Sex change Operation and its legal consequences

In India, there are incidences, there seems to be no precedent, which deals with the issue of effect of sex change by a man or woman. However, the issue of sex change came before His Lordship in England and the case is reported in Corbett v. Corbett (otherwise Ashley)1 (hereinafter referred to as “the said case”) where the issue was whether a person who was a male at the time of birth who subsequently underwent a sex change operation, is a woman?
The facts of the said case in a nutshell are as under:The petitioner filed the said petition praying inter alia therein for a declaration that the ceremony of marriage which took place in Gibraltar on 10-9-1963 between himself and the respondent, then known as April Ashley, was null and void and of no effect as the respondent at the time of marriage was a person of male sex; or in alternative for a decree of nullity on the ground that the marriage was never consummated owing to the incapacity or wilful refusal of the respondent to consummate it.
The respondent in her answer also asked for a decree of nullity on the ground of either the petitioner’s incapacity or wilful refusal of the respondent to consummate the marriage.
In the instant case, the respondent then known as April Ashley, a male person, underwent a sex change operation on 11-5-1960, “which consisted in the amputation of the testicles and most of the scrotum, and the construction of a so-called ‘artificial vagina’, by making an opening in front of the anus, and turning in the skin of the penis after removing the muscle and other tissues from it, to form a pouch or cavity occupying approximately the position of the vagina in a female, that is between the bladder and the rectum. Parts of the scrotum were used to produce an approximation in appearance to female external genitalia.2”
There were mainly two issues involved in the case. The primary issue was of the validity of the marriage, which depends upon the true sex of the respondent; and the secondary issue of the incapacity of the parties, or their respective willingness or unwillingness, to consummate the marriage, if there was a valid marriage at all. Voluminous evidence was recorded from both the sides. Both the sides called three leading medical experts to deal with the intricate medical issues relating to various aspects of anatomical and psychological abnormality.
After hearing both the sides and after going through the quality medical evidence lead by both the sides, His Lordship Ormrod, J. held that:
Marriage being essentially a relationship between man and a woman, the validity of the marriage depended on whether the respondent was or was not a woman and the respondent being a biological male from birth, the so-called marriage was void.3
With regard to non-consummation (assuming the marriage to be valid), the respondent was physically incapable of consummating a marriage as intercourse using the completely artificially constructed cavity could never constitute true intercourse.4
* * * His Lordship applied the mischief rule of interpretation as there was no statutory provision nor any precedent on this aspect and therefore it was held that even though the respondent who had undergone sex change operation from male to female was still considered as biologically male as merely replacing or cutting of human copulation organ does not make a man a woman.
Signs of abnormalitiesTo undergo a sex change operation is sign of psychological abnormalities. His Lordship Ormrod, J. has dealt with each aspect of the present issue. There are two kinds of psychological abnormalities, which are recognised, the transvestite and the transsexual.
The transvestite is an individual (nearly, if not always a man) who has an intense desire to dress up in the clothes of the opposite sex. This is intermittent in character and is not accompanied by a corresponding urge to live as or pass as a member of the opposite sex at all times. The transvestite males are usually heterosexual, often married, and have no wish to cease to play the male role in sexual activity.
“The transsexual on the other hand, has an extremely powerful urge to become a member of the opposite sex to the fullest extent which is possible. They give a history, dating back to early childhood, of seeing themselves as members of the opposite sex which persists in spite of their being brought up normally in their own sex.5” (emphasis supplied)
Indian issueIn India, there is no law that authorises sex change operation nor any legal precedent so far has been developed, but there are the instances of sex change operation, which are increasing day by day in India. Such sex change operation gives rise to many legal issues, which are required to be adequately dealt with.
A couple of years back, all the news channels as well as newspapers6 were showing only one breaking news regarding a property dispute that started because of a sex change operation of Aparna Mafatlal to Ajay Mafatlal of Mafatlal family. It has brought into limelight somewhat less discussed issue of sex change operation and its medical and legal consequences. Many doctors and others from medical fields have already spent acres of ink on the medical consequences and effects of such operation. However, here we shall be discussing about legal consequences, which may arise after such operation.
The legal repercussions of such operation are numerous and herein is an attempt to summarise the legal issues, which may crop up owing to the sex change operation:
The Penal Code, 1860 The definition of rape7 will be required to be amended as the issue will arise whether the person who has undergone sex change operation from male to female as happened in Corbett v. Corbett1 is a female in the eye of the law and whether an offence of rape can be committed against her?
Similarly, Section 3778 IPC deals with unnatural offence. Thus if any person gets his sex changed, for instance, man becomes a woman i.e. to say undergoes sex change operation9 and has a intercourse with the person of same sex of which he/she is after such operation, then certainly it will come within the purview of Section 377 and will be liable to be punished accordingly.
Then comes the question of adultery.10 Thus a man who has become a female by operating himself and marries another man, then whether he can be treated as the “wife” as contemplated in Section 497 as well as Section 49811 IPC?
Likewise, a woman who has become a man after sex change operation can be treated as “husband” as contemplated in Section 498-A12 IPC?
Similarly, Section 125 of the Criminal Procedure Code, 1973 will have direct impact and to be more precise, the definition of “wife” as contemplated in that section will have to be reconsidered. The Supreme Court has already held13 that: (SCC p. 536, para 6)This section has been enacted in the interest of a wife and one who wishes to take the benefit of sub-section (1)(a) has to establish the necessary condition, namely, that she is the “wife” of the person concerned. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to personal law.
Thus, if the husband converts himself to a woman, then can the wife claim maintenance under this section?
Personal lawsAll personal laws relating to marriage and succession will have direct impact of such operation. Say for instance, the question which has occurred in Corbett case1 may also occur in India and the Hindu Marriage Act (and all other personal laws relating to marriage) will require to be amended, because the man who becomes a woman or vice versa, after sex change operation, the existing law will not be of any help in questions of maintenance, grounds of divorce and custody of children.
Similarly, the valid conditions including the capacity of a male and female for adoption as contemplated under the Hindu Adoptions and Maintenance Act, 1956 will be required to be changed. Otherwise, a man adopts a son and there is no gap of 21 years between them, who subsequently changes himself into a woman, will the adoption be void owing to provisions of Section 11 of the said Act?
The most devastating effects will be on the Hindu Succession Act (including other personal Acts of succession). As far as the Hindu Succession Act is concerned, the sex change operation of a person will have direct effect on the degree of succession as mentioned in Class I and Class II heirs. Take for instance Section 8 of the said Act which enacts that the property of a male Hindu “dying intestate” shall devolve according to the provisions of the Act. A woman who has undergone sex change operation thereby converting herself to a man or vice versa, can come within the purview of Section 8? It will also have impact on Section 14, which provides that:“14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.”
Similarly, take Section 23 of the said Act. Though Section 2314 of the Hindu Succession Act has been deleted by new amendment, thereby making all daughters, including married ones, coparceners in joint family property this section has not been given retrospective operation. It is a cardinal principle of interpretation that statutes dealing with succession are not applicable to already open successions because the effect of its application will be to divest the estate from persons in whom it had become vested prior to a new statute coming into force and it was held by the Supreme Court while dealing with Section 8 of the said Act in Eramma v. Veerupana15 and thus a woman undergoing a sex change operation and converting herself to a man can give a go-by to Section 23 of the Hindu Succession Act!
Labour lawsThe labour and industrial laws will also be directly affected mostly as certain strange legal issues will crop up which may include, in case of the Workmen’s Compensation Act, 1923, the question of dependency in case of compensation, in case of the Factories Act, 1948, the question of working hours of men and women. Not only that, but the problem of reservations in the jobs on the basis of sex will take another twist.
Taxing statutesSay for example various beneficial provisions like tax exemptions, which are available to women only under the Income Tax Act, can be still claimed by them after sex change operation?
Sex change operation and other countriesTill today not all countries in the world have legally recognised the sex change operation and still, in most of the countries, the sex which is recorded on birth certificate is only recognised. In most of the countries, legally as well as socially or morally sex change operations are prohibited. In USA (Chicago, Illinois)16 the court held that a transgender male cannot be granted parental rights because same sex marriages are illegal in Illinois and therefore the man was never the boy’s legitimate father. Justice Gerald Bender agreed that though the boy had established a bond with his “father”, the man had no legal standing to seek custody. In the instant case, the man who was born with a female anatomy began hormone therapy 24 years ago at the age of 18. Both the ovaries and uterus were removed in the year 1991 and the birth certificate was changed to reflect the gender correction. The child was conceived through artificial insemination and the contract was entered between parents to raise the child. The court observed that man had not yet undergone reconstructive surgery and was still considered legally a woman. In Britain, in 2003, the Bill was to be introduced whereby transsexuals were to be given the legal right to marry and have the gender changed on their birth certificate. Bill will also introduce laws which mean that employees cannot demand to know a person’s sexual history and that anyone has gone through a sex change should be treated as the sex they are after operation. It will also say that insurance companies must treat transsexuals as the sex of their choice and that the Government must allow men who have changed their sex to female to State pension at the age of 60.17 In Netherlands sex change operation is permitted by the law, which is relief for transsexuals. In Gulf countries also, such kind of operations are legally as well as socially prohibited.
Society and the transsexualsThe good part of such kind of operations has to be considered from the point of view of the transsexuals. Day by day, the percentage of transsexuals who are performing such operation is going up. The experts also agree that sex change operation of a woman to a man is very difficult and challenging as compared to operation of man to a woman. The sex change operation is not the panacea for all the problems of transsexuals. However, at least it helps the transsexuals to come out of the trauma in which they were living prior to the operation. They become more stable on physical as well as mental levels. However, transsexuals also have to face number of problems that may include physical/mental problems owing to such operation. Similarly, such problems may also include public ridicule, instability on family front, etc.
ConclusionThis issue is very vast and has many angles. This is a short or maiden attempt to study the legal consequences arising out of such operation. It is always to be kept in mind that the persons who have undergone such sex change operation remain human beings even after such operation and thus the fundamental rights as guaranteed by our Constitution will be available to them.
Now coming back to its consequences, it is not possible to cover or summarise all the legal, social issues arising out of such operation. The problems as stated hereinabove may not arise or may be hypothetical, but possibility of their happening also cannot be denied. In India, the social conditions are such that it is very difficult to accept anybody after sex change operation and thus it is morally condemned. Nevertheless, still, the sex change operations are increasing with a steady growth, but, on this count also, there is a monopoly of rich and famous as such operations are very costly and unaffordable by common people!
The decision in Corbett case1 is not binding on Indian courts, but still it does not lose its persuasive value. Till today, Indian courts have not been confronted with such intricate problem, but the day is not so far. Thus, now the time has come for the Indian Parliament to legislate on this new topic. The Law Commission should call for national debate on this issue. Absence of any such law is not going to stop such operations being performed. Thus, such operations are either required to be legalised or have to be declared as non est and void in the eye of the law.
By Rohit U. Erande**Cite as: (2007) PL Dec. 9
* Advocate
1. (1971) P 83 : (1970) 2 WLR 1306 : (1970) 2 All ER 33
2. Id. at 36g-h
3. Supra p. 49a, post
4. Supra p. 49h, post
5. Supra fn 1, p. 42d-f, post
6. See Times of India — Pune Times, 12th November, 2005 issue
7. Section 375 IPC
8. “377. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished….”
9. Like, supra fn 2
10. Section 497 IPC: “497. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery….”
11. “498. Enticing or taking away or detaining with criminal intent a married woman.—…”
12. “498-A. Husband or relative of husband of a woman subjecting her to cruelty.—…” Yamunabai Anantrao Adhav v. Anatrao Shivram Adhav, (1988) 1 SCC 530 : 1988 SCC (Cri) 182
13. Section 23 provided that a female Hindu could not file a suit for partition of a dwelling house unless the male heir chooses to divide their respective shares therein and such woman had a right of residence in that dwelling house only if she is unmarried or divorced or widow.
14. AIR 1966 SC 1879
15. http://www.transgenderlaw.org.cases/ http://www.observer.guardian.co.uk/

