Chief Justice of India as per a 1997 judicial resolution. The SC, as an institution, has so far resisted an answer to this query on the ground that the information sought was not in public domain but in the private domain of the CJI, to whom the judges voluntarily provide details of their assets. One is not sure of the reasons behind the resistance to collective disclosure of assets by judges, though the CJI has given freedom to individual judges to do so on their own. What are they scared of -- breaking a tradition, fearful of misuse of such data or is it something else? The public reaction, as seen in the views of constitutional experts like Fali S Nariman, Soli J Sorabjee and Ram Jethmalani, is fast turning the idea into a storm as the debate invariably ends in `those who preach should practise'. At this juncture, those who can should convince tradition-respecting judges that nothing untoward would happen if they declare their assets. It would only help raise their stature and respect, still intact to a large extent among public and litigants, and silence judiciary baiters. There is another advantage. Once judges reveal assets, which in a majority of cases would be so meagre that it would make people realise how difficult it was for judges to live on the lowly salary they were paid till the recent hike. Moreover, successive CJIs, including incumbent Justice K G Balakrishnan, have unequivocally declared both from the Bench and in public that `black sheep', deadwood and corrupt have no place in judiciary. Everyone knows that a minority among judges bring a bad name to the judiciary. When it is so, declaring assets would provide a means to identify the `black sheep' and get rid of them. dhananjay.mahapatra@timesgroup.com





Facing criminal case, woman says cops raped her
http://timesofindia.indiatimes.com/Cities/Cops_raped_me_Chandigarh_convict/articleshow/4031830.cms
26 Jan 2009, 0455 hrs IST, Supriya Bhardwaj, TNN
CHANDIGARH: Narrating her tale before a local court, a 38-year-old woman supported prosecution’s allegation and claimed she was raped by two CBI officials — an inspector and a constable — in the year 2007. Court sources said the woman mentioned she was exploited by the duo, who was investigating a case wherein the woman and her husband were accused. ``The victim stated that she was raped repeatedly by the accused in a guest house,’’ said a court source. An FIR was registered in July 2007 in Sector 39 police station under sections 376 (rape) and 120-B (criminal conspiracy) of Indian Penal Code. It claimed that the woman’s husband was a bus driver and in year 1998 a criminal case was registered against them in Hisar. Later, the matter reached the high court, which handed over the case to CBI. The prosecution alleged inspector Subhash Kundu along with constable Mohinder Singh went to woman’s Hisar-based house in year 2001 for investigations. Singh allegedly called her and stated Kundu had asked her to meet him at the rest house, but the victim refused. However, it was claimed, upon this Kundu threatened her that in case she didn’t come he would spoil her case. It was further added when the woman reached the guest house, the two men, who were under the influence of liquor, confined her in a room and later raped her. Informing that the victim supported prosecution’s allegations, defense counsel AS Sukhija said, ``During her cross-examination, the prosecutrix admitted she had referred to only one incident where she was called to a rest house in Hisar by the accused and was allegedly raped. But when we questioned as to why her complaint to the SSP didn’t mention about the other incidents, she could not explain that. She also skipped a few dates when the incidents reportedly occurred.’’ The defense counsel added when he confronted the prosecutrix with her complaint addressed to the Chandigarh SSP dated April 23, 2007, she agreed that in the complaint she had mentioned only about one incident, which occurred after two-three days of the order passed by the high court for entrusting the case to CBI that Kundu and Singh called her to the rest house at Hisar.





Govt on Mangalore pub assault: Don't Talibanise India
http://timesofindia.indiatimes.com/Govt_on_Mangalore_pub_assault_Dont_talibanise_India/articleshow/4030660.cms
25 Jan 2009, 2244 hrs IST, TNN
NEW DELHI: Women and child development minister Renuka Chowdhury has termed the assault of girls and boys in a Mangalore pub allegedly by a Hindu group as an attempt to "Talibanise India" and sought an explanation from the Karnataka government. "I am absolutely horrified at the insensitivity on the eve of Republic Day. I will seek an explanation from the state government as well as self-styled Sri Ram Sena," Renuka said. "This incident is an attempt to Talibanise India. There is no place for these kinds of acts in India as it is a democracy," Chowdhury said, adding that BJP leaders should condemn the incident. The minister also said it was time for chief minister B S Yeddyurappa to "wake up" and take action against the culprits. She said she would speak to Yeddyurappa on the incident. About 15 to 20 activists, reportedly belonging to Sri Ram Sena, barged into the pub late on Saturday night and assaulted boys and girls dancing there, accusing the teens of behaving in an "obscene manner".





Ignoring RTIs costs him dear
http://timesofindia.indiatimes.com/Mumbai/Ignoring_RTIs_costs_him_dear/articleshow/4031268.cms
26 Jan 2009, 0547 hrs IST, Viju B, TNN
MUMBAI: For the first time, a public authority has proactively penalised its officer for sitting on a number of appeals filed under the Right to information (RTI) Act. Deputy municipal commissioner of BMC Sudhir Naik has imposed a fine of Rs 5,000 on A B Khanolakar, who during his tenure as an assistant commissioner, delayed replying to 67 RTI appeals. Naik, in his inquiry report, also said the officer was fined "as part of imparting education to the erring official who had violated provisions under the RTI Act''.Citizens and RTI activists have hailed this order as till date, it has been the State Information Commission (SIC) and the Central Information Commission (CIC) who have been penalising public information officers for not providing information under the RTI Act.
"We now feel that government agencies, like BMC, are becoming increasingly proactive, which is good for the long-term survival of the RTI Act,'' said S K Nangia, who has been crusading for speedy issuance of RTI replies. Nangia had asked for a copy of the report after he learnt that the civic administration had started an inquiry against ward officer A B Khanolkar for delaying the replies. "During his tenure as the assistant commissioner in Dadar-Mahim (G-north), he did not take up 67 RTI appeals for hearing. He never bothered to even look at those pending appeals. This was a blatant violation of the RTI Act,'' said Bhaskar Prabhu of Mahiti Adhikar Manch, an NGO working for RTI replies. Prabhu had filed an RTI query, seeking details of pendency of appeals across wards after he came to know that public information officers and appellate authorities were delaying in giving out information, which they are supposed to provide within 30 days. Nangia, coordinator of NGO AGNI, then followed up on the matter. He filed an RTI query asking what action had been taken against Khanolkar. "I got a reply from deputy municipal commissioner Sudhir Naik, saying a showcause notice had been issued against Khanolkar, asking him to explain the lapses,'' Nangia said.





