Daily Legal News 29.09.2008

Call to make Indian Legal Education Global
http://timesofindia.indiatimes.com/Education/Call_to_make_Indian_Legal_Education_Global/articleshow/3540121.cms
THE Indian legal education system may witness big changes in the coming years. On one hand, while realising the importance of globalisation, law schools have called for making Indian legal education globally relevant. On the other, they are planning to introduce changes to the Common Law Admission Test (CLAT) to select students who have the skills to become international lawyers. These plans were announced at seminars organised in Hyderabad and Delhi recently by US-based Institute of International Education (IIE), an international exchange organisation. The seminars brought together the US Law School Admission Council (LSAC) and the National Law Schools (NLS) of India. “Expansion in business across the world has generated a need for lawyers who are global in their approach. Legal education has to play a big role in creating such lawyers. We at our organisation believe in international exchange of ideas so we thought to facilitate exchange of ideas,” said Ajit Motwani, director, IIE India. CHANGES IN CLAT Entrance examinations are an important parameter to select the right candidate. And while CLAT is only a year old, LSAC has the experience of holding Law School Admission Test (LSAT) across US, Australia and Canada for nearly 60 years. Veer Singh, vice-chancellor of NALSAR University of Law, Hyderabad, will be the convenor of CLAT 2009. Singh, while elaborating on the plans to introduce changes in the exam, said, “Approximately 1.5 lakh aspirants from three different countries take LSAT. They have proved their credibility in terms of fairness of content, testing candidate on logical and verbal reasoning and language comprehension. So, we want to learn from them the things that can make CLAT more reliable.” When asked about the feasibility of applying a US testing method in India, Singh said, “We will not be replicating the LSAT, since CLAT 2008 had its own peculiar problems like local, gender and caste reservations. Besides, some take it online and some don't. So, we will consider all these factors before reaching any conclusion.”

Elaborating on the universal approach of LSAT in selecting candidates, Daniel Bernstine, president, LSAC, said: “We have to remember that the exam is not about law. It is conducted to test a student's ability to work as a lawyer. So, we provide equal playing fields to students from different disciplines." Ellen Rutt, chair, LSAC, added: "The exam is designed in the US, but it is taken by students from various countries. It can effectively judge the critical thinking and reasoning ability of a student regardless of him/her sitting in Nairobi or New Delhi.” FOR A GLOBAL CLASSROOM Once the right candidates have been selected, the focus shifts towards imparting quality education. So, those present at the Delhi seminar made suggestions on improving the legal education system in the country. “We require a new breed of schools that will be able to handle global issues such as climate change, arbitration, mergers and acquisitions. Hence, it is important to initiate dialogue with other countries. And since the US is also a democracy, we can learn a lot from them,” said Moolchand Sharma, eminent law professor, and vicechairman, University Grants Commission (UGC). Elaborating on the required changes, Dalveer Bhandari, judge, Supreme Court, said: “Considering the sheer number of global law firms that have set up shop in India in the past 10 years, there is an urgent need for truly global legal education. We also need to have a special fleet of lawyers who can represent India in the World Trade Organisation. The Bar Council of India is doing very little in this regard. The council should also consider a fiveyear law course where faculty could consist of accomplished lawyers and researchers.” Bhandari also felt that the country needed clinical legal education so that students could get real life dealing in courts and with clients. On the other hand, Ranbir Singh, vicechancellor, NLS-Delhi, said: “We will be local in our thinking but the focus would be to create lawyers who can relate to the global situation. Hence, our vision is to increase interaction between our law school and others worldwide.”
29 Sep 2008, 1316 hrs IST,TNN
http://timesofindia.indiatimes.com


State delays, Simlipal denudes- Timber mafia thrive with tribal help
http://www.telegraphindia.com/1080929/jsp/nation/story_9897005.jsp
Cuttack, Sept. 28: The state government’s scant regard for high court notices prompted by a PIL, seeking a curb on illegal tree felling and free-run of timber mafia in Simlipal Biosphere Reserve, has aggravated denudation in the area.
The PIL had sought the court’s direction to the government to either hand over protection of Simlipal to the Central Reserve Police Force (CRPF) or raise a Forest Reserve Protection Force in Orissa.
With the government not buying any of the proposals offered in the PIL, the denudation of the vast stretches of forest and greenery in Simlipal has aggravated.
The timber mafia, with the help of local tribals, rules the roost in Simlipal. The illegal activities flourish mostly in Josipur, Bangriposi, Shyamakhunta and Kaptipada and the stolen timbers allegedly find their way to neighbouring Bengal en route to Baripada and Balasore.
The wilful non-compliance to a high court order related to it, it seems to have been detected when a PIL filed way back in 1998 came up in the list for hearing last week before the two-judge bench of Chief Justice B.S. Chauhan and Justice B.N. Mohapatra.
Pravat Ranjan Dash, a high court lawyer, had filed the petition in 1998 soon after then state environment and forest minister Prasanna Das admitted in the Assembly that an inter-state timber mafia was behind the rampant tree felling in the Simlipal reserve.
The minister had further raised concern over the administration’s inability to check the menace. Das had filed the PIL quoting the minister’s statement in the Assembly.
Acting on the PIL, the high court had issued notices to both the Centre and the state government asking their reply about the steps to be taken to protect the Simlipal Biosphere Reserve.
But the state government is yet to submit an affidavit.
Taking note of it Chief Justice Chauhan expressed displeasure and issued fresh notices to the government to file an affidavit within three weeks stating the steps taken and plans drawn up for protection and preservation of the reserve.
“The case will be taken up for hearing on submission of the affidavit by the state government as the Centre has already submitted a reply,” the court said.
Monday , September 29 , 2008
OUR CORRESPONDENT
www.telegraphindia.com




