JUDICIARY – 2008

(January to December 2008)

Compiled By
K. Samu
Human Rights Documentation,
Indian Social Institute, Lodi Road, New Delhi – 110 003 (India)

Judicial activism an attack on democracy: Somnath (19)

Kolkata, January 16: Reiterating his objections over judicial pro-activism, Lok Sabha Speaker Somnath
Chatterjee on Wednesday reminded the judiciary to stay within the Constitutional framework. However,
this time the provocation was the Calcutta High Court’s decision supporting the demand of
environmentalists to shift the bookfair out of Maidan. “How many people would have developed lung
ailments if the fair was held in the Maidan?” he asked. Chatterjee said the form of judicial activism seen
these days is an attack on the parliamentary democracy. “It is a matter of concern,” said Chatterjee.
“There should be a laxman rekha for the judiciary as well. A section of the judiciary is transgressing its
limits resulting in discrepancies in the democratic set up.” (Indian Express 17/1/08)

Hindu woman can’t adopt child when marriage holds (19)

New Delhi: A woman cannot adopt a son or daughter during the subsistence of her marriage except when
her husband has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind, the Supreme Court has held. “If the
husband is not under such disqualification, the wife cannot adopt even with the consent of the husband,
whereas the husband can adopt with the consent of the wife,” said a Bench consisting of Justices Arijit
Pasayat and P. Sathasivam. It was dealing with the validity of adoption of Brajendra Singh (appellant) by
Mishra Bai, a crippled woman, deserted by her husband soon after their marriage. Mishra Bai claimed
that he adopted Brajendra Singh and they together had 54 acres of land. Revenue authorities in Madhya
Pradesh disbelieved the claim and issued notice saying she was holding agricultural land in excess of the
ceiling. On a suit, the trial court and the first appellate court decreed in her favour, holding that the
adoption was valid. On the State’s second appeal, the Madhya Pradesh High Court held that it was not a
valid adoption. During the pendency of the case, Mishra Bai died and Brajendra Singh’s appeal is
directed against this judgment. The apex court Bench said: “The present appeal involves a very simple
issue but when the background facts are considered, it projects some highly emotional and sensitive
aspects of human life.” Section 8 (c) of the Hindu Adoption and Maintenance Act, 1956 stipulated the
conditions of adoption by a woman, viz. a woman who is not married; or if married, whose marriage has
been dissolved or whose husband is dead or has completely and finally renounced the world or has been
declared to be of unsound mind. “It follows from Section 8 (c) that a Hindu wife cannot adopt a son or
daughter to herself even with the consent of her husband because the Section expressly provides for
cases in which she can adopt a son or daughter during the lifetime of the husband. She can only make an
adoption in the cases indicated in clause (c).” Writing the judgment, Justice Pasayat said: “Any adoption
made by a female Hindu who does not have the requisite capacity to take in adoption or the right to take
in adoption is null and void. It is clear that only a female Hindu who is married and whose marriage has
been dissolved i.e., who is a divorcee has the capacity to adopt. Admittedly in the instant case there is no
dissolution of the marriage. All that the evidence led points out is that the husband and the wife were
staying separately for a very long period and Mishra Bai was living like a divorced woman.” The Bench
pointed out that there was a conceptual and contextual difference between a divorced woman and one
who was leading her life like a divorcee. Both could not be equated. However, considering that the
appellant nourished a crippled woman treating her as his own mother, the Bench permitted him to be in
possession of the land for six months. (The Hindu 18/1/08)

SC makes patient's 'informed' consent mandatory for docs (19)

New Delhi : In a landmark judgement, the Supreme Court on Wednesday declared it mandatory for
doctors to obtain a patient's prior consent based on an informed choice to escape the charge of
negligence. The decision came in a case of a 44-year-old unmarried woman, who had sued a lady doctor
of a private nursing home who removed her sexual organs by performing a radical operation to save her
life. Though the law protects medical persons against negligence since they are supposed to take the risk
in saving the life of patients, the recent decision seems to create an exception with regard to the prevalent
practice in several private nursing homes to fleece innocent patients of costly surgeries when cheap
alternatives are available. Introducing the concept of consent, the Bench headed by Justices BN Agrawal,
PP Naolekar and RV Raveendran said, "for a vast majority in the country, the concepts of informed
consent or any form of consent, and choice in treatment, have no meaning or relevance," considering the
fact that majority citizens are illiterate or semi-literate. Moreover, the increased "commercialisation" in the
health sector, the court suggested, "In a developing country like ours where teeming millions of poor,
downtrodden and illiterate cry out for health care, there is a desperate need for making health care
accessible and affordable." In this view, Justice Raveendran, writing the judgement for the Bench
proposed a set of guidelines to be followed by doctors performing surgical operations. The doctor will
have to obtain "real and valid" consent meaning there by that the patient must have the capacity to give
his voluntary consent, after being provided with adequate information about the medical procedure and
the risks it incurs. Such a decision was felt necessary since in the present case, the petitioner Samira
Kohli alleged that her consent was initially obtained for performing a minor operation, though she was
performed a major operation of removal of sexual organs after consent for the same was obtained from
her mother, who was unaware of the consequences of the surgery being performed. The respondent
doctor was found guilty of having failed to obtain the consent of the patient and was asked by the court to
pay a compensation of Rs 25,000 along with return of the fees for performing the operation. Pioneer
17/1/08)

SC stays MP order on Bhopal victims (19)

NEW DELHI, JANUARY 17: The Supreme Court on Thursday stayed a Madhya Pradesh Government
order that those born with congenital diseases because of their parents’ exposure to methyl isocyanide in
the 1984 Bhopal gas tragedy could not avail themselves of free treatment once they are adults. There are
six speciality hospitals in the city meant for providing free treatment to those who were exposed to MIC in
the disaster and also their children born with birth defects or congenital diseases. A Bench of Chief
Justice K G Balakrishnan, Justice R V Raveendran and Justice J M Panchal said there was no harm in
the speciality hospitals treating other patients. But it cautioned that this should not be at the expense of
the patients the hospitals were originally meant for. A group of voluntary organisations working for victims
of the 1984 tragedy had petitioned the Supreme Court on the Government’s January 1 order that once
victims’ children reached the age of 18, they wouldn’t get free treatment at these speciality hospitals.
(Indian Express 18/1/08)

SC to fix corporate criminal liability (19)

New Delhi, January 17: If a criminal case is filed against a corporate company, can the company’s
managing director or CEO be personally held responsible for any such offence, saying “employer” as
defined under statutory law is the senior most official and not the company per se. This question came up
before a Bench of the Supreme Court on Wednesday. In an appeal filed in the court, the Managing
Director of a Bangalore-based IT solution provider had asked whether the corporate criminal liability lies
on the company or its Managing Director in the event of any violation of the exemption granted to
establishments/ firms, for employing women during night shifts under the Karnataka Shops and
Commercial Establishment Act, 1961. The state Government initiated criminal prosecution against the MD
in December 2005 after an unfortunate incident involving a woman employee of the company. Taking
cognizance of the complaint, the Metropolitan Magistrate on December 30, 2005 made the senior official
an accused for violation of Section 25 and other provisions of the Karnataka Shops and Commercial
Establishment Act. Section 25 of the Act, besides prohibiting women from being employed in night shifts,
also allows the state Government to exempt certain industries from this requirement. But the exemption
granted entails certain conditions to be met, like providing free transportation to and fro from work to
home, having adequate number of security guards and so on. On Wednesday, a Bench consisting
Justices H K Sema and Markandeya Katju while agreeing that the question raised in the appeal must be
settled, noted that there’s an absence of a specific and clear provision under the above Act defining the
penal liability in case anybody contravenes exemption granted under it. Senior advocate K K Venugopal,
appearing for the MD, argued that the “employer” as defined under the Act is the company and not the
officials per se. Justice Katju,meanwhile, observed that, “If there’s a lacunae in the Act, the benefit must
go to the accused.” (Indian Express 18/1/08)
PIL against hajis' ordeal (19)
LUCKNOW: A Public Interest Litigation (PIL) was filed in the Lucknow bench of Allahabad High Court on
Saturday in connection with alleged anomalies conducted while ferrying Haj pilgrims from Saudi Arabia to
India. The case would be taken up by the court on February 5. The PIL was filed by Khuddamul Hujjaj
committee, a registered society and Syed Yavar Hussain Reshu, a resident of Ghasiyari Mandi in
Lucknow against Union of India, Haj Committee of India, the state Haj committee and Air India (AI). It was
stated in the PIL that Air India charged extra-luggage charges at the rate of Saudi Arabia Riyal (SAR) 55
per Kg against SAR 13 per Kg, which had been agreed upon between the Air India and the Haj
Committee of India. The petitioners said that the charges were realised without any authority of law and
prior intimation to the Haj pilgrims. The petitioner has also sought the court's help in directing Air India not
to restrain and create any hindrance in bringing 10 litres of holy water (Abe-e-Zamzam) by the Haj
pilgrims from Saudi Arabia as neither the government of Saudi Arabia nor government of India had
imposed any restrictions. The petitioner has also demanded that Air India pay adequate damage and
compensation to the Haj pilgrims who were subjected to physical and mental agony at the time of their
departure from Saudi Arabia. The petition added that AI also delayed the scheduled flight by one to five
days and did not provide the adequate basic amenities like fooding, lodging and medicines etc. Reshu
claimed that the airport authorities did not permit the pilgrims to bring home 10 litres of holy water. (Times
of India 20/1/08)

Judges remain 'My Lord' for lawyers (19)

New Delhi : Judges of the Supreme Court and the high courts may no more be called "My Lord" or "Your
Lordship", declares an April 2006 resolution adopted by the Bar Council of India. Yet "My Lord" remains
"My Lord" for the average lawyer who is unwilling to make the shift forced either by habit or a firm
conviction that calling otherwise will be an affront to the dignity owed to judiciary. On April 8, 2006 the Bar
Council of India (BCI) turned a new leaf in the history of judiciary by suggesting that the advocates may
address the judges of the Supreme Court and the high courts as "Your Honour" or "Hon'ble Court" and
"Sir" or an equivalent of it in the colloquial language to address the presiding officers of subordinate
courts. The Council received a favourable response from majority of State bar associations and some
even passed independent resolutions on lines of those passed by the BCI. Being a statutory authority, the
BCI resolution carried the force of law, making it binding on all State bar associations, Supreme Court Bar
Association and Registrars of Supreme Court and High Courts. Yet judges of the Supreme Court and the
high courts continue to be addressed as "My Lordship". Eminent jurist Rajiv Dhavan dubs the practice of
calling judges "My Lord" as a "colonial practice" and feels it should be dispensed with. Though he agrees
the BCI resolution is a step in the right direction, he foresees a problem that explains why the rule has
remained on paper. "Judges seem to like it when their staff and those around them regale them with 'My
Lords'. Even lawyers are used to addressing the judges in that manner. To suddenly adjust to change
becomes a bit difficult for the lawyer," Dhavan said. An opposite view is held by another section of
lawyers who justify calling judges as 'My Lord' and terms the BCI resolution as 'unneeded'. "It's not
necessary to associate the term 'My Lord' as belonging to the colonial legacy. Judiciary is held in high
esteem and by calling them 'Lordship you want to elevate them to the supremacy accorded under the
Constitution," said Lalit Bhasin, Secretary, Bar Association of India, a registered conglomerate of Indian
lawyers. The BCI on its part believes that the report card on the implementation of the resolution is fairly
satisfactory. BCI member Jagdev said, "It is wrong to suggest only the lawyers support the resolution.
Even judges have openly supported the move." He cites two instances in the Delhi High Court pursuant to
passing of the resolution where the judges themselves urged the lawyers to address them anything but
'My Lord'. 'Even former Chief Justice of India YK Sabharwal had backed this move since the attempt is
not to lower the dignity of the judiciary but to underscore the influence of British colonial heritage from our
system," Jagdev added…….. (Pioneer 21/1/08)