SC allows GAIL to lay RLNG pipeline
http://www.thehindubusinessline.com/blnus/28261491.htm
NEW DELHI: The Supreme Court has allowed public sector GAIL (India) Ltd to lay a pipeline for transportation of natural gas to a power project that will supply electricity for the Commonwealth Games in Delhi next year.
The pipeline, which will transport regasified liquefied natural gas (RLNG) from Vijaipur to Dadri, will also supply gas to Madhya Pradesh, Rajasthan, Haryana, Uttar Pradesh and Delhi.
A special forest bench headed by Chief Justice, Mr K G Balakrishnan allowed the public sector to go ahead with its Rs 3,306-crore project, which required laying of the pipeline through wildlife sanctuary areas in Madhya Pradesh and Rajasthan, on certain conditions imposed by the Central Empowered Committee (CEC).
The bench passed the order after GAIL undertook to comply with the recommendations given by the apex court-appointed committee. Besides, it said the original topography of the area would be restored and the safety norms prescribed by the Oil Industry Saf ety Directorate would be strictly adhered to.
The 505-km pipeline, with a maximum diameter of 48 inches, will pass through Madhya Pradesh, Rajasthan, Haryana and Uttar Pradesh.
CEC had recommended that the apex court may permit underground pipeline over a distance of 2 km in the National Chambal Sanctuary at Morena and 3.5 km in the Ramsagar sanctuary subject to certain conditions.
It recommended that GAIL should deposit 5 per cent of the estimated cost of more than Rs 36 crore (i.e. Rs 1.8 crore) in the compensatory afforestation fund for the conservation and protection works in the sanctuaries.
Besides, it said that the NPV at the rates applicable for the land use falling within the national park and sanctuary will be deposited by the applicant. - PTI





Raj Kapoor’s wife need not pay wealth tax on his films: HC
http://timesofindia.indiatimes.com/Mumbai/Raj_Kapoors_wife_need_not_pay_wealth_tax_on_his_films_HC/articleshow/4031283.cms
26 Jan 2009, 0557 hrs IST, Kartikeya, TNN
MUMBAI: A division bench of the high court has ruled that legendary actor Raj Kapoor's wife, Krishna, need not pay wealth tax on the rights she holds for films produced by him. Kapoor, who passed away in 1988, produced 17 films from 1948 to 1982 including classics such as Barsaat, Awara, Shree 420, Sangam, Mera Naam Joker and Bobby. He married Krishna at the age of 22 in 1946 and after his death, she got the rights of his cinematic works as she was his legal heir and representative. The income tax department sought to charge wealth tax on over Rs 2 crore for the rights of these films that Krishna held. However, Justice F I Rebello and R S Mohite held that under statutory provisions of the Wealth Tax Act, the tax could not be levied on any rights that were held under "a patent or a copyright''. "In the present case, there is no dispute that Raj Kapoor was the owner of the copyright now represented by his legal representative, Krishna,'' said the court. So, it was made clear that no wealth tax could be levied on the ownership of Kapoor's works by his wife. The court took into consideration various amendments that have taken place in the Wealth Tax Act of 1957 before passing its order. This also means that the tax cannot be levied on the copyrights of books and literary works that are held by their authors. Wealth tax is a direct tax which is charged on the benefits derived by a person by virtue of ownership of property. It is to be paid every year on the same property at its market value whether it yields any income or not. Thus it may be levied on ownership of jewellery, bullion, yachts, boats and aircraft or urban land. Principally, it is charged on assets that are lying idle and have not been put to any commercial use by the owner.





Excise officials cannot loiter in Mantralaya
http://timesofindia.indiatimes.com/Mumbai/Excise_officials_cannot_loiter_in_Mantralaya/articleshow/4031292.cms
26 Jan 2009, 0526 hrs IST, Prafulla Marpakwar, TNN
MUMBAI: For motor vehicle and excise inspectors, loitering in the corridors of power without written permission from transport or excise commissioners, as the case may be, will prove costly, as their entry to Mantralaya has been banned with immediate effect. Transport and excise secretary C S Sangitrao on Friday wrote an official letter to both transport commissioner Deepak Kapoor and his excise counterpart I S Chahal, saying that a large number of inspectors of motor vehicles and excise departments were loitering in Mantralaya without having any official work. "If they are found there without any official work, disciplinary action should be taken against them,'' Sangitrao said in his strongly-worded letter. A senior official said, approximately 25 inspectors of the motor vehicles department (RTO) and an equal number of excise inspectors were found to be loitering in Mantralaya, particularly near the office of transport minister Swarupsinh Naik, excise minister Ganesh Naik and chief minister Ashok Chavan. The official said the warning issued by the transport and excise secretary was a welcome move, but whether his office had a network to check the presence of excise and RTO inspectors was still questionable. "The transport and excise department will have to depute intelligence officials to detect loitering excise and RTO inspectors. In the event of them being caught, what action will be taken against them? The department can only initiate a departmental probe against such officials,'' he said. One of the main reasons for the presence of a large number of excise and RTO inspectors in Mantralaya was the ensuing transfer season. Both the excise and transport departments are currently in the process of drafting a list of officials due for transfer. Official orders will be issued in the last week of March. "Officials holding non-executive posts attempt to get executive assignments and officials on executive posts make efforts to secure plum posts. To achieve their goal, they put pressure. In fact, even a section of cabinet ministers takes a keen interest in the postings as well as transfers of excise and RTO inspectors,'' he added. According to reports, nearly 100 officials of the RTO and 200 officials of the excise department will be shifted in the annual exercise. "The new transfer rules are very clear. Officials, who have completed a three-year tenure, will be shifted. In addition, there are mutual transfers and transfers on medical grounds,'' the official said. As per the provisions of the Maharashtra civil service rules, putting political pressure for securing a transfer, amounts to violation of discipline. Despite the fact that many politicians recommend the transfers of transport and excise officials, disciplinary action is very rarely taken against erring inspectors.