'Builders to face heat for tweaking FSI in suburbs'
http://timesofindia.indiatimes.com/Mumbai/Builders_to_face_heat_for_tweaking_FSI_in_suburbs/articleshow/3538066.cms
MUMBAI: Builders have violated floor space index (FSI) norms in 234 cases in the suburbs despite a PIL pending in court, sources in the BMC have said. It is also learnt that the civic body is contemplating action against the developers concerned. Earlier this year, the government raised FSI in the suburbs from 1 to 1.33. Following this, builders involved in several ongoing projects started using the additional .33 FSI hoping to get their modified plans approved by the BMC. But the Bombay high court, in response to a PIL filed by advocate Y P Singh on behalf of activists Amit Maru and Arun Gaikwad, stayed the government's decision. Singh pointed out that any builder using an FSI of more than 1 could face contempt proceedings. In the PIL, he contended that the grant of extra .33 FSI was illegal as it amounted to a major modification of the development plan for Mumbai and that too without following the procedures laid down under the Maharashtra Regional Town Planning Act. Singh said an increase in FSI up to 10% would have constituted a minor modification, which was permitted under the law. But a 33% hike in FSI was announced by the government and implemented with immediate effect without waiting for objections and suggestions from the public. He said this was tantamount to the introduction of a new development plan for the suburbs through the backdoor. Sources in the BMC said the only way out of the imbroglio was by regularizing illegal construction in the 234 cases by using Transfer of Development Rights (TDR). "In any case, the cap of 2 FSI continues in the suburbs. Within this stipulation, it should be possible to regularize the illegal construction by consuming TDR, whose rates have dropped considerably. This should be affordable to the developers who want to escape the demolition of illegal additional work carried out by them," a BMC engineer said.
29 Sep 2008, 0218 hrs IST, S Balakrishnan,TNN
http://timesofindia.indiatimes.com



Make officers accountable, high court tells I-T dept
http://timesofindia.indiatimes.com/Mumbai/Make_officers_accountable_high_court_tells_I-T_dept_/articleshow/3538451.cms
MUMBAI: It is an accepted fact that files move at a snail's pace in government departments. This lackadaisical approach was highlighted by the Bombay high court in a recent order on a bunch of appeals filed by the income-tax department. The court, while commenting on the inordinate delay in filing of appeals, observed that the attitude of the officers was "I will deal with the matter at leisure and my convenience." The court directed the department to issue a circular to officers and introduce the concept of public accountability and responsibility in the discharge of its official duties, besides fixing a time-frame for filing appeals. Further, senior officers will be responsible for compliance to the directives in the circular. The high court's directive was in response to 43 appeals filed by the income-tax department against orders of the Income Tax Appellate Tribunal (ITAT), which went in favour of the assessees. The assessees included major companies like Tata Sons, Standard Chartered Bank, American Express, Asian PPG and Ornate Traders. One appeal was filed by a company against an ITAT order that went against it. The court clubbed all the matters as the main issue in all of them was condonation of delay in filing the appeals. In one of the matters related to Bhansali Engineering and Polymers, the department filed an appeal four years after the ITAT order. A division bench of Chief Justice Swatanter Kumar and A P Deshpande said, "Courts are inclined to show greater indulgence to the departments because of the inter and intradepartmental steps to be taken before initiating legal proceedings , but this indulgence has its limitations and cannot be extended without any reasonable cause and that too beyond the permissible time.'' One of the interesting reasons for the delay was that court fee stamps were not readily available. Terming this attitude as casual and negligent , the court said there is a difference between "readily available' ' and "not available'' . "It is expected that the government departments should function in a properly mechanised manner and not act so casually that the public exchequer is made to suffer.'' It observed, "A casual or negligent litigant who has acted with utter irresponsible attitude cannot claim the condonation of delay in law.'' The bench said irrespective of the observations of various courts on the need to deal with matters expeditiously, there was no improvement. "An officer can hardly justify that a file would lie on his table for months or days together and he would not act on the said file just because he claims to be preoccupied . Actions that can be condoned by the court should fall within the realm of normal human conduct. It is neither expected nor can it be the normal conduct of a public servant or a litigant that they would keep the files unmoved, unprocessed for months together on their tables.'' According to the justices, in some cases, the explanation given is vague. The court commented that wherever there is higher public revenue, they have greater responsibility to act swiftly. "It cannot justify the conduct that you sleep over and ignore your statutory rights for years and then take up the plea of public revenue. The court cannot completely ignore the interest of the assessee.'' The court rejected 19 appeals as delay for filing the appeals was not explained. In some of these cases which were dismissed not on merits but due to delay, it would have adverse consequences. "It is expected of the authorities concerned to adopt a more practical and pragmatic approach and handle the judicial matters with utmost efficiency and expeditiousness ,'' the court said. toireporter@timesgroup.com
29 Sep 2008, 0554 hrs IST,TNN
http://timesofindia.indiatimes.com



