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Tuesday, September 29, 2009

LEGAL NEWS 29.09.09

Sentence in drugs case upheld by HC

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

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

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

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

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

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

HC seeks details of action against tainted officers

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

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

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

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

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

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

Official machinery under scanner

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

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

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

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

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

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

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

HC slams fine on 3 BJP councillors for abusing law process

http://www.expressindia.com/latest-news/hc-slams-fine-on-3-bjp-councillors-for-abusing-law-process/522310/

Express News Service

Posted: Sep 28, 2009 at 0417 hrs IST

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

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

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

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

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

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

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

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

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

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

Govt may seize properties of corrupt babus

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

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

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

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

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

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

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

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

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

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

dhananjay.mahapatra@timesgroup.com

SC sticks to its guns

http://www.dailypioneer.com/205638/SC-sticks-to-its-guns.html

Abraham Thomas | New Delhi

Despite demand to increase working days

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lower courts told to return cases outside their jurisdiction

http://www.indianexpress.com/news/lower-courts-told-to-return-cases-outside-their-jurisdiction/522250/

Express News Service

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

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

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

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

Centre decides to withdraw case against Quattrocchi

http://www.indianexpress.com/news/centre-decides-to-withdraw-case-against-quattrocchi/522852/0

Agencies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Quattrocchi, 69, has never appeared in Indian Courts.

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

SC halts illegal construction of new places of worship

http://www.indianexpress.com/news/sc-halts-illegal-construction-of-new-places-of-worship/522815/

Agencies

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

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

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

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

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

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

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

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

SC issues notice to Centre on black money related docs

http://www.indianexpress.com/news/sc-issues-notice-to-centre-on-black-money-related-docs/522767/

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

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

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

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

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

The court posted the matter for hearing in December.

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

Judicial Accountability – an Illusion or a Reality

http://www.natashawingbooks.com/judicial-accountability-an-illusion-or-a-reality.htm

Name: Sukant Vikram

Class : 5th Year BBA LLB

College : Symbiosis Law School, Pune , India

Topic—- Judicial Accountability- An illusion or a reality

Introduction —-

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

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

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

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

Main Text —-

Appointment of Judges—

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

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

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

S. P Gupta—-

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

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

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

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

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

Impeachment—-

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

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

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

The first ever impeachment—-.

Justice V. Ramaswami

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

Justice M.M. Punchi

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

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

Investigation—-

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

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

Right to Information & The judiciary—-

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

Conclusion

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

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

But should this independence mean freedom from accountability?

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

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

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

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

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

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


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





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

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

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

And finally, judges are as human as you and me

Human trafficking from India to be probed

http://www.samaylive.com/news/human-trafficking-from-india-to-be-probed/659277.html

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

F Prev Next L

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


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


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


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


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


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


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

Ex-CFO of Satyam, PW auditors guilty: ICAI

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Graft-accused cops charged with extortion too

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

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

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

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

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

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

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

TN's first pvt forensic lab opens in city

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

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

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

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

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

Monday, September 28, 2009

LEGAL NEWS 28.09.09

Anti-doping regulations & privacy
http://www.indianexpress.com/news/antidoping-regulations-&-privacy/521986/0
Soli J. Sorabjee
Posted: Sunday , Sep 27, 2009 at 0232 hrs
Doping in sports is unpardonable. It is the worst form of cheating. Doping is a scourge which has afflicted sports, including cricket, and undoubtedly it must be eliminated. The objective of the World Anti-Doping Agency (WADA) regulations to achieve this end is certainly laudable. The problem lies in some of its provisions and especially the whereabouts clause as a result of which a cricketer who is included in the International Registered Testing Pool (IRTP) has to provide several details of his/her whereabouts prior to the first day of each quarter ie 1st January, 1st April, 1st July and 1st October respectively including periods where the cricketer is not participating in any sports competition. In addition, a cricketer must for each day during the following quarter provide in writing one 60-minute time slot between 6:00 am and 11:00 pm each day where the cricketer will be available and accessible for doping test at a specific location. International cricketers have a packed tour schedule every year and spend approximately nine to ten months of every year playing competitive cricket much of which is outside India. This leaves a very short period for out-of-competition testing.

