New Delhi, June 29 (PTI) Calculating the cost of conducting one hour of hearing in Supreme Court and recovering it from corporate litigants is among a bunch of proposals being considered by a House panel for generating additional financial resources for the apex court.The parliamentary standing committee on law and justice is studying a suggestion related to a steep hike in court charges, at least for corporates, which would be comparable with the charges that they may have to pay to an arbitrator for resolving their disputes.The suggestion on raising some of the court charges appears to echo the sentiments of an official task force on judicial impact assessment (JIA) that said that lack of funds for the judiciary was a major hurdle in clearing the pending cases.According to a proposal before the House panel, the current filing charges ranging from Rs 2,000 to Rs 5,000 should be raised by 10 times or more to curb the practice of corporates consuming the apex court's time instead of depending upon other forums for resolution of their disputes.At current cost levels, it is cheaper for a corporate to drag its dispute longer by filing a plea in the Supreme Court rather than settle it through an arbitrator, said House panel chairman E M S Natchiappan who is considering a proposal to increase the number of apex court judges to 30."We intend to seek the views of corporates and others on these issues (related to revision of court fees) before arriving at a final decision," he said, adding that raising the court charges would facilitate early setting up of special corporate benches in the apex court.There are over 40,000 pending cases in the apex court and a number of urgent matters filed by corporates tend to delay hearings in issues related to common litigants. PTI
http://www.ptinews.com
About Me
- Kamal Kumar Pandey (Adv. Supreme Court of India)
- Lawyer Practising at Supreme Court of India. Court Experience: Criminal, Civil & PIL (related to Property, Tax, Custom & Duties, MVAC, insurance, I.P.R., Copyrights & Trademarks, Partnerships, Labour Disputes, etc.) Socio-Legal: Child Rights, Mid Day Meal Programme, Sarva Shiksha Abhiyaan, Women Rights, Against Female Foeticide, P.R.Is, Bonded Labour, Child labour, Child marriage, Domestic violence, Legal Literacy, HIV/AIDS, etc. Worked for Legal Aid/Advise/Awareness/Training/Empowerment/Interventions/Training & Sensitisation.
Monday, June 30, 2008
HC defers hearing on Mahto fate
Ranchi, June 28: The state high court deferred the date of argument on the point of maintainability of an election petition challenging the membership of former home minister Sudesh Mahto.
Amit Kumar, who had also contested the elections from the Silli constituency, has challenged Mahto’s candidature to the Assembly. Kumar had alleged that Mahto had tampered with the voting machines during the polling.
Mahto in his defence said that the case against him is not maintainable and should be dismissed immediately.
Mahto’s counsel informed the court that the matter had been taken up by the Supreme Court which, after going through the case, had observed that no allegations of corrupt practice against Mahto can be made out.
The court directed the parties to frame the issues after which the maintainability of the petition will be decided.
OUR CORRESPONDENT
http://www.telegraphindia.com/
Amit Kumar, who had also contested the elections from the Silli constituency, has challenged Mahto’s candidature to the Assembly. Kumar had alleged that Mahto had tampered with the voting machines during the polling.
Mahto in his defence said that the case against him is not maintainable and should be dismissed immediately.
Mahto’s counsel informed the court that the matter had been taken up by the Supreme Court which, after going through the case, had observed that no allegations of corrupt practice against Mahto can be made out.
The court directed the parties to frame the issues after which the maintainability of the petition will be decided.
OUR CORRESPONDENT
http://www.telegraphindia.com/
Delhi HC asked to decide on Toshiba-Tosiba row
New Delhi (PTI): The Supreme Court has asked the Delhi High Court to settle the dispute between Japanese electrical giant Toshiba Corporation and Tosiba Appliances Co of India.
While quashing the Calcutta High Court judgement recently, a bench headed by Justice SB Sinha transferred the matter to the Delhi High Court. "We will, however, request the Delhi High Court to consider the desirability of disposing of the suit by Toshiba Corporation against Tosiba Appliances as expeditiously as possible," it stated.
Kabushiki Kaisha Toshiba (Toshiba Corp), set up in 1857, had moved the Delhi High Court seeking to restrain the Indian company from using the mark Tosiba or any other deceptively similar mark in respect of electrical goods on the ground that Tosiba was sounding similar to its trade mark Toshiba.
Sunday, June 29, 2008
http://www.hindu.com
While quashing the Calcutta High Court judgement recently, a bench headed by Justice SB Sinha transferred the matter to the Delhi High Court. "We will, however, request the Delhi High Court to consider the desirability of disposing of the suit by Toshiba Corporation against Tosiba Appliances as expeditiously as possible," it stated.
Kabushiki Kaisha Toshiba (Toshiba Corp), set up in 1857, had moved the Delhi High Court seeking to restrain the Indian company from using the mark Tosiba or any other deceptively similar mark in respect of electrical goods on the ground that Tosiba was sounding similar to its trade mark Toshiba.
Sunday, June 29, 2008
http://www.hindu.com
PIL against opening of degree colleges
Jammu: A Division Bench of J&K High Court Jammu Wing today directed the registry to list the case for next available bench on the date when BS Salathia, AAG, would place on record comprehensive information with regard to the opening of 18 new colleges. The bench comprising of Justice Virender Singh and Justice JP Singh acted on a Public Interest Litigation (PIL) filed by JKNPP. Pertinently, the JKNPP have filed a Public Interest Litigation against opening of government degree colleges at Dharmari, the village of state minister, Aijaz Ahmed Khan, (MLA Gool, Arnas) and Kilhotran, the village of chief minister, Ghulam Nabi Azad (MLA Bhaderwah) and issued notice to the chief minister, state Minister and others.
GK NEWS NETWORK
http://www.greaterkashmir.com
GK NEWS NETWORK
http://www.greaterkashmir.com
Democracy and judicial imperialism
The recent stinging observation of the Supreme Court[i] that judges behaved like emperors, created confusion in the judiciary on hearing of public interest litigations. The controversy was, however, put to rest by Chief Justice (of India) Justice K. G. Balakrishnan who decided to frame guidelines for entertaining such litigations. But the guidelines are yet to be laid down in black and white. The allegations of judicial imperialism have been raised in the past as well, but the cries have grown shriller of late. This is due to several factors. First is the turf war between the judiciary and the legislature and executive. The legislature and the executive, rightly or wrongly, perceive judicial activism[ii] as judicial imperialism. Second is the perceived lack of accountability in judiciary and lack of questionability of judicial actions. This impression has gained ground as at times hard contempt decisions are slapped on well-meaning individuals speaking for public welfare.
During the last year and a half, the turf war between the judiciary and legislature have become fiercer with the legislature and the executive alleging that the judiciary is intruding in their space. The apex court, on its part did nothing in this period to make matters easier. In fact, the Supreme Court while scrutinising the Centres decision on OBC quota issue held that laws put in the Ninth Schedule[iii] of the Constitution for blanket protection were not beyond judicial scrutiny. Further, the Supreme Court also stayed the implementation of the Central law on 27 per cent quota for Other Backward Classes in Central Educational Institutions by an interim order[iv]. Members of Parliament raised the issue of former Chief Justice Y K Sabharwal''s orders on the sealing of illegal premises in the capital and alleged that they smacked of favouritism. While the spat with legislators was on, the executive was on collision with the judiciary when on more than one occasion it questioned the apex court for over-stepping into its domain in forest matters by accusing it of interfering with the constitution of Forest Advisory Body and seeking to scrap its Central Empowered Committee[v]. The apex courts decision to hear the petition against the Tamil Nadu governments call for bandh in the state in protest against the orders on Rama Setu, took everyone by surprise. Political parties, especially the Left parties have been equally vociferous against the Court decisions[vi], more so after the famous judgement of the Court against Tamil Nadu government employees wherein the court said that bandhs are illegal.
Having said this, there is no taking back from the judiciary the commendable work it has done especially in empowering the underprivileged and the weak; bringing issues like sustainable development, environment protection, rights of slum dwellers to the fore; widening the ambit of fundamental rights provided under Part III of the Constitution to include, inter alia, right to safe drinking water, right to wholesome environment as part of Article 21 of the Constitution and above all steadfastly guarding our hard-earned freedom from executive and legislative tyranny.
SEPARATION OF POWERS
The judiciary, legislature and executive are three vital organs in the body of democracy. All the three components have their own detached but inter allied functions through the doctrine of separation of powers.[vii] Like most modern democracies/governments, , India too follows the doctrine of separation of power.[viii] Indias founding fathers wanted India to be a democracy with powers and duties for the three main organs of the government clearly etched out so that no organ transgresses the powers of the other(s). In India, we have the Parliament, the Union Cabinet and the Supreme Court at the Union level to discharge the functions of the legislature, the executive and the judiciary respectively. The Constitution of India, the highest law of the land lays out the powers and duties of these three organs. The legislative has the powers to enact/make the law, the executive to enforce the law so laid and the judiciary to interpret the law.
But the jurisdictional area of these organs at times gets blurred. The blurring effect, as I would call it, is most visible in the judicial arena when the judges are forced[ix] to decide upon a purely administrative or legislative effect. One of the reasons for this may be the fact that the executive, more often than not, is from the majority group in the Parliament and the executive and the legislature are mostly the same individuals or at least belonging to the same political dispensation. Therefore, any transgression, actual or alleged/perceived, by the judiciary is viewed with suspicion.
The main function of judiciary is to interpret the law as enacted by the legislature. Though it is the legislature, which makes the Law, the Judgments rendered by the Supreme Court and High Courts give the Law a concrete shape, which the people, understand better as the Law. Hence, there is immense importance of the decision making process. A Constitutional Bench of the Supreme Court of India said that the State should secure the proper operation of legal system and proper opportunity to get justice, which shall be its Fundamental Obligation as per Article 39A of Constitution of India[x].
Further, it is an established principle of jurisprudence and also of International Law that every State should provide an effective framework of remedies to redress human rights grievances or violations. And that the administration of justice, including law enforcement and prosecutorial agencies and, especially an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development.
India has an independent judiciary. Indian Judiciary, which is the most powerful judiciary in the world and next only to that of USA[xi], continues to command respect and credibility of the masses despite delays and deficiencies, and thus there is a serious obligation cast upon it to secure that credibility, because the Judiciary is the only constitutional hope that a person can look to for help when his/her human rights are jeopardized. It is needless to say that for realization of human rights, vibrant democratic machinery with rule of law is essential. That is possible only when judiciary and legal profession shines with its integrity and gains efficiency besides being independent and immune from ordinary influences such as inducement and bribery.
Further, the Constitutional machinery can run smoothly only when the three vital organs act intra vires theirs powers and do not try to usurp each others authority. That is to say, judicial activism should never turn into judicial over-activism. This is necessary to maintain harmony and coordination among the organs.
JUDICIAL ACTIVISM
The advocates for judicial activism contend that it arose because the other organs failed to keep up with the hopes and aspirations of the people for a better quality of life. One of the major motives for which Indians struggled to shape India into an independent nation was the acquisition of various rights in order to do away with the exploitative environment in which they had been living throughout the centuries. Freedom was not seen as an end in itself but as a means to achieve an end; the end being to free India through a new Constitution, to feed the starving millions, to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.
In its bid to accomplish the above said motive, Indian Government has been enacting various legislations[xii] for achieving the cherished goals of our founding fathers.[xiii] But the wide gap could no be narrowed. The growing gap between expectation and reality, promise and performance, enactment and implementation has been causing disenchantment of the underdogs who seem to be developing a feeling of helplessness and alienation. Despite several pompous legislative declarations and pontific executive pronouncements, the Governments, Central as well as State, have been unable to tackle the problems of the underprivileged strata of the society, as their condition went on worsening. Ultimately, the marginalised masses of the people opted for the judicial therapeutics to heal the ailing democracy. And the advocates for judicial activism contend that judicial activism was necessary in the above stated circumstance and it continues to be so as the Governments have been largely unsuccessful in fulfilling the cherished goals of the Constitution. Therefore, in response, the judiciary, leaving behind its traditional moderate role has had to adopt an active role. And, with new spirit and support of the masses,[xiv] the advocates contend not only has this third wing interpreted the existing legislation in such a way as to ensure the maximum of human freedom, but has galvanized the other two wings too to act for the noble cause of public good. Justice Krishna Iyer had once observed, every judge is an activist either on the forward gear or the reverse.
It is no secret that the judiciary enjoys a much higher degree of credibility than the political class. The concept of judicial activism and public interest litigation are connected. Public Interest litigation (PIL) has become citizens favorite tool to fight an inefficient and unresponsive government. To its credit, at least in some cases, the Supreme Court judgments have advanced citizen rights and strengthened constitutional protections for the common man. The changing stance of the judiciary has often been termed as activism on the part of the judiciary or Judicial activism. Viewed from various perspectives, this metamorphosis, in the functioning of the judiciary has invited varied reactions ranging from exuberance to caution to pessimism. Some political pundits described it as judicial over-activism. Some other political as well as legal scholars have raised the question that the judiciary has usurped powers in the guise of public interest. Many others feel that the judiciary, by its activism and intervention, is actually preventing the executive from going astray. Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
But the problem with judicial activism is that there a very fine line dividing activism and imperialism. Further, unlike for the legislature and the executive, there are no checks and balances in place for the judiciary if in case it strays[xv] from the constitutional mandate.
DEMOCRACY, JUDICIAL ACTIVISM AND JUDICIAL IMPERIALISM
Democracy means a government by the people wherein the people have a voice in the exercise of power, typically trough elected representatives whereas imperialism means a policy of extending a countrys (or even an independent bodys) power and influence through colonization, use of other means and/or any other means[xvi]. These two terms are nearly antonyms of each other. Where democracy speaks of giving voice to even the weakest of all in the society, imperialism is all about usurping of this right by whatever means possible, including force. Judicial imperialism connotes, in negative terms, the usurpation of authority of the legislative and executive by the judiciary. That is, taking over of functions by the judiciary which are in legislative/executive domain. Judicial imperialism can also be defined as judicial-over activism. There is no place for imperialism of any kind in a democracy.