HCs cannot transfer civil cases outside State”
http://www.hindu.com/2008/09/29/stories/2008092955711400.htm
New Delhi: A High Court, exercising its jurisdiction in a State, has no power or authority to transfer civil suits, appeals and other proceedings, including matrimonial cases, from one subordinate court in that State to another subordinate court in another State.
“If two courts are subordinate to different High Courts, one High Court has no power, jurisdiction or authority to transfer a case pending in any court subordinate to that High Court to a court subordinate to other High Court. It is only the Supreme Court [this Court] which may order the transfer,” said a Bench consisting of Justices C.K. Thakker and D.K. Jain.
The Bench said that “by this decision it is overruling all previous decisions of various High Courts wherein the respective High Courts had assumed the power to transfer civil proceedings to other States.”
Writing the judgment, Justice Thakker said: “It is wrong to presume that Section 23 of the Civil Procedure Code is a substantive provision which authorises High Courts to transfer civil cases outside a State as held by the High Court [concerned] in various decisions so far. Under the amended [1977] provision of Section 25 of the Code, it is only the Supreme Court which has the power and authority to transfer a case, proceedings or trial from one State to another State.”
Territorial limits
The Bench said: “Every court has its own local or territorial limits beyond which it cannot exercise the jurisdiction. So far as this court is concerned, its jurisdiction is not circumscribed by any territorial limitation and it extends over any person or authority within the territory of India. But, it has no jurisdiction outside the country. So far as a High Court is concerned, its jurisdiction is limited to territory within which it exercises jurisdiction and not beyond it.”
“The writs issued by a High Court cannot run beyond the territory subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be within those territories which clearly imply that they must be amenable to its jurisdiction in accordance with law.”
Divorce plea
In the instant case, the appellant Durgesh Sharma was married to Jayshree Sharma (respondent) in May 1989. After the marriage, they lived in Ujjain in Madhya Pradesh. In October 2004, Mr. Sharma moved the Family Court at Ujjain seeking divorce. On a petition from Mrs. Jayshree, the Bombay High Court, by an order dated January 25, 2007, transferred the case pending in the Family Court, Ujjain, to a competent court at Malegaon, Nasik in Maharashtra. The present appeal by Mr. Sharma is against this judgment.
Allowing the appeal, the Bench said that “in our opinion, the order passed by the High Court is not sustainable and deserves to be set aside.”
Monday, Sep 29, 2008
J. Venkatesan
www.hindu.com


Moral policing
http://www.indianexpress.com/news/Moral-policing/367055
Being gay in India is to know the brute power of state and society in the most immediate, humiliating ways — the entire spectrum from police harassment to social ostracisation. Section 377 of the IPC contains the legal abomination that allows the Government to extend its tentacles into the intimate life of lakhs of its queer citizens. Now, a much deferred liberation movement, to strike down the part of Section 377 that criminalises homosexuality, is playing out in the Delhi High Court. The government’s stand had previously been split between the health ministry’s tentative suggestion, couched in the language of AIDS intervention that maybe Section 377 be reconsidered in the interest of public health, and the home ministry’s conviction that legalising homosexuality would unleash moral armageddon. The court hearings have been a tragicomedy of errors, as the government floundered on its own absurd arguments, at one point claiming that homosexuality spreads AIDS and therefore it should remain illegal, and then throwing in non sequiturs about widow remarriage — inviting stern rebuke and ridicule from the court.
Gay rights movements have flowered all over the world, and institutions have reluctantly ceded ground, after raging culture wars. Countries like the UK decriminalised homosexuality half a century back, though Victorian-era legacies like Section 377 still retain a vise-like hold on Indian society. It is not only here that the issue has sunk into a mire of intellectual confusion and emotional recoil — in the US, as late as 1986, Bowers vs Hardwick upheld the law penalising homosexuality. But the Indian government’s hypocrisy and patently ridiculous reasoning are themselves the best demonstration of the vacuity of the moral case against scrapping 377.
It is reprehensible that a democracy like ours should be among the last to accept this most fundamental of desires — the need to stop living a lie. The right to love who you love, after all, is far more significant for most people than even voting freely. And it is a human right.
The Indian Express Posted: Sep 29, 2008 at 0025 hrs IST
www.indianexpress.com


High Court stays fine imposed on varsity official
http://www.thehindu.com/2008/09/27/stories/2008092756400300.htm
Kozhikode: The High Court has stayed the fine imposed on an official of Calicut University by the State Information Commission for the delay in furnishing information under the Right to Information Act.
State Information Commissioner P.N. Vijayakumar had in August found Public Information Officer K.P. Sasikumar, Deputy Registrar of the Planning and Development Wing, guilty under Section 20 (1) (delay in furnishing information) of the Right to Information (RTI) Act. According to the order issued by the Commissioner, he had to remit a penalty of Rs.21,250 within 30 days of the receipt of the order, failing which the amount should be recovered from his salary of the ensuing month or should be recovered by attachment and sale of his movable or immovable properties.
Time factor
As per the RTI Act, the time period to get information is 30 days from the date of application and 48 hours for information concerning the life and liberty of a person.
Failure to provide information within the specified time is deemed refusal. In this case, there was a delay of 88 days. After deducting the days for receipt and despatch of information the delay was calculated to 85 days.
The applicant was the Vypeen-based Sree Ayyankali Cultural Council State general secretary P.K. Bahuleyan, who had sought information on several issues including those relating to the Scheduled Caste/Scheduled Tribe.
‘No wilful negligence’
Mr. Sasikumar had in his reply admitted the delay but also stated that there was no wilful negligence on his part for not furnishing the information within the stipulated time.
Saturday, Sep 27, 2008
Special Correspondent
www.thehindu.com