The fatal flaw is that during “out-of-competition” periods of rest and time with friends and family, which are few and far between, it is unreasonable that players have to disclose their precise whereabouts and schedule for three months in advance for each and every day of such period. Besides they are subject to random testing at any time and place between 6 a.m. and 11 p.m., as required by the whereabouts clause. As a consequence the players are virtually kept under surveillance from 6 a.m. to 11 p.m. throughout the year.
That is clearly violative of the players’ right to privacy at least for the limited period when they can spend time with their family and friends. Privacy is one of the most cherished rights in a civilised society—“the right to be let alone—the most comprehensive of rights and the right most valued by civilised men”. The requirements of the whereabouts clause are overboard, excessive and impose disproportionate burdens. The breach of WADA regulations is visited with drastic consequences to the players. Besides, in case of a player like Tendulkar who has Z-category security, the mandatory disclosures may cause severe security concern. No doubt, the end of WADA regulations is commendable but laudable ends can be achieved only by legally permissible means.
Humour is dead
Sadly, we have lost our sense of humour, the capacity to laugh at ourselves. Shashi Tharoor’s twitter as the Prime Minister rightly said, “was just a joke” seen in the context and the circumstances in which it was said. Some persons may not relish a joke. However, to read sinister meanings and insinuations into it and to demand his resignation as a minister or for other disciplinary action against him is the height of absurdity. It betrays a lack of sense of proportion which is the mark of humourless persons. Poor Shashi probably did not anticipate such a hysterical reaction. In future, he may well observe a self-imposed restriction on his freedom of expression. One of the yoga practices for maintaining good health and preserving mental balance is to laugh loudly in company with others. Some ministers and others who were outraged by Tharoor’s twitter could do with a bit of yoga. I recall another incident which caused a ruckus. Field Marshal Sam Manekshaw, the hero of the Bangladesh war, could not resist giving vent to his mischievous sense of humour, when asked by a journalist as to what would have happened if he were commanding the Pakistan Army. Sam said, “Well, I would have defeated India”. There were demands for depriving him of his Field Marshal-ship and for disciplinary proceedings against him. Manekshaw did go over the board but the reaction was disproportionate. We should have laughed away this irreverent statement instead of accusing one of our greatest and most loved military heroes of harbouring anti-nationalist sentiments.






Expedite disposal of maintenance cases: Guj HC to judges
http://www.zeenews.com/news566702.html
Updated on Sunday, September 27, 2009, 19:42 IST
Ahmedabad: The Gujarat High Court has directed all the district judges and family court judges to dispose expeditiously the cases under Section 125 of the Code of Criminal Procedure (CrPC) which deals with maintenance for wives, children and parents. The order was passed last week by a division bench of Chief Justice K S Radhakrishnan and Justice A S Dave while acting on a PIL (public interest litigation) filed by an NGO Yogkshem Foundation for Human Dignity (YFHD).
Section 125 of the CrPC enables divorced or deserted women, parents or children to claim maintenance amount from husbands, children and parents respectively. Based on the PIL, which stated that there is delay in cases of maintenance and sought appropriate directions, the High Court had asked for records from family courts across the state last month. After assessing records Court ordered, "since several cases are pending for more than nine years, we are inclined to direct the concerned District Judges and the Judges in-charge of Family Courts to take appropriate steps to see that cases under Section 125 of CrPC are disposed of expeditiously after completing the process." The Court has asked the district judges and family courts judges to call for meeting of the Re-Vamping Committee within a period of one month from the date of its order and 'take appropriate steps'. According to Rajendra Shukla president of YFHD, a family court or magisterial court has to complete proceedings and decide on an application filed under CrPC section 125 within 60 days of issuing notice."But there are cases pending since 1995. A delay of more than a decade in dispensation of justice is nothing but to deny justice to a person," Shukla said. He said that the committee would ensure quick disposal of petitions filed by deserted or separated women seeking maintenance amount from their husbands or other kin. The YFHD in its PIL had cited some cases pending for a couple of years even after issuance of notice. "But when the High Court enquired with courts, the issue appeared much more serious," Shukla said. Bureau Report





Allahabad HC judges decide to declare their assets
http://www.indianexpress.com/news/allahabad-hc-judges-decide-to-declare-their-assets/522362/
Vijay Pratap Singh
Posted: Sep 28, 2009 at 0609 hrs IST
Allahabad After the Supreme Court judges decided to declare their assets, the Allahabad High Court judges have decided to tread the same path.
The rider: they will only declare it to the chief justice.
The decision, which has not been made public, was taken on September 12 in a full-court meeting, presided by Chief Justice Chandramauli Kumar Prasad.
The judges unanimously agreed to declare their assets, but they were not in favour of disclosing it on the official website like some other high courts have done.
Registrar General Dinesh Gupta said: “A resolution was passed unanimously by the judges in the meeting.”
Asked if the assets of the judges would be made public, he said: “The judges will declare the details of their assets to the Chief Justice of the Allahabad High Court, not on the official website.”
As for the decision not being made public even after a fortnight, Gupta said confidentiality has been the main ingredient of the full-court.
The high courts of Kerala, Mumbai, Delhi, Punjab and Haryana have reportedly decided to put the assets of their judges on their respective websites.






