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Thursday, October 29, 2009

LEGAL NEWS 28.10.09

Case against Nirmal Yadav closed: Moily
http://www.tribuneindia.com/2009/20091029/main5.htm
R SedhuramanLegal Correspondent
New Delhi, October 28A decision has been taken to close the case against Punjab and Haryana High Court Judge Nirmal Yadav in the cash-at-doorstep scam.
Law Minister M Veerappa Moily told The Tribune today that his understanding was that the matter was treated as closed before he assumed office on May 29.
The decision was apparently taken on the advice of the then Attorney-General, Milon K Banerjee, he said. He, however, clarified that his ministry was never in the picture in the case, at least after he took over. Such matters were handled by the Chief Justice of India and the Law Ministry got involved only after receiving a communication from the CJI in cases requiring impeachment.
Justice Yadav was asked to go on leave following delivery of Rs 15 lakh in cash at the residence of Justice Nirmaljit Kaur on August 13 last year. It was then alleged that the money was actually meant for Justice Yadav, but was delivered at the residence of Justice Kaur because of some similarity in the name.
The case came to light following an FIR registered by Justice Kaur. Subsequently, Chief Justice of India KG Balakrishnan sought explanations from Justice Yadav, who wrote at least three letters, pleading her innocence. She had also sought several documents based on which the CJI had sought her response. In his January 29 letter to Justice Yadav, the CJI maintained that all documents she had sought had been supplied.






UN rights investigator warns US drone attacks may violate international law
http://jurist.law.pitt.edu/paperchase/2009/10/un-rights-investigator-warns-us-drone.php
Amelia Mathias at 9:02 AM ET
Wednesday, October 28, 2009
[JURIST] UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] said Tuesday that the use of unmanned warplanes by the US to carry out attacks in Pakistan and Afghanistan may be illegal. Alston criticized the US policy in a report to the UN General Assembly's human rights committee and then elaborated at a press conference [press release; recorded video]:
My concern is that these drones, these predators, are being operated in a framework which may well violate international humanitarian law and international human rights law. The onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions, are not in fact being carried out through the use of these weapons. The response of the US is simply untenable, and that is that the Human Rights Council and the General Assembly by definition have no role in relation to killings that take place in relations to an armed conflict. that would remove the great majority of issues that come before these bodies right now.
Alston's report was presented as part of a larger demand that no state be free from accountability. Alston previously raised the issue of US drone attacks in June. The US government responded that its position is that such attacks are carried out in a war zone where the UN has no role. The controversial attacks have killed about 600 people in northwestern Pakistan since August 2008, including around 400 militants. US Senator John Kerry said this week that the attacks would continue [RTTNews report], claiming that they have been successful in combatting al Qaeda and have resulted in minimal collateral damage. Also this week, a Pakistani court upheld the dismissal of a petition [The Nation report] against US drone attacks that sought to declare the US an enemy state.






Supreme Court CPIO seeking adjournment at CIC
http://www.merinews.com/article/supreme-court-cpio-seeking-adjournment-at-cic/15787014.shtml
The Supreme Court central public information officer seeking adjournment at Central Information Commission Court till disposal of its appeal at Delhi High Court on eight pending petitions relating to Honourable Chief Justice raises several aspects.
CJ: SUBHASH CHANDRA..

Wed, Oct 28, 2009 14:32:14 IST
INDEFINITE ADJOURNMENT sought by central public information officer of Supreme Court till disposal of its appeal at Delhi High Court on eight pending petitions on information relating to Honourable Chief Justice of India raises several aspects:
Can simply filing of an appeal (that too without getting any stay-order) in a case involving CIC-verdict put complete Right to Information Act on hold?
Is filing an appeal at division bench against single-bench verdict equivalent to a refused stay-order by the higher bench?
Can simply a mention of a writ-petition (288/2009) in a petition (CIC/WB/A/2008/000859) put all the eight petitions on hold indefinitely especially also when this mention of the writ-petition is only in one petition (CIC/WB/A/2008/000859) for which a separate notice for hearing is issued while combined notice for hearing for other seven petitions is different.
A division bench of Honourable Supreme Court observed against adjournment-culture by mention that many-a-times petitioners seek stay-orders on filing a writ/appeal and drag the case for years with many-a-times ultimately losing the case even.
Central Information Commission usually proceeds with hearings overlooking adjournment-requests like was done in petition-number CIC/AT/A/2008/00736 in the matter (Subhash Chandra Agrawal vs Department of Justice).
There are several issues of national importance in these petitions fixed for hearing, which may lose relevance if hearing is postponed.
Central Information Commission has an admirable practice of not entertaining adjournment-requests which otherwise has become a culture in our courts for which concern is being expressed by even those in judicial-system.






Dinakaran’s conduct unbecoming’

http://www.expressbuzz.com/edition/story.aspx?Title=%E2%80%98Dinakaran%E2%80%99s+conduct+unbecoming%E2%80%99&artid=l4XfeTltpQ0=&SectionID=Qz/kHVp9tEs=&MainSectionID=wIcBMLGbUJI=&SectionName=UOaHCPTTmuP3XGzZRCAUTQ==&SEO
=

C Shivakumar
First Published : 28 Oct 2009 06:47:33 AM IST
Last Updated : 28 Oct 2009 08:19:22 AM IST