'SC judge must probe Godhra'
http://timesofindia.indiatimes.com/Bangalore/SC_judge_must_probe_Godhra_/articleshow/3538567.cms
BANGALORE: Gowda has expressed shock at the Nanavati Commission findings that the Godhra train tragedy was part of a conspiracy. "It's shocking to see the commission has given a clean chit to Gujarat chief minister Narendra Modi and his administration. "I am disappointed ,'' he said. According to him, this judgment will further widen the gap between Hindus and the minorities. He demanded a probe by a Supreme Court sitting judge into the Godhra issue and the violence that followed. Panel for minorities Gowda said he had urged Prime Minister Manmohan Singh to set up a Truth and Reconciliation Commission to bring justice and solace to minorities, as done in South Africa. "I am yet to hear from the PMO'' , he said. The commission should hear grievances of minorities who are victims of atrocities since 1992. They should get compensation and the guilty should be punished. "That is the only way to bring them into the mainstream ,'' he said. The Truth and Reconciliation Commission (TRC) was a judicial body formed in South Africa after it successfully fought apartheid. Any victim of racist atrocity could approach the RTC to seek justice or compensation . Similarly, those accused of committing atrocities could request amnesty. Gowda did not comment on this aspect of the RTC, though.
29 Sep 2008, 0611 hrs IST,TNN
http://timesofindia.indiatimes.com




Denied SC nod, medical colleges get Ramadoss OK
http://www.indianexpress.com/news/Denied-SC-nod--medical-colleges-get-Ramadoss-OK/367266
New Delhi, September 29: Anbumani Ramadoss’s Health Ministry last week permitted two private medical colleges to take in more students even though a Supreme Court order, the very same day, had denied permission to both colleges saying their facilities were “inadequate”.
The Ministry on September 26 allowed Index Medical College (Indore) and Rohilkhand Medical College (Bareilly) to enroll students for academic year 2008-09 on grounds that a Central team from Safdarjung Hospital had found both institutions to house “adequate facilities”.
Amitav Ranjan Posted: Sep 29, 2008 at 0903 hrs IST
www.indianexpress.com



Media should not conduct parallel trial: SC judge
http://www.indianexpress.com/news/Media-should-not-conduct-parallel-trial--SC-judge/367237
Pune, September 28 The press should not conduct its own parallel trial or give their evaluation of evidence and foretell the decision of the court, said Justice Dalveer Bhandari, Supreme Court Judge, while addressing the students during a lecture series organised by Symbiosis International University at Symbiosis Vishwabhawan on Saturday.
Bhandari said, “In the Arushi murder case, before the investigations were over the media interviewed the officers. Though what they spoke to the media is not admissible in court, people believed it and her father became the most hated man in the world, a criminal before the verdict was out.”
Bhandari said, “In a free democracy, even the person who had assassinated the Father of the Nation also has right to a fair trial. The media is expected to not invade the rights of an individual or obstruct a fair trial. Their obligation of fair reporting becomes even more important when they know that the judiciary does not respond or the judges by and large do not respond because of the longstanding convention that the Judges speak only through their Judgements.”
He said that the time has come that every court should have a senior person who should assist the press in getting them the certified and other copies of the orders passed by the court, particularly in areas of larger public interest.
Express News Service Posted: Sep 29, 2008 at 0335 hrs IST
www.indianexpress.com



Ramadoss nod to medical college despite SC no
http://timesofindia.indiatimes.com/Ramadoss_nod_to_medical_college_despite_SC_no/articleshow/3537883.cms
NEW DELHI: When it comes to granting clearances to medical colleges, the health ministry under Anbumani Ramadoss is a law unto itself. It can not only ignore a negative rating by Medical Council of India, but also openly defy the Supreme Court. The health ministry moved to allow an Indore college to admit medical students the very day the institution's plea had been rejected by the apex court. On Friday, SC declined the plea of Index Medical College, Indore, to admit 150 students for 2008-09 as MCI, the statutory body which certifies whether a college be granted permission, said the institution's infrastructure was inadequate for teaching students. After the court was apprised of MCI's adverse report by counsel Maninder Singh, a Bench headed by Chief Justice K G Balakrishnan sought the response of the Centre which had also inspected the college. Additional solicitor general Gopal Subramaniam, appearing for the Centre, supplemented MCI's assessment, saying the central team too had found the infrastructure "woefully inadequate". He told the Bench that no permission could be granted. Senior advocate Ranjit Kumar, appearing for Mayank's Welfare Society which runs Index Medical College, had no option but to accept the SC verdict wishing it better luck for the next academic session. The order clearly read, "ASG Gopal Subramaniam, appearing for Union of India, stated that inspection was also conducted but the percentage of the teaching staff in various departments and other facilities were inadequate and the petitioner institution cannot be given permission". It added, "The writ petitions are accordingly disposed of without prejudice to their rights and to continue to get permission in the next calendar year." But the petitioner did not have to wait for even a day longer. Within hours of the SC's thumbs down, the health ministry wrote to the chairman of Mayank's Welfare Society, saying the college could admit 150 students this year itself by September 30, the apex court mandated last date for admission. The September 26 letter from the ministry, signed by under-secretary N Barik, said, "After careful consideration of MCI inspection reports and central team inspection report, the approval of the central government is granted for renewal of permission for admission of second batch of 150 MBBS students for the academic year 2008-09 at Index Medical College." This, despite the fact that MCI had conducted four inspections of the college on May 8, May 9, May 27 and August 19 and each time, found the infrastructure inadequate. The executive committee of MCI had considered the inspection reports and recommended to the Centre not to renew permission for the admission of 150 students for 2008-09.