Go door-to-door to find disabled children denied education: HC
http://www.indianexpress.com/news/go-doortodoor-to-find-disabled-children-denied-education-hc/522249/0
Krishnadas Rajagopal
Posted: Monday , Sep 28, 2009 at 0233 hrs New Delhi:
The Delhi High Court has asked the state’s Education department to knock on every door in the Capital to identify disabled children who are denied their right to go to school.
“Map Delhi to find out disabled children. You have to take a home-to-home account of the number of disabled children who are not going to school,” Chief Justice A P Shah directed Education Secretary Rakesh Mohan, who was summoned to the court for the hearing recently.
The Bench clarified that mere counting the heads of disabled children enrolled in government schools would not suffice to give a complete picture of how many such children are denied education, the “Constitutional right of every child in the country”.
The court said that a door-to-door survey is a necessity as many parents have a “tendency to not disclose the disability of the child”.
“What is to be done immediately is to give us a plan,” the Bench told Mohan. “Explain what we need in infrastructure for the disabled. Ascertain how many children require transport facilities to reach school and back — give us a complete picture of what is needed to be done to have disabled children in school,” the Chief Justice said.
The government is to prepare a proposal by October 21, the next date of hearing.
The court also added that it understood that it would be difficult for the government to equip all schools in Delhi with disabled-friendly features, so the state would do best by picking certain sample schools to begin with.
“Remember, innovation is necessary for these measures. Experiment with sample schools, may be by next year you can start with other schools,” the Bench said.
A government report filed before the High Court in May this year said over 10,000 disabled students in government and the MCD schools do not have even a single special teacher.
None of the 650 Delhi government schools or 1,800 MCD schools employ a teacher specially trained to teach disabled students, though a government status report filed before the Delhi High Court on Wednesday identified 10,065 “children with special needs” studying in schools run by the Directorate of Education, the MCD and the NDMC.
The government admits that of the 10,065 disabled students, 7,523 need 1,505 special educators at a ration of 1:5. Again, the MCD alone has 2,087 disabled children in its schools.
A training programme for orienting 51,000 teachers in “inclusive education and various issues related to children with disabilities” in May and June 2009 could not take off owing to then Lok Sabha polls, the report had stated.









Follow Executive Council norms to recruit teachers, HC tells DU
http://www.expressindia.com/latest-news/follow-executive-council-norms-to-recruit-teachers-hc-tells-du/522239/
Express News Service
Posted: Sep 28, 2009 at 0217 hrs IST
New Delhi The Delhi High Court has directed the Delhi University to shortlist applications for the posts of lecturer and professor as per the criteria laid down by its Executive Council and not according to that of the Screening Committee.
The court passed the order while considering the applications of two persons for the posts of professor in Chemistry. The university had earlier rejected the applications on the ground that they did not fulfill the eligibility criterion of having at least 10 published works in internationally reputed journals.
A Division Bench of Chief Justice A P Shah and Justice Manmohan set aside the rejection order passed by the Screening Committee last year against Doctor Ramakant and Doctor Shrikant.
“The university is directed to ensure in future that shortlisting is done either in accordance with the criteria stipulated in advertisements or, if it is not so mentioned, then in accordance with the criteria determined by the selection committee (Executive Council) and not by the Screening Committee,” the Bench said.
“Delhi University is directed to forward their names to the Executive Council for appointment to the posts of professor in Chemistry,” the Bench said in its judgment.
According to a joint petition filed by the lecturers, they had applied for the posts of professor in Chemistry in March last year through the open selection procedure.