Cheque truncation in the Indian Scenario

During the last two decades or so the attitude and lifestyle of the consumers of banking service have been influenced by the advancement in technology. In tune with technological changes the banks’ delivery system has to undergo tremendous transformation. The financial reforms process has enabled many competitors to enter the financial services market with a higher degree of efficiency and customer friendly behaviour. The public sector banks although reacted promptly to the new challenges, have not kept pace with the new entrants in the arena because of their inherent limitations. Under the impact of technology, the banks have been trying to innovate newer products and services to become more competitive in the ever demanding customer driven market. The technology has made it possible for the banks to come to terms with the demands of customers.
The system of cheque truncation is prevalent in several foreign countries. Denmark and Belgium are the pioneers in the truncation system. They adopted complete cheque truncation system more than two decades ago. Sweden is the typical example for having achieved complete truncation where all the cheques can be presented and encashed at any branch; irrespective of the bank on which they are drawn. The process of cheque truncation is not only quick but also meets the requirements of future electronic transactions.
In India the collection and payment of cheques is governed by the provisions of the Negotiable Instruments Act, 1881 which requires that the instruments must be in writing and have to be physically presented for payment in due course (before the amendment in the Negotiable Instruments Act). In view of this requirement the time taken for the processing of cheques, etc. was long particularly for the outstation cheques. In a country like India, the time taken for collection of outstation cheques is rather tiring for the customers.
With the advent of technology, the Government of India and Reserve Bank of India took initiative to improve the customer service. The working group constituted in 1982 to consider the feasibility of introduction of MICR/OCR technology for cheque processing recommended that India should join SWIFT (Society for Worldwide Interbank Financial Telecommunication) Network for the transmission and reception of international financial messages as well as instil electronic forms of monetary transaction in the Indian economic transactions.
The term “cheque” has been defined in Section 6 of the Negotiable Instruments Act as “bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand”. As per definition it is essential that cheque should be presented for payment. But in truncation, the physical cheque is not presented but only its image shall be transmitted to the paying branch.**
In common parlance the word “truncated” means deformed, disfigured, mutilated, etc. As per the Negotiable Instruments Act, the truncated cheque means a cheque which is truncated during the course of a clearing cycle.
The process of truncation requires the banker to convert the cheque data into electronic form for the purpose of safe keeping or to return the cheques at the request of the banker or to provide information on cheques as and when requested. The cheque in the electronic form means a cheque which contains the exact mirror image of a paper cheque and is generated, written and signed in a secure system ensuring minimum safety standards with the use of digital signatures (with or without biometric signature) and asymmetric crypto system.
Features of truncated cheque systemWith the advent of technology and cyber era, security of the system has acquired prime importance. No doubt, the financial institutions have started providing fast services than ever before. But the technology has brought in its trail security problem also. Under the cheque truncation system, therefore, the image of the cheque is captured at the point of deposit where it is sealed and encrypted before its transmission. This renders it tamper proof. This is done strictly as per international standards. The transmission between the presenting, paying and payee bank is authenticated by a certificate authority as part of the public key infrastructure. The process of image certification at the banks is certified by an independent auditor to ensure that it conforms to the requirements of the laws of evidence of that country.
Under the cheque truncation system all cheques are transmitted electronically. The original cheques are retained by the collecting banker.
Indian scenario Truncation of cheques can be done by the clearing house or the bank which collects the truncated version of the cheque. As per Section 81 of the Negotiable Instruments Act, the banker who receives the payment, is also supposed to retain the copy of the cheque even after payment has been done. Section 89 of the Negotiable Instruments Act says that any distinction between the original cheque and the truncated image should be construed as material alteration. In such cases it is obligatory on the part of the clearing house or the bank to ensure the correctness of the truncated image while transmitting the image.
An explanation has been added to Section 131 of the Negotiable Instruments Act vide the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. It says that it shall be the duty of the banker who receives payment based on an electronic image of a truncated cheque to ensure that there is no fraud, forgery or tampering apparent on the face of the instrument.
It would be seen that after the amendment the responsibility of the collecting bank has increased manifold. Earlier it was the position that if he collects any instrument in good faith and without negligence he was not liable for any fraud, etc. But after the amendment it is obligatory upon the collecting bank to verify the genuineness of the cheque with greater degree i.e. due diligence. Hence the cheque truncation system has burdened the collecting banker with a greater degree of responsibility.
As per sub section (2) of Section 64 of the Negotiable Instruments Act, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information regarding the truncated cheque from the bank holding the truncated cheque in case of any reasonable suspicion.
Two new sub-sections have been added to Section 89. As per these sub sections any difference in apparent tenor of electronic image and the truncated cheque shall be a material alteration and it shall be the duty of the bank or the clearing house, as the case may be, to ensure the exactness of the apparent tenor of electronic image of the truncated cheque while truncating and transmitting the image.
In spite of the advantages, the truncation system has its own drawbacks. The truncated cheques are vulnerable to fraudsters who can hack into this system and change the contents of the cheques. So the security of the system must be ensured. RBI has taken upon itself setting up of a safe, secure and efficient communication network for the exclusive use of the banking sector known as INFINET (Indian Financial Network). This network is already being used by a large number of banks for transfer of funds. INFINET uses the latest technology and security called PKI (Public Key Infrastructure) which is within the legal requirements of the Information Technology Act, 2000.
by A.K. Bansal*
Cite as: (2008) PL Jan. 9
* Senior Manager (Law), Central Bank of India..
** The Negotiable Instruments Act has been amended. It now includes the electronic image of a truncated cheque and a cheque in the electronic form. So after the amendment it is not necessary to present the cheque physically.

Role of Public Prosecutor as defined by International Guidelines and International & National Jurisprudence