The law laid down by the Supreme Court says, "It is the Medical Council which is primarily responsible for fixing standards of medical education and overseeing that these standards are maintained." The SC had said in 1998, "It is the MCI which can prescribe the number of students to be admitted in medical courses in a medical college or institution though it is the central government alone which can direct increase in the number of admissions but only on the recommendation of MCI." The health ministry's decision, which quotes MCI and Central inspection reports, appears to be in clear breach of Friday's SC order and its 1998 decision that empowers the Centre to increase the seats only on a recommendation from MCI. In this case, the MCI clearly declined permission for intake of 150 students. dhananjay.mahapatra@timesgroup.com
29 Sep 2008, 0054 hrs IST, Dhananjay Mahapatra,TNN
http://timesofindia.indiatimes.com



Judicial system has become a business: SC judge
http://www.indianexpress.com/news/Judicial-system-has-become-a-business--SC-judge/367132
CHANDIGARH, SEPTEMBER 28 Taking a strong view of the country’s judicial system, Supreme Court judge Justice G S Singhvi on Sunday said the judicial system had become a business in the eyes of the people. Recalling the days of freedom struggle, Sanghvi said there was a time when lawyers fought not for money, but for sacrifice. “Whether it is lawyers or judges, have we forgotten our task towards society?” he asked.
Commenting on the mindset of judges, Justice Sanghvi said the general mindset was how many cases are disposed of in a day and there was a need to redefine their role in society.
Addressing a seminar on ‘Responsibility of Judicial System Towards the Society’, organised by the Intellectual Associations Chandigarh, Justice Sanghvi said due to the harassment suffered by the common man in his struggle for justice, 95 per cent of the people do not go to courts at all, suffering silently. “Those 5 per cent who do go, wait in queue for many years, empty their pockets to hire a lawyer. It’s a nightmare for the common man to travel to a higher court,” he said, adding that this was the reason people had started taking law in their hands.
“Who is going to return the 10 years of a common man’s life who is then acquitted? Recalling an incident when a woman wrote to him that she was granted bail, but unable to furnish a Rs 2000 security, she spent another year in jail. Have we become totally insensitive? Each one of us needs to join hands to contribute towards the society,” he said.
Express news service Posted: Sep 29, 2008 at 0106 hrs IST
www.indianexpress.com


Corruption and misconduct in judiciary
http://www.merinews.com/catFull.jsp?articleID=142930
‘Restatement of Values in Judicial Life’ (conduct-code for judges) adopted by all the judges of Supreme Court should be prominently embossed on walls/pillars to make consumers of justice aware of possible violation of conduct-code by judges.

JUSTICE S Ravindra Bhat of Delhi High Court has set a noble example by offering transfer of a case listed before him only because his one-time junior was associated with one of the parties involved in the case. Otherwise, there has been incidents where a High Court judge refused to transfer a case even though a party had performed marriage of his grand-daughter from official residence of that judge. It was even more regrettable that the then Chief Justice of India found no fault in the judge’s act. Even Department of Justice (or Injustice) dragged Central Information Commission to the courts to obtain an ex-parte stay on its order to make public appointment-file of the concerned judge for being chief justice of a state, that too when the appointment-file was once returned by the then President of India.

Thanks to RTI Act which has sparked a lively debate in till-now taken-to-be a completely shielded judicial system with victims created by misconduct or corruption by some elements in judiciary can only realise burnt of torture faced by them with dumb mouth in our present totally unaccountable judicial system. Even Supreme Court like many other retired judges has accepted presence of black sheep even in judiciary. After all judges are also from same human society which has both honest and dishonest persons. If chairs of judges could turn even dishonest persons occupying those chairs into honest ones, then breeding of more trees with that special wood could perhaps solve all problems of corruption in the country.

Judges Enquiry Bill presently pending with the government is highly defective because it requires an enquiry-panel of three judges from different high courts to be together to conduct enquiry. Such a process also adversely effects efficiency of high courts because of absence of judges for the enquiry process. It is not understood why government hesitates to accept most accepted and justified approach to have a judicial council with retired Supreme Court judges acting as member-nominees of president, prime minister, opposition leader, chief justice of India and Bar Association of India with Central Vigilance Commissioner as ex-officio member of the high-powered Commission to replace non-practical and cumbersome procedure of impeaching judges. ‘Restatement of Values in Judicial Life’ (conduct-code for judges) adopted by all the judges of Supreme Court should be prominently embossed on walls/pillars of Temples of Justice to make consumers of justice aware of possible violation of conduct-code by judges.
CJ: SUBHASH CHANDRA AGRAWAL
www.merinews.com