SC/ST forum slams Shanti Bhushan for anti-dalit

http://www.expressbuzz.com/edition/story.aspx?Title=SC/ST+forum+slams+Shanti+Bhushan+for+anti-dalit&artid=uxYSF%7C0rwA0=&SectionID=Qz/kHVp9tEs=&MainSectionID=wIcBMLGbUJI=&SectionName=UOaHCPTTmuP3XGzZRCAUTQ==&SEO=Chief%20Justice%20PD%20Dinakaran

Express News Service
First Published : 27 Sep 2009 04:03:00 AM IST
Last Updated :

BANGALORE: The Karnataka State Schedule Caste and Schedule Tribes Advocate Forum attacked former law minister and Supreme Court senior counsel member Shanti Bhushan for his alleged anti-dalit remark against Chief Justice of India KG Balakrishnan and the Karnataka Chief Justice PD Dinakaran.
The forum president M Kumbaiah told reporters, “Bhusan has virtually accused the CJI of having a soft corner for Justice Dinakaran because he, like Justice Balakrishnan, is a also dalit.”







Justice Dinakaran issue: CJI's authority and independence of judiciary
http://sudhanshuranjanbegusarai.blogspot.com/2009/09/justice-dinakaran-issue-cjis-authority.html
Sunday, September 27, 2009
In recent years, the issues of appointment and that of accountability of judges have touched off storm in the legal and political circles. The two are inextricably liked together and the Prime Minister had rightly suggested to improve the quality of appointment to overcome the problem of corruption in the judiciary. The controversy surrounding the proposed elevation of Justice D. P. Dinakaran, chief justice of the Karnataka high court, to the Supreme Court, is the latest body blow to the credibility of the judiciary. He has allegedly amassed huge wealth and grabbed several hundred acres of land. As per press reports, Dinakaran met the Chief Justice of India and rebutted all charges levelled against him. This raises a third issue whether the CJI is the boss of other judges. It is also related to the other two issues. Recently, Justice Shylendra Kumar of the Karnataka high court created sensation by questioning the authority of the CJI to speak on behalf of all judges in regard to declaration of assets.So, it will be desirable to examine the authority of the CJI vis-à-vis other judges of the higher judiciary as it has serious implications for the independence of the judiciary. Justice Kumar’s stand that the CJI is not authorized to speak on behalf of all judges amounts to questioning the status of the CJI as the head of the judiciary. Constitutionally speaking, the high court is not subordinate to the Supreme Court. On this premise, Justice Sabyasach Mukherjee, then a judge of the Calcutta high court, had rebuffed the Supreme Court which had directed it to dispose of Indira Gandhi’s petition within the stipulated time period. He clearly wrote in the judgment that the Supreme Court has just got an appellate jurisdiction over the high courts, but has no right to direct them. In a way, it is true that high courts do not become subservient just because their orders can be challenged before the Supreme Court. Even in the high courts, Letters Patent Appeals lie against the order of a single judge before a division bench of the same court. It does not mean that the single-judge bench is subordinate to the division bench. In the Supreme Court also, the larger bench overrules the smaller bench. It is a method of correction as individuals may go wrong. However, the Supreme Court is not just the apex court in the normal hierarchy of courts, but is much more than that as it has original, appellate as well as advisory jurisdictions. Further, Article 144 clearly mandates that all authorities, civil and judicial, shall work in the aid of the Supreme Court. The term, judicial authorities, also covers high courts. Moreover, the Chief Justice of the Supreme Court is called the Chief Justice of India (Art. 24 of the Constitution). This nomenclature is meaningless if he is not the head of the judiciary. So, by convention, he is the paterfamilias of the judicial fraternity even though the Supreme Court has no supervisory jurisdiction over any court. However, in matters of appointment and transfer of judges, the CJI plays the most crucial role. Under Articles 124 and 217, consultation with the CJI is a must for the appointment of judges. In 1993, the Supreme Court, in its controversial decision in the Second Judges’ case, ruled that the recommendation of the CJI would be binding, but clarified that the opinion of the CJI means the opinion of the collegium consisting of the CJI and two senior most judges. The Third Judges’ case upheld most of the formulations of the Second Judges’ case but ruled that in case of appointment to the Supreme Court, the collegium would consist of four senior most judges besides the CJI. In fact, the snatching of power of appointment and transfer of judges from the hands of the executive and transferring it to the collegium by judicial interpretation has virtually made the high court judges subservient to the CJI and other members of the collegium as they have to keep them in good humour for getting promoted as chief justices of high courts and elevated to the Supreme Court. Justice Dinakaran has made the position of other judges more vulnerable by meeting the CJI to explain his position. This is not a healthy trend for the judiciary. Fear of supersession is bound to affect the independence of judges. Here again comes the question of the independence of the judiciary which faces threat not only from without but also from within. A high court judge has the same protection as the CJI under the Constitution. But the fear of being left out makes high court judges feel insecure. In the words of Milton, ambition is but the last infirmity of a noble mind. Judges also nurture the ambition of promotion and elevation. Earlier, if the CJI visited a state, the chief justice of high court did not go the airport to receive him. If both, the CJI and the chief justice of the high court, were invited to some party, the two would enter from opposite doors at the same time so that none of them would receive each other. But the situation has undergone a colossal change after the introduction of the collegium system. Independence of judges must be maintained, and obviously then, the CJI cannot speak on behalf of all judges, even though symbolically, he may represent the judiciary as its head.Earlier, the Standing Committee of Parliament attached to the Ministry of Law and Justice in its 21st Report made many recommendations for making the judges of the Supreme Court and High Courts accountable. But the members of the Committee felt that for it the system of the appointment of judges to the higher judiciary has to be rectified first. So the crux of the problem lies in the process of the appointment of judges. If competent and honest people are appointed judges it will address the problem of accountability, overreach and delay. The Committee has recommended that the power of appointment of the judges should be in the hands of the executive as was the position till. In 2006, two Parliamentary Committees made the same recommendation to restore the pre-1993 position.Justice J. S. Verma, who is the author of the majority judgment in the Second Judges’ case, recently wrote to the Chief Justice of India that the system of collegium had failed and a new system needed to be invented. The Administrative Reforms Commission headed by Veerappa Moily has recommended the constitution of a National Judicial Council (NJC) for the appointment and removal of judges. The previous National Democratic Alliance government had introduced the Ninety-Eighth Amendment Bill, 2003 for the setting up of an NJC which lapsed.
Posted by SUDHANSHU RANJAN at 8:14 AM