India is the worlds largest democracy. Also ours is the worlds largest written Constitution, which guarantees a set of fundamental rights to every citizen[xvii]. Any person can directly approach the Supreme Court or the High Courts at the State level for enforcement of their fundamental rights under Article 32[xviii] and Article 226[xix] of the Constitution respectively. Under the Indian Constitution, the Supreme Court and high courts can be approached in case of a violation of fundamental rights.
The genesis of judicial activism[xx] lies in the evolution of public interest litigation. Public Interest Litigation[xxi] or Social Interest Litigation as the name suggests are litigation wherein any public spirited person can file a petition before the Supreme Court or the High Court in case of infringement of fundamental rights of any other person or class of persons[xxii], subject to certain conditions[xxiii]. Public Interest Litigations are a creation of the Courts. The Constitution nowhere defines them. Even the procedure for them has been evolved by the courts themselves.[xxiv] The term Judicial activism does not find any mention in the Constitution, it is not defined anywhere but is widely talked about in all sections of society, NGOs and bureaucrats. Keshvanand Bharati v. Kesala, Minerva Mills v. Union of India, Indira Gandhi v. Raj Naraian and S.P. Gupta v. Union of India are a few landmark cases that highlight judicial activism.
In India, judicial activism PILs and have gone hand in hand. The courts while deciding PILs, in order to further the cherished goals of the founding fathers, have departed from strict adherence to the procedure and many a times have moved beyond being just an adjudicator. In innumerable cases, the Courts under the veil of PIL have taken suo motu action or acted on even letters[xxv]. There have been several cases decided by the Honble Supreme Court as a Constitutional Court while entertaining PILs, which have transformed the jurisprudence of the Indian Legal System.[xxvi] Moreover, the Mandal agitation and the Mandir controversy came under some degree of control only when the Supreme Court took control of the issue. Therefore, to a large extend the Judiciary has indeed maintained the check and balance, an element indispensable in a democratic country.
However, the problem starts when instead of directing the authorities concerned to perform their duties, Courts start doing it themselves by what is called judicial enactments or by inadvertently performing executive tasks. Recent pronouncements of the Delhi High Court are a case in point.[xxvii] Moreover, the Courts in the recent past have been entertaining petitions that are more than often camouflaged as PIL but in actual are nothing more than attempt to bypass the regular procedure and often gain predominance. As said earlier, it is the Courts which interpret the law and give it a concrete shape for the people to understand better. Therefore, any attempt to bypass the regular legislative and executive processes/procedure can have a negative effect on the constitutional scheme of things envisaged by the framers.
Recently, a Bench of the Supreme Court comprising of Justice A.K. Mathur and Justice Markandya Jatjusaid in Government of Andhra Pradesh v. Lakshmi[xxviii], came down heavily on judicial activism warning judges that they muse exercise restraint or else the politicians may curtail their powers. The court gravely observed -If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it. They further reiterated that, Judges must know their limits and must not try to run the government. They must have modesty and humility, not behave as emperors. There is broad separation of powers under the Constitution and that no organ of the State- the Legislature, the Executive and the Judiciary should encroach into each others domain. The Honble Judges also said that they were compelled to make these statements because they were repeatedly coming across case where judges are unjustly trying to perform legislative or executive functions.
Further, a democracy requires that the people are governed as per the wishes of the people. For this purpose elections are held, representatives of the people are elected by adult franchise who ultimately form the legislature and also the government (executive). In a Parliamentary democracy every act of the State Government is accountable to its people through State Legislature which itself is an additional factor which keeps the State Government under check not to act arbitrarily or unreasonably. Also the citizens are free to approach the Courts in case any of the organs act arbitrarily or ultra vires their powers. The Courts have been quick to rein in tyranny or possible tyranny by the other constitutional bodies. For e.g. in Raja Ram Pal v. The Hon''ble Speaker, Lok Sabha and Ors (cash-for-query scam case)[xxix], the Honble Supreme Court said that matters concerning Parliamentary proceedings in spite of being limited and restricted to judicial review are subject to judicial scrutiny on breach of other constitutional provisions But there is no such check on the courts. More often than not, the fear of contempt proceedings prevents individuals from criticising the conduct of some judges. Critics feel threat of contempt has insulated the judiciary even further from any semblance of accountability.
Further, in the same case the Court also observed that the Courts cannot enact laws as they are not the elected representatives of the people nor do they have the requisite professional staff or information for the same. The Honble Court said Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions. If courts are to rely upon social science data as facts, they must recognize that such data are often tentative at best, subject to varying interpretations, and questionable on methodological grounds. Moreover, since social science findings and conclusions are likely to change with continuing research, they may require a system of ongoing policy reviews as new or better data become available. Is the judiciary capable of performing this function of supervision and adjustment traditionally provided by the legislative and administrative processes? Finally, what kind of citizens will such a system of judicial activism produce -a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.
CONCLUSION
It is clear from the above that the concept of judicial independence is deeply ingrained in our constitutional scheme and Article 50[xxx] illuminates it. And that in order to maintain harmony, the judiciary must not transgress the domain of other wings. But it is easier said that done as there is a thin line separating judicial activism and judicial imperialism. According to Justice J.S. Verma, judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, it is but natural that the judiciary may at times ruffle the feathers of the executive and/or legislature. A healthy system of check and balances is desirable in a democracy, more so, in a pluralistic democracy like ours. But the problem starts when the wings take on a collision path. Recently there have been shrill cries from various quarters, including the highest executive and legislative offices of the country over judicial over-activism due to the Courts judgements on purely administrative matters[xxxi]. The answers for the same are not easy to give. Perhaps the recent outburst of the Supreme Court[xxxii] against judicial activism holds the answer to these questions.
Judicial intervention is legitimate in administrative area when it comes within the scope of permissible judicial review[xxxiii]. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.[xxxiv],[xxxv]
In S.P Gupta v. UOI[xxxvi], the Supreme Court said that the concern of the judiciary must be to faithfully interpret the Constitutional provisions according to its true scope and intent because that alone can enhance public confidence in the judicial system. Lord Keith of Kinkel has said in Duport Steel Ltd. v. Sirs and Ors that the one public interest which the courts of law are properly entitled to treat as their concern is the standing of and the degree of respect commended by the judicial system. Further, Lord Scarman in the same case quoted at page 551 of the Reporter has advised thus:
Great judges are in their different ways judicial activists. But the Constitution''s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge''s sense of what is right (off as Selden put it by the length of the Chancellor''s foot), confidence in the judicial system it becoming replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today.
It will not be out of place to quote Mr. Justice Dr. A. S. Anand, former Chief Justice of India while delivering the Justice Krishna Rao memorial lecture at the National Law School at Bangalore. He said: .......The courts must not shy away from discharging their constitutional obligations to protect and enforce human rights. While acting within the bound of law they must always rise to the occasion as guardians of the Constitution, criticism of judicial activism notwithstanding. At the same time, he also observed that while expounding and expanding the law, judicial enthusiasm and judicial restraint are two sides of the same coin and a judge should always see that judicial activism does not become judicial adventurism and lead a judge going in pursuits of his own notions of justice and beauty. Supporting the judiciarys role in intervening wherever its support was needed to get certain directives implemented for the public good, the Honourable Justice said, ..Intervention in such areas is because of the peoples perception that judicial interventions is perhaps the only feasible correctional remedy available.
(The author is a student at BMS College of Law in Bangalore, and has expressed gratitude towards Prof. T Venkatdasappa for guidance.)
[i] By a two-Judge Bench of the Supreme Court in State of Andhra Pradesh v. Lakshmi decided on 28-02-2008.
[ii] This judicial activism at times, this author very respectfully and humbly submits, gives the impression of being judicial over-activism.
[iii] The Ninth Schedule contains a list of those Acts which are exempted under Article 31-B from coming under the purview of Article 31-A.
Article 31-A reads as follows:
31-A. Saving of laws providing for acquisition of estates, etc.(1) Notwithstanding anything contained in article 13, no law providing for
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,
shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article,
(a) the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any jajman right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression rights, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.
Article 31-B reads as follows:
31-B. Validation of certain Acts and Regulations.Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
[iv] This controversy has been finally set to rest, atleast legally for the time being by the Supreme Court by its recent judgement on a PIL. In this recent decision given in Ashok Kumar v. Union of India, a Five-Judge Bench of the Supreme Court has finally passed the Judgement upholding the Central Act on 27% OBC quota in Higher Education Institutions across the Country subject to exclusion of creamy layer from such reservation.
[v] It was constituted by the Supreme Court to monitor illegal felling of trees in Reserved forests. It is a creation of the Supreme Court.
[vi] The People''s Democracy (Weekly Organ of the Communist Party of India (Marxist) Vol. XXXI No. 08February 25, 2007 in an article Judicial Activism or Tyranny said .Thus in a monarchy the judge really exercises the delegated functions of the king, and for this he requires dignity and majesty as a King must have, to get obedience from his subjects. The situation becomes totally different in a democracy in which it is the people, and not the king, who are supreme. Here the judges get authority delegated to them by the people, and not by a king. Hence in a democracy there is no need for judges to vindicate their authority or display majesty or pomp. Their authority will come from public confidence based on their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy and there is no need for them to display majesty and authority.
[vii] French Thinker Montesquieu propounded the theory of separation of powers in his famous work Spirit of Laws and it has been accepted by most of the modern Constitutions including ours. According to this theory, the three wings of a government-the legislature, executive and the judiciary should be separate from each other. It envisages non interference by the legislature, judiciary and the executive into the domains reserved for each other.
[viii] Here, it would be pertinent to quote Mr. Justice J. S Verma. According to him- ..In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the essence of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: ... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balance. (Quoted from the article ON THE RECORD by Mr. Justice J. S. VERMA, Former Chief Justice of India, published in the Indian Express Newspaper (Online) dated Friday, April 06, 2007 )
[ix] Say, while hearing a PIL petition before it. The Courts cannot abrogate from their Constitutional duty by not deciding upon it.
[x] Kartar Singh v. State of Punjab (1994) 3 SCC 569
[xi] T.R Andhyarujina, Judicial Accountability: Indias Methods and Experience, Judges and Judicial Accountability, Cyrus Das, K Chandra, 2004, pp 101-130
[xii] Anti-Untouchability laws with penal sanctions, legislations for equality for women in matrimony, adoption, succession, workplaces, law for compulsory education legislation against bonded labour, nationalization of various industries, anti- corruption laws.
[xiii] The goals which the founding fathers of our Constitution wanted to achieve have been outlined in the Preamble to the Constitution. The Preamble reads as follows:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
[xiv] Briefly, this can be stated as the main reason behind the PIL movement of the 80s and 90s.
[xv] The only check is of impeachment of judges. But as experience has shown, it is a cumbersome process and seldom been used.
[xvi] Concise Oxford Dictionary, Tenth Edn., Oxford University Press 1999
[xvii] Articles 14 and 21 are applicable to non-citizen residents also.
[xviii] Article 32 reads as follows-
Remedies for enforcement of rights conferred by this Part.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
[xix][xix] Article 226. Power of High Courts to issue certain writs.(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
[xx] The term judicial activism is explained in Blacks law Dictionary, Sixty Edition, [Centennial Edition (1891-1991)] thus, Judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint expected of appellate Judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters. Justice V. R. Krishana Iyer, the greatest activist Judge, India has so far seen, feels, judicial activism is a device to accomplish the cherished goal of social justice. According to him,
After all, social justice is achieved not by lawlessness process, but legally tuned affirmative action, activist justicing and benign interpretation within the parameters of Corpus Juris. (In Search of Social Justice, page.8)
[xxi] In Blacks Law Dictionary (Sixth Edn.), public interest is defined as follows:
Public Interest- something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interests shared which may be generally in affairs of local, State or national Government..
The idea of public interest litigation came from actio poularis of Roman Jurisprudence which allowed Courts access to every citizen in matters of public wrong.
[xxii] In S.P. Gupta v. Union of India, (1981 IndLaw SC 599) the Supreme Court by a Seven-judge judgement firmly established the rule regarding public interest litigation. The Court held that any member of the public having sufficient interest can approach for enforcing constitutional or legal rights of other persons and redressal of a common grievance.
[xxiii] The conditions and requirements of a litigation to be termed as Public Interest Litigation was evolved by the Courts. A Public Interest Litigation can be filed when the following conditions are fulfilled: - There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority - It is for the enforcement of basic human rights of weaker sections of the community who are downtrodden, ignorant and whose fundamental and constitutional rights have been infringed.- It must not be frivolous litigation by persons having vested interests.
[xxiv] The Supreme Court in Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161, 185, said that within the domain of PIL the courts can supplement the procedure by evolving its own rule in this area, but this supplemental procedure/rule must confirm at all stages to the principles of natural justice and other accepted procedural norms characteristic of judicial proceedings. In Peoples Union for Democratic Rights v. Union of India (AIR 1982 SC 1473), a letter was treated as a writ petition by the Supreme Court.
[xxv] Peoples Union for Democratic Rights v. Union of India. The Supreme Court treated a letter as a writ petition. The case related to the miserable condition of construction labourers engaged in ASIAD village construction.
[xxvi] E.g.: S.P.Gupta v. Union of India (Judges Transfer case), Peoples Union for Democratic Rights v. Union of India (Asiad case), D.S. Nakara v. Union of India, M.C. Mehta v. Union of India (Ganga Pollution case), M.C. Mehta v. Union of India (Tanneries case), , M.C. Mehta v. Union of India (Taj Trapezium case), Vishaka v. Union of India, etc.