Abandoned by 'gay' man, wife seeks maintenance
http://timesofindia.indiatimes.com/Delhi/Abandoned_by_gay_man_wife_seeks_maintenance/articleshow/4030840.cms
25 Jan 2009, 2328 hrs IST, TNN
NEW DELHI: A woman filed a maintenance case against her husband recently, alleging that he was involved in a homosexual relationship with his best friend and had left her and their child when she found out about it. As per the case, the couple got married in 2004 but the problems started when the woman's husband was spending more time with his best friend, who is also his business partner. The woman alleged that her husband was earlier working with his elder brother but quit the family business and started a small business with his best friend. Earlier, the woman had filed a complaint against her husband in 2008 asking for maintenance. The court, last year referred the case to the mediation centre in order to counsel the couple in order to settle the case out of court. Opposing his relationship with his friend, the husband said that he was into a business with his friend and he earned his living by the work. Therefore, he would not leave his business at the behest of his wife. With no hope of reconcilaton, the case was then transferred to the court of metropolitan magistrate Sunaina Sharma as her husband refused to pay her monthly allowance. In her petition, the woman said that she got married in 2004 and they were living happily for some time. But she soon realized that her husband was not showing any interest in her and used to enjoy the company of his friend. The woman said that her husband refused to give up his friend's company and she was sent back to her parent's house within few months of her marriage while she was pregnant. She also alleged that her husband refused to accept his daughter who was born after the couple got separated.





CJ cautions against misuse of law
http://timesofindia.indiatimes.com/Bangalore/CJ_cautions_against_misuse_of_law/articleshow/4031243.cms
26 Jan 2009, 0520 hrs IST, TNN
BANGALORE: The Protection of Women from Domestic Violence Act, 2005, is an important law for protecting women against abuse. But its provisions, if not interpreted properly, could cause injustice to the alleged perpetrator. Chief justice of Karnataka High Court Justice P D Dinakaran stressed on need for awareness about the Act in rural India, sensitization of authorities including police and social workers, and the need to exercise caution while implementing the law. Its implementation has not been very effective, he said on Sunday while addressing high court judges and lawyers at a workshop on domestic violence. Rural women, who need access to the Act more than those in cities, don't have enough avenues to avail it. "It's been just two years since it came into force. We don't know how well it is being implemented. We should be cautious so that there is no misuse," he said. The Act protects women in live-in relationships too, and is considered a strong measure for women's protection. However, chairman of the sub-committee for implementation of plan of action for welfare of women, Justice B V Nagarathna, stressed that caution needs to be exercised in most cases. For instance, there is a clause that asks the victim to submit a `domestic incident report', which is like a petition about the complaint. The judge should not take the petition for granted because it could be a tool of misuse. "Similarly, Section 19 of the Act, which directs the respondent to keep away from the household of the victim, could lead to harassment of men if not implemented with caution," he said. Justice Nagarathna added counselling is an important part of reconciliation in any case, marital or non-marital. In family courts, 90% of the cases fail to reach the reconciliation stage even though it is a good option.




Lok Ayukta report on mining issues final: CM
http://timesofindia.indiatimes.com/Bangalore/Lok_Ayukta_report_on_mining_issues_final_CM/articleshow/4031260.cms
26 Jan 2009, 0521 hrs IST, TNN
Haveri : The government does not want another report on mining activities from the forest department, according to chief minister B S Yeddyurappa.
"The report submitted by Lok Ayukta justice N Santosh Hegde on the issue is final. I'll meet Hegde and discuss the matter with him within a week. A talk with the cabinet will follow," chief minister Yeddyurappa said on Sunday. On the just concluded Belgaum legislature session, Yeddyurappa said Congress and JD(S) members wasted time during the 9-day session by discussing only mining issues. "I'm glad the BJP has made a beginning in developing North Karnataka as per the Nanjundappa report. Towards this objective, I've allocated Rs 1,464 crore for the region during the Belgaum session," he explained. The government will set up a `spice park' and a food processing unit in Haveri.





Cheating case against IT firm
http://timesofindia.indiatimes.com/Hyderabad/Cheating_case_against_IT_firm/articleshow/4031367.cms
26 Jan 2009, 0213 hrs IST, TNN
HYDERABAD: SR Nagar police registered cases against the owners of an IT firm for allegedly cheating its employees on Sunday. According to SR Nagar police, `5M-Techheads Software Solutions,' was started an year ago by Narasimha Rao and Surya Prasad at Leela Nagar in Ameerpet. SR Nagar SI Tirupathi Reddy said that the company has recruited about 200 employees by collecting money from them. "Since some time, they stopped paying salaries," Tirupathi Reddy said. On Sunday about 10 employees approached the SR Nagar police and lodged a complaint against the management.





Court case updates now on your mobile
http://timesofindia.indiatimes.com/Ahmedabad/Court_case_updates_now_on_your_mobile/articleshow/4031123.cms
26 Jan 2009, 0146 hrs IST, TNN
AHMEDABAD: Now, litigants in Gujarat High Court have got one more tool to keep a tab on their lawyers. They can know what is happening to their cases through cell phones only. After successfully providing complete information on cases and judicial orders on internet, the high court administration is launching the facility of knowing the case status, including the next date of hearing through SMS. This facility will be available from January 26, and the number for sending message for details is 56767989. All the SMSes to be sent to this number have to start with keyword ghcs' followed by the case category and the case number. The chief justice will formally inaugurate this facility during the flag-hoisting ceremony on Republic Day.