No villages in Gujarat, declares CM Modi
http://timesofindia.indiatimes.com/news/india/No-villages-in-Gujarat-declares-CM-Modi/articleshow/5063530.cms
Dhananjay Mahapatra, TNN 28 September 2009, 09:48am IST
NEW DELHI: It's unimaginable in a predominantly rural set up of India. But, there are no villages in Gujarat, if one believes chief minister Narendra Modi. This is recorded in the minutes of the "Conference of chief ministers of states and chief justices of high courts". Though the conference was held last month, the minutes prepared by the judiciary and vetted by the law ministry were recently uploaded onto the official website of the Supreme Court. Modi's remarks find mention under the heading "Operationalization of Gram Nyayalayas", a project very dear to law minister Veerappa Moily, who feels it is one of the finest ways to reach the justice delivery system to the doorsteps of poor litigants. Only two chief ministers -- Sheila Dikshit of Delhi and Modi -- pointed out that there were no villages in the territory under the administrative control of their governments. Dikshit may have been correct when she informed the conference that "in stricto senso (strictly speaking), there is no rural area within Delhi" as the villages in Delhi have been consumed by rapid urbanization. But, what was attributed to Modi in the minutes appeared unbelievable. It said: "The chief minister of Gujarat, while agreeing, in principle, with the establishment of Gram Nyayalayas, stated that there is no village in the state of Gujarat and, therefore, operationalization of such Nyayalayas may not be a viable proposition." "He, however, emphasized need for mobile courts for effective dispensation of justice instead of Gram Nyayalayas at the grassroot level," the minutes showed. Moily had recently told TOI in an interview that he wanted to operationalize the first lot of Gram Nyayalayas (village courts) on the birth anniversary of Mahatma Gandhi on October 2. It's only a paradox that the chief minister of the state where the Mahatma was born, had a different idea on implementation of the Gram Nyayalayas.