Dowry: dying declaration can be sole basis for conviction (19)

New Delhi: In dowry cases, the trial court can convict the accused on the basis of the victim’s dying
declaration if prosecution witnesses turn hostile, the Supreme Court has held. A Bench consisting of
Justices C.K. Thakker and Markandey Katju, quoting an earlier judgment, said: “Once the court is
satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any
further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule
of prudence.” In the instant case, Rekha died of burns at her house in May 2001. Her husband, Vikas and
his parents were cited as accused for an offence of dowry death. The sessions court awarded them life
imprisonment. On appeal, the Bombay High Court concluded that Rekha’s father Laxman had scant
respect for truth and said “we are not inclined to accept any of his submissions favourable to the
defence.” It confirmed the sentence notwithstanding the fact that Laxman turned hostile, denying the
prosecution charge. Dismissing the appeal by Vikas and others against this judgment, the apex court
said: “The principle underlying admissibility of a dying declaration is reflected in the well-known maxim:
Nemo moriturus praesumitur mentire, i.e. a man will not meet his Maker without any motive for telling a
lie. Truth, said Mathew Arnold, sits upon the lips of a dying man.” The Bench pointed out that a man in his
deathbed would not tell lies. “It has been said that when a person is facing imminent death, when even a
shadow of continuing in this world is practically over, every motive of falsehood vanishes.” (The Hindu
24/1/08)

No family pension benefits for non-permanent employees: SC (19)

NEW DELHI, JANUARY 24: The family of a government employee hired on “work charge” basis cannot
claim family-pension benefits, the Supreme Court has ruled. A bench of Justice G P Mathur and Justice
Aftab Alam was hearing a petition filed by Surji Devi, widow of Shri Krishan, an employee of Uttar
Haryana Bijli Vitaran Ltd who was a “work-charge” or ad hoc employee, that is, one who was neither on
the rolls of permanent employees nor on temporary ones. “It may be unfortunate that he had worked for
11 years. He expired before he could get the benefit of the regularisation scheme but sentiments and
sympathy alone cannot be the ground for taking a view different from what is permissible under the law,”
the bench observed. The court said that under the Punjab Civil Services Rules, which guide the case on
hand, the person and his family would be entitled to benefits of a scheme only subject to the interdicts of
the governing statute. It said a bare perusal of the rules indicate that the respondent was not entitled to
the grant of family pension. The court also made out a significant distinction between a pensionable and
non-pensionable establishment. Observing that the deceased employee was a member of a non-
pensionable establishment, it held that this was not the case of an employee being given the option of
one or the other scheme. It said that once a person comes under a non-pensionable scheme, the
question of his being entitled to pension or for that matter his family members being entitled to family
pension “did not and could not arise”. (Indian Express 25/1/08)

Second wife’s children, not herself, entitled to property: apex court (19)
New Delhi: Children born of second marriage are entitled to a share in the property of their father though
the second marriage itself is void, the Supreme Court has held. If a person marries a second time during
the subsistence of his first marriage, children born of the second marriage will still be legitimate, said a
Bench consisting of Justices S.B. Sinha and V.S. Sirpurkar. Writing the judgment, Mr. Justice Sirpurkar
said the law was clear that the second wife who was cited as the nominee by her husband to claim the
benefits arising out of his employment could claim succession certificate in favour of her children.
However, she would not be legally entitled to receive a share from her husband’s property. In the instant
case, Sukhrana Bai deserted Sheetaldeen soon after their marriage. Thereafter Sheetaldeen married
Vidyadhari and four children were born to them. After his death, Vidyadhari, who was his nominee,
received pension and other benefits due to Sheetaldeen. However, both Sukhrana Bai and Vidyadhari
filed applications claiming the succession certificate for his movable property. The trial court decreed in
favour of the second wife. But on appeal, the Madhya Pradesh High Court reversed the finding and
granted the certificate in favour of the first wife. Allowing Vidyadhari’s appeal against this judgment, the
apex court said she continued to live with Sheetaldeen as his wife for a long time. She enjoyed the
confidence of Sheetaldeen, who nominated her for his Provident Fund, life cover scheme, pension, life
insurance and other dues. Under such circumstances, she was preferable to the legally wedded wife,
Sukharna Bai, who never stayed with Sheetaldeen as his wife but went to the extent of claiming the
succession certificate to the exclusion of Sheetaldeen’s legal heirs. In granting the certificate, the court
had to use its discretion where rival claims, as in this case, were made for the property of the deceased,
the Bench pointed out. The High Court ought to have taken these crucial circumstances into
consideration. “Though we agree with the High Court that Mrs. Bai was the only legitimate wife yet, we
would choose to grant the certificate in favour of Mrs. Vidyadhari, who was his nominee and mother of his
four children.” Besides the four children of Vidyadhari, Sukharna Bai would receive a one-fifth share of the
property. Vidyadhari was not entitled to any share for herself and that she would have to protect
Sukharna Bai’s share and hand it over to her, the Bench said. (The Hindu 27/1/08)

PIL to recall cricket team rejected (19)

New Delhi: The Supreme Court on Monday declined to entertain a public interest litigation petition for a
direction to the Board of Control for Cricket in India (BCCI) to recall the Indian team from Australia in
protest against “racial abuse” against Harbhajan Singh. Chief Justice K.G. Balakrishnan, heading a three-
judge Bench, told the petitioner, Prince Lenin, a Lucknow-based lawyer: We will not pass any order. The
match is over now. Do you still want to go ahead with your petition?” The petitioner told the Bench, which
included Justices Tarun Chateerjee and R.V. Raveendran, that the situation could arise again and the
players would not get protection from the BCCI as it was “interested only in making money.” Justice
Raveendran asked the petitioner: “Were you personally present there [Sydney]? On newspaper reports
you have filed the petition. If they [players] feel unprotected, let them come to us. It’s your personal
feeling on the basis of media reports. Some write in favour, while some write against. These are the
personal opinions of the correspondents.” The advocate said the BCCI was not protecting players who
were representing the nation. (The Hindu 29/1/08)

SC to examine if lawyers are liable under consumer Act (19)

NEW DELHI: SC on Monday agreed to examine the issue — whether services rendered by an advocate
to his client in the course of litigation can be covered under the Consumer Protection Act. This issue
came up before a Bench comprising Justices P P Naolekar and L S Panta which agreed to entertain the
appeals filed by the Bar of Indian Lawyers and the Delhi HC Bar Association challenging a finding of the
National Consumer Disputes Redressal Commission.(Times of India 29/1/08)

SC slams courts for passing judgments without giving reasons (19)

NEW DELHI, JANuary 31: The Supreme Court on Thursday reminded all the courts, including high
courts, that they cannot pass an order in a case without giving adequate reasons. Deprecating the
practice of some judges to deliver verdicts without giving adequate reasoning or reserving the reasoning
to another date, a Bench comprising Justices C K Thakker and D K Jain asked judges not to act in haste
while passing their final orders. “If the final order is without reason, several questions may arise and it will
be difficult for the parties to the proceedings as well as the superior court to decide the matter one way or
the other. This court, therefore, deprecate the practice of pronouncing final order without recording
reasons in support of such order,” said the Bench. The court’s remarks came on an appeal filed by one
Mangat Ram challenging an order of the Punjab and Haryana High Court, which had dismissed his case
without even specifying the reasons for it. The apex court was pained to know how the matter, despite
being shown in the “motion petitions” (meaning not placed for regular hearing) was taken up for final
hearing the same day by the high court. Not just this, an advocate was appointed as the amicus curiae
(for assisting the court), she was heard and the matter was disposed of the very same day. Adding to the
curiosity, the high court passed a one-liner order, stating: “Heard. Dismissed, reasons to follow.”
Expressing its displeasure, the apex court recalled several judgments of the past to emphasise the
necessity behind recording reasons while passing a final order. Recalling a 1984 ruling (State of Punjab
vs Jagdev Singh Talwandi), the Bench said: “If the object of passing such orders is to ensure speedy
compliance with them, that object is more often defeated by the aggrieved party filing a Special Leave
Petition in this court against the order passed by the high court. That places this court in a predicament
because, without the benefit of the reasoning, it is difficult for this court to allow order to be implemented.”
The result inevitably is that operation of the high court’s order has to be stayed pending delivery of the
reasoned judgment. The most recent instance was the 1993 Mumbai blasts case, where the special
TADA judge had pronounced his verdict much earlier than the detailed verdict with reasons. As the court
sent back the present case (Mangat Ram’s case) to the high court, it once again reminded all the courts
to keep in mind the principles laid down by it in this regard. (Indian Express 1/2/08)

High Court order evicting hapless woman “draconian” (19)

New Delhi: Taking a serious view of a Sikkim High Court order evicting a woman from her rented
premises, the Supreme Court has asked High Courts to exercise caution in granting relief. It ordered
restoration of the premises to her within a fortnight. “What is of grave concern is the fact that the judges
[of the High Court] completely disregarded the civil law relating to eviction and directed the writ petitioner
to hand over possession of the tenanted premises [to the landlord],” said a Bench consisting of Justices
Ashok Bhan and Justice Altamas Kabir. Writing the judgment, Justice Kabir said: “The case is an
example of how the writ courts have in recent times either forgotten or ignored the line between the relief
which could be given by the civil courts and the constitutional courts. The judges [of the High Court]
appear to have lost sight of the fact that they were deciding a writpetition for relief prayed for by the
petitioner and not a civil suit for evicting her and that in such a proceeding no mandatory order of eviction
could be passed and certainly not against the writ petitioner herself.” The Bench pointed out that after
imposing costs of Rs. 1 lakh, the judges added insult to injury, directing the woman to vacate within a
week the premises, from where she had been running her business for about 30 years. Shanti Devi had
sought a fresh trading licence in her name or transfer of the existing licence, issued in the name of her
late husband Ram Nath Prasad, for continuing her family’s grocery-cum-stationery business in Ranipool
district of east Sikkim. As no licence was given, she moved the High Court, which in June 2006 dismissed
her petition. On a contempt petition from the landlord, the court held her guilty and issued a non-bailable
warrant with a direction to the Chief Judicial Magistrate to ensure that the woman was produced before
the court. The District Collector/police authorities were also directed to break open the locks on Shanti
Devi’s premises and hand over possession to the owner. The apex court Bench, disposing of her appeal,
criticised the High Court for adopting a “draconian, arbitrary and authoritarian” approach to evict a
hapless widow from her rented premises in utter disregard for the law. Describing the action as a “gross
abuse of the due process of law which cannot at all be sustained” the Bench set aside the order, restored
possession of the premises to the woman and awarded her Rs. 25,000 as costs. (The Hindu 1/2/08)