Intention of information seeker not important: SIC
http://timesofindia.indiatimes.com/Goa/Intention_of_information_seeker_not_important_SIC/articleshow/4031673.cms
26 Jan 2009, 0317 hrs IST, TNN
PANAJI: The intention of the citizen asking information under the right to information act should not be the concern of the information officer, is what a recent order of the Goa state information commission (SIC) says. Stating that, "the citizen's intention in asking information need not be gone into as per the provisions of the RTI Act", the SIC dismissed arguments by the Mapusa municipal council's information officer, in connection with an RTI application by Ribandar resident Kashinath Shetye. MMC had alleged that the appellant was "harassing all the municipalities and corporations in Goa and hence, the request for information is made with mala fide intention". The commission, in its order issued on December 30, 2008, also directed the appellant to approach the chief officer to get the information requested by him on payment of additional fees as informed by the chief officer. The commission further directed the chief officer to "give the appellant an opportunity to inspect all the documents and a letter to be sent fixing the date of inspection within the next 10 days." The commission also noted that there was sufficient force in Shetye's argument that the letter dated November 6, 2008 sent by the chief officer could have been sent within 30 days from the date of the request. "The chief officer should take note of this and deal with the request for information under the RTI Act immediately and in any case within the time limit allowed under the RTI Act," the commission noted. When Shetye did not receive the requested information from the chief officer within the prescribed 30 days, he filed his first appeal before the director of municipal administration on October 21, 2008. Only then did the chief officer ask Shetye to appear in his office "to discuss the matter and scrutinize required documents" as the information requested was voluminous. When Shetye did not approach the council, the director of municipal administration passed an order directing the information be given within 10 days and also allowed inspection of records by Shetye. In his detailed reply to Shetye on November 6, 2008, the chief officer also asked Shetye to pay an amount of Rs 56 and Rs 900 for the copies of the documents requested. But Shetye said he had not received the letter and stated that the chief officer could have sent the letter even before the first appellate authority had decided the first appeal. That is when the Mapusa chief officer made his allegation that Shetye was "harassing all the municipal councils and corporations in Goa" and hence, the request for information was made with mala fide intention. Interestingly, Shetye has made quite a number of appeals under the RTI to the SIC. The commission's website shows that the commission has dealt with at least eight appeals by Shetye against the Corporation of the City of Panaji in December 2008 alone. Shetye has also made appeals against the directorate of panchayats, the law under secretary, and has represented Sanyogita Shetye (also of Ribandar) in her RTI application seeking details of the chief secretary's annual property returns, log books of vehicles used by him, his promotion to a post outside Goa and his continuation in Goa by a set of 11 questions.





SC issues contempt notice
http://timesofindia.indiatimes.com/Lucknow/SC_issues_contempt_notice/articleshow/4031178.cms
26 Jan 2009, 0308 hrs IST, TNN
LUCKNOW: The Supreme Court has issued contempt notices to principal secretary, finance, Anup Mishra, vice-chancellor, Agra University, Prof KN Tripathi and finance controller of the SN Medical College, Agra.
The notice was issued on the petition filed by Agra University finance officer, AQ Ansari, who was transferred to another place last year. Ansari filed the petition after the three officers refused to implement the Supreme Court order dated December 12.
The finance officer had claimed that his transfer from the university was not justified and for over a month his office has been locked thus preventing him from discharging his duties.





Jaipur High Court Bar Association has defended its call
http://timesofindia.indiatimes.com/Jaipur/Jaipur_High_Court_Bar_Association_has_defended_its_call/articleshow/4031375.cms
26 Jan 2009, 0355 hrs IST, TNN
JAIPUR: Jaipur High Court Bar Association has defended its call for the lawyers to take a decision on defending the terror accused in courts according to their conscience following the Jaipur serial blasts on May 13. Speaking to TOI, Jaipur High Court Bar Association president Madahav Mitra said, "We have given only a call and not forced anybody either accept or reject cases. The resolution upheld lawyers right to accept or reject according to the conscience of the lawyer when cases of the terror accused were offered," he added. His reaction follows the issuance of notice by the Supreme Court on Friday to four Bar Councils of Uttar Pradesh, Madhya Pradesh, Rajasthan and Maharashtra on the plea of laying down guidelines for protecting the rights of lawyers to defend terror accused as four advocates in a PIL alleged that they were forced to withdrew their vakalatnama' for defending the serial blasts accused in their states and were subjected to harassment by the bar associations. Four lawyers Mohd Shoeb, from Lucknow , Zamal Ahmed from Faizabad, Noor Ahmed from Ujjain in Madhya Pradesh and Surender Gadling from Maharashtra charged that the resolutions by Bar Associations barring lawyers from defending the accused were illegal and unprofessional. Mitra said, "We are waiting for the notice to reach us and we will defend our decision. It seems the petitioners might have misquoted our resolutions. We have not forced any of the lawyers on either way (accept or reject) the cases. We have given only a call and some advocates are already defending the terror accused in courts." He said there was no cases of manhandling of advocates as mentioned in the petition reported here. Rajasthan Bar Council president Nasir Ali Naqvi said, "We have not received the notices and give a response only after going through the notices."





Flesh trade: Police rescue 11 girls
http://timesofindia.indiatimes.com/Mysore/Flesh_trade_Police_rescue_11_girls/articleshow/4030772.cms
25 Jan 2009, 2233 hrs IST, TNN
MYSORE: Mysore city police have rescued 11 girls from a lodge on Seebaiah Road and arrested 11 persons engaged in flesh trade in city on Friday. The arrested have been remanded to judicial custody till further enquiry. Acting on a tip-off, a team led by DCP (law and order) V S D'Souza raided the lodge around 10.30 pm and took all the persons into custody. The girls, aged between 18 and 25 years, were sent to rehabilitation centre in the city.





Lawyers protest against inhumane treatment of prisoners in Kanpur jail
http://timesofindia.indiatimes.com/Kanpur/Lawyers_protest_against_inhumane_treatment_of_prisoners_in_Kanpur_jail/articleshow/4030791.cms
25 Jan 2009, 2206 hrs IST, TNN
KANPUR: The local unit of All India Lawyers Union on Saturday pointed out the prevailing corruption, atrocities and irregularities in Kanpur Jail and urged the district magistrate to take action at the earliest. In a memorandum addressed to the district magistrate, Sayeed Naqvi, advocate and state general secretary, alleged that jail authorities are violating the provisions of Article 23 of Indian constitution, an act punishable under section 374 of IPC. Explaining his point, he said that about 90 per cent undertrials are lodged in Kanpur Jail and jail authorities are forcing them to perform inhuman tasks against their will. Moreover, they are not being paid their minimum wages prescribed under Minimum Wages Act. Naqvi, who is a senior criminal lawyer, said that there are some convicts who have been punished with simple imprisonment but the jail authorities force them also to perform tasks against their will. They are also not being paid for their work. Rampant corruption was cited as the reason behind the atrocities being committed on undertrials and convicts. Those who give `suvidha shulk' to the jail authorities get the required facilities while those who fail to do so are being tortured. The convicts are not medically examined, he alleged. Suresh Singh Chauhan, president of the local unit apprised the district magistrate that there is no secluded space for the advocate and client to have a meeting inside the jail. Moreover, any person visiting the jail to meet a undertrial has to wait for hours outside the jail with there being no place to sit down or provide shade from the sun. Kareem Ahmad Siddiqui, advocate and general secretary, local unit, submitted that the undertrials being brought to Kanpur court for judicial remand or for the hearing of their case by van were pushed and filled inside the vehicle like cattle. He also alleged that the lock-ups in Kanpur court were like hell. Neither there was any ventilation nor any civil facility. The union in its memorandum requested to DM to take appropriate action against jail authorities for violating the law and provide the necessary facilities to the undertrials.