In Indian criminal justice system, the role of a Public Prosecutor, though of immense importance, has always been shrouded in controversy. Allegations varying from corruption to deliberate withholding of important witnesses have been flung at them. One of the main reasons for such controversial image of Public Prosecutors is the fact that there is much confusion about their duties and responsibilities. Police, the accused and the victim all have totally different and conflicting beliefs about what role a Public Prosecutor is supposed to play. For example, according to police, the main duty of a Public Prosecutor is to get the accused convicted. According to the accused, the main role of the Public Prosecutor is to make available to the accused any legitimate benefit that he is entitled during the trial even if the defense counsel has overlooked it. According to the victim, a Public Prosecutor is her/his “avenging angel” and will get her/him justice at any cost. Looking at these varying and totally at variance interpretations, it is not difficult to reach the conclusion that one of the biggest obstacles in way of efficient performance of the Indian prosecuting machinery is confusion clouding the minds of Public Prosecutors themselves regarding what role they are supposed to play.
This paper analyses various national and international judicial pronouncements and international guidelines on role of a Public Prosecutor and on the basis of these tries to give a judicially and legally accurate picture of responsibilities and duties of a Public Prosecutor. This paper is divided in five parts. Part I describes role and responsibilities of Public Prosecutor as defined by international guidelines. Part II elaborates on role and responsibilities of Prosecutor as explained by jurisprudence of different common law countries following an adversarial system. Part III illustrates how Indian judiciary has interpreted the role and responsibilities of a Public Prosecutor. Part V is the conclusion. The paper, on the basis of this analysis, concludes that role of the Public Prosecutor is not to single-mindedly seek a conviction regardless of the evidence and a Public Prosecutor has to play role of a “minister of justice” who should place before the court all evidence in her/his possession, whether in favour of or against the accused.Role of Public Prosecutor as interpreted by international law and guidelines
There are various international guidelines elaborating upon the role of Public Prosecutors. The most important of these are “United Nations Guidelines on the Role of Prosecutors” (adopted by the United Nations during the United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana in 1990), “Recommendation 19 (2000) on the Role of Public Prosecution in the Criminal Justice System”, adopted by Council of Europe in 2000 and general standards entitled the “Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures”, formulated by the International Association of Prosecutors in 1999.
The United Nations Guidelines on the Role of Prosecutors (abbreviated as “UNG” from herein) require Prosecutors to perform their duties fairly, impartially, consistently, protecting human dignity, upholding human rights and avoiding all political, social, religious, racial, cultural, sexual or any other kind of discrimination1. The use of prosecutorial discretion, when permitted in a particular jurisdiction, must be exercised independently and should be free from political interference2. In order to ensure the fairness and effectiveness of prosecution, prosecutors must strive to cooperate with the police, the courts, the legal profession, public defenders and other government agencies or institutions3. Corollary to requirements of fairness and impartiality is the condition that prosecution should not be initiated or every effort to stay proceedings should be made where an impartial investigation shows the charge to be unfounded.4 Providing a corollary to this, the International Association of Prosecutors (abbreviated as “IAP” from herein) standards provide that criminal proceedings should be proceeded with only when a case is well founded upon evidence, which is reasonably believed to be reliable and admissible5. When Prosecutors come into possession of evidence against suspects that has been obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they are under a duty to refuse the usage of such evidence6. The Prosecutors are also required to take proper account of the position of the suspect and the victim, pay attention to all relevant circumstances, and disclose all relevant evidence irrespective of whether it is to the advantage or disadvantage of the suspect7. The Prosecutors must act objectively and also remain unaffected by individual or sectional interests and public or media pressures. They must have regard only to public interest8.
The States are also under a duty to ensure that Prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability9. The States are further required to provide reasonable conditions of service to Prosecutors, adequate remuneration, and where applicable, tenure and pension10. Moreover, the promotion of Prosecutors should be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures11. If in a State, non prosecutorial authorities have the right to give general or specific instructions to Prosecutors or right of directing the institution of proceedings or right to stop legally instituted proceedings, such instructions should be transparent, consistent with lawful authority and subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence12. The Council of Europe recommendations goes further and states that instructions not to prosecute in a specific case should in principle be prohibited. Should that not be the case, such instructions must remain exceptional and be subjected to transparency and appropriate control13. The Council of Europe recommendations also state that Public Prosecutors should account periodically and publicly for their activities as a whole and, in particular, about the way in which their priorities are carried out14.Role of Prosecutor as interpreted by law of other countries
In United States, the duty of a Public Prosecutor or other government lawyer is to seek justice, not merely to convict15 and to see that justice is done16. Rule 3.8 of the Model Rules of Professional Conduct formulated by the American Bar Association lays down that the Prosecutor in a criminal case shall refrain from prosecuting a charge that the Prosecutor knows is not supported by probable cause and make timely disclosure to the defense of all evidence or information known to the Prosecutor that tends to negate the guilt of the accused or mitigates the offense and in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the Prosecutor, except when the Prosecutor is relieved of this responsibility by a protective order of the tribunal17.
In Harry Berger v. United States of America18, Mr Justice Sutherland, delivering the opinion of the Court said that: (US p. 88)
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. [She/]he may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much [her/]his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
The Supreme Court of Canada has also elaborated upon role of Prosecutor in R. v. Boucher19 by saying that:
It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel has a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of Prosecutor excludes any notion of winning or losing; her/his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings. 20
According to New Zealand Law Society’s Rules of Professional Conduct although the Prosecutor is an advocate, he or she must prosecute “dispassionately and with scrupulous fairness” 21. The New Zealand courts have explained that the Crown’s duty is to present its case fairly and completely, and to be as firm as the circumstances warrant, but the Crown must never “struggle for a conviction”.22 They have further said that it is “quite impermissible” for a Prosecutor to attempt to persuade the jury by factors of prejudice or emotion and that the Prosecutor is neither the lawyer for the victim, nor a lawyer for the police. He or she acts on behalf of the community, and has a responsibility to ensure that justice is done in a fair and balanced way23.
The Canadian jurisprudence has also interpreted the role of a Prosecutor by laying down that a Prosecutor’s responsibilities are public in nature. As a Prosecutor and public representative, Crown counsel’s demeanor and actions should be fair, dispassionate and moderate, show no signs of partisanship24, open to the possibility of the innocence of the accused person and avoid “tunnel vision” 25. It is especially important that Crown counsel avoid personalising their role in Court26. The Canadian Supreme Court has further very strongly held that although Crown counsel work closely with the police, the separation between police and Crown roles is of fundamental importance to the proper administration of justice27.Role of Prosecutor: interpretation by Indian judiciary
Despite the fact that the Public Prosecutor is appointed by the State, her/his sole aim is not to seek a conviction. The Indian courts have interpreted the role of Prosecutor as “minister of justice” who should place before the court all evidence in her/his possession, whether in favour of or against the accused. The role of the Prosecutor is not to single-mindedly seek a conviction regardless of the evidence. The Indian judiciary has interpreted role, responsibilities and duties of prosecution as follows:
1. An ideal Prosecutor must consider herself/himself as an agent of justiceThe ideal Public Prosecutor is not concerned with securing convictions, or with satisfying departments of the State Governments with which she/he has been in contact. He must consider herself/himself as an agent of justice28. The Allahabad High Court had ruled that it is the duty of the Public Prosecutor to see that justice is vindicated and that he should not obtain an unrighteous conviction29.2. There should not be on part of a Public Prosecutor “a seemly eagerness for, or grasping at a conviction”The purpose of a criminal trial being to determine the guilt or innocence of the accused person, the duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of the accused persons has to be conducted with the utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be “a seemly eagerness for, or grasping at a conviction” 30.3. A Public Prosecutor should not by statement aggravate the case against the accused, or keep back a witness because her/his evidence may weaken the case for prosecutionThe only aim of a Public Prosecutor should be to aid the court in discovering truth. A Public Prosecutor should avoid any proceedings likely to intimidate or unduly influence witnesses on either side. There should be on her/his part no unseemly eagerness for, or grasping at, conviction29.4. A Public Prosecutor should place before the Court whatever evidence is in her/his possessionThe duty of a public Prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence is in the possession of the prosecution, whether it be in favour of or against the accused and to leave the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged.31 It is as much the duty of the Prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice32.5. The duty of the Public Prosecutor is to represent the State and not the policeA Public Prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure, 1973. She/he is not a part of the investigating agency. She/he is an independent statutory authority. She/he is neither the post office of the investigating agency, nor its “forwarding agency” but is charged with a statutory duty.33 The purpose of a criminal trial is not to support at all cost a theory, but to investigate the offence and to determine the guilt or innocence of the accused and the duty of the Public Prosecutor is to represent not the police, but the State and her/his duty should be discharged by her/him fairly and fearlessly and with a full sense of responsibility that attaches to her/his position34. There can be no manner of doubt that Parliament intended that Public Prosecutors should be free from the control of the police department35.6. A Public Prosecutor should discharge her/his duties fairly and fearlessly and with full sense of responsibility that attaches to her/his positionThe Patna High Court held that purpose of a criminal trial is not to support a given theory at all costs but to investigate the offence and to determine the fault or innocence of the accused and the duty of the Public Prosecutor is to represent not the police but the Crown and her/his duty should be discharged by her/him fairly and fearlessly and with full sense of responsibility that attaches to her/his position36.7. Prosecution does not mean persecutionThe Andhra Pradesh High Court had ruled that prosecution should not mean persecution and the Prosecutor should be scrupulously fair to the accused and should not strive for conviction in all these cases. It further stated that the courts should be zealous to see that the prosecution of an offender should not be given to a private party. The Court also said that if there is no one to control the situation when there was a possibility of things going wrong, it would amount to a legalised manner of causing vengeance37.8. A Public Prosecutor cannot appear on behalf of the accusedIt is inconsistent with the ethics of legal profession and fair play in the administration of justice for the Public Prosecutor to appear on behalf of the accused38.9. No fair trial when the Prosecutor acts in a manner as if he was defending the accusedIt is the Public Prosecutors’ duty to present the truth before the court. Fair trial means a trial before an impartial Judge, a fair Prosecutor and atmosphere of judicial calm. The Prosecutor who does not act fairly and acts more like a counsel for the defense is a liability to the fair judicial system39.10. The statutory responsibility for deciding upon withdrawal squarely vests unwavering with the Public Prosecutor and should be guided by the Criminal Procedure CodeThe statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor and is entirely within the discretion of the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above her/him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide herself/himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with her/him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. The sole consideration for the Public Prosecutor when she/he decides a withdrawal from a prosecution is the larger factor of administration of justice, not political favours nor party pressures nor like concerns40.11. District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawalThe District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend40.12. If there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public ProsecutorThe Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction41.The District Magistrate or the Superintendent of Police cannot order the Public Prosecutor to move for the withdrawal, although it may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to her/him to consider whether the prosecution should be withdrawn or not. But, the District Magistrate cannot command and can only recommend.12. The Supreme Court stated that the duty of the Public Prosecutor is to ensure that justice is done. It stated that if there is some issue that the defense could have raised, but has failed to do so, then that should be brought to the attention of the court by the Public Prosecutor. Hence, she/he functions as an officer of the court and not as the counsel of the State, with the intention of obtaining a conviction.
ConclusionAfter analysing aforementioned international guidelines and jurisprudence of different countries (including India), it is clear that it is not a Public Prosecutor’s duty to seek conviction at all cost. Nor, is her/his duty to act as an avenging angle for the victim. On the contrary, her/his duty is to ensure that justice is delivered and in pursuance of this he/she must lay before the court all relevant evidence including the evidence that favours the accused. Corollary to this is the duty of a Public Prosecutor to bring to attention of the Court, any issue that the defense could have raised, but has failed to do. But, in doing so, she/he cannot act as if she/he is defending the victim, nor can he/she appear on behalf of the accused. When the Prosecutor acts in a manner as if she/he was defending the accused, then there is no fair trial. A Public Prosecutor is an independent entity from police and police cannot order her/him to conduct prosecution in a particular way. Police, politicians or any other extraneous party cannot influence her/his actions, including her/his discretion to decide withdrawal of a case. She/he represents the State and not the police and can only be influenced by “public interest”. In pursuance of her/his duties, he cannot use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. In brief, a Public Prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
By Sameera SinghCite as: (2008) PL Feb. 9
1. Articles 12 and 13(a), United Nations Guidelines on the Role of Prosecutors
2. Article 2.1, International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
3. Article 20, United Nations Guidelines on the Role of Prosecutors
4. Article 14, United Nations Guidelines on the Role of Prosecutors
5. Article 4.2(d), International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
6. Article 16, United Nations Guidelines on the Role of Prosecutors; Article 4.3(f), International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
7. Article 3(d), International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
8. Article 13(b), United Nations Guidelines on the Role of Prosecutors; Articles 3(e) and (f); International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
9. Article 4, United Nations Guidelines on the Role of Prosecutors; Article 6(a), International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
10. Article 6, United Nations Guidelines on the Role of Prosecutors; Article 6(c), International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
11. Article 7, United Nations Guidelines on the Role of Prosecutors; Article 6(e), International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
12. Articles 2.2 and 2.3, International Association of Prosecution’s Standards of Professional Responsibility and Statement of the Essential Duties and Right of Procedures
13. Article 13(f), Recommendation No. 19(2000) on the Role of Public Prosecution in the Criminal Justice System, adopted by Council of Europe in 2000
14. Article 11, Recommendation No. 19(2000) on the Role of Public Prosecution in the Criminal Justice System, adopted by Council of Europe in 2000
15. Rule 3.8(a) of the Illinois Rules of Professional Conduct
16. Article 2.01, Texas’s Code of Criminal Procedure, 1966
17. Rule 3.8 of the Model Rules of Professional Conduct adopted by the American Bar Associates’ House of Delegates in 1983
18. (1934) 295 US 78-89 : 79 L Ed 1314
19. R. v. Boucher, (1954) 110 CCC 263 (SCC)
20. R. v. Boucher, (1954) 110 CCC 263 at p. 270.
21. Rule 9.01, Rules for Professional Conduct for Barristers and Solicitors, Adopted by the New Zealand Law Society on 28th July, 1989
22. R. v. Puddick, (1865) 176 ER 622 at p. 663. See R. v. Thomas (No. 2), (1974) 1 NZLR 658 (CA)
23. R. v. Roulston, (1976) 2 NZLR 644 at p. 654.
24. R. v. Henderson, (1999) 44 OR (3d) 628 (CA); R. v. Arthur F., (1996) 30 OR (3d) 470; R. v. Vandenberghe, (1995) 96 CCC (3d) 371 (CA); R. v. Stinchcombe, (1992) 68 CCC (3d) 1 (SCC)
25. “…tunnel vision means the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably color the evaluation of information received and one’s conduct in response to that information.” The Commission on Proceedings Involving Guy Paul Morin, The Hon’ble Fred Kaufman, Commissioner (Toronto: Queen’s Printer, 1998) at p. 1136.
26. R. v. F.S., (2000) 47 OR (3d) 349 (Ont. CA); R. v. Chambers, (1990) 59 CCC (3d) 321 (SCC); R. v. McDonald, (1958) 120 CCC 209.
27. R. v. Regan, (2002) 1 SCR 297 (SCC); The Royal Commission on the Donald Marshall Jr. Prosecution; The 1998 Report of the Commission on Proceedings Involving Guy Paul Morin
28. Per Anantanarayanan, C.J., in A. Mohambaram v. M.A. Jayavelu, 1970 Cri LJ 241 at p. 245
29. Kashinath Dinka, (1871) 8 BHC (Cr C) 126, 153
30. Anant Wasudeo Chandekar v. King-Emperor, AIR 1924 Nag 243 at p. 245
31. Ghirrao v. Emperor, (1933) 34 Cri LJ 1009 (Oudh Chief Court)
32. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749 : 2003 SCC (Cri) 1918, at para 35
33. Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, at para 23
34. Ram Ranjan Ray v. Emperor, (1915) 42 Cal 422 at p. 428; Jai Pal Singh Naresh v. State of U.P., 1976 Cri LJ 32 (All); Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087
35. 1976 Cri LJ 32 (All)
36. Kunja Subudhi v. Emperor, (1929) 30 Cri LJ 675
37. Medichetty Ramakistiah v. State of A.P., AIR 1959 AP 659
38. Sunil Kumar Pal v. Phota Sk., (1984) 4 SCC 533 : 1985 SCC (Cri) 18
39. Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999
40. Balwant Singh v. State of Bihar, (1977) 4 SCC 448 : 1977 SCC (Cri) 633, at para 2
41. Shiv Kumar v. Hukam Chand, (1999) 7 SCC 467 : 1999 SCC (Cri) 1277