Customary gifts not dowry: court (19)

New Delhi: Customary articles given to the bridegroom’s relatives at the time of marriage or during the
birth of a child will not come within the ambit of dowry under the Dowry Prohibition Act, 1961, the
Supreme Court has held. A Bench consisting of Justices Arijit Pasayat and P. Sathasivam gave this ruling
while acquitting the parents-in-law of a woman, who accused them of harassing her for dowry. The Bench
said: “There are three occasions related to dowry. One is before marriage, second at the time of marriage
and third at any time after marriage. The third occasion may appear to be an unending period. But the
crucial words are ‘in connection with the marriage’.” Writing the judgment, Justice Pasayat said no
present made at the time of marriage to either party in the form of cash, ornaments, clothes or other
articles will be deemed dowry unless it was made as a consideration for the wedding. Similarly “other
customary payments, e.g. given at the time of the birth of a child or other ceremonies as are prevalent in
different societies are not covered by the expression ‘dowry’,” the Bench said. In the instant case, a
Haryana trial court upheld the dowry harassment charges brought by a woman against her husband, but
acquitted her parents-in-law, the married sister and a brother of her husband. On appeal, the Punjab and
Haryana High Court allowed quashing of the charges against her husband’s sister and brother, but said
the parents-in-law were also liable to be proceeded against. Allowing the appeal against this judgment,
the apex court said that when the trial court held that an attempt had been made by the complainant-
woman to rope in as many relatives of her husband as possible, the High Court should have given some
reasons while reversing a well-reasoned order. Judicial discipline demanded that the High Court give
clear reasons while reversing a trial court order backed by facts. The Bench said: “Reasons substitute
subjectivity with objectivity. The emphasis on recording reasons is that if the decision reveals the
‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform
their appellate function or exercise the power of judicial review in adjudicating the validity of the decision.”
The absence of reasons rendered the High Court’s judgment unsustainable, the Bench said and made it
clear that it was not expressing any opinion on merits so far as the woman’s husband was concerned.
(The Hindu 3/2/08)

Rapists deserve no leniency, says SC (19)

New Delhi, February 3: The Supreme Court has once again asserted that the gravity of an offence shall
be the sole criteria for determining the quantum of punishment in heinous crimes and any leniency given
to the accused on the basis of his or victim’s social status would be a travesty of justice. Upholding an
appeal filed by the Rajasthan Government against an order of the High Court which reduced the 10 year’s
rigorous imprisonment awarded to a rapist by the trial court, a Bench comprising Justices Arijit Pasayat
and P Sathasivam said that socio-economic status, religion, race, caste or creed of the accused or that of
the victim are irrelevant considerations, especially while dealing with offences against women. The
Rajasthan High Court had reduced the 10 years’ RI awarded to one Madan Singh to seven years on the
ground that the accused is a young person who is the only bread earner of his family and his kids.
Observing that the legislative mandate to impose 10 years’ RI for the offence of raping a minor reflects
the intent of stringency, the court held that it cannot be reduced except for special and adequate reasons.
“The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all
such cases. When there are no extenuating or mitigating circumstances available on the record, which
may justify imposition of any sentence less than the prescribed minimum, the courts are expected to
impose a sentence commensurate with the gravity of the offence.” Earlier, the apex court had criticised
the Madhya Pradesh HC for reducing the minimum sentence awarded to a rapist, saying that he was an
“illiterate agriculturist from a rural area”. (Indian Express 4/2/08)

Mercy for rape of minors will be a travesty of justice: Supreme Court (19)
New Delhi: Violence against women, particularly rape of minor girls, should be severely dealt with by
imposing exemplary punishment, the Supreme Court has held. “The socio-economic status, religion, race,
caste or creed of the accused or the victim is an irrelevant consideration in the sentencing policy.
Protection of society and deterring the criminal are the avowed object of law and that is required to be
achieved by imposing an appropriate sentence,” said a Bench of consisting Justices Arijit Pasayat and P.
Sathasivam. Writing the judgment, Justice Pasayat said: “The sentencing courts are expected to consider
all relevant facts and circumstances bearing on the question of sentence and impose a sentence
commensurate with the gravity of the offence. Courts must hear the loud cry for justice by society in cases
of the heinous crime of rape of innocent helpless girls of tender years, as in this case, and respond with
imposition of proper sentence.” The Bench said: “The measure of punishment in a case of rape cannot
depend upon the social status of the victim or the accused. It must depend upon the conduct of the
accused, the age of the sexually assaulted female and the gravity of the criminal act. Public abhorrence
of the crime needs reflection through imposition of an appropriate sentence by the court.” In the instant
case, a trial court in Rajasthan awarded Madan Singh 10-year imprisonment for raping a 10-year-old girl.
On appeal, the High Court reduced the sentence to seven years. Allowing the state’s appeal against this
judgment, the apex court said there were no extenuating or mitigating circumstances on record which
might justify a lesser punishment. To show mercy in a case of such heinous crime would be a travesty of
justice and the plea for leniency was wholly misplaced. The Bench pointed out that the legislative
mandate was to impose a minimum sentence of 10-year imprisonment for rape of a girl less than 12 years
of age and the punishment could even extend to life imprisonment. “The courts are obliged to respect the
legislative mandate in the matter of awarding sentence in all such cases,” the Bench said and restored
the punishment awarded by the trial court. (The Hindu 5/2/08)

Court to look into ‘concurrent judgment’ delivered by its judges (19)

NEW DELHI:: After two judges of the Supreme Court delivered a concurrent judgment, sending back an
appeal by a former MD of a Karnataka-based IT firm back to the trial court for reconsideration, the IT
official on Tuesday urged the Chief Justice of India for a “clarification” contending that the question raised
in his appeal had been left unanswered. Som Mittal, the former M D of Hewlett Packard Global Software
Ltd, had earlier questioned his prosecution under Karnataka Shops and Establishment Act, which
prohibits employment of women during night shifts. Justices H K Sema and Markandeya Katju delivered a
concurrent judgment in the case (dismissing the appeal, but differing on some legal issues) with Justice
Katju bringing in what Mittal’s counsel K K Venugopal claimed, “an unrelated judgment”. Venugopal told a
Bench comprising Chief Justice Justice KG Balakrishnan and Justices R V Raveendran and R M Panchal
that Justice Katju had asked UP to bring in an Ordinance immediately restoring the provision of
anticipatory bail in the state, while hearing the Karnataka case of the IT official. While both judges were
looking into the Karnataka Act, Justice Katju brought the situation prevailing in UP in the judgment. The
Bench then observed that “the UP Part of the judgment was signed by only one judge... Para 17 onwards
is a judgment within a judgment”, it observed. Justice Katju even highlighted how the police machinery
across the country is found violating an earlier ruling of the SC, which had specifically asked them not to
rush while making arrests. “There has to be reasonable justification behind the arrests,” reminded Justice
Katju as he ordered the secretary general to send a copy of the said judgment to all the states and UTs.
Hearing the submissions, the larger bench finally reserved its decision on it. (Indian Express 6/2/08)

Women on night duty: case reopened (19)

NEW DELHI: The Supreme Court on Tuesday reopened the case relating to dismissal of the petition filed
by Som Mittal, Managing Director of Hewlett Packard Global Soft Ltd, seeking quashing of the FIR lodged
against him by the Karnataka police alleging that his company had violated a State government order
prohibiting night shift for women. After the rape and murder of Pratibha Srikant Murthy, an employee, on
December 13, 2005, the police had filed an FIR accusing the BPO chief of violating statutory orders. Mr.
Mittal’s plea for quashing of FIR was rejected by the Karnataka High Court. On January 29, an apex court
Bench of Justice H.K. Sema and Justice Markandey Katju dismissed Mr. Mittal’s appeal. However, in the
same judgment, Mr. Justice Katju had recommended to the Uttar Pradesh government to issue an
ordinance to restore the provision for anticipatory bail to an accused. The U.P. government had amended
the Criminal Procedure Code in 1976 to withdraw this provision in the State. Subsequent to the judgment,
Mr. Justice Sema in a brief reference order said: “The appeal [of Mr. Mittal] is dismissed in terms of the
signed judgments. Since there is difference of opinion [between the two judges] on the legal issue, let the
matter be placed before the Chief Justice of India for appropriate orders.” Accordingly, a Bench of Chief
Justice of India K.G. Balakrishnan, Justice R. V. Raveendran and Justice J.M. Panchal reserved the
verdict after hearing senior counsel K.K. Venugopal, appearing for Mr. Mittal, and counsel Sanjay Hegde,
for Karnataka. During the hearing, the CJI pointed out to Mr. Venugopal that since both Mr. Justice Sema
and Mr. Justice Katju had dismissed the appeal, the matter could not be reopened. However, Mr.
Venugopal argued that the “legal issue” mentioned in the reference would include whether the criminal
proceedings ought to have been quashed or not. Mr. Justice Raveendran told counsel that the only legal
issue referred was whether a single judge (Mr. Justice Katju) could give a judgment (directing the U.P.
government to restore anticipatory bail provision) within a judgment and the appeal itself could not be
reopened. The Bench, however, reserved verdict on the reference.(The Hindu 6/2/08)

Says fathers should have equal rights to dead child's property (19)
New Delhi, February 6: The Law Commission has recommended amendments in the existing succession
law to include a deceased property owner’s father as Class I heir along with his widow, sons, daughters
and mother for the purpose of inheritance of property. In its 204th Report on the Hindu Succession Act,
1956 submitted to the Government, the Commission has suggested that the inheritance laws should be
suitably amended to include fathers as priority heirs to make them entitled to get a share in the property
owned by their children who die in testate, that is, without making their will. To set right the existing
discrepancy in the succession law which entitles only mothers and not fathers for a share in the property
of their children, the Commission has recommended that in cases where both the father and mother of a
deceased property owner are alive, both the parents shall together take one share in the property. The
Commission had been asked to revise succession laws to simplify them and remove existing anomalies,
ambiguities and inequities therein. Panel’s Chairperson Justice A R Lakshmanan said the idea behind
elevation of father to Class I heir was to try and safeguard the interest of the elderly. “We have to
consider the desirability of elevating the father as Class I heir, with the mother particularly, when we are
thinking of enforcing, by law, of obligation of the children to maintain their parents,” he said. The biggest
beneficiaries of proposed changes would be widower fathers, who had little chance of getting any
financial support in the twilight of their lives in the absence of their wives who could have legally earned a
share in their children’s properties. The report also suggested elevation of a deceased stepmother, in the
Class II list of heirs along with his brothers and sister and pruning of the list that names heirs up to the
third generation of a deceased property owner. With this objective, it has recommended deletion of four
categories of heirs from Class II of the Schedule. (Indian Express 7/2/08)