Enact law to protect jobs, says Yechury
http://www.hindu.com/2009/01/26/stories/2009012652561200.htm
M. Rajeev
HYDERABAD: The Communist Party of India (Marxist) has demanded that the Centre enact a legislation to protect jobs of employees in the private sector, including those in Information Technology and Services who are facing the threat of retrenchment due to the economic recession.
The CPI(M) wanted the Centre to invoke provisions of the Contract Labour Law imposing penalties on the companies wherever there are violations and asked the government to introduce the Bill for protecting jobs in the ensuing session of Parliament.
“The government, which is keen on pushing through the Bill on foreign direct investments in the insurance sector, should take steps to protect the existing jobs if it cannot create new ones. People and their security are more important than economic liberalisation,” CPI(M) leader Sitaram Yechury said.
Mr. Yechury, who was here on Sunday, told reporters that the statistics presented by the Reserve Bank of India, the Planning Commission and other agencies projected the growth rate to be around 7 per cent and this could decline further before the end of the fiscal. The government had, no doubt, announced a financial stimulus of Rs. 20,000 crore but it would not be sufficient to minimise the impact of recession on the economy.
The package should be enhanced to Rs.1 lakh crore and investments should be made in social infrastructure like roads and railways.
“The crisis arose because of the wrong diagnosis and wrong prescription. There is a need for rectification.”
On the political front, he said the Left parties were working for a “secular non-Congress alternative” at the Centre with an alternative policy direction. Accordingly, the Left was looking at parties that support economic policies laying emphasis on ‘people before corporates,’ unflinching stand against communalism unlike the “vacillating Congress” and independent foreign policy where “we will not be an appendage” to the United States.




Pay statutory minimum bonus: High Court
http://www.hindu.com/2009/01/26/stories/2009012654990700.htm
K.T. Sangameswaran
CHENNAI: The Madras High Court has directed the Pondicherry Housing Board (PHB) to pay the statutory minimum bonus guaranteed under the Payment of Bonus Act to its employees from the accounting year 1997-98.
Allowing a writ petition by the PHB Employees Union and the PHB Staff Union, Justice K. Chandru said while paying the minimum bonus, the board was entitled to adjust the exgratia/gift.
If the board workmen wanted something more than the statutory minimum bonus, the only remedy open to them was to raise an industrial dispute. He directed the board to implement the court order within three months.
The petitioners sought a direction to the board to pay statutory minimum bonus of 8.33 per cent every year besides ex-gratia on a par with employees of public sector undertakings of Puducherry government. They submitted that they sent a representation in October 1998 demanding minimum statutory bonus.
The board replied that the employees were not eligible for bonus for 1997-98 and they would be paid only the gift as announced by the territorial government.
Mr. Justice Chandru said the plea of exemption under the Bonus Act by the board must necessarily fail on account of Supreme Court decisions in the Haryana Housing Board and TWAD Board cases.
Once the statutory exemptions pleaded under the Bonus Act by the government and the board failed and there being no other exemption granted by the State government under the Act, the necessary corollary was that the Act would apply to the PHB.





Adalat
http://www.hindu.com/2009/01/26/stories/2009012657750300.htm
‘Bhavishya Nidhi Adalat’ will be conducted at the Regional Office by the Regional Provident Fund Commissioner–I on February 10 for redress of public grievances on matters concerning the provident fund. Members of Employees’ Provident Fund Organisation, employers, and other stake holders can send their grievances along with name and address of the establishment, and EPF account number to the Public Relation Officer, EPFO, Regional Office, Dr.Balasundaram Road, Coimbatore – 18, on or before February 5.




High Court Bench works on Sunday
http://www.hindu.com/2009/01/26/stories/2009012656820400.htm
Mohamed Imranullah S.
Judge arrives on motorcycle and takes up an unnumbered petition for hearing.
MADURAI: Sunday was a day of many firsts for the Madras High Court Bench here. It worked on a holiday, a judge came to the court on a motorcycle, an unnumbered petition was taken up for hearing and the court functioned with just two employees.
P. Rathinam (62), a human rights activist and a lawyer, had sought permission from the Superintendent of Police here to conduct ‘Aadhikka Ozhippu Samathuva Vizha’ (Equality function to eradicate oppression) at Melavalavu near here on Sunday.
Activists from Chennai, Namakkal, Tiruchi and other districts were slated to participate in the function in which it had been planned to name a locality as Revolutionary Ambedkar Nagar and to treat the participants with beef as a mark of protest against dominant caste groups.
The representation submitted to the SP on Thursday was forwarded to officers down the hierarchy, leading to an order passed by a Sub-Inspector refusing permission. The rejection order was served on the lawyer on Saturday evening.
Faced with a difficult situation at the eleventh hour, Mr. Rathinam decided to file a writ petition challenging the Sub-Inspector’s order on the ground that it was in violation of the right to assemble without disturbing public order.
“I spoke to the Personal Secretary of the Acting Chief Justice S.J. Mukhopadhaya in Chennai over phone early in the morning and obtained special permission to place the matter before Justice A. Selvam, the senior-most judge in Madurai Bench,” he said.
His counsel T. Lajapathi Roy prepared the petition and affidavit in no time. Government Advocate D. Sasikumar was requested to attend. The case was heard in the Judge’s chambers and the Sub-Inspector’s order was stayed at 2.45 p.m.





SC and ST Atrocities Act being misused: panel chief
http://www.hindu.com/2009/01/26/stories/2009012651940500.htm
Staff Reporter
‘Police can act against false complainants’
Misuse of the Act affecting genuine victims: chairman
Panel to act tough against those filing false cases
NELLORE: Andhra Pradesh Scheduled Castes and Scheduled Tribes Commission chairman M. Nagarjuna on Sunday expressed concern over misuse of SC and ST Atrocities Act by some people in the State.
The increase in false cases in the recent past under the Act was affecting genuine victims he said and appealed to the Scheduled Castes and Scheduled Tribes not to file false cases.
Speaking to the newsmen here, Dr. Nagarjuna said the commission gave instructions to the police and the revenue officials to act immediately on complaints. However, the commission would not tolerate false cases being filed, misusing the Act.
“There are reports of false cases being filed under the Act. If the investigating agency finds any person filing false complaints the police can take action against them and the commission will not intervene into the matter. The SC, ST Commission will extend support to genuine victims and ensure justice for them,” he said.
Recommendations
The commission prepared about 238 recommendations on providing employment, scholarship, loans, distributing lands and other issues and the list would be submitted to the government soon. Recently, the government increased scholarships to 30 per cent for SC and ST students based on the recommendations.
Plea to State
The commission appealed to the State government to set up more special courts and appoint police officers for speedy investigation of SC and ST atrocity cases, the chairman said.