Standards For Higher Judiciary
http://theviewspaper.net/society/2008/09/4281
Never has there been a greater threat to the judiciary than now and what was worse is that the people are taking the daily assault on the dignity’ of the judiciary without a protest.”-Soli Sorabji, during 1980 The judiciary continues to command respect and credibility even after being involved in controversial judgments. The judges have the power, though not the right, to travel within the interstices of the bounds set to judicial innovation by precedent and custom. Our judiciary at times has been near crossing this limitation which has given rise to a proposal seeking amendment in the present Judges Enquiry Act, 1958 and attempts to include it within the purview of The Right to Information Act, 2005.
There is virtually no area of legislative or executive activity, which is beyond the highest court’s scrutiny. The nation expects from the superior Judicial officers, the wisdom of Solomon; the courage of David; the strength of Samson; the patience of Job; the leadership of Moses; the kindness of Good Samaritan; the strategic training of Alexander; the diplomacy of Lincoln; and the tolerance of Carpenter of Nazareth and the intimate knowledge of every branch of natural, biological and social sciences. Judiciary can perform the role of “auxiliary precaution” against the excesses of majoritarian democracy only when men of wisdom are there to work out in democratic institutions in harmony.
Have judges in this country have become tyrannical and irrational; despots in black robes? Whenever the Supreme Court has tried to flout the Constitutional mandate manifestly, demonstrably, consciously or in disregard of law creating a new edifice has never existed in any democracy ever; it has taken a position above the law.
The Constitution expects of the Supreme Court to be shorn of political compulsions and would thus, “declare law” by interpreting the constitutional, legal and surrounding circumstances bereft of any bias. The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policymaking committed to the elected branches or the states. Judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehaviour or incompetence or a barrier to examination of complaints about injudicious conduct on a political criteria.
Chief Justice K.G.Balakrishnan has observed that it becomes an imminent necessity for the supreme Court to intervene in a timely manner and curtail the violation of fundamental rights and its duty to protect the rights of the people. Its role extends to preserving the supremacy of the Constitution and work to give relief to the people. Even when other organs fail to deliver , it must not get involved in judicial over-reach.
The Supreme Court will continue to transgress into the realm of the executive and Parliament till the health of the executive is not restored by the formation of stable single-party governments and till the health of Parliament is restored through the revival of the two-party system, deregionalisation and decriminalisation of Indian politics. Unless that happens, the Supreme Court will continue to fill up that political vacuum and shall continue to resort to judicial activism and overreach. It may appear as a healthy development.
The strength of any judicial institution must depend on the standards of accountability that it sets. Higher the standard, the more respect from the citizens. Beijing Principles state that judges are entitled to freedom of expression “to the extent consistent with their duties as members of the judiciary”. It is subject to critical appraisal by jurists, legislators, interested organizations and the public.
The Committee for Judicial Accountability, 2002 pointed out that only the setting up of a truly independent and autonomous National Judicial Commission will settle the issue of who will judge the judges and guarantee greater accountability and transparency within the higher judiciary. Judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. The judges of higher echelons should be men of fighting faith with tough fibre not susceptible to any pressure of any sort. As every one else, it must welcome reasonable control from outside in the form of fair and rational criticism of its acts done in judicial capacity.
It is not permissible for the Court to take over the role of statutory bodies or other organs of State and perform their functions.
Bhumika Sharma
Sep 28
http://theviewspaper.net



Madras HC directs Additional Chief Metropolitan Magistrate to expedite case
http://www.indlawnews.com/newsdisplay.aspx?adbef2d7-4fb1-43d7-a051-f59f3256f03e
The Madras High Court has directed the Additional Chief Metropolitan Magistrate (ACMM), Egmore, to complete the case against Dinesh Dalmia of Chennai, more particularly within six months from the date of framing of charges.Denying bail to Dalmia against whom and three others the CBI had filed a chargesheet on a complaint lodged by the Securities and Exchange Board of India (SEBI), Justice K N Basha, on Friday, said the court was constrained to direct the ACMM to proceed with the matter on a day-to-day basis, giving preference to the case, considering the gravity of the offence alleged against Dalmia and the other accused.The prosecution case was that Dalmia, who was the then Managing Director of D S Q Software Limited, fraudulently got dematerialised unlisted shares in the name of four entities, New Vision Investment Limited, UK, Technology Trust, Softec Corporation and New Vision Investment Private Limited.Later, these shares were sold in the market. The proceeds of the sale of the shares were credited in the accounts of D S Q Holdings Limited, Hulda Properties and Trade Limited and Powerflow Holding and Trading Private Limited, in which Dalmia was alleged to have had an interest. Thereby, he misappropriated and cheated investors.In the process, he was alleged to have made a wrongful gain of about Rs 594 crore.In his bail application, Dalmia said he was awaiting trial in the case since his arrest in February 2006. The prosecution case was based upon documentary evidence, all of which were with the CBI.Hence, the question of tampering with evidence did not arise, he said.The CBI, represented by its Special Public Prosecutor (SPP) N Chandrasekharan, submitted that Dalmia had been most reprehensible and did not inspire an iota of confidence about the reliability of the promises made by him in his bail petition. He deliberately did not make himself available during investigation and absconded from India, the SPP added.Justice Basha said in the event of any other accused prolonging the proceedings under the guise of filing discharge petition or any other petition, the Additional CMM should split up the case against the petitioner and proceed with the trial as expeditiously as possible. UNI
9/28/2008
www.indlawnews.com