CHENNAI: In a new representation filed before the Chief Justice of India, the Forum for Judicial Accountability (FJA) has cited an instance of judicial misconduct where Karnataka Chief Justice P D Dinakaran failed to excuse himself from hearing a case in which he was close to one of the parties.
The Forum has referred to a 2005 property case in the Madras High Court involving the Pentecostal Mission, Chennai and Anandhi Murthy, a close associate of Justice Dinakaran and his family.
The Forum states: “Contrary to accepted norms of judicial conduct that a judge shall not hear any matter to which a person close to him is a party, as it erodes the confidence of the public in the impartiality of the judicial system, Justice P D Dinakaran heard a writ petition in 2005 filed in the Madras High Court and passed certain questionable orders.” The Pentecostal Mission had filed a writ petition in the Madras High Court, praying that the police be restrained for interfering with its peaceful possession of its property near Chennai.
However, a Canadian resident, Anandhi Murthy, contested the Pentecostal Mission’s title over the property and filed a petition to be impleaded in the writ petition. By an order dated August 19, 2006, Justice Dinakaran allowed Anandhi Murthy to be impleaded, the representation said.
“Not stopping with that, Justice Dinakaran continued to pass extraordinary orders on September 6, 2006 and September 20, 2006, and other dates recording that the writ petitioner and his senior counsel conceded that the averments in the writ petition were false and passed other orders,” the representation alleged.
“According to the averments of the writ petitioner in his appeal, viz. W A No. 1329 of 2006, no such concession was made and that they had in fact wanted to withdraw the writ petition and approach the civil court. Yet, Justice Dinakaran continued to hear the matter and pass highly questionable orders.” The Forum says that Justice Dinakaran had enjoyed the hospitality of Anandhi Murthy and her husband Karuna Murthy in Canada just a year before the case was filed.
“In 2004, Justice Dinakaran, his wife and two daughters visited Canada en route to the US for admission of his daughter Amudha Porkodi in Suny College of Technology at Utica, New York State. Justice Dinakaran and his family stayed with Anandhi Murthy and Karuna Murthy in Canada between August 11 and 15, 2004. Later, it is learnt that Anandhi Murthy and Karuna Murthy actually joined the Dinakarans at Utica, US, at the time of Amudha Porkodi’s admission to college,” the representation said.
“Justice Dinakaran thus had a close connection with one of the parties to the case and despite that continued to hear the case, violating the accepted code of judicial conduct as enunciated in the Bangalore Principles,” the representation said.







PIL against medical college teachers strike filed
http://www.dnaindia.com/india/report_pil-against-medical-college-teachers-strike-filed_1304180
PTI
Wednesday, October 28, 2009 17:12 IST
Kochi: A PIL seeking to declare the ongoing strike by government medical college teachers was illegal, unconstitutional and unwarranted was filed in the Kerala High Court today.
When the petition by journalist Leela Menon came up before a division bench comprising chief justice SR Bannurmath and justice AK Basheer, the court adjourned the PIL to Tuesday.
The government informed the court that a high level meeting had been convened and decision was conveyed to the striking doctors. Only after getting their response, further action would be taken.
The petitioner also sought for a declaration that members of the Kerala government college teachers association and its president Dr Varghese Thomas were responsbile for any deaths during the strike period. The petitioner also sought to invoke ESMA against the members of the association.
©2009 PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.






Gurkhas fight for rights in High Court
http://www.mirror.co.uk/news/top-stories/2009/10/28/one-big-step-to-justice-115875-21778879/
By Andrew Gregory 28/10/2009
Gurkha veterans stand on the steps of the High Court yesterday as they launch a legal battle for the same pension as other servicemen.
Their legal team told the judges the MoD gives 24,000 veteran Gurkhas just a third of payments handed out to retired British soldiers.
They claim that current rules say Gurkhas who retired before 1997 cannot join the Armed Forces Pension Scheme.
They have to stay in their own scheme which pays substantially lower benefits based on the cost of living in their Nepal homeland.
The veterans, who won the right to settle in Britain after a campaign led by Joanna Lumley, claim they are victims of discrimination.
Lumley T heir lawyer Declan O'Dempsey said: "Although they took the same risks as other members of the British Army and have served with wide praise and distinction, they are not being treated with the same effect as regards matters of welfare, including their pensions, as other members of the British armed forces."
Retired Gurkhas wearing poppies and campaign medals and carrying banners flocked to the High Court in Central London to publicise their campaign.
The MoD says that Gurkha pensions can be paid from the age of 33 - so over the course of their retirement veterans do end up getting the same money.






Karnataka orders CID probe on ‘love jihad’
http://twocircles.net/2009oct28/karnataka_orders_cid_probe_love_jihad.html
Submitted by admin4 on 28 October 2009 - 12:35pm.
By TwoCircles.net Staff Correspondent,
Kochi: The Karnataka government has ordered for a probe by the Criminal Investigation Department to know whether an organisation called ‘love jihad’ was functioning in the state. The decision was taken in the high level meeting of police officers presided over by the state Home Minister VS Acharya.
The DGP and the CID will conduct a detailed probe and submit report to the government in two weeks. More information would be collected about the existence, alleged funding and support of the ‘love jihad’. The DGP would collect more information on the missing girls also. Further decisions as to how to curb the forced conversions, if any, would be taken after the reports are submitted.
The Karnataka High Court had ordered the government to probe into the matter of the alleged ‘love jihad’ when hearing the habeas corpus filed by the parents of a girl from Mysore. The girl had married a Muslim boy from Kannur in Kerala and had converted to Islam. When produced in court, the girl had reportedly said that she had converted on her own will, yet the court asked her to be sent with her parents and to conduct an investigation on her husband. The girl has to live with her parents till the investigation on the boy is completed.
In Kerala also, two girls who had converted to Islam and married Muslim boys were sent with their parents by the High Court when the girls’ parents filed habeas corpus. The Court ordered probe into alleged ‘love jihad’ when considering the case. The state DGP submitted areport in the court on October 22 stating that such an organisation did not exist. The Central Intelligence Bureau also has informed the Kerala High Court yesterday that there was no evidence for a movement called ‘love jihad’ in the state.
Meanwhile, the People’s Union for Civil Liberties has decided to oppose the order of the High Court in the Supreme Court. The PUCL maintains that the HC decision to send the woman, who had converted to Islam and married a Muslim, with her Hindu parents was not right.





Work out arrangment, end dispute: SC tells Ambani brothers
http://www.hindustantimes.com/corporatenews/Work-out-arrangment-end-dispute-SC-tells-Ambani-brothers/470063/H1-Article1-469909.aspx
HT Correspondent, Hindustan Times
Email Author
New Delhi, October 27, 2009
First Published: 22:43 IST(27/10/2009)
Last Updated: 23:33 IST(27/10/2009)
The Supreme Court on Tuesday once again hinted to the Ambani brothers on the possibility of working out a “suitable arrangement” to resolve their gas dispute.
A three-judge bench headed by Chief Justice KG Balakrishnan inquired into the aptness of arbitration process as senior counsels from both sides resumed arguments.
“There are some parameters to arrive at suitable arrangements for supply of gas,” Justice RV Raveendran said. “If you are not able to reach a suitable arrangement... We can direct you to arrive at a suitable arrangement or direct you to go for arbitration.”
Arguing for Mukesh Ambani-managed Reliance Industries Ltd (RIL), as Harish Salve relied on the government’s gas utilisation policy to supply the gas, the bench reminded him that gas was a “natural resource”.
RIL contended that it couldn’t honour the commitment made in the 2005 family agreement between the two brothers due to the government’s pricing and distribution policies. At which, Anil Ambani’s Reliance Natural Resources Ltd (RNRL) senior counsel Ram Jethmalani said the policy was binding on new contracts and not existing ones.
However, Salve continued to draw support from the policy and said it was a better arrangement for the gas supply. He contended that supplying gas at any price lower than what has been fixed by the government would be “suicidal for RIL”.
Jethmalani intervened again, saying “the production tax of gas from KG basin is a meagre 89 cents.” He claimed RIL would make a profit of several thousands of crores of rupees despite selling the gas at $2.34 (Rs 112) per unit.
“It’s fraud on the nation,” Jethmalani said.