Commentary on Portuguese Civil Code released
http://www.hindu.com/2009/01/26/stories/2009012651280300.htm
Special Correspondent
PANAJI: A new commentary on the Portuguese Civil Code of 1867, prepared by the Institute of Juridical Cooperation (IJC), University of Lisbon, was released at V.M. Salgaocar College of Law here on Saturday. The commentary, prepared under the guidance of IJC director Dario Mauro Vincente, was released by Vice-Chancellor of the Goa University Dileep N. Deobagkar on the occasion of the inaugural of “Lex Novitas – 2009” at the college.
Prof. Vincente said that the civil code of 1867 had been analysed and commented upon in the context of the 21st Century. Though the code was not in force in Portugal, a substantial part of it was applicable in Goa, and therefore the commentaries in the present day context had become very relevant, he said and added that this was one of the main reasons why the IJC decided to release the book at the law college, which in association with the institute was conducting a certificate course in civil code.





Water Adalat
http://www.hindu.com/2009/01/26/stories/2009012660150300.htm
Bangalore Water Supply and Sewerage Board (BWSSB) will hold a Water Adalat on Tuesday between 9.30 a.m. and 11 a.m. at the office of the Assistant Executive Engineer of West-4 sub division on West of Chord Road. According to a press release, the grievances of consumers under the jurisdiction of the West of Chord Road 1 and 2, Basaveshwaranagar 1st to 4th blocks, Industrial Town, Dasarahalli, Kamakshipalya, Kamalanagar, Manjunath Nagar, Shivanagar, BEML Nagar Service Station limits will be heard and settled at the adalat. For details, call Ph: 22945171 or 22945184.




Amendments to land Acts will only help encroachers: CITU leader
http://www.hindu.com/2009/01/26/stories/2009012651070300.htm
Staff Correspondent
‘Recovered encroached land should be given to the poor’
HASSAN: The secretary of the State unit of Centre of Indian Trade Unions (CITU) and State Secretariat member of the Communist Party of India (Marxist), S. Prasanna Kumar, has alleged that the amendments to the Karnataka Land Revenue Act and the Karnataka Land Reforms Act will only help multi-national companies and land grabbers as the earlier restrictions on land conversion have been removed. He told The Hindu here on Sunday that the land value in and around Bangalore was high and the Government’s land policy was unscientific. Its decision to form a government land corporation at the State-level and land banks at the district-level, and to sell the recovered encroached land in and around Bangalore through tenders would only help encroachers to regularise their encroachments.
He said that CITU had been staging a dharna in Bangalore since January 20 demanding that the encroached land identified by the Ramaswamy committee be distributed among the landless.
Though the Government had acquired land for establishing special economic zones through out the State, it had not been handed over for the purpose for which it was acquired. He accused the Government of doing real estate business. This policy would affect food production.




Law reforms panel’s suggestions debated
http://www.hindu.com/2009/01/26/stories/2009012659010200.htm
Special Correspondent
KOCHI: Remember the hullabaloo over the Law Reforms Commission’s recommendations, particularly over the proposals for regulating the vast properties of Church establishments, Muslim polygamy and euthanasia? Remember the fiery speeches, rallies, marches and press statements by dozens of organisations?
Well, none of these noises was echoed and none of the leaders of the protesting organisations was present at a seminar organised by the commission here on Sunday to underscore its message of social change through law reform and explain its stand on the various recommendations. Not a single protesting organisation bothered to send its representative to hear the views of legal experts, including N.R. Madhava Menon. In fact, there were only a few dozen people in the audience to hear about the commission’s recommendations that, if enacted into law, have the potential to drastically impact Kerala’s social life. V. R. Krishna Iyer, in spite of his 94 years and waning health, made it to the seminar and made a passionate plea for debate on the recommendations to generate new ideas and improve upon the recommendations made by his commission.
The commission has made proposals for 65 new laws, amendments to 30 Acts and changes to nine important existing rules. The commission took 13 months to complete its mission.
Unlike other commissions, the chairman and members of the Law Reforms Commission did not accept any remuneration, the commission did not have an office, the members had no official cars or residences. Mr. Iyer himself, the vice-chairman T.V. Ramakrishnan and other members worked out of Mr. Iyer’s home with very limited facilities.
Among the Bills made by the commission is the Kerala Christian Religious Trusts Bill, proposing to put the entire properties, running into billions of rupees, owned by the Christian church in the State, under registered trusts. These trusts have to be run by democratically elected committees of the faithful, and not by a single bishop or parish priest. Canon law will not be applied to the properties. “Canon law will apply only to matters of religious beliefs or spiritual matters and will not be applicable to ownership and management of properties and all other matters affecting temporal matters of the church,” the commission has stated.
Another law proposed is the Kerala Muslim Women (Relief on Irretrievable Breakdown of Marriage and Prohibition of Talaqul Bidaat) Bill which will take away the Muslim husband’s right to divorce at will.
The Kerala Muslim Marriage and Dissolution by Talaq (Regulation) Bill puts strong curbs on Muslim husbands taking a second wife. If the Bill is made into a law, a Muslim man will have to get his wife’s written permission made before a legal authority to take a second wife, that too in accordance with certain strict norms.
Christian and Muslim organisations had made a lot of noise over the proposals. But, at the seminar, none of them showed up to hear the view of the commission.