Delhi HC directs CRPF to maintain hierarchy in jobs http://www.indlawnews.com/Newsdisplay.aspx?03ff994e-d19c-4779-8af2-d59ed266dd4f
The Delhi High Court has ruled that hierarchy in jobs must prevail and seniority should be respected.Directing the Director General of CRPF, a division bench of the High Court comprising justices Sanjay Kishan Kaul and M C Garg said, “Under no circumstances can a person wearing a higher rank report to a person of lesser rank or to the one who has picked up the rank after him.” The hierarchy in service was necessary to maintain and for all practical purposes, a person who holds a rank cannot be asked to report to his junior.The bench was hearing a petition filed by a doctor in CRPF Dr N C Saha challenging two official letters of the CRPF Director General (DG) dated September 22, 1999 and October 18, 2001 stating that the annual confidential reports of chief medical officer (NFSG), who is otherwise equivalent to a commandant of a duty battalion, would be written by a person who was junior to him and the other of his transfer to a posting where the administrative head would be a person who had picked up his present rank three years before the commandant of the said unit.According to the counsel for Dr Saha, the doctor joined the CRPF in 1986 as a medical officer as Deputy Superintendent of Police. He was promoted as Senior Medical Officer in 1990, Chief Medical Officer in 1996 and Chief Medical Officer in NFSG in 2002. The medical officers are ---- combatised ---- in CRPF and wear uniform with rank and badges at par with the general duty officer or unit commandant.The counsel said that Dr Saha was holding a rank of CMO (NFSG) commandant in pay scale of Rs.14300-18300 with effect from April 5, 2002 whereas commandant of 76th Bn. CRPF Mr P K Sharma (where Dr Saha has been promoted now) was promoted as commandant with effect from May 11, 2005 (three years junior to him) and drawing a lesser salary.Dr Saha challenged this appointment as it violated the basic principal of seniority laid down by the Supreme Court. His counsel said that if Dr Saha was made to join 76 Bn, Mr Sharma would become his administrative head as well as administrative reporting officer whereby he would write the ACR (administrative confidential report) which was contrary to law. According to the service rules, the officer writing the ACR should be of a higher rank which would not be so here.Counsels for the CRPF argued that there was a separate Cadre for medical officers, therefore, they got promoted very fast and acquired higher ranks earlier to the serving officers.“What do you mean pick up the ranks? They earn their ranks and are doctors in anyway less respectable then the serving officers? When both the cadres are separate, there is all the more reason for no conflict,” the judge said.UNI
9/28/2008
www.indlawnews.com




HC stays Raje govt's ambitious scheme
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080066964&ch=9/28/2008%2010:07:00%20AM
In a major setback to the Raje government, the Rajasthan High Court has stayed a pet project of Chief Minister Vasundhara Raje.Under the Bhama Shah scheme, her government was to gift 1,500 rupees each to 50 lakh women in Rajasthan. But a PIL filed by a senior citizen claims the scheme launched just three months before elections in the state, is only a ploy to woo votes for the BJP. After the first hearing, the High Court has stayed the implementation of the ambitious scheme. After HC's decision, Vasundhara Raje's dream scheme has suddenly turned into a nightmare. "This scheme is totally illegal and unconstitutional. The government has not laid out any criteria for selecting the women nor any rules on who will or won't get the money. They are misusing public money like a bribe to buy votes from people," said Karan Pal Singh, lawyer for petitioner.Besides doling out money for women, the government was to pay commission even to its own officials, enrolling beneficiaries under the scheme. But despite the High Court stay, the government insists it is aim was not to garner votes, but only to empower women economically."We have honest intentions behind this ambitious scheme. You may think it is just to please women. But I feel if a woman is empowered, the whole family gets empowered," said Vasundhara Raje, Chief Minister, Rajasthan.But in election year, the Raje government has handed out a string of sops, ranging from higher salaries for government employees to raising reservation quotas. But with the High court stalling it, Raje's pet project for electoral gains has now turned into a huge embarrassment for the BJP, just ahead of elections in Rajasthan. Rajan Mahan
Sunday, September 28, 2008, (Jaipur)
www.ndtv.com



HC orders inspection of six industrial units
http://timesofindia.indiatimes.com/Ahmedabad/HC_orders_inspection_of_six_industrial_units_/articleshow/3535947.cms
Ahmedabad: Gujarat High Court has asked Gujarat Pollution Control Board (GPCB) to conduct spot inspection of six industrial units in Surat, Vadodara, Bharuch and Mehsana and submit a report before October 20. Acting on a petition filed by Taraben Gamit against polluting industrial units, HC on suo motu had directed GPCB in 2005 to inquire into the waste water discharge during 1994 to 1997 by Central Pulp Mills Ltd, now J K Paper Ltd, Surat; Minal Oil & Agro Industries, Mehsana; Sushma Textiles, Bharuch; Deepak Nitrite Ltd, Baroda Dairy and Torrent Gujarat Biotech Ltd, Vadodara. GPCB's expert committee came out with conclusions that "all six units caused environmental pollution, therefore , they must compensate for such damage on the principle of 'Polluter Pay' . The committee recommended they should compensate on basis of 1 per cent of the total production capacity or turnover of the unit during that particular period. But, when the case came up for hearing before a bench of Chief Justice KS Radhakrishnan and Justice MS Shah, the petitioner claimed that the committee's report didn't specifically indicate extent of actual damage done by these units. Therefore, the report can't be accepted. Hence, the court directed GPCB to conduct a fresh inspection of these units.
28 Sep 2008, 0622 hrs IST, Saeed Khan,TNN
http://timesofindia.indiatimes.com