[xxvii] Demolition order against illegal buildings (the Court established the office of Court Commissioner to monitor illegal building. However, the Court Commissioners office and the MCD are on a collision course with the Corporation dubbing the Office as parallel administration), Policy for nursery admissions; Order for phasing out of Blue Line buses in the Capital, Order regarding misuse of ambulances (The Court said that private hospitals should provide more ambulances), Order regarding monkey menace (The court ordered the Civic Authorities to shift the monkeys to a secluded area called Bhatti Mines.)
[xxviii] SC 2008 280
[xxix] JT2007(2)SC1, (2007)3SCC184
[xxx] Article 50 reads as follows:
50. Separation of judiciary from executive.The State shall take steps to separate the judiciary from the executive in the public services of the State.
[xxxi] Supra. (e.g. land regularisation in Delhi)
[xxxii] In State of Andhra Pradesh v. Laxmi, Supra
[xxxiii] Broadly speaking, administrative action is subject to judicial review on three grounds, namely (i) illegality (ii) irrationality and (iii) procedural impropriety.
[xxxiv] Quoted from the article ON THE RECORD by Mr. Justice J. S. VERMA, Former Chief Justice of India, published in the Indian Express Newspaper (Online) dated Friday, April 06, 2007
[xxxv] In the above mentioned article, the learned Justice has also advocated the use of the test laid down by the US courts in Baker v. Carr. The learned Judge has expressed his opinion thus- .. The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a justiciable cause of action and should not suffer from a lack of judicially discoverable and manageable standards for resolving it. This is a pre-requisite for judicial intervention. Otherwise, the policy of judicial hands-off should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
[xxxvi]AIR 1994 SC 268, JT 1993(5) SC 497, (1993) 4 SCC 441, [1993] Supp 2 SCR 659
Kavita Jitani
http://www.indlawnews.com
During the last year and a half, the turf war between the judiciary and legislature have become fiercer with the legislature and the executive alleging that the judiciary is intruding in their space. The apex court, on its part did nothing in this period to make matters easier. In fact, the Supreme Court while scrutinising the Centres decision on OBC quota issue held that laws put in the Ninth Schedule[iii] of the Constitution for blanket protection were not beyond judicial scrutiny. Further, the Supreme Court also stayed the implementation of the Central law on 27 per cent quota for Other Backward Classes in Central Educational Institutions by an interim order[iv]. Members of Parliament raised the issue of former Chief Justice Y K Sabharwal''s orders on the sealing of illegal premises in the capital and alleged that they smacked of favouritism. While the spat with legislators was on, the executive was on collision with the judiciary when on more than one occasion it questioned the apex court for over-stepping into its domain in forest matters by accusing it of interfering with the constitution of Forest Advisory Body and seeking to scrap its Central Empowered Committee[v]. The apex courts decision to hear the petition against the Tamil Nadu governments call for bandh in the state in protest against the orders on Rama Setu, took everyone by surprise. Political parties, especially the Left parties have been equally vociferous against the Court decisions[vi], more so after the famous judgement of the Court against Tamil Nadu government employees wherein the court said that bandhs are illegal.
Having said this, there is no taking back from the judiciary the commendable work it has done especially in empowering the underprivileged and the weak; bringing issues like sustainable development, environment protection, rights of slum dwellers to the fore; widening the ambit of fundamental rights provided under Part III of the Constitution to include, inter alia, right to safe drinking water, right to wholesome environment as part of Article 21 of the Constitution and above all steadfastly guarding our hard-earned freedom from executive and legislative tyranny.
SEPARATION OF POWERS
The judiciary, legislature and executive are three vital organs in the body of democracy. All the three components have their own detached but inter allied functions through the doctrine of separation of powers.[vii] Like most modern democracies/governments, , India too follows the doctrine of separation of power.[viii] Indias founding fathers wanted India to be a democracy with powers and duties for the three main organs of the government clearly etched out so that no organ transgresses the powers of the other(s). In India, we have the Parliament, the Union Cabinet and the Supreme Court at the Union level to discharge the functions of the legislature, the executive and the judiciary respectively. The Constitution of India, the highest law of the land lays out the powers and duties of these three organs. The legislative has the powers to enact/make the law, the executive to enforce the law so laid and the judiciary to interpret the law.
But the jurisdictional area of these organs at times gets blurred. The blurring effect, as I would call it, is most visible in the judicial arena when the judges are forced[ix] to decide upon a purely administrative or legislative effect. One of the reasons for this may be the fact that the executive, more often than not, is from the majority group in the Parliament and the executive and the legislature are mostly the same individuals or at least belonging to the same political dispensation. Therefore, any transgression, actual or alleged/perceived, by the judiciary is viewed with suspicion.
The main function of judiciary is to interpret the law as enacted by the legislature. Though it is the legislature, which makes the Law, the Judgments rendered by the Supreme Court and High Courts give the Law a concrete shape, which the people, understand better as the Law. Hence, there is immense importance of the decision making process. A Constitutional Bench of the Supreme Court of India said that the State should secure the proper operation of legal system and proper opportunity to get justice, which shall be its Fundamental Obligation as per Article 39A of Constitution of India[x].
Further, it is an established principle of jurisprudence and also of International Law that every State should provide an effective framework of remedies to redress human rights grievances or violations. And that the administration of justice, including law enforcement and prosecutorial agencies and, especially an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development.
India has an independent judiciary. Indian Judiciary, which is the most powerful judiciary in the world and next only to that of USA[xi], continues to command respect and credibility of the masses despite delays and deficiencies, and thus there is a serious obligation cast upon it to secure that credibility, because the Judiciary is the only constitutional hope that a person can look to for help when his/her human rights are jeopardized. It is needless to say that for realization of human rights, vibrant democratic machinery with rule of law is essential. That is possible only when judiciary and legal profession shines with its integrity and gains efficiency besides being independent and immune from ordinary influences such as inducement and bribery.
Further, the Constitutional machinery can run smoothly only when the three vital organs act intra vires theirs powers and do not try to usurp each others authority. That is to say, judicial activism should never turn into judicial over-activism. This is necessary to maintain harmony and coordination among the organs.
JUDICIAL ACTIVISM
The advocates for judicial activism contend that it arose because the other organs failed to keep up with the hopes and aspirations of the people for a better quality of life. One of the major motives for which Indians struggled to shape India into an independent nation was the acquisition of various rights in order to do away with the exploitative environment in which they had been living throughout the centuries. Freedom was not seen as an end in itself but as a means to achieve an end; the end being to free India through a new Constitution, to feed the starving millions, to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.
In its bid to accomplish the above said motive, Indian Government has been enacting various legislations[xii] for achieving the cherished goals of our founding fathers.[xiii] But the wide gap could no be narrowed. The growing gap between expectation and reality, promise and performance, enactment and implementation has been causing disenchantment of the underdogs who seem to be developing a feeling of helplessness and alienation. Despite several pompous legislative declarations and pontific executive pronouncements, the Governments, Central as well as State, have been unable to tackle the problems of the underprivileged strata of the society, as their condition went on worsening. Ultimately, the marginalised masses of the people opted for the judicial therapeutics to heal the ailing democracy. And the advocates for judicial activism contend that judicial activism was necessary in the above stated circumstance and it continues to be so as the Governments have been largely unsuccessful in fulfilling the cherished goals of the Constitution. Therefore, in response, the judiciary, leaving behind its traditional moderate role has had to adopt an active role. And, with new spirit and support of the masses,[xiv] the advocates contend not only has this third wing interpreted the existing legislation in such a way as to ensure the maximum of human freedom, but has galvanized the other two wings too to act for the noble cause of public good. Justice Krishna Iyer had once observed, every judge is an activist either on the forward gear or the reverse.
It is no secret that the judiciary enjoys a much higher degree of credibility than the political class. The concept of judicial activism and public interest litigation are connected. Public Interest litigation (PIL) has become citizens favorite tool to fight an inefficient and unresponsive government. To its credit, at least in some cases, the Supreme Court judgments have advanced citizen rights and strengthened constitutional protections for the common man. The changing stance of the judiciary has often been termed as activism on the part of the judiciary or Judicial activism. Viewed from various perspectives, this metamorphosis, in the functioning of the judiciary has invited varied reactions ranging from exuberance to caution to pessimism. Some political pundits described it as judicial over-activism. Some other political as well as legal scholars have raised the question that the judiciary has usurped powers in the guise of public interest. Many others feel that the judiciary, by its activism and intervention, is actually preventing the executive from going astray. Instances abound of resort to the judicial process because of the failure or inaction of the designated authority to discharge its legal obligation. Absence of any remedy in that situation would drive the aggrieved to resort to some extra-legal remedy leading to the negation of the rule of law, unless the judiciary intervened. More often, it is the judicial intervention in such situations that causes the apprehension of judicial ascendancy disturbing the delicate balance of separation of powers.
But the problem with judicial activism is that there a very fine line dividing activism and imperialism. Further, unlike for the legislature and the executive, there are no checks and balances in place for the judiciary if in case it strays[xv] from the constitutional mandate.
DEMOCRACY, JUDICIAL ACTIVISM AND JUDICIAL IMPERIALISM
Democracy means a government by the people wherein the people have a voice in the exercise of power, typically trough elected representatives whereas imperialism means a policy of extending a countrys (or even an independent bodys) power and influence through colonization, use of other means and/or any other means[xvi]. These two terms are nearly antonyms of each other. Where democracy speaks of giving voice to even the weakest of all in the society, imperialism is all about usurping of this right by whatever means possible, including force. Judicial imperialism connotes, in negative terms, the usurpation of authority of the legislative and executive by the judiciary. That is, taking over of functions by the judiciary which are in legislative/executive domain. Judicial imperialism can also be defined as judicial-over activism. There is no place for imperialism of any kind in a democracy.
India is the worlds largest democracy. Also ours is the worlds largest written Constitution, which guarantees a set of fundamental rights to every citizen[xvii]. Any person can directly approach the Supreme Court or the High Courts at the State level for enforcement of their fundamental rights under Article 32[xviii] and Article 226[xix] of the Constitution respectively. Under the Indian Constitution, the Supreme Court and high courts can be approached in case of a violation of fundamental rights.
The genesis of judicial activism[xx] lies in the evolution of public interest litigation. Public Interest Litigation[xxi] or Social Interest Litigation as the name suggests are litigation wherein any public spirited person can file a petition before the Supreme Court or the High Court in case of infringement of fundamental rights of any other person or class of persons[xxii], subject to certain conditions[xxiii]. Public Interest Litigations are a creation of the Courts. The Constitution nowhere defines them. Even the procedure for them has been evolved by the courts themselves.[xxiv] The term Judicial activism does not find any mention in the Constitution, it is not defined anywhere but is widely talked about in all sections of society, NGOs and bureaucrats. Keshvanand Bharati v. Kesala, Minerva Mills v. Union of India, Indira Gandhi v. Raj Naraian and S.P. Gupta v. Union of India are a few landmark cases that highlight judicial activism.
In India, judicial activism PILs and have gone hand in hand. The courts while deciding PILs, in order to further the cherished goals of the founding fathers, have departed from strict adherence to the procedure and many a times have moved beyond being just an adjudicator. In innumerable cases, the Courts under the veil of PIL have taken suo motu action or acted on even letters[xxv]. There have been several cases decided by the Honble Supreme Court as a Constitutional Court while entertaining PILs, which have transformed the jurisprudence of the Indian Legal System.[xxvi] Moreover, the Mandal agitation and the Mandir controversy came under some degree of control only when the Supreme Court took control of the issue. Therefore, to a large extend the Judiciary has indeed maintained the check and balance, an element indispensable in a democratic country.
However, the problem starts when instead of directing the authorities concerned to perform their duties, Courts start doing it themselves by what is called judicial enactments or by inadvertently performing executive tasks. Recent pronouncements of the Delhi High Court are a case in point.[xxvii] Moreover, the Courts in the recent past have been entertaining petitions that are more than often camouflaged as PIL but in actual are nothing more than attempt to bypass the regular procedure and often gain predominance. As said earlier, it is the Courts which interpret the law and give it a concrete shape for the people to understand better. Therefore, any attempt to bypass the regular legislative and executive processes/procedure can have a negative effect on the constitutional scheme of things envisaged by the framers.
Recently, a Bench of the Supreme Court comprising of Justice A.K. Mathur and Justice Markandya Jatjusaid in Government of Andhra Pradesh v. Lakshmi[xxviii], came down heavily on judicial activism warning judges that they muse exercise restraint or else the politicians may curtail their powers. The court gravely observed -If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it. They further reiterated that, Judges must know their limits and must not try to run the government. They must have modesty and humility, not behave as emperors. There is broad separation of powers under the Constitution and that no organ of the State- the Legislature, the Executive and the Judiciary should encroach into each others domain. The Honble Judges also said that they were compelled to make these statements because they were repeatedly coming across case where judges are unjustly trying to perform legislative or executive functions.
Further, a democracy requires that the people are governed as per the wishes of the people. For this purpose elections are held, representatives of the people are elected by adult franchise who ultimately form the legislature and also the government (executive). In a Parliamentary democracy every act of the State Government is accountable to its people through State Legislature which itself is an additional factor which keeps the State Government under check not to act arbitrarily or unreasonably. Also the citizens are free to approach the Courts in case any of the organs act arbitrarily or ultra vires their powers. The Courts have been quick to rein in tyranny or possible tyranny by the other constitutional bodies. For e.g. in Raja Ram Pal v. The Hon''ble Speaker, Lok Sabha and Ors (cash-for-query scam case)[xxix], the Honble Supreme Court said that matters concerning Parliamentary proceedings in spite of being limited and restricted to judicial review are subject to judicial scrutiny on breach of other constitutional provisions But there is no such check on the courts. More often than not, the fear of contempt proceedings prevents individuals from criticising the conduct of some judges. Critics feel threat of contempt has insulated the judiciary even further from any semblance of accountability.