Jurist calls for quick reforms
http://www.hindu.com/2009/01/26/stories/2009012656900400.htm
Special Correspondent
Wants people-oriented law reforms
N.R. Madhava Menon: many laws outdated
‘Law reforms not on political agenda’
KOCHI: N.R. Madhava Menon, jurist, has urged the State and Central governments to undertake a comprehensive reform of laws in the country on a war footing.
“A number of archaic and outdated laws will continue to govern our lives for a long time to come unless comprehensive law reform is undertaken by the Centre and the States on a war footing,” Mr. Menon said at a seminar on “Law reform as an instrument of social engineering,” held here on Sunday.
The seminar was organised by the Law Reforms Commission, Kerala, a day ahead of its scheduled presentation of its recommendations to the government.
Mr. Menon, a member of the Commission on Centre-State Relations, said that more than 60 years after Independence, India was still largely governed by laws made to serve British colonial interests. Law reform was not yet on the agenda of political parties. “There has been no conscious effort to look comprehensively on the pre-Independence laws to bring them in tune with the constitutional philosophy, fundamental rights’ requirements and the mandate of the Directive Principles of State Policy.” Hence, law reform could not cope with people’s aspirations and constitutional promises.
Initiated by people
Mr. Menon, a former member of the Law Commission of India, said what India needed was a people-oriented law reform, initiated by the people or civil society activists. The objective of such a reform process should be directed to social change for the removal of human sufferings and social injustice. In partnership with public interest lawyers, social activists should identify the causes for denial of justice to the people and seek to draft socially relevant legislative proposals. “One supreme example of law reform of this type in recent times is the Right to Information Act developed by a group of civil rights activists.”
If law reform were left to governmental bureaucracy, the result would be laws which would only serve the interests of the dominant group in society, Mr. Menon said. He said the recommendations of the Law Reforms Commission on a variety of socially relevant issues were people-sensitive and constitutionally-informed. The work of the commission, headed by V.R. Krishna Iyer, was perhaps the first attempt at law making with people’s participation, he said.
Mr. Krishna Iyer said law reform was very crucial, as rule of law governed law of life. Law reform was the most peaceful method of social reform and social engineering. N.K. Jayakumar, Vice-Chancellor, NUALS (National University of Advance Legal Studies), N.S. Gopala Krishnan, head of the Intellectual Property Rights study centre at Cochin University of Science and Technology and Meenakshi Thampan, women’s activist, spoke.




Transparency: critical role of digital signature
http://www.hindu.com/2009/01/26/stories/2009012650681400.htm
The regulator can make it mandatory for corporates
When the company physically held itself most of the assets owned by it, the management and auditors played a key role in actually verifying them and reporting them to the shareholders.
As the Satyam fraud unfolds with all its ramifications, a simple question keeps popping up in discussions among even laypersons. How could someone show in the books a non-existent bank deposit? The audacity apart, it requires co-operative minds to do so. More often than not when a bank balance is ascertained, the number that gets into it is the one stated by the management and certified by the auditor. They together can decide to be less than truthful. In the case of Satyam, this is what appears to have happened.
A business is constantly in the process of creating assets, converting them into one form to the other, expending them, creating liabilities and extinguishing those liabilities. The balance-sheet is a snapshot of this ongoing activity on a given date. On the date of the balance-sheet, the business could be owing money to others. Or, it could itself being owed money by others. The surplus money, if any, should remain as some form of asset or be represented as a loss up to that date.
Except fixed assets, companies hold very little in the form of assets with themselves. Practically, someone else holds everything else in custody and is represented as a debt owed to the company. Thus, cash in the bank is not really held with the company. It is in the form of debt owed by the bank. Similarly, the securities and other investments owned by the company are actually represented by debt owed by a depository, a mutual fund or other institution. Even the liabilities to shareholders are represented by entries in the depositories and stock exchanges to a large extent.
Role of auditors
When the company physically held itself most of the assets owned by it, the management and auditors played a key role in actually verifying them and reporting them to the shareholders. Since the role has evolved into certifying the account entries and verifying statements from the debtors, it could provide ammunition for temptation.
“This is not a unique problem, but one that arose in several other situations and was satisfactorily solved in many of those cases,” says B. Robert Raja, a former I-T (income-tax) sleuth, who formed part of the team that cracked the securities scam of the early 90’s. “It usually pays to remove the source of temptation to violate than provide punitive measures. Traffic authorities know it all the time. It is much easier to enforce lane discipline by constructing a median wall rather than penalising drivers for crossing the yellow line,” says Mr. Raja.
In this context, he cites income-tax deduction at source (TDS). Until recently, one who deducted the tax paid the money into the Government account and then certified such payment by way of a TDS certificate.
This certificate was then issued to the person on whose behalf the tax was deducted, who, in turn, furnished this as proof of tax payment along with his I-T return. The I-T Department has since plugged the hole by relying on the receipt side accounting rather than the deduction certificate.
“Now it is recognised as a tax payment only if the money had come into the Government coffers. The Government gets its assurance from the bank (and National Securities Depository Ltd. (NSDL), which does the book-keeping for this) that actually received the money from the one who deducts tax at source. The one who deducts the tax or the eventual taxpayer has no means of manipulating the amounts,” points out Mr. Raja, who is also an information security expert.
He also cities stock ownership and stock trading. When the settlement was through physical delivery and where the settlement cycles were long, there were possibilities for non-deliveries and mischief. “The dematerialisation of stock certificates and shortening of the cycles have reduced the opportunity for the mischief to a significant extent. From an information perspective, in the earlier model, the information flow was so slow and the parties had a longer time to make good any untruth they may have uttered. This automatically led to a licentious atmosphere,” he points out.
Verification
NSDL has started intimating its actual holdings to the holders of depository accounts and is also offering them a facility to verify their balances directly from the depository. “This is actually the defined role of the depository participants — but when they do not add value to the information they receive from the depository and pass it on to the clients, a direct intimation from the depository substantially reduces the opportunity for mischief by a participant,” Mr. Raja points out.
The current system of audit and publication of corporate accounts require a similar solution. “While there are aspects of accounting where the management and the auditors do have a role to play, they are merely restating or attesting numbers when it comes to many of the assets and liabilities. In these cases, they are unnecessary and temptation-prone middlemen,” he argues.
Along with their accounts, companies could also be asked to publish direct statements from the creditors and debtors. Perhaps, a threshold on value or type of account may be placed on that. But how do companies manage the logistics of accurately reproducing and distributing the statements from multiple parties? And how can one ensure that the management does not manipulate it? The country already has a legislatively sanctioned digital signature infrastructure, says Mr. Raja. “It would be a simple matter for the companies to obtain a digitally signed balance confirmation as on the last date of the year and publish the document as an annexure to their annual accounts. The same digitally signed statements can also be submitted to the exchanges and other regulators. The statements can be simple PDF documents with the digital signature of the party and this would ensure easy verification by any shareholder or investor. This will also discharge a rather onerous burden of the auditors as at present and bring in a lot more transparency into the system,” Mr. Raja points out.
Mindset change
Well, this could actually bring down the cost of compliance to companies. Auditors can now focus on items that call for their professional expertise rather than act as a mere attesting agency with the attendant risks. Investors, too, can feel happy that they are getting the most accurate information directly from its source.
The Securities and Exchange Board of India (SEBI) could step in here too as it had done recently in the case of pledging of shares by the promoters. The regulator could make it mandatory under the listing agreement for corporates to file digitally signed certification of balance deposits from banks.
A similar requirement could be made in the case of other assets too. More than the regulation, a mindset change is all that required to implement this. Well, this mindset change is inevitable as is important in the light of what had happened in Satyam.