Fix marriageable age for boys and girls at 18, says Law Commission (19)
New Delhi: The Law Commission has suggested that the marriageable age for boys and girls be fixed
uniformly at 18. At present it is 18 for girls and 21 for boys. The panel has also proposed that marriage of
both girls and boys, under 18, be prohibited and that marriages at an age below 16 be made void. The
Commission, headed by Justice A.R. Lakshmanan in its 205th report submitted to Union Law Minister
H.R. Bhardwaj here on Wednesday, proposed that marriages of girls and boys aged between 16 and 18
be made voidable at the option of either party by a court decree. The Commission examined the issue at
the instance of the Supreme Court in a pending writ petition and forwarded its suggestion in December
2007. The panel studied the changes to the Child Marriage Restraint Act 1929, with reference to the age
of marriage and age of consent for sexual intercourse, and judgments which upheld the validity of child
marriage through the years. Opposing child marriage, the report says it will stunt the growth and
development, particularly of the girl who is the more vulnerable partner. Child marriage may often result in
early pregnancy, and complications during childbirth and both maternal and infant mortality are common.
The report notes that child marriage results in child labour at home and young girls have very little
decision-making powers. Child marriage renders girls more vulnerable to domestic violence and sexual
abuse. It also deprives the girl of her right to obtain education and live a life of freedom and dignity. To
ensure that young women and children born of child marriages are not left destitute, the provisions on
maintenance and custody should apply to both voided and voidable marriage. Registration of marriages
of all communities should be made compulsory within a stipulated period. Further, the report says the age
for sexual consent should be raised from 15 to 16 for all girls, regardless of marriage. (At present a male
having sex with a minor “wife” aged below 15 is punishable under Section 375 of the Indian Penal Code.)
On studying the Prohibition of Child Marriage Act, 2006, the Commission found that the present law did
not make a child marriage invalid even if the girl was under 15. But under the criminal law, Section 375 of
the IPC says it is a crime to have sexual relations with a child under 15. (The Hindu 7/2/08)

Kerala for allowing women of all ages into Sabarimala temple (8)
New Delhi: The Kerala government on Thursday filed an affidavit in the Supreme Court favouring entry of
women of all ages into the Sabarimala Ayyappa temple without restriction. At present, women in the age
group 10-50 are not allowed. The affidavit was filed in response to a notice issued by the court on a
petition by the Indian Young Lawyers Association and five other women advocates challenging the ban in
vogue for several years. It said: “Some scholars of ancient Kerala history say that the Sabarimala Sastha
Prathishta was once a Buddhist shrine. The rituals chanted by worshippers are synonymous with the
‘Saranathrayam’ of Buddhist disciples (Budham Saranam Gachami; Dharmam Saranam Gachami;
Sangham Saranam Gachami).” However, the government had no intention of creating any controversy, it
said. “The government is against any sort of discrimination towards women or any section of the public in
any way. All persons are equally entitled to the freedom of conscience and the Constitution gives right to
worship to everyone equally.” Hence it was not fair to bar a section of women from entering the
Sabarimala temple. The affidavit made it clear that at present the government was taking all steps to
prevent women between the ages of 10 and 50 from entering the temple. It was desirable to continue the
existing practice during the November-January pilgrimage season. “It may be considered to allow a
separate season for women only or allow women of all ages to have darshan of Lord Ayyappa in all
seasons except Mandalapooja-Makaravilakku,” the affidavit said. Kerala pointed out that religious
practices and customs had changed during the last 50 years. When old customs prevailed, it was known
that women used to visit the temple. The Maharaja of Travancore, accompanied by the Maharani, visited
the temple in the olden days. Hence allowing entry of women of all ages was not a new right to get
established but only resumption of an old right. “The government does not intend to have a new
legislation on this subject and it was only waiting for the apex court’s verdict.” It wanted the court to
appoint a commission of scholars to go into the issue and to arrive at a fair decision. (The Hindu 8/2/08)

PIL in apex court seeks arrest of Raj Thackeray (19)

New Delhi: The Supreme Court will hear on February 22 a public interest litigation petition seeking a
direction to the Maharashtra government to arrest Raj Thackeray, leader of Maharashtra Navanirman
Sena (MNS), for allegedly fomenting violence by his remarks against north Indians living in Mumbai. A
Bench consisting of Chief Justice K.G. Balakrishsnan and Justice R.V. Raveendran declined to grant
early hearing when the petition, filed by advocate Arvind Shukla, was mentioned for urgent listing. When it
was submitted that the MNS was planning to stop trains in the State and there should be a restraint order,
the Chief Justice told counsel: “It is not possible to prevent political parties from resorting to agitations.”
Mr. Shuka said Mr. Thackeray had been threatening north Indians through his party cadres with intent to
gain political prominence. He had been dividing the people in Maharashtra, forcing them into narrow
confines of obscurantism and intolerance. He said it was the duty of the state to protect the people and if
it failed to do so, the court should give appropriate directions to the Executive. The action of Mr.
Thackeray and his utterances “threaten the very foundation of the Indian nation and are based on divisive
regional politics for acquiring political benefits.” (The Hindu 9/2/08)

SC: No dues if worker untraceable for 7 yrs (19)

NEW DELHI: The law presumes a person to be dead if he is untraceable or about whom his relatives
have not heard of for the last seven years. But this will not be a ground for the kin to claim compensation
from the employer under the Workmen's Compensation Act, the Supreme Court has ruled. Through this
ruling, a Bench comprising Justices S B Sinha and V S Sirpurkar quashed a Gauhati High Court verdict
which had upheld a Workmen Compensation Commissioner's order directing Oriental Insurance
Company Ltd to pay Rs 2.24 lakh to the kin of a driver who had mysteriously vanished with the vehicle
since October 9, 1996. The commissioner said under Section 108 of the Evidence Act, which presumes a
person to be dead if not traceable for more than seven years, "it is presumed that the driver is dead.
Therefore, the parents are entitled to get compensation under the provisions of the Workmen's
Compensation Act." The HC agreed with the reasoning of the commissioner and said as more than seven
years had passed since the driver vanished without a trace, the kin were entitled to compensation. The
apex court disagreed with the concurrent findings of the commissioner and the HC. It said: "If some
miscreants have taken away the driver along with the vehicle or have murdered him, it is an offence. It,
except in certain situations, does not give rise to a presumption that the death has occurred arising out of
or in the course of an employment." What came between the Rs 2.24 lakh compensation and the parents
was a chargesheet filed by the Bokajan police station accusing the driver, Bipul Gogoi, of absconding with
the vehicle. Justice Sinha, writing the judgment for the Bench, said invocation of Section 108 of the
Evidence Act could not be universal in character. (Times of India 16/2/08)

Victims can sue govt for compensation (19)

NEW DELHI: The city government’s firm belief that the hue and cry against the Bus Rapid Transit (BRT)
corridor will die down once it’s operational has left commuters wondering if there is scope for legal action
in cases of road accidents in the corridor. While chances of pinning the State down for criminal
negligence in case of such accidents remain dim, given the grey areas in law on affixing direct culpability,
lawyers say the government can be easily hauled up before court and asked to compensate those who
lost their lives while travelling in the corridor. A civil suit for compensation, if filed by families of accident
victims like the one who died near Moolchand on Friday or the one who died earlier, has a good chance
of succeeding in court, feel legal experts. They say there is scope both under private (civil suit) and public
law (writ petition in high court) for claiming damages. "Even a little negligence by the state is enough as
courts are usually receptive to compensation claims as seen recently when the Supreme Court asked the
Airports Authority of India to pay a huge amount to the parents of a girl killed on an escalator. On the
BRT, the dividers are not visible even to most careful of drivers," says noted advocate Pratibha Singh.
Governmental apathy towards safety considerations is something which should definitely be factored into
the calculus of justice by courts, agrees another lawyer Ashok Arora. ‘‘The corridor is so narrow that fatal
accidents are not a mere possibility but are inevitable. Everyone - from those who planned it to those who
are executing it - should be arraigned before a court of law. Why only accident victims, motorists stuck for
hours on BRT have a right to move court against a headstrong government which seems to be unmoved
by their plight,’’ opines Arora. The key to legal remedy in the form of compensation lies in convincing the
court that the corridor has become a deathtrap and enough precautionary measures are lacking. The
courts will have to be prodded to assess the role of faulty planning which contributed to fatal accidents,
add lawyers. But advocate Manish Khanna, who unsuccessfully petitioned Delhi High Court on the
increasing road accidents in the BRT corridor, sounds sceptical when asked if the State can be taken to
task by accident victims. "There is a bit of subjectivity in such matters. If you can prove that BRT poses a
forseeable danger to motorists and its a deathtrap, then perhaps a civil court will rule in your favour.
Unlike an open manhole or a dangerous pothole, BRT does have warning signs of 'work in progress',
alongwith gleaming dividers. So, it would be easy for the government to blame the victim for rash driving
which led to his/her death," feels Khanna, who was asked by HC to submit his suggestions to the
government on how to improve the rapid transit system.(Times of India 17/2/08)

Only landlord can invoke Public Premises Act: court (19)

New Delhi: The Supreme Court has held that the provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, can be invoked only by the landlord/owner to evict the tenant and
not by the occupier in arrears of rent to continue to stay on the premises. A Bench, comprising Justices
H.K. Sema and Markandey Katju said: “on a cursory reading of Section 7 of the Act, it clearly appears
that the power is exercisable by the Estate Officer (EO) suo motu or on an application of the
landlord/owner, and the occupant of the premises has absolutely no jurisdiction to file an application
under Section 7 of the Act.” Section 7 says “power to require payment of rent or damages in respect of
public premises. Where any person is in arrears of rent payable in respect of any public premises, the EO
may, by order, require that person to pay the same within such time and in such instalments as may be
specified in the order.” Thousands of petitions filed by tenants under this provision for a direction to
landlords to accept arrears of rent are pending in various courts across the country. Several High Courts
had also interpreted that the Act would be applicable both to the landlord and the tenant. The present
ruling by the apex court assumes importance as it takes away the jurisdiction of the tenants filing
applications under this provision. The Bench said: “the only right available to the occupant is that under
Section 7 (3) the authority must issue notice in writing to the occupant calling upon him to show cause
within such time as may be specified in the notice, why such [eviction] order should not be made.” The
Bench noted that this provision envisaged that no eviction order could be made until the objections of the
occupant were considered by the EO. In the instant case, M/s Castlewood (India), occupant of the public
premises owned by Life Insurance Corporation of India in Kolkata, filed an application under Section 7 of
the Act before the EO that LIC might be directed to accept the rent. The EO did not accept the application
and eviction was ordered. On a revision from the occupier, the Calcutta High Court set aside the EO’s
order holding that a lawful occupier could invoke the provisions of Section 7 before he was illegally
branded a defaulter. The appeal by LIC was against this order. Allowing the appeal, the Bench quashed
the High Court’s judgment accepting the contentions of S. Rajappa, counsel for LIC, that this provision
could not be invoked by a tenant. The Bench said if the interpretation of the High Court was accepted “it
would amount to rewriting the Section which power only belongs to the Legislature and not the judiciary.”
The Bench asked the EO to proceed with the matter in accordance with law. (The Hindu 18/2/08)