Shopian rape and murders: CBI exhumes bodies of victims
http://timesofindia.indiatimes.com/news/india/Shopian-rape-and-murders-CBI-exhumes-bodies-of-victims/articleshow/5064257.cms
PTI 28 September 2009, 11:27am IST
SHOPIAN, J&K: A special CBI forensic team on Monday exhumed the bodies of the two women allegedly raped and murdered here, nearly four months after the incident that sparked massive protests in the Kashmir Valley. The team, which comprised senior doctors of All India Institute of Medical Sciences, began the process of exhuming the bodies at 7am after the necessary approval of the family of the victims -- 22-year-old Neelofar and her 17-year-old sister-in-law Aasiya -- was obtained. The village, about 51 km from Srinagar and famous for Ambri apple, was agog with activity since midnight with police erecting screens around the graveyard and para-military forces setting up barricades that kept the general public and media away. The team had brought some modern equipment that would help determine anti-mortem and post-mortem injuries on the bodies, officials said. Bodies of Neelofar and her sister-in-law Asiya were recovered from a stream on May 30 after they went missing in town the previous evening. Their deaths had led to 47 days of protests in this town with locals alleging that security personnel were responsible for the crime. Ahead of the exhumation, a doctor, who was part of the second post-mortem team from neighbouring Pulwama district hospital and had prepared the vaginal slides of the victims, had told CBI that no samples from the duo had ever been taken. The doctor broke down during questioning and narrated the entire sequence of events to the CBI officials, official sources said, adding she claimed that the samples were taken from gloves used in the gynaecological ward of the district hospital and the slides prepared. The CBI took over the investigation into the case on September 17 and a team headed by deputy inspector general Satish Golcha has been camping here since then. The agency's special director S C Sinha had also visited the village recently and taken stock of the situation. It had come to light last month that the vaginal swabs of the two victims sent to Central Forensic and Scientific Laboratory did not match with that of Neelofar and Aasiya. Ahead of the CBI investigations, the state government had appointed one-man commission headed by Justice (retd) Muzzafar Jan which among other things had recommended a detailed questioning of the relatives of the victims including Neelofar's husband Shakeel Ahnger and her brother Zirar Shah.









Woman fails to prove 3-decade marriage
http://timesofindia.indiatimes.com/news/city/mumbai/Woman-fails-to-prove-3-decade-marriage/articleshow/5063423.cms
Kartikeya, TNN 28 September 2009, 02:57am IST
MUMBAI: A division bench of the Bombay high court has rejected the claims of a village woman from Kolhapur who said that a school teacher from Mumbai had married her three decades ago but left her to fend for herself. Instead, the court said that the man's assets would go to another woman he married when he moved to Mumbai in 1982. The woman from the village had no evidence to back her word of marriage. Justice P B Majumdar and R V More heard the case of Radha who said that Ramesh Patil, who worked as a school teacher in Mumbai, married her at a village called Sarvade in Kolhapur in June 1978. Subsequently, Patil moved to Mumbai but Radha never came to the city. The court was told that Patil would go to the village during vacations and Radha gave birth to a daughter in 1990. On the other hand, Shreya, a resident of Borivli, said she was working as Patil's colleague at a school in Mumbai and married him in December 1982. They had two sons and Shreya lived with him until 1999 when Patil left home because he had contracted AIDS. He was traced to Virar and Shreya said she looked after him until he died in July 2002. Radha said that it was eight days after Patil's death that she came to know of it in the village. She then wrote to the school where he worked, asking for his gratuity and pension. Shreya, too, asked for the same and the dispute reached the court. Radha's advocate said she was an "illiterate village lady'' who would "not tell lies'' about her marriage to Patil. He placed on record statements by two brothers of Patil who said Patil had married Radha in 1978. Thus it was argued that by virtue of Patil's first marriage to Radha, his subsequent marriage to Shreya was void. However, the court considered that there was no material evidence to show that Patil and Radha had been married. There were no photographs of the marriage ceremony and there was no evidence that Patil ever sent money to his village for Radha's maintenance. The priest who had suppposedly performed the marriage was also not brought as a witness. Moreover, there were no letters or correspondence between Patil and Radha to show that they were a couple and in touch all these years. The high court observed that scanned copies of some photographs that were shown as evidence of Radha's relationship with Patil seemed like "trick photographs''. Radha could not even point out Patil in a photograph given by Shreya's advocates despite claiming that he was her husband. The judges felt that attempts had been made to "create evidence'' to show that Patil had married Radha. In contrast, Patil's marriage to Shreya was well documented. While marrying her in Mumbai in 1982, he had clearly stated that he was a "bachelor'' and later named her as his nominee for getting his retirement benefits. Thus on the basis of all the evidence, the high court held that Shreya, and not Radha, was the lawfully wedded wife of Patil and thus the true claimant of his property and assets.