Lahore HC permits lawyer to meet Sarabjit in jailhttp://www.indlawnews.com/Newsdisplay.aspx?1b1f370f-6a4a-4572-8e62-23ad1d3af6af
10/28/2009
The Lahore High Court today permitted Sarabjit Singh’s lawyer to meet the condemned Indian prisoner in the Kot Lakhpat jail.Revealing this Ms Dalbir Kaur, sister of Sarabjit, said Mr Awas Sheikh, the lawyer fighting her brother’s case, had petitioned the High Court after he was not allowed to meet his client in jail. Kot Lakhpat Jail Superintendent and Punjab (Pak) Deputy Home Secretary too appeared in the court following summons, she said. UNI





Govt requests HC to lift stay on Gujjar quota
http://timesofindia.indiatimes.com/city/jaipur/Govt-requests-HC-to-lift-stay-on-Gujjar-quota/articleshow/5170462.cms
TNN 28 October 2009, 06:16am IST
JAIPUR: The state government on Tuesday told the Rajasthan High Court that it had adhered to constitutional norms while granting reservation to the Gujjar community and others under a special category. The government has been empowered by Article 46 of the Constitution which says that state government can take necessary steps for the social and economic development of the economically backward communities, the government said in its reply. "The reservation bill was passed unanimously in the assembly before it became a law", it said. The government also requested the court to lift the stay on reservation. On October 12, the high court, acting on a petition filed by a student G Sharma and others, stayed the implemention of Gujjar quota and sought a reply from the government.






HC dismisses plea against SECRMU
http://timesofindia.indiatimes.com/city/nagpur/HC-dismisses-plea-against-SECRMU/articleshow/5170779.cms
28 October 2009, 04:48am IST
NAGPUR: The Bilaspur high court on Monday dismissed petition to derecognise South East Central Railway Men's Union (SECRMU), which had won the elections held in 2007 to recognise railway unions across Indian Railways. The SECRMU had won the polls with a thumping majority. Ashwin Francis, secretary of union's Motibagh branch, said the high court refused to derecognise the SECRMU and rejected the petition filed by rival Bharatiya Railway Mazdoor Sangh (BRMS) and South East Central Railway Men's Congress (SECRMC). The basic contention of the petitioner-unions, who lost the polls, was that the SECRMU is registered as Dakshin Purva Madhya Railway Men's Union but it filled the forms as SECRMU, which is a translated version of Hindi name. The two rival unions had pleaded registration of SECRMU should be cancelled and it should be derecognised. However, the court rejected the plea and maintained the recognition of SECRMU, which has a membership base of over 64% in the entire South East Central Railway (SECR) zone comprising Nagpur, Raipur and Bilaspur railway divisions with a strength of 40,000 employees. Following the court decision, the SECRMU celebrated the verdict by bursting crackers and distributing sweets in all the three divisions. Talking to TOI, Salil Lawrence, general secretary of SECRMU, said, "The petition was nothing but a vendetta against our union."






HC seeks info on BEd colleges
http://timesofindia.indiatimes.com/city/patna/HC-seeks-info-on-BEd-colleges/articleshow/5169366.cms
TNN 27 October 2009, 07:01pm IST
PATNA: The Patna High Court on Tuesday directed Magadh University and National Council for Technical Education (NACTE) to reply to a PIL, stating violations of provisions in giving affiliation and recognition to BEd colleges lacking basic infrastructure. A division bench comprising acting Chief Justice Shiva Kirti Singh and Justice Shyam Kishore Sharma issued the directive while hearing the PIL of Vijay Kumar. The case was adjourned for three weeks.





Again, HC rejects Telgi's plea for home food
http://timesofindia.indiatimes.com/city/bangalore/Again-HC-rejects-Telgis-plea-for-home-food/articleshow/5170262.cms
TNN 28 October 2009, 02:39am IST
BANGALORE: The high court on Tuesday rejected a petition filed by Abdul Kareem Telgi, main accused in the multi-crore fake stamp paper racket. He had sought for home-cooked food. Justice Arali Nagaraj dismissed the petition, observing that Kareem be given `diet food' as per the chart made by the medical superintendent. "The petitioner's statement says he is not suffering from any inconvenience in the jail. Besides, Section 30 of the Karnataka Prisons Act has no provision for supply of food from outside to a convicted prisoner," the judge observed. Telgi, who claims to be HIV positive and a diabetic, sought home-cooked food on the ground that it will improve his health. But the CBI countered his claim. "The petitioner is being provided food inside and outside the prison according to the provisions of the Karnataka Prisons Act, 1963, and Rules, 1974, and as per medical authorities. He is involved in many cases and as of now, he is being tried in two cases, which have almost reached judgment stage," the CBI stated. Telgi had challenged the August 7, 2008, order by the trial court, which rejected a similar application.