Hindu widow can keep her husband's property after remarriage: SC (19)
New Delhi : The Supreme Court has held that a Hindu widow can now keep her dead husband's property
even after remarriage. In a recent case, the court ruled that after the amendment to the Hindu Succession
Act, 1956 allowing women an equal share in the joint family property, the bar under the Hindu Widows
Remarriage Act, 1856 could not be sustained. The decision was pronounced by a Bench of Justices SB
Sinha and VS Sirpurkar in an appeal filed by one Cherotte Sugathan and others challenging a Kerala
High Court order that granted one share of the property to their father's widow Cherotte Bharathi despite
her having married again. Dismissing the appeal, the Bench ruled that since the amendment to the Hindu
Succession Act, the widow became an absolute owner of the deceased husband's property to the extent
of her share in it. This provision would have an overriding effect on the bar prescribed under the Hindu
Widow Remarriage Act of 1856. Sugathan and other claimants had submitted that Bharathi was not
entitled to any share in her deceased husband's property since she had married another man. In favour of
their arguments, they quoted the provisions contained in the Hindu Widow's Remarriage Act, 1856 which
declares that a widow's right by way of maintenance or by inheritance over her dead husband's property
will cease in the event she remarries. Interpreting a number of earlier rulings, the apex court observed the
Hindu Succession Act had "brought about a sea change in shastric Hindu law. Hindu widows were
brought on equal footing in the matter of inheritance and succession along with male heirs." Citing
Section 4 of the Hindu Marriage Act, the apex court said the provision stipulated that it would have
overriding effect over the text of any Hindu law, including in its fold even the Hindu Widow Remarriage
Act. (Pioneer 20/2/08)

Solitary evidence of child witness cannot be rejected: Supreme Court (19)

New Delhi: The Supreme Court has held that a court can record conviction in a criminal case on the basis
of solitary evidence of a child witness if it is convinced about the reliability and the understanding capacity
of the child. A Bench of Justice Arijit Pasayat and Justice P. Sathasivam said “the evidence of a child
witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence
with close scrutiny and only on being convinced about the quality thereof and reliability can record
conviction, based thereon.” The Bench said “the Indian Evidence Act, 1872 does not prescribe any
particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section
118 of the Act envisages that all persons shall be competent to testify, unless the court considers that
they are prevented from understanding the questions put to them or from giving rational answers to these
questions, because of tender years, extreme old age, disease — whether of mind or any other cause of
the same kind. A child of tender age can be allowed to testify if he/she has the intellectual capacity to
understand questions and give rational answers thereto.” Writing the judgment, Mr. Justice Pasayat
quoted an earlier judgment which said: “The only precaution which the court should bear in mind while
assessing the evidence of a child witness is that the witness must be a reliable one and his/his
demeanour must be like any other competent witness and there is no likelihood of being tutored.” The
Bench said “though it is an established principle that child witnesses are dangerous witnesses as they are
pliable and liable to be influenced easily, shaken and moulded, it is also an accepted norm that, if after
careful scrutiny of their evidence, the court comes to the conclusion that there is an impress of truth in it,
there is no obstacle in the way of accepting the evidence of a child witness.” In the instant case,
appellants Nivrutti Pandurang Kokate and three others were sentenced to life imprisonment for murdering
Baban Misal in July 1998 (Baban Misal’s wife, an accused, died during the pendency of the case). It was
alleged that they had buried the body in an agricultural land. The trial court recorded the conviction based
on the testimony of 12-year-old daughter of Baban Misal. On appeal, the Bombay High Court confirmed
the conviction and the life sentence. The present appeal is directed against this judgment. The apex court
Bench said: “The evidence of the child [in this case] is as concise and precise and as it is specific and
vivid. It is neither embellished nor embroidered. It is the evidence of a child who has seen through the
unusual and cruel incidence. She was a girl of tender age who saw the killing of her father by her mother
and others.” The judgments of the trial court and the High Court did not suffer from any infirmity to warrant
interference, the Bench said and dismissed the appeal. (The Hindu 22/2/07)

SC frowns on ‘judgment within judgment’ (19)

NEW DELHI, FEB 21 : The Supreme Court on Thursday, finding it “unnecessary” to go into the appeal as
to whether an offence lies against an MD of a multinational ITES firm under Karnataka Shops and
Establishment Act, instead admonished a fellow judge for going beyond and issuing directions "in excess
of what is required or relevant for the case". “The subject matter of an appeal, whether civil or criminal, is
the correctness of the decision of the courts below. There is no question of the appellate court traveling
beyond and making observations alien to the case”, warned a three-judge bench presided over by Chief
Justice K G Balakrishnan. Making this as one of the rare cases, where a larger bench of the apex court
ticks off a fellow judge, the CJI virtually reminded Justice Markandeya Katju in this case that, “any
interpretation of a law or a judgment, by this court, is a law declared by this court. When this court renders
judgments, it does so with great care and responsibility”. The bench comprising Justices R V Raveendran
and J M Panchal also said: “The wider the power, more onerous is the responsibility to ensure that
nothing is stated or directed in excess of what is required or relevant for the case”. Forcing the larger
bench to issue an implicit directive for judges — “restrict only to the case in hand” — were the two
concurring yet different judgments pronounced by Justices H K Sema and Justice Katju on January 29,
2008. Although both the judges agreed to sending back the complaint against Som Mittal, an MD of HP
Global Soft Ltd, to the trial court for deciding whether complaint against him could be maintained,
however disagreed on the observation by one of them in saying that power under Section 482 CrPC
(powers to quash a complaint/ FIR) should be used in “rarest of rare cases”. Mittal had come to the court
asking for quashing of a complaint against him for alleged violation of Section 25 under the Karnataka
Act, which prohibits employment of women during night shifts, except in cases where exemptions are
given with certain conditions. Justice Sema, who took the “rarest of rare” view unlike Justice Katju
referred the matter to the CJI. Justice Katju, who felt on his part went much beyond this observation and
asked the State of UP to restore the anticipatory bail provision. Simultaneously, he also issued a uniform
directive to all the states and UTs for complying with a 1993 apex court ruling while making any arrests.
Making it clear that "directions" by Justice Katju that did not have concurrence of other judge are "not
directions to be complied with", the CJI pointed to the obvious difficulty associated with writing a
“judgment within a judgment”. Asserting the onerous responsibility judges have while delivering verdicts,
the Chief Justice strongly asked them “to ensure that court's orders and decisions do not create any
doubt or confusion in regard to a legal position in the minds of the authority or citizens, and also to ensure
that they do not conflict with any other decision or law.” (Indian Express 22/2/08)

President: time for crusade against scourge of court arrears (19)

New Delhi: Voicing concern over delay in dispensing justice, President Pratibha Patil on Saturday said,
“We cannot allow a situation where the common man is tempted to take the law into his own hands and
subscribe to the deviant culture of the lynch mob.” “The foremost problem to be tackled is the huge swell
in the volume of litigation. Congestion in courts has become a daunting challenge. Case disposals are
excruciatingly time consuming. This agonising delay has rendered the common man’s knock on the doors
of justice a frustrating experience,” she said inaugurating a national seminar on judicial reforms organised
by the Confederation of Indian Bar at the Vigyan Bhawan here. “The formal adjudicatory machinery has to
reign supreme. We talk incessantly about delays but now the time has arrived to launch a crusade
against the scourge of arrears,” the President said. Chief Justice of India K.G. Balakrishnan, who
presided, however, said the impression about the performance of the Indian judiciary that it took years for
getting relief was not fully correct. Lack of proper and good governance largely contributed to the number
of cases filed in subordinate courts. Pointing out that a subordinate judge was handling about 4,000
cases a year, he said, “This is too high as compared to the average load per judge in other countries.”
Expressing her anguish, Ms. Patil said: “After more than six decades since our independence, time has
come when we need to seriously introspect whether our judicial machinery has lived up to its
expectations of walking the enlightened way by securing complete justice to all and standing out as the
beacon of truth, faith and hope.” Pointing out that the system had its share of inadequacies and
blemishes, she said: “We can overcome these challenges through the process of judicial reforms and
ensure delivery of speedy and quick, high quality and pure justice at affordable costs.” Ms. Patil said:
“The time has come when we as stakeholders, without being unduly touchy and sensitive to criticism,
have to collectively introspect the causes of the ills of judicial administration and find solutions squarely.”
She attributed the delay in dispensing justice to the intricacies of procedures, prolonging cases and
unending process of appeals. The ratio of judges to population was yet another reason. “We have only
10.5 judges per million population.” The President said, “We need to have in place a judicial machinery
which is easily accessible and [which] dispenses affordable and incorruptible justice to the people.
Towards this endeavour, there is a strong case for making some of our legal procedures simple,
streamlined, rational, easily understandable and commonsensical.” However, amendments of procedures
had to be made carefully to ensure quick justice while at the same time safeguarding fair play, equity and
good conscience. “Speedy but faulty justice is no justice at all.” Courts were respected as temples of
justice and the judicial fraternity was regarded as the custodian of law and dispenser of justice. “This
precious trust cannot be allowed to be eroded. Referring to the cost of litigation, the President said:
“Access to citizens remains limited due to prohibitive costs of quality legal advice. It is common place to
hear that law has become the luxury of the rich. The present legal aid system needs to be improved.”
Alternative dispute resolution (ADR) should be encouraged to reduce the burden of cases in courts. (The
Hindu 24/2/08)

Don't meddle with executive power, SC tells judiciary (19)