Further, in the same case the Court also observed that the Courts cannot enact laws as they are not the elected representatives of the people nor do they have the requisite professional staff or information for the same. The Honble Court said Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions. If courts are to rely upon social science data as facts, they must recognize that such data are often tentative at best, subject to varying interpretations, and questionable on methodological grounds. Moreover, since social science findings and conclusions are likely to change with continuing research, they may require a system of ongoing policy reviews as new or better data become available. Is the judiciary capable of performing this function of supervision and adjustment traditionally provided by the legislative and administrative processes? Finally, what kind of citizens will such a system of judicial activism produce -a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.
CONCLUSION
It is clear from the above that the concept of judicial independence is deeply ingrained in our constitutional scheme and Article 50[xxx] illuminates it. And that in order to maintain harmony, the judiciary must not transgress the domain of other wings. But it is easier said that done as there is a thin line separating judicial activism and judicial imperialism. According to Justice J.S. Verma, judicial intervention is legitimate when it comes within the scope of permissible judicial review. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.
Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, it is but natural that the judiciary may at times ruffle the feathers of the executive and/or legislature. A healthy system of check and balances is desirable in a democracy, more so, in a pluralistic democracy like ours. But the problem starts when the wings take on a collision path. Recently there have been shrill cries from various quarters, including the highest executive and legislative offices of the country over judicial over-activism due to the Courts judgements on purely administrative matters[xxxi]. The answers for the same are not easy to give. Perhaps the recent outburst of the Supreme Court[xxxii] against judicial activism holds the answer to these questions.
Judicial intervention is legitimate in administrative area when it comes within the scope of permissible judicial review[xxxiii]. The thin dividing line demarcating appropriate and inappropriate judicial intervention is drawn on the basis of functions allocated to the different branches by the Constitution. In the borderline cases, a legal question at the core determines the need for judicial intervention. Purely political questions and policy matters not involving decision of a core legal issue are outside the domain of judiciary.[xxxiv],[xxxv]
In S.P Gupta v. UOI[xxxvi], the Supreme Court said that the concern of the judiciary must be to faithfully interpret the Constitutional provisions according to its true scope and intent because that alone can enhance public confidence in the judicial system. Lord Keith of Kinkel has said in Duport Steel Ltd. v. Sirs and Ors that the one public interest which the courts of law are properly entitled to treat as their concern is the standing of and the degree of respect commended by the judicial system. Further, Lord Scarman in the same case quoted at page 551 of the Reporter has advised thus:
Great judges are in their different ways judicial activists. But the Constitution''s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge''s sense of what is right (off as Selden put it by the length of the Chancellor''s foot), confidence in the judicial system it becoming replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today.
It will not be out of place to quote Mr. Justice Dr. A. S. Anand, former Chief Justice of India while delivering the Justice Krishna Rao memorial lecture at the National Law School at Bangalore. He said: .......The courts must not shy away from discharging their constitutional obligations to protect and enforce human rights. While acting within the bound of law they must always rise to the occasion as guardians of the Constitution, criticism of judicial activism notwithstanding. At the same time, he also observed that while expounding and expanding the law, judicial enthusiasm and judicial restraint are two sides of the same coin and a judge should always see that judicial activism does not become judicial adventurism and lead a judge going in pursuits of his own notions of justice and beauty. Supporting the judiciarys role in intervening wherever its support was needed to get certain directives implemented for the public good, the Honourable Justice said, ..Intervention in such areas is because of the peoples perception that judicial interventions is perhaps the only feasible correctional remedy available.
(The author is a student at BMS College of Law in Bangalore, and has expressed gratitude towards Prof. T Venkatdasappa for guidance.)
[i] By a two-Judge Bench of the Supreme Court in State of Andhra Pradesh v. Lakshmi decided on 28-02-2008.
[ii] This judicial activism at times, this author very respectfully and humbly submits, gives the impression of being judicial over-activism.
[iii] The Ninth Schedule contains a list of those Acts which are exempted under Article 31-B from coming under the purview of Article 31-A.
Article 31-A reads as follows:
31-A. Saving of laws providing for acquisition of estates, etc.(1) Notwithstanding anything contained in article 13, no law providing for
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,
shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article,
(a) the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any jajman right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression rights, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.
Article 31-B reads as follows:
31-B. Validation of certain Acts and Regulations.Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
[iv] This controversy has been finally set to rest, atleast legally for the time being by the Supreme Court by its recent judgement on a PIL. In this recent decision given in Ashok Kumar v. Union of India, a Five-Judge Bench of the Supreme Court has finally passed the Judgement upholding the Central Act on 27% OBC quota in Higher Education Institutions across the Country subject to exclusion of creamy layer from such reservation.
[v] It was constituted by the Supreme Court to monitor illegal felling of trees in Reserved forests. It is a creation of the Supreme Court.
[vi] The People''s Democracy (Weekly Organ of the Communist Party of India (Marxist) Vol. XXXI No. 08February 25, 2007 in an article Judicial Activism or Tyranny said .Thus in a monarchy the judge really exercises the delegated functions of the king, and for this he requires dignity and majesty as a King must have, to get obedience from his subjects. The situation becomes totally different in a democracy in which it is the people, and not the king, who are supreme. Here the judges get authority delegated to them by the people, and not by a king. Hence in a democracy there is no need for judges to vindicate their authority or display majesty or pomp. Their authority will come from public confidence based on their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy and there is no need for them to display majesty and authority.
[vii] French Thinker Montesquieu propounded the theory of separation of powers in his famous work Spirit of Laws and it has been accepted by most of the modern Constitutions including ours. According to this theory, the three wings of a government-the legislature, executive and the judiciary should be separate from each other. It envisages non interference by the legislature, judiciary and the executive into the domains reserved for each other.
[viii] Here, it would be pertinent to quote Mr. Justice J. S Verma. According to him- ..In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the essence of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Constitution, with the independence of judiciary as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: ... the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balance. (Quoted from the article ON THE RECORD by Mr. Justice J. S. VERMA, Former Chief Justice of India, published in the Indian Express Newspaper (Online) dated Friday, April 06, 2007 )
[ix] Say, while hearing a PIL petition before it. The Courts cannot abrogate from their Constitutional duty by not deciding upon it.
[x] Kartar Singh v. State of Punjab (1994) 3 SCC 569
[xi] T.R Andhyarujina, Judicial Accountability: Indias Methods and Experience, Judges and Judicial Accountability, Cyrus Das, K Chandra, 2004, pp 101-130
[xii] Anti-Untouchability laws with penal sanctions, legislations for equality for women in matrimony, adoption, succession, workplaces, law for compulsory education legislation against bonded labour, nationalization of various industries, anti- corruption laws.
[xiii] The goals which the founding fathers of our Constitution wanted to achieve have been outlined in the Preamble to the Constitution. The Preamble reads as follows:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
[xiv] Briefly, this can be stated as the main reason behind the PIL movement of the 80s and 90s.
[xv] The only check is of impeachment of judges. But as experience has shown, it is a cumbersome process and seldom been used.
[xvi] Concise Oxford Dictionary, Tenth Edn., Oxford University Press 1999
[xvii] Articles 14 and 21 are applicable to non-citizen residents also.
[xviii] Article 32 reads as follows-
Remedies for enforcement of rights conferred by this Part.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
[xix][xix] Article 226. Power of High Courts to issue certain writs.(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
[xx] The term judicial activism is explained in Blacks law Dictionary, Sixty Edition, [Centennial Edition (1891-1991)] thus, Judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint expected of appellate Judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters. Justice V. R. Krishana Iyer, the greatest activist Judge, India has so far seen, feels, judicial activism is a device to accomplish the cherished goal of social justice. According to him,
After all, social justice is achieved not by lawlessness process, but legally tuned affirmative action, activist justicing and benign interpretation within the parameters of Corpus Juris. (In Search of Social Justice, page.8)
[xxi] In Blacks Law Dictionary (Sixth Edn.), public interest is defined as follows:
Public Interest- something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interests shared which may be generally in affairs of local, State or national Government..
The idea of public interest litigation came from actio poularis of Roman Jurisprudence which allowed Courts access to every citizen in matters of public wrong.
[xxii] In S.P. Gupta v. Union of India, (1981 IndLaw SC 599) the Supreme Court by a Seven-judge judgement firmly established the rule regarding public interest litigation. The Court held that any member of the public having sufficient interest can approach for enforcing constitutional or legal rights of other persons and redressal of a common grievance.
[xxiii] The conditions and requirements of a litigation to be termed as Public Interest Litigation was evolved by the Courts. A Public Interest Litigation can be filed when the following conditions are fulfilled: - There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority - It is for the enforcement of basic human rights of weaker sections of the community who are downtrodden, ignorant and whose fundamental and constitutional rights have been infringed.- It must not be frivolous litigation by persons having vested interests.
[xxiv] The Supreme Court in Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161, 185, said that within the domain of PIL the courts can supplement the procedure by evolving its own rule in this area, but this supplemental procedure/rule must confirm at all stages to the principles of natural justice and other accepted procedural norms characteristic of judicial proceedings. In Peoples Union for Democratic Rights v. Union of India (AIR 1982 SC 1473), a letter was treated as a writ petition by the Supreme Court.
[xxv] Peoples Union for Democratic Rights v. Union of India. The Supreme Court treated a letter as a writ petition. The case related to the miserable condition of construction labourers engaged in ASIAD village construction.
[xxvi] E.g.: S.P.Gupta v. Union of India (Judges Transfer case), Peoples Union for Democratic Rights v. Union of India (Asiad case), D.S. Nakara v. Union of India, M.C. Mehta v. Union of India (Ganga Pollution case), M.C. Mehta v. Union of India (Tanneries case), , M.C. Mehta v. Union of India (Taj Trapezium case), Vishaka v. Union of India, etc.
[xxvii] Demolition order against illegal buildings (the Court established the office of Court Commissioner to monitor illegal building. However, the Court Commissioners office and the MCD are on a collision course with the Corporation dubbing the Office as parallel administration), Policy for nursery admissions; Order for phasing out of Blue Line buses in the Capital, Order regarding misuse of ambulances (The Court said that private hospitals should provide more ambulances), Order regarding monkey menace (The court ordered the Civic Authorities to shift the monkeys to a secluded area called Bhatti Mines.)
[xxviii] SC 2008 280
[xxix] JT2007(2)SC1, (2007)3SCC184
[xxx] Article 50 reads as follows:
50. Separation of judiciary from executive.The State shall take steps to separate the judiciary from the executive in the public services of the State.
[xxxi] Supra. (e.g. land regularisation in Delhi)
[xxxii] In State of Andhra Pradesh v. Laxmi, Supra
[xxxiii] Broadly speaking, administrative action is subject to judicial review on three grounds, namely (i) illegality (ii) irrationality and (iii) procedural impropriety.
[xxxiv] Quoted from the article ON THE RECORD by Mr. Justice J. S. VERMA, Former Chief Justice of India, published in the Indian Express Newspaper (Online) dated Friday, April 06, 2007
[xxxv] In the above mentioned article, the learned Justice has also advocated the use of the test laid down by the US courts in Baker v. Carr. The learned Judge has expressed his opinion thus- .. The US Supreme Court laid down a pragmatic test in Baker v. Carr, 369 US 186 (1962) for judicial intervention in matters with a political hue, apart from those expressly allocated to another branch. It held that the controversy before the court must have a justiciable cause of action and should not suffer from a lack of judicially discoverable and manageable standards for resolving it. This is a pre-requisite for judicial intervention. Otherwise, the policy of judicial hands-off should govern, because such a matter is required to be dealt with by another branch. The position under the Indian Constitution is similar. I had taken the same restricted view in my separate opinion relating to judicial review of a proclamation under article 356 of the Constitution in SR Bommai v. Union of India, AIR 1994 SC 1918, dissociating from the wider view taken in the majority opinion.
[xxxvi]AIR 1994 SC 268, JT 1993(5) SC 497, (1993) 4 SCC 441, [1993] Supp 2 SCR 659
Kavita Jitani
http://www.indlawnews.com
Custody case: SC overrides US court
NEW DELHI: Nine-year-old Nalanda had no hesitation in telling the Supreme Court on Wednesday that she would like to stay with her mother, little realising that her wishes were diametrically opposite to the orders of a US court, which had asked her mother to give her back her father. The minor's wishes weighed more with the Supreme Court. It directed that the mother would have the interim custody of Nalanda, even if it amounted to virtually overriding the US court order asking the mother to bring back the child so that she could be handed over to her US-based father. Searching for a solution in the face of conflicting orders from the US court and a Kolkata court on 'who should have interim custody of Nalanda', a bench comprising Justices C K Thakker and L S Panta decided to ascertain her views, for it was anguished that neither of the courts had paid attention to an important aspect — the minor's preference. Doing a grandfatherly chat with Nalanda, Justices Thakker and Panta talked extensively and got the answer to their query — whether she wanted to be with her US-based father, who had a decree to take her back to US. Nalanda stood her ground and expressed her desire to be with her mother — Nandini Chowdhuri. The bench agreed and ordered that till the Kolkata court took a final decision on Chowdhuri's plea seeking full custody of Nalanda, the girl will live with her. It also directed the trial court to decide the issue expeditiously and not later than July 31, 2008. After the daughter's views were known, the father — Rana Roy — withdrew his plea for giving effect to the US court's order but sought access to his daughter. What the court granted to the father is also novel. For the first time in judicial history, a father would have access to his daughter through webcam. Keeping in view the fact that schools are closed for the summer vacation, the apex court ordered that the father could chat with his daughter through webcam from 11 am IST for two hours every day. It also asked the mother to ensure that the father had telephonic access to the child as well as visitation rights as and when he comes to India during the pendency of the litigation in the Kolkata court. The mother, who has remarried after her divorce from Roy and has a child from second marriage, had rushed to the Supreme Court after the Calcutta high court refused to stay the rigour of a US court holding her to be in contempt for repatriating the child to India without prior permission and thereby depriving the father of the visitation rights which he was granted after divorce. When the mother did not appear before the American court repeatedly despite summons, the US court granted full custody of the daughter to the father and directed that the child be brought back to the US. "The allegation about flouting of US court orders is one thing, but the wishes of the child are also of equal importance," the bench said. The judges, during lunchtime, in the presence of the lawyers from both sides talked to the girl.