HC raps BBMP, asks for population list
http://timesofindia.indiatimes.com/city/bangalore/TNN5-bbmptimFiled-ByTOI-KannadaCleared-by/articleshow/5170259.cms
TNN 28 October 2009, 02:36am IST
BANGALORE: Making a tough observation that guidelines issued for ward-wise reservation for the ensuing BBMP polls lacked legal as well as constitutional requirements, the Karnataka High Court on Tuesday directed the BBMP to provide by Wednesday the city's population list. The list is to include the percentage figures about SC/ST population, and SC/ST women in each of the wards, through an affidavit. "What sort of reservation list is this? There should be some legal and constitutional requirements associated with it. But the guidelines indicate that there is an attempt to delay the elections. Come with details. If you can't do it (list), we will give you the chart as we have done in the case of panchayat elections some time ago," Justice H N Nagamohan Das observed, before adjourning the hearing. Earlier, Jayakumar Patil, counsel for the petitioners, told the court that replicating the Assembly constituency concept for determining ward-wise reservation of SC/STs is an artificial exercise and is found nowhere in the KMC Act, or even the constitutional scheme governing municipal elections. "If reservation is fixed based on the guidelines issued as per the July 21 notification, only wards in a handful of assembly constituencies will benefit," he argued. On October 1, the court had stayed the July 21 guidelines with respect to reservation of wards for the forthcoming BBMP polls. "In the guidelines, it was stated that reservation for SC/STs would be decided after taking into account the population in 23 assembly constituencies that come under BBMP. Thereafter, they would consider the highest population of SC/STs within a particular ward in that assembly constituency, for reserving it for SC/STs. As per the constitutional scheme under Article 243(T) and Sec.7 of the KMC Act, the BBMP area population should have been the basis for determining the reservation. Apart from this, they have also decided not to consider the 1995 and 2001 reservation lists. All these mistakes seem to have been intentionally made," petitioners Ramakrishna Pai and K Devan have stated in their petition.





HC gives killer servant 25 years in jail
http://timesofindia.indiatimes.com/city/delhi/HC-gives-killer-servant-25-years-in-jail/articleshow/5170619.cms
Abhinav Garg, TNN 28 October 2009, 01:45am IST
NEW DELHI: A domestic servant killed the son of his employer, seriously wounded one of his daughters and raped another. But the Delhi High Court on Tuesday ruled that his case didn't fall in the `rarest of rare' category. A bench comprising Justice Pradeep Nandrajog and Justice Indermeet Kaur on Tuesday commuted the death sentence passed on Sanjay Dass by a lower court to a life term. However, the bench directed that he would not be entitled to any commutation or premature release and would have to be in jail for 25 years. Convicts awarded life imprisonment usually become eligible to be considered for remission by the executive after 14 years in jail. ``The crime commited by Sanjay is more than a murder of an ordinary category, having an aggravated content of the diabolical manner in which the offence was commited, we hold that the instant case falls in the category midway between, ie, of a category where the approapriate sentence to be imposed is of imprisonment for life with a direction that Sanjay would not be considered for being granted remission till he undergoes an actual sentence of 25 years,'' the bench ruled, ignoring repeated pleas by public prosecutor Richa Kapoor to uphold the death penalty. The HC was dealing with a death sentence reference sent to it for confirmation by the lower court that had in October last year awarded the maximum penalty to Sanjay for the ghastly crime after it convicted him. According to the prosecution, on October 19, 2006, the Roop Nagar police station was informed that three children of a local businessman were seriously wounded by their servant who had escaped. While the four year old boy succumbed to his injuries at the hospital later (he was stabbed in the neck), the medical records showed one of the daughters of the businessman had been raped while the other was critically injured. The police launched a manhunt for Sanjay who it emerged had joined just 5 days before at the recommendation of the household driver. Though the prosecution highlighted the sheer brutality of the crime, the abuse of trust and the moral depravity exhibited by the crime, HC remained unmoved, instead relying on earlier Supreme Court verdicts to conclude that the case was of a ``midway category'' that didn't call for the maximum penalty even as it warranted Sanjay stay in jail for the next 25 years.





HC summons MCD commissioner
http://timesofindia.indiatimes.com/city/delhi/HC-summons-MCD-commissioner/articleshow/5169994.cms
TNN 28 October 2009, 04:09am IST
NEW DELHI: The commissioner of Municipal Corporation of Delhi (MCD) will have to appear before the Delhi High Court on Wednesday and explain the delay in complying with an HC order. An irked HC on Tuesday summoned K S Mehra after it found that the court's previous order asking the agency to submit an affidavit had not been complied with and was being unnecessarily delayed. The affidavit to be submitted was to have a report of an MCD committee constituted to review the ban on cycle rickshaws in the capital. HC is currently taking stock of MCD's policy to ban the rickshaws as well as reviewing earlier orders of the court on the issue. The bench was angry that despite its asking for an affidavit on the issue the agency claimed it awaited a word from the LG and standing committee whose deliberations are to be included in the report. The court slammed this delay on behalf of the MCD and quipped, "Either your commissioner doesn't understand our orders or he doesn't want to obey. Let him appear personally before the court and give an explanation.'' Tuesday's stand of the MCD comes after earlier flip flops. On July 9, MCD had informed HC that the report was ready and will be filed in two weeks. However, on October 5 the agency claimed the report in the form of affidavit would take time as there was lack of consensus within the committee mainly between the MCD and traffic police. HC was hearing a petition by NGO Manushi that HC's order and MCD's policy of banning rickshaws from the main arterial roads and Chandni Chowk area is arbitrary and violates the fundamental rights of rickshaw pullers. The petition also assails the ceiling imposed on the number of licences granted to rickshaw pullers in the city.







Collegium defers decision on Dinakaran's elevation again
http://timesofindia.indiatimes.com/india/Collegium-defers-decision-on-Dinakarans-elevation-again/articleshow/5160777.cms
TNN 26 October 2009, 01:26am IST
NEW DELHI: The collegium headed by Chief Justice K G Balakrishnan on Sunday deferred a decision on whether to withdraw its earlier recommendation to the Centre proposing appointment of Karnataka High Court Chief Justice P D Dinakaran as a judge of the Supreme Court. The move to reconsider the earlier recommendation resulted from relentless bombardment of allegations and documents purportedly showing that Justice Dinakaran had amassed large tracts of land and even encroached upon government land, which was virtually substantiated by Thiruvallur district collector's report to the CJI. However, the collegium could not take a decision in the face of defiant response of Justice Dinakaran that he had not acquired an inch of land since his appointment as an HC judge and a counter allegation that the collector's report was motivated. This was the second time within a month that the collegium deferred a decision on the controversial issue. Though the Judicial Accountability Forum had forwarded additional documentary evidence to lace its earlier allegations against Justice Dinakaran, what made the collegium decide to seek further information from the Tamil Nadu government was documented representation from another lawyer group in support of the Karntaka Chief Justice, alleging that the charges were made to victimise the judge. With the controversy refusing to die, the Centre has already put on hold the process for deliberating on the collegium's recommendation on Justice Dinakaran and has decided to wait till a fresh word from the collegium -- either standing by the earlier recommendation or rescinding it. Justice Dinakaran had on Saturday told TOI, "I still stand by what I had told the Chief Justice of India when the controversy broke out. I have not acquired an inch of land after being appointed as a judge of the High Court. All allegations about encroachment of public land is patently false." Asked about the damning report of the Tiruvallur collector about alleged encroachment of 197 acres by him in Kaverirajapuran village, Justice Dinakaran stoically said, "The collector has got his facts wrong. I have never encroached a single inch of land."