Fresher course to help law grads 'argue' better
http://timesofindia.indiatimes.com/news/city/chandigarh/Fresher-course-to-help-law-grads-argue-better/articleshow/5063393.cms
Ajay Sura, TNN 28 September 2009, 02:23am IST CHANDIGARH: Legal rookies’ first step into the profession would soon constitute a freshers’ course that would aim at sharpening skills before their entry into the courtroom. The Punjab and Haryana High Court Bar Association has prepared a blueprint for the module, which new entrants would have to attend for becoming its members. “The course is aimed at removing the initial hesitation that beginners feel while entering the profession. It will also boost their confidence,” said bar association president S S Bahal. He added the activity would serve a two-pronged purpose. “Not only will we be able to welcome the new members formally but also solve their basic problems,” Bahal said. Besides attracting newcomers to the practice, the course would also disseminate tricks of the trade, knowledge about HC proceedings and courtroom behaviour. A placement agency would also be constituted to help freshers find senior lawyers of their choice. “The cell will keep a record of advocates who need junior lawyers for assistance,” Bahal said. Around 40 to 50 lawyers apply for bar body membership every month. With Punjab, Haryana and UT having a combined HC, most of the fresh graduates come from remote areas, making it difficult for them to make a confident entry. Approximately 500 starters stop practising after a couple of months due to the initial hiccups.







Panel to probe child worker deaths in Gujarat
http://timesofindia.indiatimes.com/news/city/jaipur/Panel-to-probe-child-worker-deaths-in-Gujarat/articleshow/5063557.cms
Rao Jaswant Singh, TNN 28 September 2009, 05:42am IST
JAIPUR: Taking serious note of deaths of tribal child workers in Bt cotton fields of Gujarat, National Commission of Women and National Commission of Protection of Child rights have constituted a high-power committee to look into the issue. The Times of India first reported the death of five tribal workers in the cotton fields in its report Life is cheap in the killing BT cotton fields of Gujarat' dated August 28 and death of five more Bt cotton field workers in the second report Five more die in Gujarat Bt cotton field' dated September 6. Gujarat High Court advocate Ami Yagnik, one of the four members of the committee, said that the panel has been constituted after several cases of child labour and death of minor workers were reported. The committee members would visit the affected areas in Rajasthan and Gujarat and submit their report, she said. Around 1.5 lakh tribal children from Dungarpur and Udaipur districts of Rajasthan go to work in Bt cotton fields in Bansakantha and Sabarkantha village of Gujarat. Around 75% of them are below 14 years of age and the rest below 18. Nine children and one adult worker died while working in the Bt cotton fields in Gujarat during August. There were around 15 deaths in 2008. Yagnik said the panel would visit Dungarpur and Udaipur districts, from where maximum number of child workers migrates to Gujarat every year. The committee, apart from meeting the family members of victims in Rajasthan, would also visit the Bt cotton fields in Gujarat and study the working condition. The panel formation has left the Bt cotton farm owners red-faced and they running from pillar to post to find a way out. They are raising voice against government agencies claiming agriculture as a whole cannot be put in the list of hazardous occupation, as all the processes are not hazardous and children might work in their own fields.








'Judges should actively participate rather being a spectator'
http://timesofindia.indiatimes.com/news/city/lucknow/Judges-should-actively-participate-rather-being-a-spectator/articleshow/5063521.cms
TNN 28 September 2009, 06:16am IST
LUCKNOW: It is the duty of the judges to introspect over various problems being faced by the judiciary because they (judges) discharge divine duty in dispensing justice to the aggrieved persons, said Justice B S Chauhan, judge, Supreme Court of India. He was delivering keynote address on the second day of the ongoing 3-day regional conference of the National Judicial Academy, Bhopal on `Enhancing timely justice: strengthening criminal justice administration' at the Institute of Judicial Training and Research, UP here on Sunday. Stressing on the need for timely administration of justice, he said that in the ancient past the king used to observe fast for a day if he failed in delivering justice to any person. Quoting several instances of delayed delivery of justice in criminal matters, Justice Chauhan emphasised that speedy trial of criminal cases is the constitutional right of an accused and reminded the judges of the trial courts not to be silent spectator to the proceedings in their courts but to actively participate during the trial of the cases to elicit truth from the accused and the witnesses. Expressing concern regarding the taking up of criminal appeals after 25 years for hearing at the Allahabad high court when many convict appellants were already dead, he cautioned the judges that patience of society should not be tested. Justice S B Sinha, former judge of the supreme court speaking on the occasion said that the role of courts is to protect the rights of citizens at all levels of proceedings and exhorted the judges that erosion of faith of society must be checked. Justice Devi Prasad Singh, judge, Lucknow bench of Allahabad high court said that the courts should be cautious in awarding adequate sentence to the convicts, particularly to those convicts who are found guilty of commission of heinous crimes. Justice S N Shukla, another judge of Lucknow bench of Allahabad high court said that the qualities of a noble judge are: To hear patiently, to behave soberly, to consider wisely and to decide impartially.