5 Jun 2008, 0000 hrs IST, Dhananjay Mahapatra,TNN
http://timesofindia.indiatimes.com
5 Jun 2008, 0000 hrs IST, Dhananjay Mahapatra,TNN
http://timesofindia.indiatimes.com
Dasavatharam producers file pre-emptive petition in SC
NEW DELHI: Before getting ready for the release of Kamala Hassan starrer Dasavatharam , the director and producer of the film on Wednesday took pre-emptive measures in the Supreme Court to prevent any further litigational hurdle before the movie’s scheduled first show on June 16. Producer Oskar Films and director K S Ravikumar, not comfortable with the green signal from the Madras high court which rejected petitions by Vaishnavite groups opposing the name of the film and certain scenes in it, filed a caveat in the apex court through counsel K K Mani. By filing the caveat, they ensured that the losing petitioners before the HC do not spring a surprise appeal before the apex court and obtain any ex-parte interim order without the film’s producer and director getting a chance to oppose the appellant's plea. On May 29, the high court bench comprising Justices K Venkataraman and M Satyanarayana dismissed the petitions filed by 'International Sri Vaishnava Dharma Samrakshana Society' and 'Kalyana Suba Samiti' seeking change of the title of the movie and deletion of certain scenes in it.
5 Jun 2008, 0052 hrs IST,TNN
http://timesofindia.indiatimes.com
5 Jun 2008, 0052 hrs IST,TNN
http://timesofindia.indiatimes.com
IA air-hostesses must cut flab or be grounded: HC
New Delhi: This the final call for all overweight air-hostesses with the Indian Airlines — cut the flab or else be ready to be grounded.Hopes of a legal reprieve for air hostesses crossing the weight limit, crashed on Wednesday with the Delhi High Court upholding the airlines’ policy to ground such crew.Five air-hostesses, who were grounded for putting on excessive weight moved the court against the airlines alleging that the action was arbitrary and illegal.Dismissing their petition, a bench headed by Justice A K Sikri held “there is no unreasonableness or arbitrariness” in the airlines’ decision.The court had on May 5 reserved it’s judgment on a bunch of petitions of Indian Airlines’ air-hostesses challenging their grounding for being overweight.
PTI
Posted On Thursday, June 05, 2008
http://www.mumbaimirror.com
PTI
Posted On Thursday, June 05, 2008
http://www.mumbaimirror.com
HC notice to Health Ministry, university over cancellation of counselling
Chandigarh, June 4 The Punjab and Haryana High Court has issued notices to the Union Health Ministry (Department of AYUSH) on a petition filed by Sri Guru Nanak Dev Homeopathic College, Ludhiana challenging the orders issued by the ministry and the Central Council of Homoeopathy, New Delhi, to cancel the counselling session for 27 seats of MD (Homoeopathy) earmarked for external candidates in Baba Farid University of Health Sciences, Faridkot.
Notices have also been issued to the Central Council of Homoeopathy, New Delhi, and Baba Farid University.
As a result of the order issued by the ministry, the selection committee conducting counselling sessions had to stop the process midway on May 30.
The petitioner stated that according to Amendment Regulations notification, 2001, published in the Government of India Gazette on November 5, 2001, the universities concerned might allow the admission of external candidates to appear in postgraduate examinations for eight years from the commencement of the Homeopathy (Post Graduate Degree Course) MD (Homoeopathy) (Amendment) Regulations, 2001, for three subjects.
But subsequently, the universities were directed not to conduct any counselling after 2007-2008 session. Baba Farid University, however, wrote back to the Department of AYUSH on May 23 that universities could give admissions for MD (Homoeopathy) course for external candidates till 2009
Express News Service
Posted online: Thursday , June 05, 2008 at 12:00:48Updated: Thursday , June 05, 2008 at 12:00:48
http://www.expressindia.com
Notices have also been issued to the Central Council of Homoeopathy, New Delhi, and Baba Farid University.
As a result of the order issued by the ministry, the selection committee conducting counselling sessions had to stop the process midway on May 30.
The petitioner stated that according to Amendment Regulations notification, 2001, published in the Government of India Gazette on November 5, 2001, the universities concerned might allow the admission of external candidates to appear in postgraduate examinations for eight years from the commencement of the Homeopathy (Post Graduate Degree Course) MD (Homoeopathy) (Amendment) Regulations, 2001, for three subjects.
But subsequently, the universities were directed not to conduct any counselling after 2007-2008 session. Baba Farid University, however, wrote back to the Department of AYUSH on May 23 that universities could give admissions for MD (Homoeopathy) course for external candidates till 2009
Express News Service
Posted online: Thursday , June 05, 2008 at 12:00:48Updated: Thursday , June 05, 2008 at 12:00:48
http://www.expressindia.com
After 10 years, Bombay HC convicts man for flashing
MUMBAI: Ten years after he flashed his neighbour, Bombay High Court on Tuesday convicted a man for outraging the woman's modesty. Justice R Y Ganoo agreed with the trial court that in such cases of sexual harassment, despite the lack of any corroborative evidence, the testimony of the woman can be relied upon if it was found to be "consistent (and) reliable". The HC upheld the judgment of the trial court asking Shivaram Hambare (48), a government servant, to pay a fine of Rs 3,000 or in default undergo imprisonment for 30 days. The prosecution's case was that on May 21, 1998, Hambare abused Sheela and then went on to pull down his pants and expose his private parts. The court held Hambare guilty of outraging the modesty of a woman with words and gesture under section 509 of the Indian Penal Code.
5 Jun 2008, 0228 hrs IST, Shibu Thomas,TNN
http://timesofindia.indiatimes.com
5 Jun 2008, 0228 hrs IST, Shibu Thomas,TNN
http://timesofindia.indiatimes.com
LDA fined Rs 2 lakh in contempt case by HC
LUCKNOW: The high court has imposed Rs 2 lakh cost on the Lucknow Development Authority (LDA) and Rs 2,000 on former vice-chairman Harbhajan Singh in a contempt case and directed that if he fails to make the payment, he would have to undergo three days' simple imprisonment. Besides, the court also imposed Rs 50,000 cost on the petitioner Jitendra Mohan, for making false averments in pleadings while dismissing the contempt petition. According to the petitioner, the LDA was taking possession of certain land owned by him near Ram Manohar Lohia Hospital, Gomtinagar without issuing notification for acquiring it. In 1996, the high court has passed an interim order restraining the LDA from acquiring the land. By the passes of time, as the court found, on the land in question a portion of Lohia hospital was constructed and several other building establishments were also raised there. In 2007, the petitioner filed contempt petition with submission that the land was vacant and the LDA took its possession in violation of the court's 1996 restraint order.
Jun 2008, 0515 hrs IST,TNN
http://timesofindia.indiatimes.com
Jun 2008, 0515 hrs IST,TNN
http://timesofindia.indiatimes.com
TOI challenges FIRs of Police Commissioner in Guj HC
The Times of India today challenged in the Gujarat High Court the FIRs, with accusations of sedition and criminal conspiracy, lodged by Ahmedabad Police Commissioner O P Mathur against its Resident Editor and a Correspodent.The petition of the ToI was admitted in the court of Justice Z K Saiyad and is to be heard tomorrow.The city police chief has filed three FIRs at Navrangpura police station against Resident Editor Bharat Desai and Correpondent Prashan Dayal for publishing a series of articles between May 27-30 stating that he (Mr Mathur) has linkage with under world and the safety of citizens under him is questionable. The FIRs were filed on June 1 and 2.The newspaper articles had alleged that Mr Mathur had linkd with former underworld don Abdul Latif and was on his (Latif's) pay-roll.The local media, showing solidarity to fellow scribes and for protection of 'Freedom of Expression' right, has been demonstrating against Mr Mathur the last three days. They today submitted a memorandum to Gujarat Governor Naval Kishor Sharma and Director General of Police P C Pandey, demanding withdrawal of all charges against both the scribes of ToI.UNI
6/4/2008
http://www.indlawnews.com
6/4/2008
http://www.indlawnews.com
Delhi HC issues notice to Yahoo on T-Series petition
Televisionpoint.com Correspondent New DelhiThe Delhi High Court on May 30, 2008 issued a notice to Yahoo Inc and its Indian subsidiary, Yahoo Web Services (India), on a suit filed by Super Cassettes Industries Ltd, owner of T-Series, for infringement of their copyright caused by unlicensed hosting of Super Cassettes Industries' copyright works on Yahoo's portal.A similar infringement was seen last year when T-Series had filed a case against YouTube and Google Inc, and was successful in obtaining an interim restraint against them. Yahoo was asked to remove all contents owned by T-Series. However, in response to the legal notice, Yahoo Inc reverted with their standard reply taking refuge under the Digital Millennium Copyright Act (DMCA), an American law, and asked T-Series to notify Yahoo in accordance with DMCA.An statement from the music company says, "T-Series was thus compelled to move the Delhi High Court to protect its copyright. Along with issuing notice to Yahoo, the Delhi High Court also passed an interim-injunction against Yahoo and specifically ordered that Yahoo, its officers, agents, servants and representatives, are restrained from reproducing, adapting, distributing or transmitting in any manner on their website or otherwise, infringing the copyright of T-Series in any manner, whether films and songs and underlying copyright works, without obtaining an appropriate license from T-Series." Hearing in the Yahoo case had been posted for September-end, 2008.
Wednesday - Jun 04, 2008
http://www.televisionpoint.com
Wednesday - Jun 04, 2008
http://www.televisionpoint.com
Madras HC upholds land acquisition for SEZs
Madras High Court has upheld an order dated November 3, 2006 of the Industries Department acquiring 395.87 hectare of land in Oragadam and Sennakuppam Villages in Kancheepuram district for setting up special economic zones (SEZs). In their writ petitions, M Haridoss and 15 others challenged the acquisition proceedings on various grounds. Dismissing the petitions, Justice P Jyothimani observed there had been compliance of service of notice and hearing of petitioners' grievances. The government had initiated the proceedings, considering the larger industrial development of the state on the basis of the Tamil Nadu Acquisition of Lands for Industrial Purposes Act. This apart, of the 6,500 land owners, except 16 people, all others had either accepted the compensation or surrendered their lands by accepting the acquisition proceedings. "Therefore, I am of the considered view that the petitioners are not entitled for any relief as claimed for," Justice Jyothimani said and dismissed the petitions. The judge, however, said in respect of cases where the land was required to be retained for religious or small-scale industrial purposes, it was open to the petitioners concerned to make a proper representation to the government for withdrawal of land or for any other relief.
UNI
6/5/2008
http://www.indlawnews.com
Missing boy: HC asks DIG to appear with files
The Jammu and Kashmir High Court on Wednesday directed DIG Kashmir to personally appear before the court on June 6...
Srinagar, June 4 The Jammu and Kashmir High Court on Wednesday directed DIG Kashmir to personally appear before the court on June 6 along with all case diaries pertaining to the missing of four-year-old Mehran Mir.
Meanwhile, DIG Mohammad Subhan Lone, who is heading the investigation team to trace the boy, filed a third status report in the High Court through Advocate General Altaf Nayak. The AG assured the court that all necessary steps will be taken to locate the missing child.
In its written status report, the police had disclosed that they have checked the records of many nursing homes in the Valley to find out whether any kidney transfer operation has been conducted or not after Mehran went missing. But, Mian Abdul Qayoom, lawyer of the parents, said that while the police were claiming many things in written documents, the fact was that it had failed to trace the boy.
majid.jahangir@expressindia.com
Majid Jahangir
Posted online: June 05, 2008 at 2201
http://www.kashmirlive.com
Srinagar, June 4 The Jammu and Kashmir High Court on Wednesday directed DIG Kashmir to personally appear before the court on June 6 along with all case diaries pertaining to the missing of four-year-old Mehran Mir.
Meanwhile, DIG Mohammad Subhan Lone, who is heading the investigation team to trace the boy, filed a third status report in the High Court through Advocate General Altaf Nayak. The AG assured the court that all necessary steps will be taken to locate the missing child.
In its written status report, the police had disclosed that they have checked the records of many nursing homes in the Valley to find out whether any kidney transfer operation has been conducted or not after Mehran went missing. But, Mian Abdul Qayoom, lawyer of the parents, said that while the police were claiming many things in written documents, the fact was that it had failed to trace the boy.
majid.jahangir@expressindia.com
Majid Jahangir
Posted online: June 05, 2008 at 2201
http://www.kashmirlive.com
Sahara hopeful of correcting RBI order through legal steps
NEW DELHI: Terming Reserve Bank's order on banning acceptance of deposits by it as "unsound and arbitrary", Subroto Roy-led Sahara India Financial Corporation Limited on Wednesday pinned hopes on legal remedy for correcting the apex bank's decision. Reacting to the banking regulator's decision, the company said the order was passed in a "most vindictive and arbitrary manner" and did not conform to the RBI Acts. "The company has sanguine hopes of success in the proposed legal proceedings sought to be drawn at a very early date," the company added. The group also sought to assure that activities related to life insurance, mutual fund, real estate, media and entertainment, consumer products, Sahara Care House, tourism etc will continue as usual. Assuring the depositors of safety of their deposits, the company asked them "not to panic" and added that the central bank's order was without any consideration for depositors. "No inconvenience of any sort would be caused to the depositors who shall be reimbursed full amount on the maturity of their deposits, which have the requisite financial backing," the company said. It also maintained that it has always complied with the guidelines of the banking regulator. The RBI said in a notice today that "SIFCL is hereby prohibited with immediate effect from accepting any deposits in whatsoever manner, including installments under any running daily deposit or other deposits..." According to an RBI statement, the company had violated the central bank's directions and guidelines on maintenance of directed investment, payment of minimum rate of interest, KYC norms and non-intimation to depositors in time of maturity.