Apex court to decide custody of NRI child abducted by mother
http://trak.in/news/apex-court-to-decide-custody-of-nri-child-abducted-by-mother/17631/
by Indo Asian News Service on October 27, 2009
in india
New Delhi, Oct 27 (IANS) The Supreme Court Tuesday decided to take a call next Wednesday on the question of the custody of a US-born minor child, abducted by his Indian mother from New York and brought here after she divorced her estranged husband.
A bench of Justice Tarun Chatterjee and Justice G.S. Singhvi decided to take a call on the issue of the child’s custody after the Central Bureau of Investigation (CBI), acting on the court’s Aug 29 order, traced seven-year-old Adithya, who was in the custody of his mother Vijayashree Voora, in Chennai Oct 25.
Voora had been on the run all over the country to keep the child in her custody.
The bench told the CBI to keep the child in its custody at the government’s guest house till next Wednesday.
The bench earlier had ordered the CBI to trace the child on a plea by his father V. Ravi Chandran, who had moved the apex court in September 2007 after his divorced wife brought the child to India violating the New York Supreme Court’s order, granting him and his divorced wife joint custody of the child.
The bench ordered the CBI to intervene after the police of various states failed to trace the minor child, with his mother consistently on the move from one state to another for the last two years to dodge the police.
The apex court’s order had come on the plea by Ravi Chandran, a New York-based medical practitioner, who had got married to Voora in Tirupathi in December 2000. The couple had a son on July 1, 2002 in the US.
But shortly thereafter, relations between the couple turned sour and Voora moved New York’s apex court in July 2003 for divorce. While adjudicating on the divorce plea, the New York court on April 18, 2005, granted the couple joint custody of the child, stipulating that both the parties would keep the other informed about the whereabouts of the child.
The New York family court had eventually also passed the divorce decree in September 2005, incorporating its order on the child’s custody in the decree, and stipulated that both the parties will have alternative physical custody of the minor child on a weekly basis.
But as per Chandran’s plea, Voora had brought the minor child to India and informed him that she would be living with the child in Chennai.
Chandran had first approached a New York family court, pointing out the violation of the state’s Supreme Court order by Voora.
The New York court granted exclusive custody of the child to Chandran, but for the enforcement of the New York court’s order, Chandran moved the Indian Supreme Court September 2007.
During adjudication of Chandran’s plea, the apex court found that despite efforts made by police officers and officials of different states, such as senior superintendent of police (SSP), Agra, SSP Chandigarh, director general of police (DGP), Tamil Nadu, DGP, Karnataka, and commissioner of police, Bangalore City, Adithya and his mother could not be traced.
Accordingly, the apex court asked CBI to trace the child.

Monday, October 5, 2009

LEGAL NEWS 05.10.2009

Karnataka CJ presides over court

http://www.ptinews.com/news/314806_Karnataka-CJ-presides-over-court#

STAFF WRITER 16:47 HRS IST

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

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

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

All our judges are declaring assets before CJI: SC

http://www.ptinews.com/news/314800_All-our-judges-are-declaring-assets-before-CJI--SC

STAFF WRITER 16:43 HRS IST

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

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

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

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

SC challenges HC order on judges' assets declaration

http://www.ptinews.com/news/314659_SC-challenges-HC-order-on-judges--assets-declaration

STAFF WRITER 15:49 HRS IST

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

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

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

Orissa HC judges want 'corrupt' colleague out

http://www.hindustantimes.com/News/orissa/Orissa-HC-judges-want-corrupt-colleague-out/Article1-461231.aspx#

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

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

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

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

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

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

Justice Quddusi declined to comment on the issue.

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

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

HC: Admit girl who had not studied in regular school

http://www.ptinews.com/news/313090_HC--Admit-girl-who-had-not-studied-in-regular-school

STAFF WRITER 12:13 HRS IST

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

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

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

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

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

Bofors: Joginder Not in Favour of Giving Legal Burial

http://news.outlookindia.com/item.aspx?667204

New Delhi Oct 04, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.indianexpress.com/news/didnt-mislead-sc-on-ambedkar-memorial-says-state-govt/524694/

Express News Service

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

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

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

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

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

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

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

GC Rules amended to enable pvt colleges get grants

http://www.indianexpress.com/news/ugc-rules-amended-to-enable-pvt-colleges-get-grants/523791/

Agencies

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

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

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

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

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

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

MRTP Act will be replaced in 2011

http://www.deccanchronicle.com/hyderabad/mrtp-act-will-be-replaced-2011-320

October 4th, 2009

By Our Correspondent

Hyderabad

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

NHRC help sought to improve city

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

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

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

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

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

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

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

Man moves court against recovery agents

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

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

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

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

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

smriti.singh@timesgroup.com

Accused in Siridao gang fight case gets bail

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

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

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

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

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

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

Sunday, October 4, 2009

LEGAL NEWS 04.10.2009

3 lakh cheque bouncing cases in Mumbai, only 23 courts
http://timesofindia.indiatimes.com/news/city/mumbai/3-lakh-cheque-bouncing-cases-in-Mumbai-only-23-courts/articleshow/5086163.cms
PTI 4 October 2009, 09:51am IST
MUMBAI: The Bombay High Court has asked the Maharashtra government what it is going to do to ensure faster disposal of cheque bouncing cases.
In Mumbai alone, some three lakh cheque-bouncing cases are currently pending and there are only 23 special magistrate courts to deal with these cases. The government gave this information to the Bombay High Court recently, during the hearing on a PIL about pendency of cases. Additional government pleader Anand Patil informed the court that government has framed the rules for setting up evening courts in the state, which would help reduce the growing pendency. But the division bench of Chief Justice Swatanter Kumar and Justice A M Khanwilkar was not happy with the plan. Initially there would be twenty evening courts (ten in Mumbai) which would function from 1800 hours to 2000 hours. The judges pointed out that evening court would not be dealing with cheque bouncing cases exclusively. Further, the judges also expressed apprehension about practicability of setting up evening court without recruiting additional staff.