CJI: Tough anti terror law needed to curb the menace http://www.indlawnews.com/Newsdisplay.aspx?4b5ebc04-7425-4bda-8a3e-9eadbb0f0fce
Chief Justice of India K G Balakrishnan has said tough anti-terror law is needed to check the increasing incidents of terrorism in the country.The CJI, however, pleaded that a mechanism must be evolved to check the misuse of such draconian law. He also pleaded for setting up of a Federal Agency which can be entrusted with the cases of terrorist violence and violation of Human Rights.Justice Balakrishnan, who yesterday inaugurated an exhibition on the trial of Shaheed Bhagat Singh, Rajguru and Sukhdev in Lahore Conspiracy case in which all three were awarded death sentence, said, " we are known as one of the best protectors of Human Rights in the world." The exhibition will be on for a week in the Supreme Court museum.UNI
9/28/2008
www.indlawnews.com




Will Godhra ghost drive LS poll?
http://timesofindia.indiatimes.com/Ahmedabad/Will_Godhra_ghost_drive_LS_poll_/articleshow/3535942.cms
Gandhinagar: The Nanavati-Mehta commission report on Godhra train burning incident has given BJP a new opportunity to use its findings for political ends, with forthcoming Lok Sabha polls in mind. Chief Minister Narendra Modi says, till now BJP was awaiting the commission to tell people full truth of Godhra on fateful February 27, 2002, when 59 kar sevaks were burnt. An MLA remarked how the report "cheered Modi up" . The bigger suspense now is what will be the outcome of the second report in case it is timed well before the Lok Sabha elections to be held next year. Justice GT Nanavati has been giving feelers that the second report would come out before the expiry of his term in December this year. The BJP is already calling the Justice UC Banerjee report on the Godhra train burning "politically motivated" . The Banerjee commission came out with its interim report calling the train burning an "accident" , on the eve of the Bihar assembly polls. Modi had already pulled off the mask of development as he delved into his favourite rhetoric of "pseudo secularists" - a term he used for human rights activists post 2002, when talking of the Nanavati report. Addressing a public meeting on Thursday, he said "they were still not ready to accept the reality that the Godhra train burning incident was a conspiracy" and criticised the Congress and human rights organisations for calling the Nanavati commission report as having come on "expected lines." The propaganda machinery of the Modi government has begun sending "informal" press notes, got prepared by the state home department, showing how the UPA-appointed Banerjee commission had no locus standi, while the Nanavati commission had Supreme Court backing. The comparison says how the Banerjee commission based its reports only on examination of a "handful of passengers and witnesses" , while the Nanavati commission examined 44,474 persons. Congress, which fears being accused of 'minority appeasement ' if it opposes the Nanavati commission, has decided to use a different strategy . State Congress president Siddharth Patel added, "The fact that the commission has given a clean chit to the government even for post-Godhra riots suggests its intention." Newly-formed Mahagujarat Janata Party president Gordhan Zadaphia believes that people are "no fools any more" , and they will not accept the "pseudo-Hindutva rhetoric of the BJP." Modi was home minister when the train burning took place, he says.
28 Sep 2008, 0626 hrs IST, Rajiv Shah ,TNN
http://timesofindia.indiatimes.com




HC dismisses IT dept appeals due to delay
http://www.indianexpress.com/news/HC-dismisses-IT-dept-appeals-due-to-delay/366863
Mumbai, September 27 The Bombay High Court recently dismissed 40 appeals filed by the Income Tax (IT) department challenging 40 orders of the IT Tribunal for not filing its papers in time. The IT department cited shortage of stamp papers as reason for the delay. The court dismissed the applications which were filed after a delay of over one year.
The court, however, held that a delay of one year in filing an appeal was not inordinate in case of a department like IT that undertakes "large-scale litigation."
The court however allowed those applications seeking condonation of delay between six days to 345 days on the ground, that they provided a "reasonable explanation" for the delay in filing appeal.
IT department contended that every time the department receives an order from the IT Tribunal, a scrutiny report is prepared and sent to the higher officials for approval.
Express News Service
Posted: Sep 28, 2008 at 0147 hrs IST
www.indianexpress.com



Tribunal for bounced cheque cases
http://timesofindia.indiatimes.com/India/Tribunal_for_bounced_cheque_cases/articleshow/3538143.cms
NEW DELHI: In what could give relief to lakhs of litigants involved in cheque bounce cases, Law Commission is likely to recommend setting up of separate tribunals to deal exclusively with these cases. It is believed there are over 38 lakh cheque bounce cases pending in various courts in the country. The report, though ready, would be finalised once the full commission meets next month. Law Commission said separate tribunals would dispose of cheque bounce cases under section 138 of the Negotiable Instruments Act. Commission chairperson A R Lakshmanan said the proposal before the commission suggested that unless speedy justice was delivered to the aggrieved, the purpose of amending the Act in 2002 would be defeated. Under the amendment, such cases are considered serious in nature. It also provides for enhanced punishment by way of penalty and period of punishment. The commission said that since there were not enough judicial officers to deal with such cases, more than 38 lakh cheque bounce cases had piled up.
29 Sep 2008, 0330 hrs IST,TNN
http://timesofindia.indiatimes.com