New Delhi: The Supreme Court has cautioned the judiciary not to meddle with the executive power to
decide on the pay structure of the Government employees. A Bench of Justices AK Mathur and Altamas
Kabir observed that if courts started meddling with executive functions like recommendations of pay
commissions, it would adversely impact the economy. "Fixing of pay scale was a purely executive
function and the judiciary should not have any role in it," the court said. The SC passed the ruling in a
judgement while quashing a Patna High Court order directing the State to provide Central pay scale to
veterinary surgeons working in Bihar. "If one class of service is to be picked up and granted higher pay
scale as is available in the Central Government then the whole balance will be disturbed and other
services are likely to be affected, the apex court observed while allowing the Bihar Government's appeal.
It would also result in "ruination of the finance" of the State, it said. The State Government had filed the
appeal challenging the High Court order on the ground that direction was given for enhancing the pay
scale of the veterinary doctors to Rs 8,000-1,3500 as against the Rs 6,500-10,500 fixed by the
Fitment/pay revision committee appointed by the State. The State Government argued that the High
Court cannot pick one group of service for enhanced pay scale when the committee had evolved a pay
scale package for the entire lot of the State Government employees. Agreeing with the Bihar
government's contention, the apex court said the veterinary doctors in the state cannot get any higher pay
scales than those of the other state government employees. A parity in a particular class of service
depends on various factors as the pay commission has to them while fixing the scale, the apex court said.
"It is not possible to have the same pay scale as that of the employees of the central government or even
for that matter between two states. The pay scale essential depend upon the resource of the
government," the bench said. According to the bench if court starts disturbing the recommendation of the
pay scale in a particular class of service then it is likely to have cascading effect on all related service
which may result in "multifarious litigation". (Pioneer 25/2/08)

Father liable to pay for daughter’s marriage: HC (19)

Mumbai, February 26: Stating that every father is under the obligation to maintain his daughters and even
get them married, the Bombay High Court has directed a man here to reimburse the money his estranged
wife spent on their daughters’ marriage. The court was hearing an appeal filed by Kusum Rewatkar (58)
of Wardha district, who sought reimbursement of the amount she spent on the marriage of her three
daughters. A mother of five daughters, Kusum got divorced from her husband Nathuji, 25 years ago, after
a 10-year wedlock . Upholding her claim, the Nagpur bench of the Bombay High Court has held that “the
father’s obligation to maintain the daughter and get her married arises from the very existence of the
relationship”. Under the Hindu Law, a daughter is entitled to be maintained out of the estate of the father
even after his death, said Justice C L Pangarkar. “The law envisages that a father is bound to make a
provision for the marriage expenses of the daughters as part of maintenance. Therefore, if wife has spent
for the performance of the marriage of the daughter, the husband would certainly be liable to reimburse
the wife. He cannot escape his liability in any case,” the court said. Kusum claimed that she did not have
any source of income and therefore had borrowed Rs 1,95,000 for the expenses incurred at the time of
marrying three daughters. She had borrowed the money as her former husband had assured her that he
would reimburse it. However, the lower court had rejected Kusum’s application on the ground that she did
not have enough evidence to show that she had borrowed the money. On the other hand, despite Kusum
being unable to prove that she had taken loans, Justice Pangarkar observed that she had spent for the
marriage and she has filed the bills on record. He then directed Nathuji to pay her Rs 75,000 as
reimbursement for the expenses she incurred on her daughters’ marriages with six per cent interest.
(Indian Express 27/2/08)

Widow can't get job after taking compensation: SC (19)

NEW DELHI: A dependant of an employee, who dies in harness, cannot seek compassionate
employment from the employer after receiving monetary compensation, the Supreme Court has ruled. In
a significant addition to its consistent ruling that compassionate employment is not a matter of right and if
offered has to be limited to class III and IV posts, the apex court clarified that acceptance of the monetary
benefit, over and above the statutory death benefits, virtually draws the curtain over the compassionate
employment plea at a later date. Through this ruling, a Bench comprising Justices P P Naolekar and L S
Panta negated the offer of a widow to return the monetary benefit in exchange for employment on
compassionate grounds. One Sarvarunnisa Begum gave written consent to accept Rs 1 lakh as
additional monetary benefit from the Andhra Pradesh State Road Transport Corporation (APSRTC) in lieu
of employment. However, she made a request that she was ready to surrender the additional benefit and
she be given employment. When the corporation refused to accede to her request, she moved the AP
High Court, a single judge of which held that her claim to employment on compassionate grounds did not
cease merely because she was given additional monetary compensation. It asked the corporation to
reconsider her case. The corporation appealed before a division Bench, which modified the order and
directed appointment of Sarvarunnisa as a conductor or attender within two months of her returning Rs 1
lakh to APSRTC. The apex court, allowing the corporation's appeal, quashed both the orders of the HC
saying they grossly misread the settled position. It said the employer provides either additional monetary
benefit or compassionate employment to the dependants of an employee, who dies in harness, to tide
over the difficult time. Quoting a 1994 judgment, it said the mere death of an employee in harness did not
entitle his family right to compassionate employment as it would depend on the financial and vacancy
position in the government body. (Times of India 1/3/08)

POTA review panel can’t usurp judicial powers: Gujarat to SC (19)

NEW DELHI, February 28: The Gujarat Government on Thursday came out strongly in the Supreme
Court against a provision in Prevention of Terrorism Act (POTA) that empowers the Central POTA Review
Committee to determine the innocence of the accused, claiming that the said provision allows the
Executive to usurp judicial powers. Appearing before a three-member Bench, headed by Chief Justice K
G Balakrishnan, senior advocate Arun Jaitley, appearing for Gujarat Government, lamented how the
scheme prepared by the Act completely alters the character of both criminal law investigation and
determination of innocence or otherwise of a person charged under criminal law. He assailed Section 2
sub-section (3) of POTA, brought out by way of an amendment in Section 60 of the principal Act, which
held that the Central POTA Review Committee’s findings were to be binding on the courts whether it had
taken cognizance of the offence or not in cases pending before it. The existing criminal law system, be it
during investigation or during trial, has consistently tried to be free of any influence from the Executive.
“The entire architecture of the criminal justice system is now sought to be demolished by Section 3,”
contended Jaitley, who began his arguments on Thursday on an appeal filed by seven of the accused in
the 2002 Gujarat riots, seeking bail. Jaitley contended that a decision by the Central POTA Review
Committee in 2005 has ruled that none of the alleged offences in the Godhra train burning case
warranted invoking the draconian law. Hence, his clients too are entitled to be released on bail, he told
the Bench, also comprising Justices R V Raveendran and Dalveer Bhandari. The composition of the
Review Committee does not have the trappings of a judicial authority as the chairman is a retired judge,
he said. He recalled how preference was given to serving judges over retired judges when the court
revised the scheme of fast-track courts. “This Committee, under any circumstance, cannot be clothed with
a judicial character,” he submitted, adding that the power to determine innocence, prime facie or
subsequent to filing the report under IPC, is a judicial function and not an executive function. “This
usurpation of judicial function by the Executive is a violation of the basic feature of Constitution,” he said.
(Indian Express 1/3/08)

Job on compassionate grounds not a right: SC (19)

NEW DELHI: : The dependent of a deceased Government employee cannot claim state job as a matter of
right, the Supreme has ruled. Instead, the financial condition of the deceased employee’s family has to be
taken into consideration before offering a job to the kin, it said. Quashing an Andhra Pradesh High Court
order directing the state Government to appoint to one Savarunissa Begum, whose husband passed
away while working with AP State Road Transport Corporation, a Bench comprising Justices P P
Naolekar and L S Panta recalled an earlier decision of the apex court which held that the whole object of
granting such an appointment was to enable the family to tide over the sudden crisis. “Mere death of an
employee in harness does not entitle his family to such source of livelihood. The Government or the
public authority has to examine the financial condition of the family of the deceased,” it said referring to a
1994 ruling. Earlier, the Andhra HC had directed that she be appointed on the post of either conductor or
attender on compassionate grounds. Setting aside the HC order, the SC said the Corporation had given
monetary benefit (Rs 1 lakh) in addition to other benefits available to her after the sudden death of her
husband. Thus, she cannot claim compassionate appointment as her right. More so, when no vacancy
exists, as has been brought out. (Indian Express 1/3/08)

PIL for status quo in Kalinga Nagar dismissed (19)

CUTTACK: The Orissa High Court on Thursday dismissed a PIL filed by a leading Human Rights group—
Committee for Legal Aid to Poor (CLAP) seeking status quo on industrial development in Kalinga Nagar
area of Jajpur district. The PIL was filed in January 2006 just a few days after the police firing in the area
killing 13 tribal people and injuring scores of protestors who were objecting to the boundary wall
construction of the proposed Tata Steel Limited. Seeking status quo, the PIL had urged the HC to direct
the Government to stop all industrial development work in the area until final resolution of the demands of
local people. The PIL had also demanded that the State Government make a policy for rehabilitation and
resettlement for the people displaced due to industrial projects. The bench of Chief Justice A K Ganguly
and Justice Indrajit Mohanty of the HC however, disposed of the PIL on the ground that the State
Government had already announced setting up a Judicial Commission to probe into the incident and the
Commission would also make recommendations on rehabilitation of the displaced people. It may be
recalled here that in response to the PIL, the State Government had filed a counter in November 2007
stating that adequate steps had been taken to settle the Kalinga Nagar crisis. Although, Justice A S
Naidu, a sitting judge of the HC was probing into the incident, the Commission of enquiry was suspended
after an Apex Court order that no sitting judge of the HC would be appointed to head any judicial probe.
However, the State Government last month announced that Justice P K Patra, a retired judge of the HC
would probe into the police firing. (The Hindu 1/3/08)

PIL: how was Rs. 60,000-cr arrived at? (19)

New Delhi: The budget proposal to waive farm loans to the tune of Rs. 60,000 crore has been challenged
in the Supreme Court through a public interest litigation petition. Advocate Manohar Lal Sharma on
Monday made a mention before a Bench comprising Chief Justice K.G. Balakrishnan and Justice R.V.
Raveendran for expeditious hearing of the petition, which questioned the basis on which the government
arrived at the Rs 60,000-crore figure. Refusing to grant early hearing, the Chief Justice told counsel: “It is
a budget proposal. We don’t want to discuss the matter which is going to be discussed in Parliament. No
early hearing can be given. It will be listed in due course. You may go to the appropriate forum.” The
petition sought a direction to the Finance Ministry and the Reserve Bank of India to place before the court
the list of banks and particulars of the loan amount due to them. Contending that that the write-off was
limited to farmers who had taken loans from nationalised banks, the petition sought a direction that the
loan waiver scheme be extended to all those who had taken loans from private moneylenders and private
banks. “The proposal does not provide relief to all farmers in the country. It may be specific to farmers of
Maharashtra or Uttar Pradesh for political reasons as there is no list or detail of relief to farmers in other
States.” It was not clear whether the scheme was intended only to those farmers who owned land and
also to those who were cultivating land on lease, the petitioner said. (The Hindu 4.3.08)

No right to pick lawyer in internal inquiries: SC (19)