4 Jun, 2008, 2302 hrs IST, PTI
http://economictimes.indiatimes.com
TOI moves High Court against FIRs by police commissioner
AHMEDABAD: The Times of India on Wednesday filed a petition in the Gujarat High Court challenging the FIRs lodged by city police commissioner accusing its resident editor and a correspondent of sedition and criminal conspiracy.
Justice Z K Saiyed of the High Court vacation bench has scheduled for tomorrow the hearing on the matter. Police Commissioner O P Mathur has filed three complaints against resident editor Bharat Desai, a correspondent Prashant Dayal and a photographer for publishing a series of reports against him between May 27 and May 30. The complaints were filed on June 1 and 2. The articles published by the newspaper had alleged that Mathur had links with former underworld don Abdul Latif. The journalists' fraternity in the state had yesterday submitted a memorandum to Gujarat Governor Naval Kishor Sharma and Director General of Police P C Pandey demanding withdrawal of all charges against the TOI staffers.
4 Jun, 2008, 1650 hrs IST, PTI
http://economictimes.indiatimes.com
'Law for landlords, tenants not same'
NEW DELHI: Everybody has a right to appeal in the high courts questioning the correctness of a trial court's order rejecting a plea. Probably all such petitioners would be treated, they being equal in the eye of law. But expect different interim reliefs from the high court, depending upon whether you are a tenant or a landlord. This is what the Supreme Court ruled in a recent judgment. If a trial court dismisses a landlord's plea, he is entitled to move the HC with a writ petition seeking eviction of the tenant. The HC, while accepting the landlord's plea for hearing, cannot direct the tenant to pay higher rent during the pendency of the petition, said a Bench comprising Justices R V Raveendran and L S Panta. Consider the opposite scenario, where the trial court allows the landlord's plea and directs eviction of the tenant, the latter can move an appeal before the HC seeking stay of the trial court order. In this case, the HC while entertaining the tenant's appeal and staying the eviction can direct the tenant to pay higher rent, said the Bench. "To sum up, in writ petitions by landlord against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. But in writ petitions by tenants against eviction, the HC may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition," said the Bench. Setting aside an Allahabad HC order directing a tenant, Niyas Ahmad Khan, to pay a rent of Rs 12,050 per month as per the prevailing market rate, the Bench said: "Adopting some arbitrary figure as the prevailing market rent without any basis and directing the tenant to pay absurdly high rent would be considered oppressive and unreasonable even when such direction is issued as a condition for stay of eviction." Where the HC chooses to impose any condition while granting stay of eviction of the tenant, such condition should not be unreasonable and oppressive, it said.
4 Jun 2008, 0036 hrs IST, Dhananjay Mahapatra ,TNN
http://economictimes.indiatimes.com
4 Jun 2008, 0036 hrs IST, Dhananjay Mahapatra ,TNN
http://economictimes.indiatimes.com
Andheri resident files PIL against Chhat Puja at Shivaji Park
Mumbai, June 03 A resident of Andheri has filed a Public Interest Litigation (PIL) in the Bombay High Court, seeking restraint on the Chhat Puja activities proposed to be conducted at Shivaji Park on October 4.
The PIL filed by Pravin Singhal states that the Chhat Puja celebrations, backed by politicians is ‘a political move, keeping in view the vote banks of Uttar Pradesh and Bihar migrants staying in Mumbai and Maharashtra, using the excuse of the threat given by MNS chief Raj Thackeray’.
The PIL, which was mentioned before the division bench of Chief Justice Swatanter Kumar and Justice V M Kanade on Monday, will be heard by the court next week.
Express News Service
Posted online: Wednesday, June 04, 2008 at 12:08:18Updated: Wednesday, June 04, 2008 at 12:08:18
http://www.expressindia.com
The PIL filed by Pravin Singhal states that the Chhat Puja celebrations, backed by politicians is ‘a political move, keeping in view the vote banks of Uttar Pradesh and Bihar migrants staying in Mumbai and Maharashtra, using the excuse of the threat given by MNS chief Raj Thackeray’.
The PIL, which was mentioned before the division bench of Chief Justice Swatanter Kumar and Justice V M Kanade on Monday, will be heard by the court next week.
Express News Service
Posted online: Wednesday, June 04, 2008 at 12:08:18Updated: Wednesday, June 04, 2008 at 12:08:18
http://www.expressindia.com
Vizhinjam: HC directive to Kerala govt.
Kochi (PTI): The Kerala High Court on Tuesday directed the state government not to proceed with the work relating to the Vizhinjam Deep Water Transhipment Container Terminal project for two weeks.
The interim order in this regard was issued by justice Thottathil B Radhakrishnan on a petition moved by the Zoom Developers, Mumbai challenging the non-consideration of their tender for the project.
Justice Radhakrishnan, while admitting the petition, called for the tender documents and the high level committee report. The Court also clarified that the Central Government can proceed with the clearance of the project.
On Monday, Justice S Sirijagan had declined hearing the petition following which it was posted before another bench today.
Tuesday, June 3, 2008
http://www.hindu.com
The interim order in this regard was issued by justice Thottathil B Radhakrishnan on a petition moved by the Zoom Developers, Mumbai challenging the non-consideration of their tender for the project.
Justice Radhakrishnan, while admitting the petition, called for the tender documents and the high level committee report. The Court also clarified that the Central Government can proceed with the clearance of the project.
On Monday, Justice S Sirijagan had declined hearing the petition following which it was posted before another bench today.
Tuesday, June 3, 2008
http://www.hindu.com
HC asks Commissioner to consider afresh AIADMK MLA's request
Chennai,Jun. 3 The Madras High Court today directed the Commissioner of Police to consider afresh AIADMK MLA V P Kalairajan's request for a revolver licence, which was rejected by the Commissioner on the plea that he was involved in three criminal cases.
Justice N Paul Vasanthakumar, who heard the petition of Kalairjan seeking to quash the Commissioner's order denying him the licence, observed that the three cases were registered against the petitioner for his taking part in agitations launched by his party.
"Petitioner being an elected MLA belonging to the Opposition party, cannot be blamed for taking part in the agitations launched by the party to ventilate the grievances of the public. Further no chargesheet is laid in any of the said criminal cases, though the cases were registered on October 13, 2006, May 20, 2007 and June 7, 2007 respectively," the Judge said.
The Judge said that the rejection of his application for the licence on the plea criminal cases were pending against him was unsustainable and the respondent, Commissioner of Police, was required to consider the petitioner's request for a revolver licence for his personal safety. -Agencies
Published: Tuesday, June 03, 2008
http://www.chennaionline.com
Justice N Paul Vasanthakumar, who heard the petition of Kalairjan seeking to quash the Commissioner's order denying him the licence, observed that the three cases were registered against the petitioner for his taking part in agitations launched by his party.
"Petitioner being an elected MLA belonging to the Opposition party, cannot be blamed for taking part in the agitations launched by the party to ventilate the grievances of the public. Further no chargesheet is laid in any of the said criminal cases, though the cases were registered on October 13, 2006, May 20, 2007 and June 7, 2007 respectively," the Judge said.
The Judge said that the rejection of his application for the licence on the plea criminal cases were pending against him was unsustainable and the respondent, Commissioner of Police, was required to consider the petitioner's request for a revolver licence for his personal safety. -Agencies
Published: Tuesday, June 03, 2008
http://www.chennaionline.com
Brakel issue: HC pulls up state govt
Shimla, June 03 The state government today came under fire from the Himachal Pradesh High Court when the court questioned it for not presenting a clear stand in case of allotment of the Jhangi-Thopan-Powari Hydel project in Kinnaur and getting a Vigilance inquiry conducted even as the case was pending in the court. The project has been allotted to Brakel Hydro Power Company.
A Division Bench comprising Chief Justice Jagdish Bhalla and Justice Rajeev Sharma today observed that the government should take a final decision about its stand in this case. The court directed the Chief Secretary to file an affidavit in four weeks and ordered to list the case for further hearing on July 9
Giving its observations in the case, where Reliance Energy and Brakel are pursuing a legal battle over allotment of the hydro power project, the court said on one hand the government has opposed the petition of Reliance Energy by filing an affidavit on May 27 and on the other hand, the government is conducting inquiries through Vigilance and income tax authorities.
The court questioned this move of the government and also observed that there must be consistency in the decision-making process of government. It said that when the government communicated its decision in its letter on April 22 this year and also acted upon the same by accepting Rs 174 crore along with interest of Rs 20 crore from Brakel, then why was the Vigilance inquiry ordered into the case “when the matter was pending in the court”.
The court made strong observations about the office of the Advocate General and said he must assist the court independently.
Express News Service
Posted online: Wednesday, June 04, 2008 at 09:14:47Updated: Wednesday, June 04, 2008 at 09:14:47
http://www.expressindia.com
A Division Bench comprising Chief Justice Jagdish Bhalla and Justice Rajeev Sharma today observed that the government should take a final decision about its stand in this case. The court directed the Chief Secretary to file an affidavit in four weeks and ordered to list the case for further hearing on July 9
Giving its observations in the case, where Reliance Energy and Brakel are pursuing a legal battle over allotment of the hydro power project, the court said on one hand the government has opposed the petition of Reliance Energy by filing an affidavit on May 27 and on the other hand, the government is conducting inquiries through Vigilance and income tax authorities.
The court questioned this move of the government and also observed that there must be consistency in the decision-making process of government. It said that when the government communicated its decision in its letter on April 22 this year and also acted upon the same by accepting Rs 174 crore along with interest of Rs 20 crore from Brakel, then why was the Vigilance inquiry ordered into the case “when the matter was pending in the court”.
The court made strong observations about the office of the Advocate General and said he must assist the court independently.
Express News Service
Posted online: Wednesday, June 04, 2008 at 09:14:47Updated: Wednesday, June 04, 2008 at 09:14:47
http://www.expressindia.com
HC takes govt to task
PANAJI — The division bench of the Bombay High Court comprising of Mr Justice S A Bobde and Mr Justice N A Britto has asked the state to have a scheme to ensure that no illegal hill cutting takes place in Goa.
By an earlier order the court had directed the chief town planner to file a personal affidavit stating why the persons higher in hierarchy responsible for all acts should not be prosecuted and what steps have been taken for restoration of the hill.
The court had also asked the Secretary TCP Department to file an affidavit as to the steps taken by the department to protect the greenery and steps taken to ensure that hills are not cut for the purpose of commercial constructions.
It may be recalled that a public interest litigation was filed by Mr Satish Banaulikar alleging illegal cutting of hill in the property surveyed under survey number 189/2 situated at Siolim.
It was also alleged that the construction was carried out after illegally cutting a portion of hill which is geographically bounded below the property in survey number 190/0 and work was done without taking necessary permissions from the authorities.
It was also stated that the cutting would result in soil erosion and further severely affect cashew plantations cultivated by him for his livelihood.
The site inspection of the hill cutting conducted on January 23, 2008 by architect, Mr Dean D̢۪Cruz, and engineer, Mr Viraj D Paraz showed that hill cutting was indeed being carried out.
NT NETWORK
http://www.navhindtimes.com
By an earlier order the court had directed the chief town planner to file a personal affidavit stating why the persons higher in hierarchy responsible for all acts should not be prosecuted and what steps have been taken for restoration of the hill.
The court had also asked the Secretary TCP Department to file an affidavit as to the steps taken by the department to protect the greenery and steps taken to ensure that hills are not cut for the purpose of commercial constructions.
It may be recalled that a public interest litigation was filed by Mr Satish Banaulikar alleging illegal cutting of hill in the property surveyed under survey number 189/2 situated at Siolim.
It was also alleged that the construction was carried out after illegally cutting a portion of hill which is geographically bounded below the property in survey number 190/0 and work was done without taking necessary permissions from the authorities.
It was also stated that the cutting would result in soil erosion and further severely affect cashew plantations cultivated by him for his livelihood.
The site inspection of the hill cutting conducted on January 23, 2008 by architect, Mr Dean D̢۪Cruz, and engineer, Mr Viraj D Paraz showed that hill cutting was indeed being carried out.
NT NETWORK
http://www.navhindtimes.com
HC stops Kerala govt from taking over golf course
THIRUVANANTHAPURAM: Communists in North Korea recently embarked on establishing a golf facility around the mountainous Kumgang resort, and in Cambodia the former Khmer Rouge stronghold of Pailin is expected to have a golf course to tap the country’s tourism boom. Communists in Kerala, however , seem to hold golf in its traditional image of being quintessentially a capitalist game, and the Left Democratic Front government’s attempt to take over the Trivandrum golf club over the past weekend has proven that neither golf nor takeovers are among its core competencies. The CPM-led LDF government acted with uncharacteristic efficiency , getting revenue officials to seal the club building over the weekend, but in a quick rebuff to the government’s attempt, the Kerala High Court directed that the club be returned to its members on Tuesday itself. Justice Siri Jagan, in an interim order, reversed the government’s move, and was critical of the revenue secretary for disregarding instructions given by the advocate general. The court was also unconvinced about the “vague” show-cause notice given to the club, and was surprised at the haste shown by the government in going about the matter. On the face of it the state government’s grouse was that the club owed lease arrears running into crores of rupees, and there were also explanation that government control of the club would lend an opportunity to many more people to play golf rather than just the club’s members. But shocked club members cried foul and so did tourism industry players, who said the golf club with a history of over 150 years and built during the time of the Travancore maharajah Sreemoolam Tirunal, was one of the key attractions of the state capital . Chief minister V S Achuthanandan, who handles the IT portfolio of his ministry, had more embarrassment coming his way when the top honchos of IT companies at the Technopark here joined the chorus of protest against the club’s takeover.