Govt staff can't take part in political agitation: HC
http://timesofindia.indiatimes.com/news/city/chennai/Govt-staff-cant-take-part-in-political-agitation-HC/articleshow/5085188.cms
A Subramani, TNN 4 October 2009, 06:15am IST
CHENNAI: Sounding a warning to government servants taking part in political agitations and courting arrest, the Madras High Court has upheld the dismissal of a government employee who had participated in the DMK's anti-Hindi agitation in 1986 and was convicted for the criminal offence of burning a copy of the Constitution. Justice K Chandru, refusing to interfere with the dismissal, ruled: "A government servant ought not to have participated in the agitation conducted by a political party, got himself arrested and convicted for burning a copy of the Constitution. He also did not inform his employer about the conviction." Justice Chandru was passing the order after dismissing the writ petition of a commercial tax department employee K Karunanidhi, who was dismissed from service after he was convicted of charges of burning a copy of the Constitution of India during the anti-Hindi agitation in Tamil Nadu in 1986. As Karunanidhi, who filed the case originally, had died during the pendency of the case, it is now being pursued by his wife K Kantha. Karunanidhi was arrested and kept in Cuddalore Central Jail between November 21, 1986 and January 22, 1987. Later, he was convicted by a Villupuram court and was sentenced to two-week imprisonment for offences punishable under the provisions of the IPC as well as the Prevention of Insults to National Honour Act 1971. Without disclosing his conviction to authorities, Karunanidhi applied for leave for a total of 138 days. After the issue was brought to the notice of the authorities, disciplinary proceedings were initiated against him and he was dismissed from service in December 1997. Though he had moved the Tamil Nadu Administrative Tribunal, the matter was transferred to the High Court after the abolition of the tribunal. Among other things, his counsel CA Diwakar contended that dismissal was a punishment disproportionate to his offence. Justice Chandru, rejecting the submissions, said that burning a copy of the Constitution was a "serious offence" and it would attract the penal provisions of the Prevention of Insults to National Honour Act. Pointing out that 10 MLAs too lost their jobs for committing the very same offence, the judge said that in November 1986 the assembly passed a resolution disqualifying them from holding the posts. Citing the Supreme Court observation that the National Flag, the National Anthem and the Constitution were symbols of the sovereignty of the country, Justice Chandru said the apex court had cautioned that prolonged absence of a government servant did not deserve any indulgence.






Drop Quattrocchi case in 'public interest', CBI tells HC
http://timesofindia.indiatimes.com/news/india/Drop-Quattrocchi-case-in-public-interest-CBI-tells-HC/articleshow/5085531.cms
TNN 4 October 2009, 04:07am IST
NEW DELHI: The CBI on Saturday invoked "public interest" and sought withdrawal of the Bofors payoff case against Ottavio Quattrocchi before a Delhi court — it also cited its failure to twice extradite him, for good measure. Seeking legal burial of the case against the Italian businessman on the grounds that "continuance of his prosecution will be unjustified", the agency said it has arrived at this conclusion after its failure on two occasions to extradite the 69-year-old businessman from Malaysia and Argentina to face trial. The CBI, which also relied on various other factors including the Delhi HC judgments quashing charges against all other co-accused to justify its decision, claimed in the court that the application to withdraw the case has been filed in public interest. "In any event, the attempts to secure the presence of Quattrocchi from Malaysia and Argentina have failed. I find that the Malaysian court has also touched upon the merits of the case," additional solicitor general P P Malhotra and advocate Naveen K Matta submitted before chief metropolitan magistrate Kaveri Baweja, on behalf of the agency.





CJI seeks report from Tamil Nadu
http://www.hindu.com/2009/10/04/stories/2009100450360100.htm
J. Venkatesan
New Delhi: Chief Justice of India K.G. Balakrishnan has called for a report from the Tamil Nadu government on the allegations against the Chief Justice of the Karnataka High Court, P.D. Dinakaran, that he acquired large land holdings.
Justice Dinakaran is among the five judges recommended for elevation to the Supreme Court by the Supreme Court collegium. The file is pending with the Union Law Ministry in view of the recent allegations.
Highly placed sources told Hindu The that “since we wanted to verify the facts, we called for a report from the State government/District Collector.”
Justice Dinakaran has already met the CJI and denied the allegations.
Asked whether calling for the report could be called a probe, the sources said: “You can’t call it a probe. We want some details in respect of the land holdings and whether there is encroachment or not.”





Panel finds fresh evidence of land-grabbing by Dinakaran
http://timesofindia.indiatimes.com/news/india/Panel-finds-fresh-evidence-of-land-grabbing-by-Dinakaran/articleshow/5085540.cms
Manoj Mitta, TNN 4 October 2009, 04:17am IST
NEW DELHI: Even as CJI K G Balakrishnan is holding a discreet inquiry into allegations of land-grabbing by prospective SC judge P D Dinakaran, Chennai's Forum for Judicial Accountability (FJA) has come up with more serious evidence of properties allegedly acquired by him and his immediate family members. The highlight of the third and latest representation sent by FJA to the SC collegium on October 1 is his alleged modus operandi to acquire three prime plots in 2005 from Tamil Nadu Housing Board near the IT corridor of Chennai for his wife Vinodhini Dinakaran and daughters Amudha and Amirtha. Violation of eligibility conditions His parents-in-law, James Kuppuswamy and Paripoornam, were allegedly benami for his daughters. The plots that finally went to the daughters were originally applied for in the names of his parents-in-law. Since those plots of about 350 sq metres were meant for high-income group, it required the applicants to have an annual income of at least Rs 90,000. But the housing board allotted plots to Dinakaran's parents-in-law although his father-in-law's declared annual income was merely Rs 56,668 and his mother-in-law's was Rs 49,200. Transfer of land within two days of allotment The transfer of land from parents-in-law to daughters, made through a family settlement, violated the public house scheme meant for the benefit of those without property and in need of housing. The allotment itself was in violation of the one-plot-per-family rule. Dinakaran's order helps his family get plots Since his wife and parents-in-law were among the applicants for the housing board land near the IT corridor, Dinakaran should have declined to hear a case challenging the land acquisition. Yet, it was thanks to his order that the land acquisition was upheld and that in turn paved the way for the housing board to effect sales in favour of, among other allottees, his wife and parents-in-law. FJA called this a "gross abuse of office and subversion of justice". Another shocking property transaction brought out by FJA is the purchase by his mother-in-law of a 4.5-acre bungalow in Ooty in August just around the time Dinakaran's name was cleared by the collegium to be elevated to the apex court from his current post of chief justice of the Karnataka high court. Though the market value of that property was Rs 8 crore and the government guideline value was Rs 3 crore, the transaction was grossly undervalued at Rs 33,75,100. Even so, his mother-in-law, who retired as a school headmistress, and his father-in-law, who retired as a security officer, did not by their own admission have the resources to buy the Ooty and Chennai properties, FJA pointed out. In its earlier representations, FJA had focused on the manner in which Dinankaran and his family, after he became a judge, allegedly fenced off over 300 acres of land in Kaverirajapuram village in Tiruvalluvar district (near Chennai). FJA had also sent balance sheets of the four companies through which Dinakaran and his family allegedly consolidated their hold over the fenced-off land which included 150 acres of government land meant for community use. FJA also alleged irregularities in the properties owned by Dinakaran in the localities of Anna Nagar and Shenoy Nagar in Chennai.