NEW DELHI: In a significant ruling concerning disciplinary proceedings drawn against errant employees,
the SC has ruled that those facing internal inquiry have no absolute right to be represented by a lawyer or
through another person. "Ordinarily in a domestic/departmental inquiry, the person accused of
misconduct has to present his own case. Such an inquiry is not a suit or a criminal trial where a party has
a right to be represented by a lawyer," the court said. Keeping in mind the delaying tactics employed in
such proceedings, the court clarified that denial of representation through a lawyer or a "friend" during the
internal inquiry would not constitute a violation of the principle of natural justice. While giving this ruling, it
upheld the constitutional validity of Rule 153(8) of Railway Protection Force Rules that debarred an
employee facing disciplinary proceedings to bring in his lawyer or friend to defend him during the
hearings. An RPF inspector was placed under suspension for selling extra scrap worth Rs 10,000 and
was proceeded against. He was denied engagement of a lawyer or a friend during departmental
proceedings against him. He had moved the Andhra Pradesh high court challenging the rule barring a
lawyer or a friend to address the proceedings on his behalf. The HC had struck down Rule 153(8) terming
it as unconstitutional, prompting the RPF to appeal against it in the SC. Allowing RPF's appeal, a bench
said a friend or a lawyer could assist an employee in preparing the case and even during the hearing, but
the chargesheeted employee had to address the inquiry officer and cross-examine the witnesses, if he so
wished. (Times of India 5/3/08)

New ruling on preventive detention (19)

New Delhi: An order passed by a detaining authority under the preventive detention law cannot be set
aside by the High Court at the pre-arrest stage unless it is satisfied that there are exceptional
circumstances, the Supreme Court has held. “The court must be conscious and mindful of the fact that
this is a ‘suspicious jurisdiction’ and action is taken ‘with a view to preventing’ a person from acting in any
manner prejudicial to certain activities enumerated in the relevant detention law,” said a Bench consisting
of Justices C.K. Thakker and Altamas Kabir. Writing the judgment, Justice Thakker said: “Interference by
a court of law at that stage must be an exception rather than a rule and such an exercise can be
undertaken by a writ court with extreme care, caution and circumspection. A detenu cannot ordinarily
seek a writ of mandamus if he does not surrender and is not served with an order of detention and the
grounds in support of it. ” The Bench said: “The court must be conscious and mindful that the satisfaction
of the detaining authority is ‘subjective’ and the court cannot substitute its ‘objective’ opinion for the
subjective satisfaction of the detaining authority.” There could be no doubt that personal liberty was a
precious right; equally important was protecting “the people against the government.” The primary object
of preventive detention “is not to punish a person for having done something but to intercept him before
he does it.” It was not a penalty for past activities of an individual but was intended to pre-empt the person
from indulging in activities sought be prohibited by a relevant law and to prevent to him from doing harm
in future. Underlining the need for striking a balance between personal liberty and security of the country,
the Bench said: “Liberty of an individual has to be subordinated, within reasonable bounds, to the good of
the people. Security of the state, maintenance of the public order and services essential to the
community, prevention of smuggling and black marketing activities, etc, demand effective safeguards in
the larger interests of sustenance of a peaceful democratic way of life.” The Bench said: No doubt, it is
the duty of the court to safeguard against any encroachment on the life and liberty of individuals; at the
same time the authorities who have the responsibility to discharge the functions vested in them under the
law of the country should not be impeded or interfered with without justification.” In the instant case, the
Maharashtra government passed an order to detain Bhaurao Punjabrao Gawande to prevent him from
indulging in smuggling and black marketing of essential commodities. The Bombay High Court quashed
the detention order. Allowing the State’s appeal against this judgment, the Bench said it would be open to
the authorities to execute the detention order. (The Hindu 9/3/08)

Preventive detention in public interest is justified: SC (19)

NEW DELHI: Preventive detention of a person in public interest is justified and courts cannot interfere
with it unless there are "exceptional" circumstances, the Supreme Court has said. Such detention is
intended to strike a delicate balance between an individual's personal liberty (Fundamental Right) and
safety of the country and society at large, the apex court said. A bench of Justices C K Thakker and
Altamas Kabir said in a judgement that a preventive detention order passed on the basis of a "suspicion"
was to prevent a person from acting in any manner prejudicial to public interest or law, and courts must
be conscious while granting relief to such persons. "Interference by a court of law at that stage must be
an exception rather than a rule and such an exercise can be undertaken by a writ court (Supreme
Court/High Courts) with extreme care, caution and circumspection," the bench observed. The bench
passed the observation while upholding an appeal filed by the Maharashtra government challenging a
Bombay High Court (Nagpur Bench) judgement which quashed the detention order passed by the
authorities against Bhaurao Punjab Rao Gawande, a petroleum product transporter for alleged black
marketing. Though the authorities passed the detention order against Gawande under the Prevention of
Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, the High Court
quashed the order after he approached it before the detention order could be executed. (Times of India
10/3/08)

“Do not treat anonymous letters as PIL” (19)

New Delhi: The Supreme Court on Tuesday held that High Court judges cannot treat anonymous letters
and petitions listing allegations against individuals or institutions as public interest litigation and order suo
motu investigation. A Bench of Justice S.H. Kapadia and Justice B. Sudershan Reddy said, “Setting
criminal law in motion is fraught with serious consequences, which cannot lightly be undertaken by the
High Court even in exercise of its jurisdiction under Article 226 of the Constitution. The High Court cannot
direct investigation by constituting a special investigation team on the strength of anonymous petitions.
The High Courts cannot be converted into Station Houses.” Writing the judgment, Mr. Justice Reddy said,
“No judicial order can ever be passed by any court without providing a reasonable opportunity of being
heard to the person likely to be affected by such order and particularly when such order results in drastic
consequences of affecting one’s own reputation.” The Bench said, “The individual who moves the court
for judicial redress in cases of PIL must be acting bona fide with a view to vindicating the cause of justice
and not for any personal gain or private profit or of the political motivation or other oblique consideration.
The [High] Court should not allow itself to be activised at the instance of such person and must reject his
application at the threshold, whether it be in the form of a letter addressed to the court or even in the form
of a regular petition filed in court.” In the instant case, Divine Retreat Centre, Muringoor in Thrissur
district, Kerala, was aggrieved over the suo motu probe ordered by a single judge of the Kerala High
Court in respect of certain allegations contained in an anonymous letter addressed to him. The present
appeal by the Centre is directed against that judgment. Allowing the appeal, the Bench said: “Institution’s
own reputation is a priceless treasure. History teaches us that the independence of the judiciary is
jeopardised when courts become embroiled in the passions of the day and assume primary responsibility
to resolve the issues which are otherwise not entrusted to it by adopting procedures which are otherwise
not known.” The Bench said “there is heavy duty cast upon the constitutional courts to protect themselves
from the onslaught unleashed by unscrupulous litigants masquerading as public interest litigants. The
individual judges ought not to entertain communications and letters personally addressed to them and
initiate action on the judicial side. The letters are required to be placed before the Chief Justice for his
consideration. Each judge cannot decide for himself as to what communication should be entertained for
setting the law in motion be it in PIL, or in any jurisdiction.” In this case, the single judge of the High Court
ought not to have entertained the anonymous petition, contents of which remain unverified and made it
the basis for setting the law in motion against the appellant as he was not entrusted with the judicial duty
of disposing of PIL matters. (The Hindu 12/3/08)

Personal law no bar to maintenance demand (19)

New Delhi: The Supreme Court has held that a Muslim’s marriage to his wife’s sister, while the earlier
marriage still subsists, will be irregular but the second wife and children are entitled to maintenance. The
Muslim personal law prohibits “unlawful conjunction” — a man cannot marry his wife’s sister in her lifetime
or till the dissolution of the first marriage. The personal law would not come in the way of the second wife
claiming maintenance under Section 125 of the Criminal Procedure Code since an obligation has been
cast on the person to maintain her and her children until the first marriage is declared null and void by a
competent court, said a Bench consisting of Justices Altamas Kabir and J.M. Panchal. The Bench
rejected the contention that Section 125 Cr.PC could not override the Muslim personal law, holding it was
applicable to all persons belonging to all religions and had nothing to do with the personal law of the
parties. “The fact that the marriage was not solemnised as per custom and was irregular cannot be a
ground for depriving the woman or the children from that marriage of the maintenance claims.” Writing the
judgment, Justice Kabir said: “The bar of unlawful conjunction [jama bain-al-mahramain] renders a
marriage irregular and not void.” Consequently, “under the Hanifi law as far as Muslims in India are
concerned, an irregular marriage continues to subsist till [it is] terminated in accordance with law and the
wife and children of such marriage would be entitled to maintenance.” The Bench said: “There are two
types of marriages — which can be declared either “void” or “irregular” if they are held in violation of the
provisions of the [Muslim] law. While a “void” [batil] marriage is illegal from the time of its very occurrence,
an “irregular” [fasid] marriage can be regularised or made valid, provided the irregularity is rectified.”
Under the Muslim law, a man’s marriage to the sister of his wife could become lawful with the death of the
first wife or when he divorced her. An irregular marriage had no legal effect before consummation. But if
the consummation took place, the wife would be entitled to dower. In the instant case, Chand Patel
challenged an order of the judicial magistrate, Chincholi, Karnataka, directing him to pay a monthly
maintenance allowance of Rs. 1,000 to his wife’s sister Bismillah Begum, whom he married. A sessions
court and the Karnataka High Court confirmed this order. Dismissing the appeal against this order, the
apex court directed Mr. Patel to pay Bismillah Begum the maintenance arrears within the next six months
and to continue to pay the current maintenance with effect from March 2008. (The Hindu 25/3/08)

Judges make a case for fair court reporting (19)

Justice SH Kapadia, a senior Supreme Court judge, said this in his keynote address at a two-day
workshop on “reporting of court proceedings by media and administration of justice” being held in the
capital. “Time has come for the judiciary to explain itself to a larger audience of the politicians and the
public that their decisions are subject to a caveat, i.e. legal knowledge of such audience,” he added.
Asking media to report accurately rather than scandalising the courts, Justice VS Sirpurkar, another apex
court judge, referred to the role of Sanjay, the mythological character in Mahabharata, who gave an
“accurate and fair” narrative of the battle to the blind king. “Unless journalists have the divya drishti of
Sanjay, it would not be possible for the public to know the truth,” said Justice Sirpurkar. “Public has a right
to know. But not what you (media) want them to know.” Chief Justice of India KG Balakrishnan recalled
how in initial days of his present office his well-wishers warned him against interacting too closely with the
media. “It is an established practice that a judge must only speak through his or her judgments,” he
added. However, Solicitor General GE Vahanvati cautioned the judges to be careful while making
observations in court. “With most of the judges, there’s a scope for improvement,” he added. (Indian
Express 30.3.08)