4 Jun, 2008, 0451 hrs IST, TNN
http://economictimes.indiatimes.com
4 Jun, 2008, 0451 hrs IST, TNN
http://economictimes.indiatimes.com
HC orders status quo on GO till June 15
Chennai,June 04: The Madras High Court has ordered status quo till June 15, 2008 with regard to a Government Order (GO), terminating the services of a para-medical staff appointed through contract.
The above order was given by Justice M Sathyanarayanan on a petition filed by Tamil Nadu Government Hospitals Workers Union Treasurer K Varadarajan, seeking to quash a GO, dated this February 28, of Director of Public Health and Preventive Medicine. The petition also sought a direction to the government not to terminate the petitioner from service and regularise his service as a lab technician.
The petitioner contended that he and over 2,500 others were appointed by the government through a private contract in various primary health centres to the posts like drivers, ECG and lab technicians and data entry operators.
He submitted that they were in service continuously for a meagre salary of Rs 1300 to Rs 3000 and the government through the above GO proposed to terminate their service with effect from June one, 2008 and all the para-medical posts be filled in time scale of pay through the employment exchange.
The petitioner contended that he was entitled to be regularised in service as he had completed 280 days in service in 24 calendar months and the GO was contrary to law and violation of Article 14 of the Constitution
Published: Wednesday, June 04, 2008
http://www.chennaionline.com
The above order was given by Justice M Sathyanarayanan on a petition filed by Tamil Nadu Government Hospitals Workers Union Treasurer K Varadarajan, seeking to quash a GO, dated this February 28, of Director of Public Health and Preventive Medicine. The petition also sought a direction to the government not to terminate the petitioner from service and regularise his service as a lab technician.
The petitioner contended that he and over 2,500 others were appointed by the government through a private contract in various primary health centres to the posts like drivers, ECG and lab technicians and data entry operators.
He submitted that they were in service continuously for a meagre salary of Rs 1300 to Rs 3000 and the government through the above GO proposed to terminate their service with effect from June one, 2008 and all the para-medical posts be filled in time scale of pay through the employment exchange.
The petitioner contended that he was entitled to be regularised in service as he had completed 280 days in service in 24 calendar months and the GO was contrary to law and violation of Article 14 of the Constitution
Published: Wednesday, June 04, 2008
http://www.chennaionline.com
HC upholds policy to ground overweight air hostesses
New Delhi, June 4: The Delhi High Court on Wednesday upheld the policy of Indian Airlines to ground overweight air hostesses.
A bench headed by Justice A K Sikri dismissed the petition filed by some Indian Airlines air hostesses, who were grounded due to putting on weight excessive to the limit fixed by the airlines.
The court had on May 5 reserved it's judgment on a bunch of petitions of Indian Airlines' air hostesses challenging their grounding for being overweight.
The petitioners had also challenged the Airlines' circular of withdrawing permissible overweight limit of 3 kg over and above the upper limit as laid down for the cabin crew.
Challenging the grounding of air hostesses due to their weight, advocate Arvind Sharma appearing for the petitioners had contended that the action was arbitrary and illegal.
"There is no connection between weight and performance of duty when one is medically fit. Weight is not a criteria of fitness," Sharma had contended.
The petitioners had challenged the judgment of single bench of the High Court which had upheld the Airlines' policy of grounding overweight air hostesses.
Additional Solicitor General Gopal Subramanium appearing for the Airlines' had contended that the action taken against them was justified.
"It was clearly mentioned in their contract that their job could be terminated in case they put on weight above the permissible limit and they have just been grounded on a condition that they would be allowed to fly after losing weight," Subramanium had said.
A single bench on May 31 last year had dismissed their plea, saying that "keeping in view this kind of job performance, the air hostesses are asked to battle their bulge, control their girth and keep at desired level the affluence of their body weight as per the norms".
It had further said, "in this era of cut throat competition no airlines can afford to remain lax in any department whatsoever, be it the personality of its crew members, their physical fitness in all respects or the air worthiness of the aircraft or in relation to other facilities such as catering etc."
Maintaining that the air hostesses should keep their body weight within the prescribed limits, the court had said "it is not understood how it is in any way unfair, unreasonable and insulting to their womanhood. It is not hostesses alone which are put to these rigours".
Agencies
Posted online: Wednesday, June 04, 2008 at 10:23:45Updated: Wednesday, June 04, 2008 at 10:23:45
http://www.expressindia.com
A bench headed by Justice A K Sikri dismissed the petition filed by some Indian Airlines air hostesses, who were grounded due to putting on weight excessive to the limit fixed by the airlines.
The court had on May 5 reserved it's judgment on a bunch of petitions of Indian Airlines' air hostesses challenging their grounding for being overweight.
The petitioners had also challenged the Airlines' circular of withdrawing permissible overweight limit of 3 kg over and above the upper limit as laid down for the cabin crew.
Challenging the grounding of air hostesses due to their weight, advocate Arvind Sharma appearing for the petitioners had contended that the action was arbitrary and illegal.
"There is no connection between weight and performance of duty when one is medically fit. Weight is not a criteria of fitness," Sharma had contended.
The petitioners had challenged the judgment of single bench of the High Court which had upheld the Airlines' policy of grounding overweight air hostesses.
Additional Solicitor General Gopal Subramanium appearing for the Airlines' had contended that the action taken against them was justified.
"It was clearly mentioned in their contract that their job could be terminated in case they put on weight above the permissible limit and they have just been grounded on a condition that they would be allowed to fly after losing weight," Subramanium had said.
A single bench on May 31 last year had dismissed their plea, saying that "keeping in view this kind of job performance, the air hostesses are asked to battle their bulge, control their girth and keep at desired level the affluence of their body weight as per the norms".
It had further said, "in this era of cut throat competition no airlines can afford to remain lax in any department whatsoever, be it the personality of its crew members, their physical fitness in all respects or the air worthiness of the aircraft or in relation to other facilities such as catering etc."
Maintaining that the air hostesses should keep their body weight within the prescribed limits, the court had said "it is not understood how it is in any way unfair, unreasonable and insulting to their womanhood. It is not hostesses alone which are put to these rigours".
Agencies
Posted online: Wednesday, June 04, 2008 at 10:23:45Updated: Wednesday, June 04, 2008 at 10:23:45
http://www.expressindia.com
HC dismisses PIL seeking restraint on Chhath Puja
MUMBAI: The Bombay High Court on Thursday dismissed a petition seeking restraint on the proposed Chhath Puja at Shivaji Park here on October four. A division bench of Chief Justice Swatanter Kumar and Justice V M Kanade held that petitioner Pravin Singhal, a city-based lawyer, should first approach the government regarding the issue before moving the court. The PIL contended that the Chhath Puja celebration backed by Railway Minister Lalu Prasad Yadav, Chief Minister Vilasrao Deshmukh and Congress spokesperson Sanjay Nirupam, is a political move keeping in mind the vote bank of Biharis staying in Maharashtra.
The PIL also stated that the puja is being done on the pretext of the threat given by Maharashtra Navnirman Sena (MNS) chief Raj Thackeray.
Singhal said in the PIL that Chhath was a festival typical of Bihar, and stands for truth, non-violence, forgiveness and compassion.
However, the proposed puja at Shivaji Park would defeat the very objective of Chhath Puja, and is likely to spread seeds of animosity and hatred between Marathi speaking people of Maharashtra and the migrants from UP and Bihar.
The PIL had also asked the court to book Yadav, Deshmukh, Nirupam and Samajwadi Party leader A U Azmi under Section 153 A (promoting enmity between two group) of the Indian Penal Code (IPC).
PTI
Thursday, June 05, 2008 14:16 IST
http://www.dnaindia.com
The PIL also stated that the puja is being done on the pretext of the threat given by Maharashtra Navnirman Sena (MNS) chief Raj Thackeray.
Singhal said in the PIL that Chhath was a festival typical of Bihar, and stands for truth, non-violence, forgiveness and compassion.
However, the proposed puja at Shivaji Park would defeat the very objective of Chhath Puja, and is likely to spread seeds of animosity and hatred between Marathi speaking people of Maharashtra and the migrants from UP and Bihar.
The PIL had also asked the court to book Yadav, Deshmukh, Nirupam and Samajwadi Party leader A U Azmi under Section 153 A (promoting enmity between two group) of the Indian Penal Code (IPC).
PTI
Thursday, June 05, 2008 14:16 IST
http://www.dnaindia.com
Pay property tax on capital value soon
Market rate of property will be taken into account
MUMBAI: The decks have been cleared for the state government to rationalise property tax in Mumbai and levy the charge on the basis of capital value rather than rateable value.
A joint select committee of the state legislature has almost reached a consensus to exempt properties smaller than 500 sq feet carpet from the capital value-based system for five years.
A final decision will be taken at the concluding meeting of the committee, slated for June 17. Thereafter, the urban development department will move a bill in both houses of the legislature to charge a capital value-based property tax. The bill is likely to be moved in the monsoon session, which starts in the second week of July.
Once both houses pass the amendment in the Bombay Municipal Corporation Act, 1888, the new tax structure will become applicable with immediate effect, fulfilling one of the conditions of the Jawaharlal Nehru National Urban Renewal Mission.
But rationalisation does not mean residents in the suburbs will immediately start paying lower property tax than those in the island city. That is because the increase in property tax for any property will be capped at 100 per cent of the existing amount for residential premises and 200 per cent for commercial premises.
Also, revisions in the property tax will only be carried out once in five years.
But there is some cheer for suburban residents. The lower limit for revision of the tax will be abolished. Thus, for certain properties, the tax could come down to as much as a fourth of what the owners are currently paying.
Surendra Gangan
Wednesday, June 04, 2008 03:06 IST
http://www.dnaindia.com
MUMBAI: The decks have been cleared for the state government to rationalise property tax in Mumbai and levy the charge on the basis of capital value rather than rateable value.
A joint select committee of the state legislature has almost reached a consensus to exempt properties smaller than 500 sq feet carpet from the capital value-based system for five years.
A final decision will be taken at the concluding meeting of the committee, slated for June 17. Thereafter, the urban development department will move a bill in both houses of the legislature to charge a capital value-based property tax. The bill is likely to be moved in the monsoon session, which starts in the second week of July.
Once both houses pass the amendment in the Bombay Municipal Corporation Act, 1888, the new tax structure will become applicable with immediate effect, fulfilling one of the conditions of the Jawaharlal Nehru National Urban Renewal Mission.
But rationalisation does not mean residents in the suburbs will immediately start paying lower property tax than those in the island city. That is because the increase in property tax for any property will be capped at 100 per cent of the existing amount for residential premises and 200 per cent for commercial premises.
Also, revisions in the property tax will only be carried out once in five years.
But there is some cheer for suburban residents. The lower limit for revision of the tax will be abolished. Thus, for certain properties, the tax could come down to as much as a fourth of what the owners are currently paying.
Surendra Gangan
Wednesday, June 04, 2008 03:06 IST
http://www.dnaindia.com
PIL challenges BMC’s Vaitarna dam deal with Chinese firm
Petitioner alleges civic body did not seek Centre’s security clearance before choosing the company
The contract offered by the BMC to a Chinese firm to build a dam on the Vaitarna River may be in trouble as a petition has been filed against the tendering process itself.The BMC had shortlisted China International Water and Electric Corporation (CIWEC), which has formed a joint venture with Soma Enterprises Limited, for the project without seeking security clearance from the central government.
Nagesh Mishra, an Andheri resident, has filed a petition against the BMC, municipal commissioner Jairaj Phatak, the state government, the Centre, Soma Enterprises, CIWEC, and others.
Mishra has urged the Bombay High Court to direct the BMC not to pass the contract for the Mumbai IV A Middle Vaitarana Water Supply Project, to build a roller-compacted contract dam across the river, an approach road, and allied works, unless the Union government clears CIWEC as well as others who participated in the tender procedure. He has also urged the court to impose an injunction on the tender.
Mishra has stated in his petition that China has always had a dispute with India and has strong political, economic, and defence ties with Pakistan. Large Chinese companies are all owned or controlled by the Chinese government.
The Centre had directed all state governments to include a national security clause in all documents issued to invite financial and technical bids from pre-qualified bidders. Yet, the petition says, the BMC failed to mention security concerns in the bid document.According to the petitioner, critical installations such as the Bhabha Atomic Research Centre, Trombay; the Western Naval Command, Colaba; Hindustan Aeronautics Limited, Nashik; Artillery Centre, Deolali; Ordnance Factory, Ambernath; air defence artillery units at Deolali and Kalina; ONGC’s offshore installations; the India Security and Currency Press, Nashik; thermal power project at Nashik; Trombay Thermal Power Project; and IIT Bombay would be at risk if the Chinese firm were to be given the contract.
m_pandurang@dnaindia.net
Pandurang Mhaske
Wednesday, June 04, 2008 02:43 IST
http://www.dnaindia.com
The contract offered by the BMC to a Chinese firm to build a dam on the Vaitarna River may be in trouble as a petition has been filed against the tendering process itself.The BMC had shortlisted China International Water and Electric Corporation (CIWEC), which has formed a joint venture with Soma Enterprises Limited, for the project without seeking security clearance from the central government.
Nagesh Mishra, an Andheri resident, has filed a petition against the BMC, municipal commissioner Jairaj Phatak, the state government, the Centre, Soma Enterprises, CIWEC, and others.