No lawyer wants to touch this case
http://timesofindia.indiatimes.com/news/india/No-lawyer-wants-to-touch-this-case/articleshow/5083748.cms
Manoj Mitta, TOI Crest 3 October 2009, 01:35pm IST
It's the kind of lapse the Supreme Court wouldn't have allowed the government to get away with. But this time, the shoe is on the other foot. For, it's none other than the Supreme Court itself that has defaulted for four years on a statutory obligation that makes it mandatory for the court to make disclosures regarding its powers, duties, budget, processes - almost all the things that tell you how the wheels of justice turn in the country's apex court. Under the four-year-old Right to Information (RTI) Act, the court was required to make these disclosures way back in October 2005. There have since been two chief justices, but neither took the trouble to make the disclosures required under section 4(1)( b), indicating a certain disregard for the law, which in any other case would have made the Supreme Court furious. Finally, an organisation, Youth for Equality (YFE), got sufficiently agitated about this lapse and decided to file a petition - where else? - in the Supreme Court, naming the Chief Justice of India K G Balakrishnan as the sole respondent. YFE ran into difficulties straight away. None of the advocates-on-record - the community of lawyers who can file pleadings in the court - agreed to take on the case. Ironically, when YFE - a body of students, teachers and professionals - filed an earlier petition in the Supreme Court against reservation in educational institutions, it became something of a rallying point for the middle class, including lawyers. This time it was something of an outcast - with advocates-onrecord , at least. And with the court registry. YFE finally decided to file the petition itself as "petitionerin-person" with the court registry. The registry got back pointing out "defects" in the petition. One of the seven issues raised was: "Petitioner-in-person to clarify why Chief Justice of India made party." YFE replied promptly that the CJI could not be avoided as the RTI Act had designated him as the "competent authority" for the Supreme Court. Therefore, he was accountable for its failure to comply with a statutory obligation. YFE responded to all seven "defects" six months ago. There has been no word from the registry. It has neither rejected the clarifications nor listed the petition for hearing. YFE president Kaushal Kant Mishra, an orthopaedic surgeon , approached the registry last month to check the case status. He was not allowed to inspect the file. Crest asked YFE lawyer-member Gopal Sankaranarayanan why they were being obstinate about naming the CJI as the sole respondent . Why didn't YFE break the deadlock by substituting the CJI with the registrar as the respondent ? "But the buck stops with him," said Sankaranarayan. The CJI under RTI, he said, was not just the head of a public authority but also the designated competent authority in matters concerning the apex court. "It's therefore a matter of principle for us," he added. Much as the CJI is legally and morally responsible for administrative lapses of the Supreme Court, it is debatable whether YFE was justified in naming him the sole respondent. For, as RTI lawyer Divyajyoti Jaipuriar pointed out, "The function of the competent authority is to frame rules for the implementation of RTI. He is not supposed to be directly involved in the measures taken to comply with the law." However, the technicality over who should have been named the respondent does not detract from the importance of the issue raised by the petition. Section 4(1)( b) is a key aspect of the RTI scheme. The provision makes it mandatory for every public authority - the Supreme Court included - to disclose suo motu (on its own) details about the powers and duties of its functionaries, its decision-making process, the nature of documents under its control, its budget, disbursements and so on. This was required of every public authority within 120 days of RTI becoming law. The deadline was, accordingly, October 12, 2005. The law also made it clear that the public authority concerned would update the information from time to time. The Supreme Court has not put up on its website - one of the mandated methods to make information public - as many as 15 categories of information concerning its functioning. It has put up just one category of information - the names and contact details of the information officer and the first appellate authority under RTI. It's a far cry from the elaborate columns containing all 16 categories of information on the websites of other public authorities. Those courts that put all 16 categories of information in the prescribed format on their websites include the Bombay, Karnataka, Andhra Pradesh, Madhya Pradesh and Rajasthan high courts. The Andhra high court has come out with a 22-page manual complying with the proactive disclosures specified in section 4(1)( b). What could be the justification for the Supreme Court then to withhold information that would lend high transparency to its functioning ? Should the Supreme Court not lead by example? The RTI explains the rationale behind proactive disclosures thus: "It shall be a constant endeavour of every public authority…to provide as much information suo motu to the public at regular intervals through various means of communication, including internet, so that the public have minimum resort to the use of this Act to obtain information." Would the apex court disagree with this? The Delhi high court, while ruling that the CJI's office came under the ambit of RTI, said: "Judges are under attack and revealing assets and other information may increase the reputation of judges." The failure to make proactive disclosure under section 4(1)( b) is actually more than a matter of reputation. "The omission of this statutory duty is in line with the hostility betrayed by Justice Balakrishnan to all matters relating to RTI, putting the Supreme Court way behind other institutions in transparency," advocate-activist Prashant Bhushan said. There is much for the Supreme Court - and the CJI himself - to explain, if and when YFE's petition is taken up. The wiser option is to make the petition redundant by taking preemptive action and putting out all the mandated information. Incomplete Disclosures THE TRANSPARENT Andhra Pradesh High Court Bombay High Court Karnataka High Court Madhya Pradesh High Court Rajasthan High Court THE DEFAULTERS Supreme Court Delhi High Court Madras High Court Calcutta High Court Punjab & Haryana High Court