UN set to treat caste as human rights violation
http://timesofindia.indiatimes.com/news/india/UN-set-to-treat-caste-as-human-rights-violation/articleshow/5063457.cms
Manoj Mitta, TNN 28 September 2009, 06:10am IST
NEW DELHI: If the recent genome study denying the Aryan-Dravidian divide has established the antiquity of caste segregations in marriage, the ongoing session of the UN Human Rights Council in Geneva looks set to recognize caste-based discrimination as a human rights violation. This, despite India's opposition and following Nepal's breaking ranks on the culturally sensitive issue. Nepal has emerged as the first country from South Asia -- the region where untouchability has been traditionally practiced -- to declare support for the draft principles and guidelines published by UNHRC four months ago for ``effective elimination of discrimination based on work and descent'' -- the UN terminology for caste inequities. In a side-event to the session on September 16, Nepalese minister Jeet Bahadur Darjee Gautam said his county welcomed the idea mooted by the UNHRC document to involve ``regional and international mechanism, the UN and its organs'' to complement national efforts to combat caste discrimination. This is radically different from India's stated aversion to the internationalization of the caste problem. Much to India's embarrassment, Nepal's statement evoked an immediate endorsement from the office of the UN high commissioner for human rights, Navanethem Pillay, a South African Tamil. Besides calling Nepal's support ``a significant step by a country grappling with this entrenched problem itself'', Pillay's office said it would ``like to encourage other states to follow this commendable example''. The reference to India was unmistakable especially since Pillay had pressed the issue during her visit to New Delhi in March. Pillay not only asked India to address ``its own challenges nationally, but show leadership in combating caste-based discrimination globally''. The granddaughter of an indentured labourer taken to South Africa from a village near Madurai, Pillay recalled that in 2006, Prime Minister Manmohan Singh had compared untouchability to apartheid. Adding to India's discomfiture, Sweden, in its capacity as the president of the Europeon Union, said, ``caste-based discrimination and other forms of discrimination based on work and descent is an important priority for EU''. If this issue continues to gather momentum, UNHRC may in a future session adopt the draft principles and guidelines and, to impart greater legal force, send them for adoption to the UN General Assembly. The draft principles specifically cited caste as one of the grounds on which more than 200 million people in the world suffer discrimination. ``This type of discrimination is typically associated with the notion of purity and pollution and practices of untouchability, and is deeply rooted in societies and cultures where this discrimination is practiced,'' it said. Though India succeeded in its efforts to keep caste out of the resolution adopted by the 2001 Durban conference on racism, the issue has since re-emerged in a different guise, without getting drawn into the debate over where caste and race are analogous.








Mahato charged under UAPA
http://timesofindia.indiatimes.com/news/india/Mahato-charged-under-UAPA/articleshow/5063654.cms
Sukumar Mahato, TNN 28 September 2009, 02:55am IST
JHARGRAM: People’s Committee against Police Atrocities (PCPA) leader Chhatradhar Mahato, who was arrested on Saturday, has been charged with sedition and remanded in five days’ police custody. He also faces charges under the stringent Unlawful Activities Prevention Act (UAPA). A grim looking Mahato was produced before the Jhargram assistant chief judicial magistrate on Sunday, along with eight suspected Maoists arrested from Kantapahari and Kumarbandh on Saturday. No civilians, including journalists, were allowed into the court premises that was ringed by heavily armed securitymen. Koushik Sinha and Prashanta Roy, counsels for the accused, claimed police had tortured Chhatradhar and the eight others so badly that they were unable to walk properly. The prosecution, however, argued that they were injured when they ‘‘fell down while trying to escape’’. Chhatradhar has been charged under various of the UAPA and is accused of raising fund for a terrorist organization, attempting to murder members of security forces and conspiring against the state to create terror. He also faces charges under IPC like sedition, waging war against the state, etc. Some of these cases relate to ransacking and setting fire to Ramgarh police camp on June 15, and the explosions at Dalilpur and Kantapahari on Saturday, soon after his arrest. The other eight — Gorachand Hembram, Sajan Murmu, Subir Hansda, Hiralal Murmu, Baburam Kisku, Sagun Murmu, Ranjit Murmu and Sambhu Soren — have been arrested for allegedly triggering IED blasts after Mahato’s arrest.