Govt illegally appoints law secy in FEMA tribunal

New Delhi: In April 2004, the Delhi High Court held that officers of the Law Ministry cannot officiate as Chairman or members of the Appellate Tribunal for Foreign Exchange.
Despite that, the government appointed O P Nahar, additional secretary in the Law Ministry, as the Tribunal's chairman.
“This is unconstitutional. It’s against the basic concept of the structure of the Constitution of the separation of the powers - of judiciary and executive powers,” said legal expert, Mathew Nedumpara.
It is now alleged that Nahar's appointment was his reward for favoring Union Minister for Company Affairs, Prem Chand Gupta, in a FERA violation case. The case involved Cecil Corporation, a firm owned by Gupta. The Enforcement Directorate had slapped a Rs 10 Crore penalty on Gupta. But as part-time chairman of the Appellate Tribunal, Nahar had waived off the penalty in an out-of-turn hearing.
“I have given the judgement. That is what my duty is, giving judgement every day. Who that PC Gupta is, at that time I never knew he is a minister. Frankly speaking, only the name is given,” said Nahar.
The Enforcement Directorate had earlier investigated Gupta's role in the Hawala transfer of Fodder Scam money to Hong Kong. Yet it did not challenge Nahar's ruling in favour of Gupta.
In response to an RTI query, the ED said the reasons for not challenging the Tribunal Order cannot be disclosed.
When contacted, Gupta said, "The cases filed against me by the Enforcement Directorate are politically motivated".
Prem Chand Gupta's appeal was disposed off in just five months, while appeals more than a decade old are still pending at the Foreign Exchange Tribunal.
Handling the fate of penalties that run into thousands of crores, surely the functioning of this Tribunal needs to be fully transparent.

IBNLive
Zabeeh Afaque / CNN-IBN
Fri, Mar 07, 2008

Sikh loses court challenge to ride motorcycle without helmet

OTTAWA (AFP) — A Sikh on Thursday lost his bid to ride his motorcycle without safety headgear when a court upheld Canada's helmet laws, ruling that riding without it would increase public healthcare costs in the event of a crash.
Baljinder Badesha, 39, immigrated to Canada in 1989 and had been an avid motorcyclist in his native India.
He challenged a law requiring him to wear a helmet over his turban when riding a motorcycle after being ticketed in mid-2005 for doing so, about a month after he purchased a Honda Shadow motorcycle.
Ontario Court Judge James Blacklock ruled the law indeed violates his constitutional right to religious freedoms, but is justifiable because the safety measure dramatically reduces public healthcare costs and saves lives.
"Given the nature of Mr. Baljinder Badesha's beliefs, which foreclose him from wearing anything over his turban, and yet the unquestioned safety and related issues, this is one of those cases in which, unfortunately, no accommodation appears possible," Judge Blacklock said in his decision.
Badesha and his supporters told local media they were not disheartened by the ruling, saying they would now lobby the government to change the law.
He maintains the helmet law discriminates against Sikhs because their religion obliges them to cover their long hair with nothing more than a turban.

Sikh loses court challenge to ride motorcycle without helmet

OTTAWA (AFP) — A Sikh on Thursday lost his bid to ride his motorcycle without safety headgear when a court upheld Canada's helmet laws, ruling that riding without it would increase public healthcare costs in the event of a crash.
Baljinder Badesha, 39, immigrated to Canada in 1989 and had been an avid motorcyclist in his native India.
He challenged a law requiring him to wear a helmet over his turban when riding a motorcycle after being ticketed in mid-2005 for doing so, about a month after he purchased a Honda Shadow motorcycle.
Ontario Court Judge James Blacklock ruled the law indeed violates his constitutional right to religious freedoms, but is justifiable because the safety measure dramatically reduces public healthcare costs and saves lives.
"Given the nature of Mr. Baljinder Badesha's beliefs, which foreclose him from wearing anything over his turban, and yet the unquestioned safety and related issues, this is one of those cases in which, unfortunately, no accommodation appears possible," Judge Blacklock said in his decision.
Badesha and his supporters told local media they were not disheartened by the ruling, saying they would now lobby the government to change the law.
He maintains the helmet law discriminates against Sikhs because their religion obliges them to cover their long hair with nothing more than a turban.