Circulars on charities cannot go beyond law
http://www.hindu.com/2009/01/26/stories/2009012650741500.htm
Even if the Circular is implemented in the true spirit, only some of the institutions may not be affected but not most others.
Can the Circular be taken as honouring the statement of the Finance Minister that all genuine organisations will not be affected by the amendment?
There are a number of objects, some of which are even recognised by Article 51A of the Constitution as part of Fundamental Duties, such as promotion of harmony between different citizens transcending religious, linguistic, regional and sectional diversities, preservation of the heritage and composite culture, protection and improvement of industrial environment, developing of scientific temper, humanity and spirit of reform, protection of public property and promotion of non-violence. These are all objects of general public utility. So are those engaged in the promotion of employment, safe driving, animal welfare, sports, widow marriage, fine arts such as music, research, community services, maintenance of public halls and parks, promotion of language and literature and many other such objects rendering yeoman service for the public charging some fee incidental to their activity to augment their resources from persons who can afford to pay for the services rendered by them.
Automobile associations for example ensure safe driving, while charging fees for some services rendered by them by way of road information or getting driving licences for members. Though promoting music is a recognised purpose, collections for performance of popular artistes would risk exemption. Those trusts and institutions engaged in the promotion of fine arts and literature may bring out publications at a price. Such public associations, which would lose exemption, are numerous. Revenue gain from such association may be minimal, but they will deprive resources for deserving institutions.
What is worse is that the tax is not limited to income from such activity. There will be total loss of exemption for such institutions, including income from investments made out of donations, because amendment had been placed wrongly in the definition of charitable purpose and not under Sec. 13, which already prescribes conditions for exemption for business income under Sec. 13(1)(d)(iii) and earlier under Sec. 13(1)(bb). Any amendment to the former section or restoration of the latter so as to target only commercial profits was what was required even in the light of the objective of withdrawal of relief on “commercial” profits relating to objects of general public utility.
Another unexplained offshoot is that such institutions, which earn small profit would lose exemption under Sec. 80G as well so as to deplete the only other or the main source of income. The advice given in the Circular from these damaging consequences is that such institutions should give up such “commercial” activity.
In the result, the Circular has not kept up the promise that genuine institutions will not be affected. But then, what else could Circular do to undo the damage done by the amendment? Circular cannot go beyond the law.
What is the advice you would give for such institutions affected by the amendment withdrawing relief for those covered by the fourth object with commercial activities?
The Circular, no doubt, tries to interpret relief of the poor liberally so that some of the institutions relating to rural development or orphanages or old age homes may not be vulnerable, if some charges are levied for incidental service. Similarly, educational and medical institutions may not be vulnerable, even if some incidental activity is understood as commercial activity by revenue. But then, such a liberal interpretation was not given in the past. Even for promotion of handicraft now conceded, the assessee for example in Victoria Technical Institute v Addtl.CIT (1991) 188 ITR 57 (SC) had to go to the Supreme Court, which came to the assessee’s rescue reversing the decision of the High Court not on the ground that the assessee was engaged in relief of poverty but on the ground that promotion of handicraft satisfies the fourth condition of general public utility. Even objects such as education has been understood too narrowly so as to deny exemption even for public sector undertakings engaged in publication of school text books or an institution not imparting formal education as for tutorial colleges and training for chartered accountant’s course. Even if the Circular is implemented in the true spirit, only some of the institutions may not be affected but not most others.
Even if the objective is to tax income from such activities in the case of such institutions engaged in the objects of general public utility, the proper course was to shift the amendment to Sec. 13 so that they may not altogether lose exemption even on their investment income or right to recognition of deductions in contribution of their patrons under Sec. 80G. This change needs attention of the Government at the time of formation of the next Finance Bill or Amendment Bill.
Meanwhile, the advice at the end of the Circular itself is worth notice. It is in following words:
“Assessees, who claim that their object is “charitable purpose” within the meaning of Sec. 2(15), would be well advised to eschew any activity which is in the nature of trade, commerce or business or the rendering of any service in relation to any trade, commerce or business.”
In other words, the advice is to stop all fund-raising activities, which smack of business as in cases where charges are levied for some incidental service or consideration is received incidentally for parting with goods. The next best course for them is to delink such activity and transfer such activity to another trust or institution, which can pay tax, but still the main trust can save tax on income from investments and non-controversially on their income from non-corpus donations.
S. RAJARATNAM




Big city glamour leads children to desert homes: NHRC committee http://www.zeenews.com/nation/2009-01-26/501587news.html
New Delhi, Jan 25: A large number of children who run away from their homes include mainly those lured by the glamour of big cities, school dropouts and children with difficult domestic conditions, a committee instituted by the National Human Rights Commission has revealed. "There are some studies conducted by both government and non-government organisations, which bear testimony to the fact that a large number of girls and boys, who run away from their homes or are said to have run away from their homes, are mainly school dropouts or children, who get fed up with domestic conditions," the NHRC committee said in its report. The glamour and lure of big cities make many of these children blind to the stark realities of urban life, the committee observed. A committee headed by NHRC member P C Sharma was set up last year to examine the problems of missing children in the country. The committee has stated that a previous study by the NHRC on "trafficking" has shown that an average of 44,000 children are reported missing and of them as many as 11,000 remain untraced in any given year. The finding said that children being vulnerable fall prey to false promises of careers in films or modelling and eventually end up as sex workers, domestic help and labourers doing hazardous works. Many of the run-away boys and girls also become victims of organised begging rackets, pick-pocketing and drug peddling among others, the committee stated. Bureau Report