Mishra has urged the Bombay High Court to direct the BMC not to pass the contract for the Mumbai IV A Middle Vaitarana Water Supply Project, to build a roller-compacted contract dam across the river, an approach road, and allied works, unless the Union government clears CIWEC as well as others who participated in the tender procedure. He has also urged the court to impose an injunction on the tender.
Mishra has stated in his petition that China has always had a dispute with India and has strong political, economic, and defence ties with Pakistan. Large Chinese companies are all owned or controlled by the Chinese government.
The Centre had directed all state governments to include a national security clause in all documents issued to invite financial and technical bids from pre-qualified bidders. Yet, the petition says, the BMC failed to mention security concerns in the bid document.According to the petitioner, critical installations such as the Bhabha Atomic Research Centre, Trombay; the Western Naval Command, Colaba; Hindustan Aeronautics Limited, Nashik; Artillery Centre, Deolali; Ordnance Factory, Ambernath; air defence artillery units at Deolali and Kalina; ONGC’s offshore installations; the India Security and Currency Press, Nashik; thermal power project at Nashik; Trombay Thermal Power Project; and IIT Bombay would be at risk if the Chinese firm were to be given the contract.
m_pandurang@dnaindia.net
Pandurang Mhaske
Wednesday, June 04, 2008 02:43 IST
http://www.dnaindia.com
Legal tangle over DTH subscription offers
ESPN unhappy with Tata Sky’s reduced package rates
Both ESPN and Tata Sky are disputing the legality of offering the sports channels outside of the latter’s base packages both at the TDSAT and in the Delhi High Court.
Our Bureau
New Delhi, June 3 Direct-to-home operator Tata Sky, which dragged rival Dish TV to the Monopolies and Restrictive Trade Practices Commission (MRTPC) last week, for the latter’s “free set-top box offer” is now having its own reduced “subscription offer” introduced this month being scrutinised closely by consumers, competition and the broadcaster.
As of this month, subscribers were told, they could pay less for the base pack that Tata Sky offers. Tata Sky says it reduced prices for wider access to digital entertainment. “The family pack is now available at Rs 200 per month instead of Rs 250. This pack offers around 90 Hindi, regional, kids, infotainment and news channels,” said the company in a statement yesterday. “The top-end Super Saver pack offering over 110 channels, including English channels, is now available for only Rs 260 per month,” it added.
What’s not spelt out is that the pack would not include the sports channels from broadcaster ESPN, and a handful of BBC’s channels which would be offered separately. ESPN’s bouquet (ESPN, ESPN-Star Sports and Star Cricket), will cost an additional Rs 40, BBC’s channel an additional Rs 30 and Ten Sports Rs 10 per month. Tata Sky says broadcasters and consumers were informed through a ticker that ran for the last 21 days. The company also points out that an annual subscription pack works out to Rs 217 per month, which with the addition of the severed packages will still cost consumers less, albeit marginally.
According to Tata Sky, all consumers need not be obliged to pay for such niche content such as those offered by ESPN and BBC. “We are offering consumers more choice under the current regulatory environment. These channels (referring to sport’s channels) are event based and cater to a relatively smaller audience. Rather than force them down every subscriber, we are offering them the choice of not paying for these channels round the year,” said Mr Vikram Mehra, Head, Consumer Marketing, Tata Sky.
Dish TV’s take
When contacted Dish TV Managing Director, Mr Jawahar Goel, said, “Tata Sky has, on the contrary, increased its own subscription. However, we don’t fight competition in courts and don’t want to be considered litigious.”
ESPN, unhappy with the new offer, had sent Tata Sky a notice on May 31 alleging violation of a court order. The two parties had already been disputing the legality of offering the sports channels outside of Tata Sky’s base packages both at the TDSAT and in the Delhi High Court. While a member of ESPN’s legal team maintains that taking ESPN out of the existing packages is in violation of a May 30 judgment of the Delhi HC (which asked the broadcaster to provide signals as was being provided up to May 20), Tata Sky has a different interpretation of the same order.
Earlier, on May 21 the TDSAT had directed ESPN “not to give effect to” para C1 of the broadcaster’s Reference Interconnect Offer (RIO) which said that all ‘concessional’ pricing was on condition that all three sports channels be carried in the base pack. (Under paras A&B of ESPN’s RIO operators can pick individually priced channels, said the company). Following this ESPN had approached the Delhi High Court on May 26 which disposed off the writ petition on May 30. The TDSAT will hear the matter again only in early July.
A sports channel costs broadcasters more than any other genre. While the Telecom Regulatory Authority has mandated that cable and DTH operators be allowed to chose individual channels from content owners (or have an a la carte option), its recommendation that channel prices for DTH be fixed at 50 per cent of what they cost cable operators is only an advisory.
Tata Sky, meanwhile, had filed a writ petition in the Delhi HC against competitor Dish TV for a misleading commercial.
It had taken up the matter with MRTPC claiming Dish TV’s “free set-top box” was misleading. The MRTPC had issued a notice to the Dish TV, and is to hear the matter again on July 11.
Wednesday, Jun 04, 2008
http://www.thehindubusinessline.com
Both ESPN and Tata Sky are disputing the legality of offering the sports channels outside of the latter’s base packages both at the TDSAT and in the Delhi High Court.
Our Bureau
New Delhi, June 3 Direct-to-home operator Tata Sky, which dragged rival Dish TV to the Monopolies and Restrictive Trade Practices Commission (MRTPC) last week, for the latter’s “free set-top box offer” is now having its own reduced “subscription offer” introduced this month being scrutinised closely by consumers, competition and the broadcaster.
As of this month, subscribers were told, they could pay less for the base pack that Tata Sky offers. Tata Sky says it reduced prices for wider access to digital entertainment. “The family pack is now available at Rs 200 per month instead of Rs 250. This pack offers around 90 Hindi, regional, kids, infotainment and news channels,” said the company in a statement yesterday. “The top-end Super Saver pack offering over 110 channels, including English channels, is now available for only Rs 260 per month,” it added.
What’s not spelt out is that the pack would not include the sports channels from broadcaster ESPN, and a handful of BBC’s channels which would be offered separately. ESPN’s bouquet (ESPN, ESPN-Star Sports and Star Cricket), will cost an additional Rs 40, BBC’s channel an additional Rs 30 and Ten Sports Rs 10 per month. Tata Sky says broadcasters and consumers were informed through a ticker that ran for the last 21 days. The company also points out that an annual subscription pack works out to Rs 217 per month, which with the addition of the severed packages will still cost consumers less, albeit marginally.
According to Tata Sky, all consumers need not be obliged to pay for such niche content such as those offered by ESPN and BBC. “We are offering consumers more choice under the current regulatory environment. These channels (referring to sport’s channels) are event based and cater to a relatively smaller audience. Rather than force them down every subscriber, we are offering them the choice of not paying for these channels round the year,” said Mr Vikram Mehra, Head, Consumer Marketing, Tata Sky.
Dish TV’s take
When contacted Dish TV Managing Director, Mr Jawahar Goel, said, “Tata Sky has, on the contrary, increased its own subscription. However, we don’t fight competition in courts and don’t want to be considered litigious.”
ESPN, unhappy with the new offer, had sent Tata Sky a notice on May 31 alleging violation of a court order. The two parties had already been disputing the legality of offering the sports channels outside of Tata Sky’s base packages both at the TDSAT and in the Delhi High Court. While a member of ESPN’s legal team maintains that taking ESPN out of the existing packages is in violation of a May 30 judgment of the Delhi HC (which asked the broadcaster to provide signals as was being provided up to May 20), Tata Sky has a different interpretation of the same order.
Earlier, on May 21 the TDSAT had directed ESPN “not to give effect to” para C1 of the broadcaster’s Reference Interconnect Offer (RIO) which said that all ‘concessional’ pricing was on condition that all three sports channels be carried in the base pack. (Under paras A&B of ESPN’s RIO operators can pick individually priced channels, said the company). Following this ESPN had approached the Delhi High Court on May 26 which disposed off the writ petition on May 30. The TDSAT will hear the matter again only in early July.
A sports channel costs broadcasters more than any other genre. While the Telecom Regulatory Authority has mandated that cable and DTH operators be allowed to chose individual channels from content owners (or have an a la carte option), its recommendation that channel prices for DTH be fixed at 50 per cent of what they cost cable operators is only an advisory.
Tata Sky, meanwhile, had filed a writ petition in the Delhi HC against competitor Dish TV for a misleading commercial.
It had taken up the matter with MRTPC claiming Dish TV’s “free set-top box” was misleading. The MRTPC had issued a notice to the Dish TV, and is to hear the matter again on July 11.
Wednesday, Jun 04, 2008
http://www.thehindubusinessline.com
‘Stop Chhath Puja at Shivaji Park’
Seeking restraint on the Chhath Puja activities, proposed to be conducted at Shivaji Park on October 4, Andheri resident, advocate Pravin Singhal, filed a public interest litigation (PIL) in Bombay high court on Monday.
The PIL was mentioned before Chief Justice Swatanter Kumar and Justice VM Kanade, and it would be heard by the court next week.
Singhal stated in the PIL that the Chhath Puja celebrations, backed by railway minister Lalu Prasad, chief minister Vilasrao Deshmukh and Congress spokesperson Sanjay Nirupam, was “a political move keeping in view the vote banks of Uttar Pradesh and Bihar migrants staying in Mumbai and Maharashtra, using the pretext of the threat given by MNS chief Raj Thakre (sic).”
Singhal said that Chhath was a festival typical of Bihar, and stands for truth, non-violence, forgiveness and compassion. However, the proposed puja at Shivaji Park would “defeat the very objective of Chhath Puja, and is likely to spread seeds of animosity and hatred between Marathi speaking people of Maharashtra and the migrants from UP and Bihar”, he added.
The PIL also urged the court to book Yadav, Deshmukh, Nirupam and Samajwadi Party leader Abu Azmi under section 153 A (promoting enmity between two groups) of the Indian Penal Code.
Mayura Janwalkar
Tuesday, June 03, 2008 02:34 IST
http://www.dnaindia.com
The PIL was mentioned before Chief Justice Swatanter Kumar and Justice VM Kanade, and it would be heard by the court next week.
Singhal stated in the PIL that the Chhath Puja celebrations, backed by railway minister Lalu Prasad, chief minister Vilasrao Deshmukh and Congress spokesperson Sanjay Nirupam, was “a political move keeping in view the vote banks of Uttar Pradesh and Bihar migrants staying in Mumbai and Maharashtra, using the pretext of the threat given by MNS chief Raj Thakre (sic).”
Singhal said that Chhath was a festival typical of Bihar, and stands for truth, non-violence, forgiveness and compassion. However, the proposed puja at Shivaji Park would “defeat the very objective of Chhath Puja, and is likely to spread seeds of animosity and hatred between Marathi speaking people of Maharashtra and the migrants from UP and Bihar”, he added.
The PIL also urged the court to book Yadav, Deshmukh, Nirupam and Samajwadi Party leader Abu Azmi under section 153 A (promoting enmity between two groups) of the Indian Penal Code.
Mayura Janwalkar
Tuesday, June 03, 2008 02:34 IST
http://www.dnaindia.com
No CC till July 2, HC tells Mumbai Corporation
MUMBAI: The Bombay High Court on Tuesday held that the Municipal Corporation of Greater Mumbai should not grant commencement certificate (CC) to any builder or society that gets an additional .33 FSI on making application till July 2.
The court was hearing a PIL filed by Amit Maru, a resident of Tardeo and Arun Gaikwad from Kurla alleging violation of legal provisions committed by the government while granting the increase in the FSI.
The floor space index (FSI) is an indicator of the amount of construction that is allowed on a particular plot. Higher the FSI, more the number of floors that can be added. Earlier the vacation court had stayed issuance of CC till June six but today div ision bench of Chief Justice Swatanter Kumar and Justice V M Kanade extended the stay and adjourned the hearing to July 2, the petitioner's lawyer Mr Y P Singh said.
The court had earlier held that CC could be granted in the case of applications received before May 23 but clarified that it will be subject to final order in this case.
The State Government, by way of a notification last month, raised the FSI in Mumbai suburbs from existing 1 to 1.33. It contends that this will create additional housing in suburbs.
The PIL says that creation of additional FSI will add to the congestion and lead to collapse of infrastructure in the already crowded suburbs. The stay order dated May 23 said that today onwards, MCGM can process the applications for additional FSI, and even sanction building plans, but no commencement certificate for construction shall be granted till June 3. - PTI
Tuesday, June 3, 2008
http://www.thehindubusinessline.com
The court was hearing a PIL filed by Amit Maru, a resident of Tardeo and Arun Gaikwad from Kurla alleging violation of legal provisions committed by the government while granting the increase in the FSI.
The floor space index (FSI) is an indicator of the amount of construction that is allowed on a particular plot. Higher the FSI, more the number of floors that can be added. Earlier the vacation court had stayed issuance of CC till June six but today div ision bench of Chief Justice Swatanter Kumar and Justice V M Kanade extended the stay and adjourned the hearing to July 2, the petitioner's lawyer Mr Y P Singh said.
The court had earlier held that CC could be granted in the case of applications received before May 23 but clarified that it will be subject to final order in this case.
The State Government, by way of a notification last month, raised the FSI in Mumbai suburbs from existing 1 to 1.33. It contends that this will create additional housing in suburbs.
The PIL says that creation of additional FSI will add to the congestion and lead to collapse of infrastructure in the already crowded suburbs. The stay order dated May 23 said that today onwards, MCGM can process the applications for additional FSI, and even sanction building plans, but no commencement certificate for construction shall be granted till June 3. - PTI
Tuesday, June 3, 2008
http://www.thehindubusinessline.com
Subscribe to:
Posts (Atom)