Unfortunately, FRBM is not a fiscal transparency Act

Fiscal deficit really amounts to 3.11 per cent of GDP, not 2.5 per cent as professed. Surprised? "Don't be, as these are fiscal costs of budgeting for elections," explains Dr D. K. Srivastava, Director of the Madras School of Economics, in a tˆte-…-tˆte with Business Line, a few hours after the Union Budget 2008-09.
While we regale amongst the newfound tax incentives doled out by the Union Finance Minister on February 29, it may be worth sparing some time to look at the financial health of the Government itself, stirring up the `everyday economist' that resides within each of us.
"It is well known that according to the Centre's Fiscal Responsibility and Budget Management (FRBM) Act, the revenue deficit was to be brought down to zero and the fiscal deficit relative to GDP (gross domestic product) was to be contained at 3 per cent...Alas, both targets have been missed," reveals Dr Srivastava.
The more we dissect the Budget, the more intriguing it can be, making us wonder if there is a veritable whitewash that has been going on in the name of complying with the FRBM Act.
Excerpts from an e-mail interview:

On Budget day, the FM said fiscal deficit target has been achieved.
As per the Budget estimates, the revenue deficit of the Central Government remains more than Rs 55,000 crore amounting to 1 per cent of GDP although the fiscal deficit target is overachieved, estimated at 2.5 per cent of GDP.
This, of course, does not take into account the off-Budget borrowing by the Government. The correct measure of fiscal deficit is to look at the change in Government liabilities, which amounts to 3.11 per cent of GDP. This means that both targets of the FRBM Act have been missed.
But how could that happen when we have the FRBM Act?
Both revenue and fiscal deficit numbers are underestimates and will become larger through both the expenditure and revenue sides of the Budget.
Unfortunately, our FRBM Act is not a `fiscal transparency' legislation,; otherwise else it would not have been possible to get away with no clear accounting of costs of giveaways without clearly making a Budget provision.
What about the effect of an expenditure such as the farm-loan waiver?
In the case of the loan waiver for the farmers, if the cost per year is Rs 20,000 crore and running to for the current and two more succeeding years, it will add a corresponding amount to both the fiscal deficit and revenue deficits each year. Fiscal deficit will increase because money will need to be borrowed on- or off-Budget, and as also the revenue deficit, because it will have to be given as grant to the concerned banks concerned. Both can be kept off the Budget but will be real costs.
Those are huge numbers. And we have the Sixth Pay Commission also.
Yes, the additional salary burden after the imminent recommendations of the Sixth Pay Commission will have to be brought into the Budget explicitly. Since only normal increases in the salary and pension estimates have been provided, there is a clearly an understated expenditure head round the corner.
What kind of numbers are we talking about here?
The Budget estimates for salaries of government employees, including allowances and pensions, amount to nearly Rs 77,000 crore. An increase by a factor of 20 per cent will imply an additional revenue expenditure of more than Rs 15,000 crore. In all probability, the factor of increase could well be more than 20 per cent.
What effect could there be from the Government overachieving one target, while missing the other?
Under-achieving the revenue deficit targets while overachieving the fiscal deficit target by the FM left too little room for augmenting capital expenditure. With 1 per cent of GDP as revenue deficit, keeping 2.5 per cent of GDP as fiscal deficit implied that capital expenditure could amount only to 1.5 per cent of GDP. Defence spends were hiked by 10 per cent.
With defence capital expenditure also going up, the natural outcome has to be a sharp fall in non-defence capital expenditure. A better counter-cyclical strategy would have been to adhere close to the revenue deficit target and breach the fiscal deficit target insisting upon a massive increase in infrastructure expenditure.
A conscious increase in infrastructure capex could have helped?
Not only does this add to demand but also lightens up the supply side pressure and helps make exports more competitive by reducing operational costs. In the end, we have to rely more on the `luck' of the Finance Minister rather than any hard arithmetic.
The Government said income-tax cuts were revenue neutral. Do you agree?
Yes, the adjustments in the income-tax slabs have been taken as revenue neutral. The number of income-tax assessees in India is about 3.15 crore. Most estimates of the benefit of the slab adjustment put it in the range of at Rs 25,000 or more. Even if we consider that this would apply to less than half the number of assessees, there is going to be a clear cost anywhere in the range of Rs 25,000 crore or more.
So the problem is with number of assessees.
Yes. It would have been fiscally far more transparent to undertake detailed estimates of the costs of the slab adjustments to the exchequer. To be fair to the Finance Minister, we should recognise that the buoyancy of income-tax in the preceding two years was 2.2 and 4.3 and this year he has assumed only a buoyancy of 1.3.
What drives buoyancy?
Two factors are responsible for these surges in buoyancy. One was a significant improvement in buoyancy based on enhancement in compliance linked to much better information management.
The second was the imposition of additional surcharges. Both effects are part of the base number; any additional growth will be normal growth now, which is likely to show up a buoyancy of more than 1.3. Anything that can add up to the financial pain.
The impact of the reduction of core Cenvat rate from 16 per cent to 14 per cent has also not been provided for. The assumed growth rate is roughly close to the average of growth of the last two years. There is clearly going to be revenue erosion in the Union excise duties. Taken together, there is going to be additional revenue and fiscal deficit of about 1- to 1.5 per cent of GDP.
But why wait to do all this in 2008?
With several States also going in for elections in this or the next year, competitive politics will lead to a proliferation of giveaways. Parties will compete with each other for designing bigger and more innovative packages wherever elections are forthcoming.
They will also not hesitate in implementing salary revisions as soon as the report of the Sixth Pay Commission becomes available. It will take no more than one year to erode the hard-earned balance or surplus on the revenue account of the States. The Centre has inadvertently sent very adverse signals by breaching the FRBM Act.
The effect, however, remains largely `Centre-centric' doesn't it?
Any and every State will quote the precedent and breach its respective FRBM Act targets if circumstances so warrant. Additional subsidies, tax exemptions, and generous salary revisions, independent of their respective fiscal positions are all ways in which competitive politics will play itself out. The long-term estimates put the fiscal cost in terms of additional revenue and fiscal deficits at 1 per cent of GDP preceding the general elections in the country. That looks like the cost emanating from the central Budget alone this time round.
What about the extra money coming into people's hands?
The strategy of putting additional spending power in the hands of people is a tactic aimed at augmenting demand to cope with the impending slowdown. Since there has not been an explicit interest rate reduction, clearly greater reliance is being placed on fiscal stimulus rather than monetary measures.
Government has allocated lots of funds to important sectors such as education and health.
There is hardly any increase in total Government expenditure, which is budgeted to grow at 5.85 per cent. This will only cover inflation, and there is hardly any increase in real terms. The reason is that while revenue expenditure is slated to increase, capital expenditure falls. In fact, revenue expenditure shows a growth of 11.8 per cent while capital expenditure falls by 23.2 per cent.
Any numbers that you can share. Capital expenditure falls in absolute terms from Rs 1,20,787 crore to Rs 92,765 crore. Of this, non-defence capital expenditure falls even more. Non-defence capital expenditure is less than 1 per cent of GDP.
For an economy such as ours, faced with chronic infrastructure deficiency, this is neither appropriate nor a suitable policy for fighting stagflation. Faced with inflation that is structural in nature, far more effort is needed to augment investment rather than consumption demand, which also comes only indirectly through the loan waiver and tax concessions. Demand augmentation is inadequate and does not rely on augmenting investment demand. There is no effort to support exports through fiscal measures.
What if there is a larger revenue deficit than stated?
If there is a larger revenue deficit, considering the Centre and States together, there will be a fall in public sector savings that had turned positive after the complete insistence on the FRBM targets.
An overall erosion of about 2 percentage points is quite likely. There is also going to be some fall in corporate sector savings given that the economic slowdown and consequent impact on profits.
Any effect on growth?
It is well known that household savings have been stagnant in the last few years and most of the increase in the savings rate came from the Government and the corporate sector.
There will be a consequent erosion of the growth rate, which could well be in the range of 7 to 7.5 per cent rather than 8 to 8.5 per cent. Any fall in the growth rate will further erode revenues.

Sify.com
D. Murali Kumar Shankar Roy Thursday, 06 March , 2008, 13:23

Choose between n-deal and government, CPI-M warns UPA

The Communist Party of India-Marxist (CPI-M) on Thursday issued a fresh warning on the India-US nuclear deal stating that the future of the United Progressive Alliance (UPA) government depended on what decision it took on the pact.
Cautioning the government against going ahead with the agreement despite opposition from the Left and other parties, the CPI-M said in an article headlined 'Turning Point Has Arrived' in the party mouthpiece People's Democracy: "It will amount to a gross violation of the majority opinion in parliament."
"The Left parties will take all the necessary steps to stop the government from taking such a harmful step," stated the article by a 'political commentator', believed to be echoing the views of CPI-M general secretary Prakash Karat.
"It is for the Congress leadership to decide whether it wants to be seen as kowtowing to the pressure of the (US President George W) Bush administration or acting democratically and heeding the voice of parliament and the people. And this decision has to be a quick and clear one.
"The future of this government depends on the decision they will take," the CPI-M said.
Karat has written to external affairs minister Pranab Mukherjee, who heads the 15-member UPA-Left nuclear committee, asking him to convene an urgent meeting of the panel to inform members about the latest developments.
The article termed the statements of both Prime Minister Manmohan Singh and External Affairs Minister Pranab Mukherjee in parliament as unfortunate and said it amounted to harping on the government's effort to go ahead with the nuclear deal.
"If the government thinks that after arriving at an agreed text with the IAEA on a safeguards agreement they can proceed to take the next steps for operationalising the agreement, they are mistaken," it said.
The CPI-M reiterated that the Left would not give the government the green signal to finalise the safeguard agreement with the International Atomic Energy Agency (IAEA) or take the next step to go to the Nuclear Suppliers Group (NSG) given the basic objection to the Hyde Act and the 123 agreement.
The article also lampooned the claims in the media that in its negotiations with the IAEA, New Delhi had managed to get an agreement that would overcome "all the problems posed by the Hyde Act and its 123 progeny".
"This is, to use an American term, pure baloney! Neither the Hyde Act nor the 123 agreement grants lifetime fuel supply assurance to safeguarded reactors," it said, adding that it was not within the scope of jurisdiction of the IAEA to provide any assurance for uninterrupted fuel supply or help India build a strategic reserve.
"Neither is it within the powers of the IAEA to spell out corrective measures that can be taken by India in the event of the termination of the fuel supply by a party contracted to do so," the article pointed out.
It reiterated that it was the US which was the supplying party in the 123 agreement and it would be bound by the provisions of the Hyde Act that according to the communists would have implications on India's independent foreign policy, strategic and security concerns.
According to sources, in his letter to Mukherjee Karat had drawn the government's attention to media reports that India had managed to nearly finalise a safeguard pact with the IAEA except for the phraseology of the draft text on fuel guarantees.
Sources indicated that the communist leader wants the meeting to be held on or before March 15.
Karat's CPI-M and its allies, who support Manmohan Singh's government from outside, have been vehemently opposing the civil nuclear agreement with Washington saying that it would damage India's independent foreign policy and its indigenous nuclear programme.
However, the Left parties have given a green signal to the government to go ahead with India-specific negotiations with the IAEA on the condition that they are consulted before further steps are taken.
Indo-Asian News Service
New Delhi, March 06, 2008
Hindustan Times; Fri,07 Mar 2008