KSBC also a divided house

http://www.expressbuzz.com/edition/story.aspx?Title=KSBC+also+a+divided+house&artid=JbkTIap6KL4=&SectionID=7GUA38txp3s=&MainSectionID=fyV9T2jIa4A=&SectionName=zkvyRoWGpmWSxZV2TGM5XQ==&SEO=#
Express News Service
First Published : 03 Oct 2009 04:02:47 AM IST
Last Updated : 03 Oct 2009 11:08:13 AM IST

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

Saturday, October 3, 2009

LEGAL NEWS 03.10.2009

Rajshekhar Rao on Saving the Arbitration and Conciliation Act, 1996

http://practicallawyer.ebc-india.com/index.php?option=com_content&task=view&id=14557&Itemid=1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kerala HC admits petition on Mont Blanc pen

http://www.expressbuzz.com/edition/story.aspx?Title=Kerala+HC+admits+petition+on+Mont+Blanc+pen&artid=7ZVsgnl|qsQ=&SectionID=1ZkF/jmWuSA=&MainSectionID=1ZkF/jmWuSA=&SectionName=X7s7i|xOZ5Y=&SEO=Dijo%20Kappen,%20Mahatma%20Gandhi,%20Mont%20Blanc

Express News Service

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

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

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

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

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

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

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

http://www.indianexpress.com/news/trees-pose-no-danger-hc-dismisses-70yrolds-plea/524496/

RAGHAV OHRI

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

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

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

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

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

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

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

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

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

WiFi enters HC lawyers' chambers

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

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

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

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

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

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

HC cancels loan defaulter's bail

KOLKATA: Loan defaulters may no longer get any help from the courts if a recent decision of the Calcutta High Court is anything to go by.


The division Bench of Justice D P Sengupta and Justice S K Chakrabarti cancelled an anticipatory bail granted by the city civil court to a city-based transporter, who defaulted on repayment of equated monthly instalments (EMIs) on a loan taken from a non-banking financial institution. In the past, the high court has held that financial institutions have the right to re-possess vehicles, without resorting to unlawful means, if a customer fails to pay EMIs. The court had also held that lower courts should not provide any relief to defaulters.

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

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

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

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

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

HC awards full gratuity to govt employee

http://www.indianexpress.com/news/hc-awards-full-gratuity-to-govt-employee/524495/0

RAGHAV OHRI

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

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

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

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

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

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

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

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

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

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

CBI seeks closure of case against Quattrocchi

http://www.indianexpress.com/news/cbi-seeks-closure-of-case-against-quattrocchi/524522/0

Agencies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NRI jailed for 27 years for kidnapping fellow Indian

http://www.indianexpress.com/news/nri-jailed-for-27-years-for-kidnapping-fellow-indian/524575/

Agencies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Govt to move HC over private JEE

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

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

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

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

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

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

2002 Ode riots: HC upholds warrants against 16 accused

http://www.indianexpress.com/news/2002-ode-riots-hc-upholds-warrants-against-16-accused/524370/0

Express News Service

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

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

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

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

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

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

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

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

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

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

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

The Lost Land

The Centre takes note of wakf aberrations

http://www.outlookindia.com/article.aspx?262110

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

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

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

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

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

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

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

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

Handcuffed In Khaki

Why Chidambaram’s exhortation on transfers means little

http://www.outlookindia.com/article.aspx?262061

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

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

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

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

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

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

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

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

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

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


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

CJI to probe charges against Dinakaran

http://economictimes.indiatimes.com/news/politics/nation/CJI-to-probe-charges-against-Dinakaran/articleshow/5082492.cms

3 Oct 2009, 0518 hrs IST, ET Bureau

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

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

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

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

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

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

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

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

SC to challenge HC order

http://www.centralchronicle.com/viewnews.asp?articleID=15942

Posted On Friday, October 02, 2009

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

Ex-CJI irked over HC judges' refusal to declare assets

http://www.ptinews.com/news/310742_Ex-CJI-irked-over-HC-judges--refusal-to-declare-assets

STAFF WRITER 14:50 HRS IST

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

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

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

The Collegium, Judges Assets and Justice Dinakaran

http://www.somethingaboutthelaw.com/2009/10/01/the-collegium-judges-assets-and-justice-dinakaran/

Posted by Aditya On October - 1 - 2009

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

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

“O, it is excellent

To have a gaint’s strength;

but it is tyrannous

To use it like a giant.”

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

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

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

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

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

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

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

But then how are Constitutional Conventions enforceable ?

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

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

The CJI being a ‘Public Authority’ has grave Implications

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

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

CERTAIN FACTS

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

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

The Collegium and the RTI Case: Exploring the Link

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

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

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

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

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

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

Suggested Readings

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

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

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

Test noise levels at helipads: HC

http://www.dnaindia.com/mumbai/report_test-noise-levels-at-helipads-hc_1294401

Mayura Janwalkar / DNA

Friday, October 2, 2009 2:56 IST

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

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

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

SC concerned at lawyers' obsession with money

http://www.dnaindia.com/india/report_sc-concerned-at-lawyers-obsession-with-money_1294345

Rakesh Bhatnagar / DNA

Friday, October 2, 2009 2:23 IST

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

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

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

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

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

http://www.twocircles.net/2009oct01/human_rights_violations_can_t_be_tolerated_name_terrorism_rajendra_sachar.html

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

By Mumtaz Alam Falahi, TwoCircles.net,

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

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

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

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

Addressing the first session of the daylong program S.R. Darapuri, ex-IG and retired IPS officer of Uttar Pradesh, and currently Vice President of PUCL, said the composition of the police force, which had negligible Muslim presence was to a large extent responsible for its communal bias. “While in the last several years, thanks to reservation, the presence of other communities in the police force has increased but Muslims are still 1% in the force. On the basis of my 32 years in police service I can say the police is not secular,” Darapuri said while giving shameful examples of communal bias by the PAC in UP.


He urged human rights activists and groups to keep police reform on top of their agenda so that governments can be pressed for that. Giving figures about encounters in UP Darapuri said that from 2007 to till date the state has a share of 50% of all encounters in the country.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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