“Inherent power should not stifle legitimate prosecution”

Apex court caution to High Courts on quashing proceedings
It is for trial judge to find out whether evidence is valid or not
High Court should refrain from giving prima facie decision where facts are incomplete
New Delhi: The inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code (power to quash lower court proceedings), though wide, has to be exercised sparingly and cautiously. Only then will such exercise be justified, the Supreme Court has held.
“While exercising the powers under this section, the High Court does not function as a court of appeal or revision. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse,” said a Bench comprising Justices Arijit Pasayat, C.K. Thakker and L.S. Panta. “It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified in quashing any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.”
Writing the judgment, Justice Pasayat said the High Court while exercising jurisdiction under Section 482 Cr. PC, “would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained. That is the function of the trial judge. Judicial process should not be an instrument of oppression or needless harassment.
“The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.”
The Bench said: “The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where facts are incomplete and hazy, more so when evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.”
Dowry case
A dowry harassment case was initiated by Renu Kumari against her husband, in-laws and four others in a trial court in Bihar. On a petition from the respondents, the Patna High Court quashed the proceedings, holding that the case was maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spiting them out of a private and personal grudge.
On appeal by Ms. Renu Kumari, the apex court held that the High Court had wrongly exercised its inherent power. Setting aside the impugned judgment, it allowed the trial to proceed further.
The Hindu; Legal Correspondent
Friday, Mar 07, 2008

Justice H.R. Khanna a courageous and firm judge: CJI

NEW DELHI: Chief Justice of India K.G. Balakrishnan on Wednesday described Justice H.R. Khanna as a courageous, fearless, firm, uncompromising and unbending judge when it came to upholding the rule of law and independence of judiciary.
Speaking at a Full Court reference in the Supreme Court to the demise of Justice Khanna, former Supreme Court judge, the CJI said: “Justice Khanna’s firmness and disregard of all considerations except his principles and convictions were displayed on many occasions. He would not mind striking a new path and recording a dissenting judgment even if it would amount to ploughing a lonely furrow.”
Referring to the A.D.M. Jabalpur case, in which Justice Khanna gave a dissenting judgment, the CJI said: “It was probably this dissent, which led to his supersession. But having a strong belief and conviction in the unassailability of fundamental rights and independence of judiciary, he lost no time in relinquishing the high office of a judge of the apex court, for which people keep on aspiring throughout their life.” Mr. Justice Balakrishnan pointed out that on the resignation of Justice Khanna, New York Times wrote an editorial (on April 30, 1976), saying “if India ever finds its way back to the freedom and democracy, someone will surely erect a monument to Justice H.R. Khanna.”
Attorney-General Milon Banerjee said that Justice Khanna in the Kesavananda Bharati case held that Parliament had the full powers in amending the Constitution but it must leave the basic structure or framework of the Constitution intact. Supreme Court Bar Association president P.H. Parekh said: “Justice Khanna was a great champion of freedom and democracy and became the lone voice for protection of our Constitution, fundamental liberty and independence of judiciary during difficult times.”
J. Venkatesan
The Hindu; Thursday, Mar 06, 2008

Producer moves court against Jodhaa Akbar ban

UTV Motion Pictures Saturday moved the Madhya Pradesh High Court to lift the ban on screening of Jodhaa Akbar in the state.
"The hearing is Monday. If nothing happens there, then we will move Supreme Court. We won't let this happen," Siddharth Roy Kapoor, marketing and distribution head of UTV Motion Pictures, told IANS on phone from Mumbai. The company has produced the movie.
The Bharatiya Janata Party (BJP) government in Madhya Pradesh Friday suspended the screening of Jodhaa Akbar, a week after the movie was released, fearing that it would cause a law and order problem in the state as a particular community was against the film's content.
People belonging to the Kshatriya (Rajput) community have been protesting against the movie that they claim has distorted historical facts. They have said that the film portrays Mughal emperor Akbar's wife Jodha Bai as a Kshatriya, though she was not one.
"We are appalled that the film has been banned in Madhya Pradesh. The Censor Board cleared the movie without any cuts. When a film is cleared by the Censor Board, the state should ensure that the film is screened across the country without disruption," Kapoor said.
The entire film industry, including producers, distributors and exhibitors are up in arms against the state government order. In fact, the exhibitors' association in Madhya Pradesh has threatened to go on an indefinite strike if the ruling is not reversed.
"The distributors feel that it is one of the biggest releases of the year and they should be allowed to screen the movie," Kapoor said.
Asked about the ban in Rajasthan, Kapoor said: "We are talking to groups who are against the film. However, in Rajasthan, the state government hasn't issued any whip against the film. The film's distributors have decided not to screen it because they fear that if they do so, protesters will torch their halls. And they are justified in their action."
The three-hour, 20-minute movie was released in 26 countries February 15, but banned in Rajasthan. The Karni Sena has been spearheading a campaign in the state against the movie for quite sometime.
The community alleged that Ashutosh Gowariker presented Jodha Bai as Mughal emperor Jalaluddin Akbar's wife, which is factually incorrect.
According to them, Jodha Bai was not the daughter of Raja Bharmal of Amber as shown in the film, but the daughter of Motaraja Udai Singh of Marwar. And she was married to Akbar's son Salim alias Jehangir and was the mother of emperor Shah Jahan.
However, Gowariker claimed that he was careful in preserving Rajput pride and dignity while making the period drama starring Hrithik Roshan and Aishwarya Rai.
"I haven't been jingoistic or fanciful in depicting history. In fact, I've been very careful in preserving Rajput pride and dignity. There's a disclaimer about the Rajput queen's name at the beginning of the film and to see that, the protestors have to see the movie," he said.
Gowariker's epic love story saw a fair opening and grossed Rs 385 million worldwide in the opening weekend. The critics praised Hrtihik and Aishwarya's performance in the film.
Hindustan Times; Wed,05 Mar 2008

Court moved against ban on film

New Delhi: The producer of Hindi film ‘Jodhaa Akbar’ has moved the Supreme Court challenging the ban imposed by the States of Uttar Pradesh, Haryana and Uttarakhand on screening the film.
On Monday, a Bench of Chief Justice K.G. Balakrishnan and Justice R.V. Raveendran agreed to include the matter on Tuesday in the ‘mentioning list’ when the filing of the petition was mentioned to the court for an urgent hearing.
The producer, UTV Software Communication, in its petition said the ban was causing a financial loss. Around Rs.41 crore were spent in making the film and another Rs.4 crore on publicity.
Legal Correspondent
The Hindu; Tuesday, Mar 04, 2008

Centre to HC: Cabinet Secy, an IAS cadre post

Lucknow (PTI): Two days after being stripped of the status of a cabinet minister and as head of the secretariat administration, Uttar Pradesh Cabinet Secretary Shashank Shekhar Singh found himself cornered further when the Centre told the Allahabad High Court that even the post of Cabinet Secretary, which he holds, is an IAS-cadre post.
In an affidavit filed before the Lucknow bench of the Allahabad High Court in connection with a PIL challenging the appointment of Singh, a non-cadre IAS officer, the Centre said that the post of the Cabinet Secretary was "an IAS-cadre post". The PIL has challenged Singh's appointment on this very ground.
The state government also filed an affidavit in the court in this matter informing the latter that Singh had been stripped of the status of a Cabinet Minister and as head of the secretariat administration.
The chief secretary had been made the head of the secretariat administration and necessary changes had been made in the rules, the state government informed the Court. A division bench of Justice Pradeep Kant and Justice S N Shukla directed that the matter be put before them within two weeks.
Chief Minister Mayawati, who had brought in Singh soon after her electoral victory last year, had announced in the state assembly that Singh had, through a letter, requested for being relieved of the responsibility of heading the secretariat administration and the status of Cabinet Minister rank.
The Hindu; Monday, March 3, 2008

Additional Judges: Centre’s stand sought

New Delhi: The Supreme Court on Monday asked Additional Solicitor-General Gopal Subramaniam to state the Centre’s stand on whether consultations by the Chief Justice of India with other judges in the collegium is required when an additional judge of a High Court is made a permanent judge.
A Bench of Justice Arijit Pasayat and Justice P. Sathasivam, hearing a quo warranto petition questioning the appointment of Ashok Kumar as a permanent Judge of the Madras High Court, also asked the ASG to submit a copy of the Memorandum of Procedure evolved by the government relating to the appointment of judges.
Senior lawyer and former Law Minister Shanthi Bhushan and advocate Kamini Jaiswal had questioned the appointment of Mr. Justice Kumar. In July last, the court, without issuing notice, had asked the Centre to file an affidavit giving details of all the appointments of Additional Judges in various High Courts made after 1999.
The Centre filed a brief affidavit stating that from January 1, 1999 to July 31, 2007 “a total of 351 Additional Judges were appointed as permanent judges; that in these cases the Supreme Court collegium was not consulted.”
Mr. Justice Pasayat told senior counsel Anil Divan, appearing for the petitioners, “We wanted to know whether there has been any departure in the procedure in the appointment [of Mr. Justice Kumar]. The whole perception seems to have been changed after the Centre’s affidavit that in all cases there has been no consultation by the CJI with the collegium. We wanted to know whether there has been any departure.”
Mr. Divan replied that the situation had become much worse after the Centre’s affidavit. He said that what was stated by the Centre was incorrect. In April 2003, eight judges were appointed to the Madras High Court and Mr. Kumar was second in seniority. While seven of them were made permanent, the term of Mr. Justice Kumar as an Additional Judge was extended. “Obviously, there was a consultation with the collegium and he was not appointed a permanent judge reportedly because of adverse remarks.”
Mr. Justice Pasayat told Mr. Divan that “as a principle if your contention is accepted then a question will arise whether the proposal from the Chief Justice of the High Court concerned for making permanent an Additional Judge was made with the consultation of the collegium of High Court judges.”
Mr. Divan said, “It is a matter of public interest that the appointment of High Court judges be made according to law as laid down by the Supreme Court itself. It is a matter of grave public concern if the law so laid down is contravened.” The Bench posted the matter for further hearing on April 16.
J. Venkatesan
The Hindu; Tuesday, Mar 04, 2008

Court comes to rescue of Netaji aide's widow

CHANDIGARH: In a historic verdict, the Punjab and Haryana High Court on Monday asked the Centre to pay Rs 1 lakh arrears to the widow of Indian National Army's Surjan Singh - who served as a Netaji Subhash Chandra Bose's bodyguard - for its failure to pay him the freedom fighters' pension. The court also ordered the Union government to pay Gurbachan Kaur, within two months, the arrears due for the past 30 years and an interest of 10% on the total amount till the time of actual disbursement. A division bench comprising justices M M Kumar and Tej Pratap Singh Mann pronounced the order while disposing Gurbachan Kaur's writ petition. Kaur, who hails from Ballianwala village in Tarn Taran district, had moved the high court in 2007. The court pronounced the verdict in a record 10-month time. A division bench, headed by Justice Jagdish Singh Khehar had earlier heard the writ petition and issued notices to the officials concerned. Singh received the pension between 1972 and 1977, before it was suddenly stopped without any reason. The freedom fighters’ division in the Union home affairs ministry ignored various representations for the restoration of the pension. A legal notice, too, was served. Singh, who received Tamra Patra from the then PM, Indira Gandhi, in 1972, fought for his pension till his death in 2000.

Times of India; 4 Mar 2008, 0001 hrs IST , TNN

17-year-old legal ordeal ends

NAGPUR: A timely intervention by forest department counsel has not only saved crores of rupees for the department but also brought to an end to 17-year-old legal battle, thus bringing respite to it. Interestingly, the verdict has also gone against the forest department as they failed to file a reply for well over 14 years. A division bench of Bombay High Court comprising justices D K Deshmukh and V M Kanade has dismissed the petition filed by Thane-based Maharashtra Rajya Van Shramik Mahasangh and Dhule Zilla Van Shramik Kamgar Sangh on behalf of labourers of regular forest department, Forest Development Corporation of Maharashtra (FDCM) and Social Forestry Department. The state government and forest department were respondents. The petitioners'contention was that the respondents can't discriminate regular forest and other workers engaged under Employment Guarantee Scheme (EGS) and other schemes. They argued that treating forest department labourers under EGS and paying them lesser wages is "totally unjustified". The petitioners also challenged fixation of different wages under EGS in different districts. They also alleged that government wanted to reduce wages by using EGS which is "malafide". They claimed full wages as per Minimum Wages Act, 1948. The petitioners prayed for restoration of minimum wages to all employees, coming under EGS. The amount would run into crores. Since filing of the petition in 1989, it was hanging in balance for at least 14 years, as department failed to submit a reply. Finally, it was decided in petitioner's favour on November 18, 2003. It was only through efforts of special counsel for the forest department M P Badar who filed a review application in the high court on the grounds that the forest department denied the allegation made by the petitioners. However, the review application was dismissed. Advocate Badar again filed a special leave petition before the Supreme Court which was admitted. The apex court's division bench during hearing of the case imposed a fine of Rs 2 lakhs and referred the matter again to the high court. The matter was finally heard by HC on February 25 and 26 this year and after hearing arguments from both sides, dismissed the petition, thus bringing to an end to over decade and half-year-old prolonged battle. Advocate Badar was assisted by government pleader Vinay Masurkar and advocate Dhiraj Baghel during the petition. vaibhav.ganjapure@timesgroup.com
Times of India; 3 Mar 2008, 0242 hrs IST , Vaibhav Ganjapure , TNN

Madras High Court restrains patent board in Novartis case

Chennai, Aug 9 IANS Swiss pharma major Novartis had some relief Thursday in its legal battle in India as the Madras High Court restrained the Intellectual Property Appellate Board IPAB from heariChennai, Aug 9 (IANS) Swiss pharma major Novartis had some relief Thursday in its legal battle in India as the Madras High Court restrained the Intellectual Property Appellate Board (IPAB) from hearing its appeal contesting the rejection of its patent application for a blood cancer drug. The same high court had thrown out Novartis’s challenge to the Indian patent laws Monday.
A division bench of the Madras High Court comprising Chief Justice A.P. Shah and Justice P. Jyothimani Thursday granted an interim stay for four weeks on another Novartis petition questioning the IPAB’s order.
The board had rejected the firm’s demand that technical member S. Chandrasekharan withdraw from hearing its appeal as he was part of the process of rejection of its application before the Patents Office here.
Following the rejection of its plea for a patent for the beta-crystalline form of imatinib mesylate, marketed under the brand name Glivec, by the Assistant Controller of Patents, Chennai, in January 2006, Novartis had initially filed the writ petition. The matter was transferred to the board after the central government constituted a bench of the IPAB.
The IPAB had on July 21 rejected the plea by Novartis to exclude the technical member from the bench.
Novartis raised objections to the presence of Chandrasekharan on the IPAB since he had originally taken a stand against the company.
The IPAB comprising chairman M.H.S. Ansari and Chandrasekharan had rejected the plea by saying that Chandrasekharan had earlier made his submissions in his official capacity as a statutory authority, but now he was an adjudicator.
Novartis moved the high court against this order of the IPAB.
The high court bench also issued notices to the central government and others Thursday and adjourned the hearing till Sep 10.
Posted on March 3, 2008 by kuvhowell

Panel to look into court fee hike

PATNA: After venting their ire against government move to hike court fee, lawyers in the state now appear to be on a reconciliation path now. It was evident on Sunday meeting of Bihar State Bar Council, which instead of adopting a resolution for taking the struggle to the districts, as was claimed by some of the council members during the two-day agitation of Patna High Court lawyers on February 28 and 29, chose to give the state government some time before intensifying the struggle. The council adopted a resolution regarding constitution of a nine-member committee which will look into the alleged anomalies in the recent court fee hike and would accordingly put up a charter of demand before the state government. The committee consists of Bihar State Bar Council president Rajendra Singh, Mannan Kumar Mishra, Baleshwar Sharma, Y V Giri, Keshav Srivastava, Yogesh Chandra Verma, Shail Kumar Sinha, Rajeshwar Prasad and Sudama Rai. Advocate general (AG) P K Shahi will be a special invitee to the committee. Talking to TOI after the council meet, Yogesh Chandra Verma, a council member who is also in the nine-member committee, said that the resolution was adopted after verbal assurance of the AG who urged the council to give reconciliation process a chance before going for a statewide protest programme. "Keeping this point in mind the council decided to constitute a nine-member committee which will hold a regular meeting in the next week and would accordingly come up with its suggestion which will be put before the government," he added. The state government had issued notification on January 8 this year effecting hike in various categories of court fee. Protesting the government's move members of all the three associations of Patna High Court - Lawyers' Association, Advocates' Association and Bar Association - abstained from their professional duty on February 28 and 29.

Times of India; Patna 3 Mar 2008, 0316 hrs IST , Sanjeev Kumar Verma , TNN

‘Goonda’ teacher axe gets SC nod

New Delhi, March 2: The Supreme Court has described a Rajasthan teacher who thrashed the school principal as a “goonda” and upheld the inquiry officer’s order sacking him.
The Central Administrative Tribunal and the Jaipur bench of Rajasthan High Court had set aside the sacking.
Satbir Singh Mahla, a math teacher at Kendriya Vidyalaya, Suratgarh, assaulted the principal R.D. Shah in the school office room on February 23, 1999, causing serious injury to his right eye. He submitted a written apology the next day but was chargesheeted and an inquiry was ordered.
Mahla was dismissed on May 1, 2000, following the recommendation of the inquiry officer. The appellate authority rejected his plea against the order.
But the administrative tribunal held that his removal was disproportionate and reduced it to withholding three increments for five years with cumulative effect.
The tribunal reasoned that he had “committed the act of misconduct under mental tension and he had submitted his written apology and that he has a family to maintain”.
The school appealed to the high court, which rejected the plea.
A two-judge bench of the Supreme Court, however, upheld the school’s appeal yesterday, saying it was “unable” to support the judgments of the tribunal or the high court.
“A teacher has to be a role model in society. He is a guru who sets an example for the students. A person who physically assaults the principal of the institution is, in our opinion, not fit to be a teacher. He is more like a goonda.
“In our opinion, therefore, there was no good ground for the tribunal to interfere with the punishment of removal awarded to the respondent,” the court said.
The Telegraph; LEGAL CORRESPONDENT Monday , March 3 , 2008

Loan waiver Bill may not work in Sikkim

GANGTOK, March 2: The recent bill passed on the loan waiver for the farmers in Parliament by Union finance minister Mr P Chidambaram, will not benefit the farmers of Sikkim.The Bill about Rs 50,000 crore agriculture relief package with a loan waiver for three crore farmers was passed by Union Finance Minister Mr P Chidambaram in the parliament recently. “But this passed bill would not benefit for the farmers of the state because of the drought and other natural calamities,” alleged state opposition party Sikkim Himali Rajya Parishad (SHRP). “Waiving one time loan of 25 per cent to the farmers which is estimated Rs. 10,000 crores is equally daring step to take care of the anxieties and the problem of the farmers” said Dr AD Subba, President, SHRP.“Presently there is no Central agriculture package or schemes for the cultivation of cardamom, ginger, maize and other cash crops like it used to be in eighties so it would not be benefit the farmers of the state” alleged Dr Subba. “By the time if state initiate this on 30 June or so the state government would than trigger for upcoming election” he added. n sns
The Statesman

Muslim Law Board demands ouster of Taslima

Kolkata: Demanding ouster of controversial writer Taslima Nasreen, the All India Minority Forum today accused the government of trying to protect her though she has hurt sentiments of Muslims in the country.

"Taslima has not only hurt the sentiments of Muslims, but she has defamed the Indian Constitution. The government should not extend her visa and she should move out of this country immediately," president of the Forum Idris Ali told a rally organised by the All India Muslim Personal Law Board.
Nearly 500 delegates from all over the country spoke in the open session in front of 1.5 lakh people gathered to hear them after the completion of the two-day all India seminar organised by the Board after a gap of 23 years in the city.
Some speakers emphasised the need to preserve the Shariat law which, they maintain, only can preserve the identity of the Muslims in general.
"There has been several attacks against the Muslim personal law. This is not at all desirable. The Muslims in this country have their own identity and that can only be preserved by the law framed according to Holy Koran," assistant general secretary of the Board Md Abdur Raheem Quraishi said.
Sify News Sunday, 02 March , 2008, 20:28

Muslim clerics Law Board for preservation of Shariat

Kolkata (PTI): Muslim clerics on Sunday demanded the ouster of controversial Bangladeshi writer Taslima Nasreen from India and called for preservation of the personal law while opposing the proposal to compulsorily register marriages.
"There has been several attacks against the Muslim personal law which is not desirable. Muslims in this country have their own identity and that can only be preserved by the law framed according to holy Koran," assistant general secretary of All India Muslim Personal Law Board (AIMPLB), Mohammad Abdur Raheem Quraishi, told a rally organised by the Board and attended by 1.5 lakh people.
Demanding Nasreen's ouster, All India Minority Forum president Idris Ali accused the government of trying to protect her though. "Taslima has not only hurt the sentiments of Muslims, but she has defamed the Indian Constitution. The government should not extend her visa and she should move out of this country immediately," Ali said.
Other speakers at the rally emphasised the need to preserve the Shariat law which, they maintain, only could preserve the identity of the Muslims in general. Nearly 500 delegates from all over the country addressed the open session after the completion of the two-day national seminar organised by the Board after a gap of 23 years in the city.
Quraishi also spoke against compulsory registration of marriages, asserting that by making it compulsory it will create hardship and difficulties for a large section of people irrespective of caste and creed.
The Hindu; Sunday, March 2, 2008 : 2110 Hrs

Need to popularise Lok Adalats: Justice Ashok Bhan

Kolkata (PTI): There is a need to popularise Lok Adalats, an alternative dispute resolution (ADR) mechanism, for speedy redressal of disputes, National Legal Services Authority Executive Chairman and Supreme Court Judge Justice Ashok Bhan said here on Saturday.
At a seminar on Lok Adalat organised by four public sector general insurers, Justice Bhan said Lok Adalats should be used for quick and inexpensive redressal of disputes.
The seminar was also addressed by Judges of the Calcutta High Court and Supreme Court.
Special Correspondent
The Hindu. Sunday, Mar 02, 2008

Sethu project: Centre counters environmental concern

New Delhi (PTI): Hit hard by the flip flop over the 'Rama Setu' controversy, the Centre in its fresh affidavit before the Supreme Court has put more emphasis to counter the environmental concern for pushing the Sethusamudram project.
The project has not only been opposed on grounds of religious sentiments attached to Rama Setu or Adams Bridge but concerns have been raised about the fragile ecosystem of Gulf of Mannar and susceptibility of the region to disaster in case of a Tsunami.
Allaying these fears, the Centre said Committee of eminent persons appointed by the Centre on October 5, 2007 looked into the apprehensions and after considering various reports, declared them as "unfounded".
Special Correspondent
The Hindu. Sunday, Mar 02, 2008

Dalits approach court for security

JAIPUR: Dalits approaching the Rajasthan High Court for protection against threats held out by a gang of dacoits in Dholpur district has forced the State government to take measures for their security and launch a hunt for the culprits.
A temporary police post has been set up at Harajpura village for safeguarding Dalits.
An incident of dacoit Laturi Thakur’s gang storming into Harajpura village on November 18 last and threatening the Dalit families with dire consequences had led to fear and insecurity in the region.
Special Correspondent
The Hindu. Sunday, Mar 02, 2008

Yusuf Memon gets bail from Supreme Court

New Delhi: The Supreme Court on Friday granted on medical grounds interim bail to Yusuf Abdul Razak Memon, sentenced to life imprisonment for his role in the 1993 Mumbai serial bombings.
A bench consisting of Chief Justice K G Balakrishnan and Justice R V Raveendran granted him bail till July 14, saying it would review his medical condition every three months before extending it.

Memon is suffering from chronic schizophrenia, according to a medical report. The bench granted him bail after examining the report by a panel constituted on the apex court's February 12 order.
Appearing for Memon, senior advocate Harish Salve pleaded that the medical report confirmed that his client was suffering from chronic schizophrenia and needed a supportive environment that could not be made available in jail.
"Since 1992 he has been a patient of schizophrenia. He is not in the right state of mind," said Salve, pleading for bail for his client.
The bench eventually granted bail as the Central Bureau of Investigation (CBI) did not strongly oppose the plea.
Yusuf Memon, brother of absconding accused and mastermind of the blasts Tiger Memon, had been convicted for life for allowing his houses to be used for conspiracy meetings and storage of arms and explosives. He had also given the van for the terror attack.
Friday, 29 February , 2008, 18:49
Sify News

Judiciary can't assume the role of a selection panel, says SC

NEW DELHI: The judiciary cannot arrogate itself to the role of a fact-finding committee or substitute a selection committee for appointment of candidates to a government post, the Supreme Court has ruled.Further unsuccessful candidate cannot and assail the selection process after having participated in it, a bench of Justices S B Sinha and V S Sirpurkar said in a judgement.The apex court passed the judgement while reversing a High Court order and upholding the selection process conducted by the Assam government for recruiting over 5,000 constables.A single judge of the High Court had quashed the selection process in the three districts of Dhubri, Barpeta and Sonitpur holding that the interviews were held improperly.The single judge arrived at the finding after appointing a three-member committee which said that hundreds of candidates were interviewed on a single day as against the maximum bench mark of 250 candidates fixed by the court.The High Court's order was challenged in the apex court which held that it erred by concluding that the selection process was invalid merely because the number of interviews in a day breached the 250 benchmark fixed by the single judge."Unfortunately, the high court took it upon itself the task of substituting itself for the selection committee and also in the process assumed the role of an appellate tribunal which was in our opinion not proper," the apex court said."It was not for the high court to place itself into a position of a fact finding commission, that too more particularly at the instance of those petitioners who were unsuccessful candidates, " the Supreme Court said in a 51-page judgement.
PTI
newindpress.com Saturday March 1 2008 00:00 IST

Court upholds dismissal of teacher from service

No sympathy for one who assaulted principal, say judges
A teacher has to be a role model to the society
One who physically assaults the principal is more like a goonda
New Delhi: Describing a school teacher who assaulted the principal as a ‘goonda,’ the Supreme Court on Friday upheld an order passed by the Kendriya Vidyalaya Sangathan dismissing him from service.
Setting aside a Rajasthan High Court judgment quashing the dismissal order, a Bench of Justice H.K. Sema and Justice Markandey Katju said: “We regret our inability to uphold the judgment of the Tribunal as well as of the High Court.”
Writing the judgment Justice Katju said: “A teacher has to be a role model in the society. He is a ‘guru’ who sets an example for the students. A person who physically assaults the Principal of the Institution is, in our opinion, not fit to be a teacher. He is more like a goonda. In our opinion, therefore, there was no good ground for the Tribunal to interfere with the punishment of removal awarded to the respondent. For the reasons given above, we set aside the impugned judgment of the High Court as well as the Tribunal and restore the order of removal passed against the respondent.”
In the instant case, Satbir Singh Mahla was working as a Trained Graduate Teacher (Maths) in the Kendriya Vidyalaya, Air Force, Suratgarh. On February 23,1999 he physically assaulted the Principal, R.D. Shah, in his office room which caused serious injury on the right eye of Mr. Shah.
The next day he submitted a written apology. However, he was charge-sheeted and an inquiry was held and the disciplinary authority passed an order of removal from service on May 1, 2000.
The Central Administrative Tribunal, Jaipur, reduced the punishment to withholding three increments for a period of five years with cumulative effect. On appeal from the Sangathan, the High Court upheld the Tribunal’s order.
The present special leave petition is directed against that judgment and the apex court allowed the appeal accepting the contentions of S. Rajappa, counsel for the Sangathan that no leniency should be shown to such a teacher.
J. Venkatesan

Gag order to continue

MUMBAI: The Bombay High Court on Friday allowed continuance of the police order forbidding Maharashtra Navnirman Sena leader Raj Thackeray from holding public meetings or making media statements.
Justice A.P. Deshpande set aside the stay on extension of the police order city sessions judge S.N. Sardesai granted on Thursday. Now the order will remain in force till March 3.
The Mumbai police moved the High Court against the sessions court stay. Mr. Thackeray had moved the sessions court challenging the extension of the gag order.
The police prohibited him from holding meetings and making statements after his utterances against north Indians caused tension and violent incidents in Maharashtra.
The Hindu Saturday, Mar 01, 2008

Sanjay-Manyata Hindu marriage could be invalid sans conversion

The wedding of bollywood actor Sanjay Dutt and wife Manyata as per Hindu rites may be invalid if she has not converted to Hinduism before the marriage on February 11.''According to the Hindu Marriage Act, if the couple are Hindus at the time of marriage, only then is the marriage valid under the Act,'' noted lawyer Mrunalini Deshmukh said.''Even though Sanjay and Manyata have filed a joint declaration with South Goa's registration authorities seeking withdrawal of their marriage declaration, they will be husband and wife if their marriage as per the Hindu Marriage Act is valid,'' Deskhmukh said.But if Manyata has not converted before the marriage rites, then either party can challenge the marriage at the time of annulment, as it is an invalid marriage.The joint declaration filed by the couple before South Goa's Salcette Sub registrar's office states that they do not desire to solemnise their marriage under the Portuguese Civil Code, 1867. Sanjay and Manyata had filed a declaration before Salcette Sub Registrar Chandrakant Pissurlekar on February seven. The declaration, which was marred with controversies and allegation of forgeries, was supposed to be confirmed within 90 days.
Press Trust of India Saturday, March 1, 2008 (Mumbai)