Don't use contempt law for personal reasons: CJI tells judges (19)
New Delhi : Exercising contempt jurisdiction is necessary, yet there is a problem when it is misused," rued
the Chief Justice of India KG Balakrishnan on Sunday. Illustrating his point, the CJI added, "A judge will
not use it (contempt law) for his personal cause but to uphold the majesty of court." While it is necessary
to exercise contempt jurisdiction against governmental agencies to ensure effective implementation of its
orders, Balakrishnan sounded a note of caution to the judiciary not to make its use for their personal
cause. At the same time, he wondered if the sting from contempt law is taken away, the court would find it
extremely hard to get its orders implemented. The comments formed part of a speech given by him at the
concluding session of a two-day workshop on "Reporting of Court Proceedings by Media and
Administration of Justice" organised by the Supreme Court Legal Services Committee, Press Council of
India, Editors' Guild, the Indian Law Institute and National Legal Services Committee. Being candid in his
fear to face the media, the Chief Justice confessed he was forced to take the bold step of organising the
workshop to impart legal training to young journalists and ensure professionalism in their reporting of
court proceedings. This would not essentially require journalists covering courts to have a law degree.
Yet, "training is required to give them (journalists) a basic idea of legal reporting, about criminal
procedures, contempt and defamation," he said. Towards this effort, the CJI has held discussions with the
National Judicial Academy, Nagpur to provide training to interested journalists. "I request the Editors
Guild and the electronic media channels to sponsor candidates for such training," he added. Organising
such a large-scale event for the first time, Justice Arijit Pasayat of the Supreme Court called it a
"fascinating" experiment. Playing a major role in organising the two-day event, Justice Pasayat held the
firm view that education about reporting court proceedings has to be imparted at the stage of entry when
students are trained to become journalists. There is however a danger of mushrooming journalism
colleges producing "half-baked" journalists, he pointed out and asked the Editors Guild to introduce some
mechanism to check them on the lines of All-India Council for Technical Education. The two-day
deliberations were on topics ranging from Reporting on sub-judice matters, reasonableness of Press
freedom to implications of trial by media and observing a code of good practices for Reporting judicial
proceedings. Though the workshop stopped short of proposing any code of practice to be adopted by the
journalists covering legal proceedings, yet the grievance of the judiciary was aptly summed up by Justice
HK Sema of Supreme Court who said "we do not seek a favour from you (media) but we want
impartiality." According to him, "Unless the Press is impartial it ceases to be independent" and impartiality
is to be found in the fair and accurate reporting of facts. (Pioneer 31/3/08)

High court no to quick divorce in Hindu law (19)

Mumbai, April 1: The Bombay high court has told couples in a hurry to dissolve their marriages that they
would have to wait for the mandatory separation period of one year. "Hindu marriage is sacrament
coupled with an element of contract supported by statutory provisions," observed Chief Justice Swatantra
Kumar and Justice J.P. Devdhar in a ruling last week. The court held that to avoid the breakage of
marriages on the whims and fancies of young couples, mostly misled by in-laws, the separation period of
one year was a must. The court passed the order when a couple in their mid-20s came to the court
seeking reduction, in fact removal, of the mandatory separation period prior to moving for divorce. "Ability
to act faster in the modernised age must not result in instant decisions relating to delicate human
relationships," observed the court. The court also added that in case of easy availability of divorce,
marriage will become "a commodity, a commercial transaction ... and will be disastrous to the social fabric
and the institution of mar-riage" under the Hindu Marriage Act. The petition challenging the constitutional
validity of provisions under Section 13B of the Hindu Marriage Act, which mandates a minimum one-year
separation, sought a faster end to the couple’s marriage of four months. The family court had rejected
their plea for divorce as they had not lived separately for one year. They challenged the decision in the
high court. The Chief Justice observed that though the petitioners’ advocate Uday Warunjikar did not
have a strong case, the issue itself was a pertinent question of law. "The education of the couple has not
drawn them towards reconciliation and without substantial reasons they decided to dissolve their
marriage. Their perceived inconvenience and hardship was more imaginary than real and was
disproportionate to the social good and legislative object of a fair chance of survival of a marriage,"
observed the court. (Asian Age 2/4/08)

Child witness' testimony can be used for conviction: SC (19)

NEW DELHI: The Supreme Court has ruled that the testimony of a child witness is an admissible piece of
evidence which can be used to convict an accused. "Whether the child witness has sufficient intelligence
primarily rests with the trial judge who notices his manners, his apparent possession or lack of
intelligence," a bench of Justice Arijit Pasayat and Justice P Sathasivam observed. A child of tender age
can be allowed to testify if he or she has intellectual capacity to understand questions and give rational
answers, the apex court said. It passed the observation while altering the life sentence imposed by a
sessions court in Andhra Pradesh on the accused Golla Yelugu Govindu who hacked to death his wife
Dhanalakshi with a sickle. The killing committed by Govindu was a sequel to the quarrel he picked up with
his wife after she failed to bring money from her parents for the purchase of an autorickshaw as
demanded by the accused. The gruesome incident was witnessed by the three minor children of the
couple whose testimony eventually led to the imposition of the life imprisonment by the sessions judge
and was later confirmed by the High Court. In the appeal, the accused reiterate that since the children
were of tender age their testimony could not be relied upon for convicting him. Rejecting the argument,
the apex court said the Indian Evidence Act 1872 does not prescribe any particular age as a
determinative factor to treat a witness to be a competent. (Times of India 6/4/08)
‘Settlement without instructions from clients valid’ (19)
New Delhi: Settlement made by lawyers in court in ‘cheque-bouncing cases’ under the Negotiable
Instruments (NI) Act even without express instructions from their clients would be valid in law, the
Supreme Court has held. A Bench of Justices S.B. Sinha and V.S. Sirpurkar said that why the parties
entered into a settlement under Section 147 of the NI Act was not a matter for the court to consider. But
such a settlement was permissible in law and “ex-facie it does not violate any public policy and not
otherwise inequitable.” The Bench said that “indisputably, the provisions of the Cr.P.C. would be
applicable to the proceedings pending before the courts for trial of offences under the NI Act.” The Bench
said that in such a situation a settlement could be arrived at between the complainant and the accused. It
said: “While a settlement is arrived at, it is not necessary under the provisions of the NI Act and/or Cr.P.C.
to file any affidavit affirmed by the complainant or the accused. By reason of the authority granted by a
litigant in favour of his advocate which, inter alia, empowers the latter to enter into a settlement, any
settlement arrived at, on behalf of a party to a lis [dispute] would be binding on the parties thereto.” In the
instant case, appellant R. Rajeswari had filed a complaint against the respondent H.N. Jagdish alleging
that a cheque issued by him was dishonoured. The trial court in Bangalore found him guilty for an offence
under Section 138 of the NI Act and sentenced him to undergo one month imprisonment and to pay a fine
of Rs.2 lakh. After the Sessions Court dismissed his appeal, he preferred a revision in the Karnataka High
Court. During the course of hearing, a settlement was arrived at by counsel for the parties and the
respondent agreed to pay the cheque amount of Rs.1 lakh, besides a fine of Rs. 5,000. Since he had
already deposited Rs. 75,000, he was asked to pay Rs.30,000. As the matter was settled, the sentence of
imprisonment was set aside. The appellant, Rajeswari, who refused to accept Rs.30,000, filed a petition
to recall the order stating that the settlement arrived at by her lawyer without instructions was not binding.
The High Court declined to recall the order and the present appeal by her is directed against this order.
Holding that such a settlement was valid, the Supreme Court dismissed her appeal. (The Hindu 6/4/08)

SC seeks caution while charging husbands with abetting suicide (19)

New Delhi, April 7: In case of a suicide committed by a wife, the court must be extra cautious in charging
her husband for abetment to suicide, underlined the Supreme Court on Monday. It said the court’s
conscience must not be satisfied with accusing the husband of instigating his wife to commit suicide, if the
victim was “hypersensitive”. “If it transpires to the court that the victim was hypersensitive to ordinary
petulance, discord and differences in domestic life, quite common to the society to which the victim
belonged, and such petulance discord and differences were not expected to induce a similarly
circumstanced individual in a given society to commit suicide, the conscience of the court should not be
satisfied for basing a finding that the accused charged of abetting suicide should be found guilty,” said a
Bench headed by Justice Arijit Pasayat. The observations, taken from an earlier apex court ruling, came
as the Bench, also comprising Justice P Sathsivam, set aside the conviction and sentence of Sohan Raj
Sharma, charged under Section 306 (abetment to suicide) of the IPC, for forcing his wife to consume
poison and end her life. His wife poisoned their two daughters before taking the extreme step. The trial
court, relying heavily on the suicide note by the wife, held Sharma guilty of abetment to suicide under
Section 306 of the IPC and sentenced him to seven years imprisonment. The high court also relied on the
suicide note and upheld the conviction and sentence. The apex court, however, cautioning that courts
should be extremely careful in assessing the facts and circumstances of each case said, “In cases of
alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission
of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough.” The
Bench disagreed that Sharma could be charged with abetment to suicide. From the suicide note, it found
that the accused had been described as a sexual pervert and was impotent. He was trying to defame the
deceased, the apex court found from the suicide note. However, finding the evidence insufficient to prove
that the cruelty meted out was enough to drive the wife to commit suicide, the court ordered the release of
the husband. (Indian Express 8/4/08)

PIL questioning loan waiver dismissed (19)

NEW DELHI: : The Supreme Court on Monday refused to pass any direction and dismissed a petition
questioning the Rs 60,000-crore farm loan waiver proposed by the UPA Government in this year’s
Budget. Advocate M L Sharma, who had filed the PIL, while arguing before the Bench, headed by Chief
Justice of India K G Balakrishnan, questioned the basis on which the Government arrived at the figure of
Rs 60,000 crore while quantifying farm debt. But the Bench, also comprising Justice R V Raveendran,
refused to pass any directions, even as the advocate said Finance Minister P Chidambaram had
reportedly clarified that the scheme would also cover farmers who had taken loans from banks other than
nationalised banks. In the PIL, Sharma had sought a direction to Finance Ministry and the Reserve Bank
of India to place a list of banks and the unpaid loan amount due to them from farmers. When he said
private moneylenders should also be brought under the ambit of the scheme, the Bench said it was not
possible to pass such directions. Contending that the loan write-off was limited to farmers who had taken
loans from nationalised banks, the PIL had sought its extension to all farmers. Indian Express 8/4/08)

CJI advocates independent study of PIL jurisdiction (19)

New Delhi : A week after a judge of Supreme Court questioned judicial activism in cases that yield no
results, the Chief Justice of India on Tuesday pondered whether time was ripe to conduct an independent
study of its PIL jurisdiction over the years. Chief Justice KG Balakrishnan said, "There should be a study
conducted by an independent agency to find out in how many PIL cases the court has achieved greater
common good and where it had failed to deliver." The court made this comment while dealing with the
public interest litigation (PIL) on providing safety measures for casual labourers employed in thermal
power plants. Lauding the efforts of the court, senior advocate Colin Gonsalves pointed out that the
Government has agreed to supply safety equipments to workers and have become cautious of their
health, thanks to the efforts of the apex court. But the Bench comprising of the Chief Justice and Justice
Raveendran found it hard to stomach the praise at a time when fingers were being pointed toward its
abject failure to bring about change. It said, "...there had been some talk about the court's failure to
achieve any results in cleaning up the polluted Yamuna River despite long years of monitoring and
spending of over thousand crore of rupees." The Bench was referring to the comments by Justice
Markandey Katju last week when he sounded critical of court's intrusion into executive terrain rendering
the efforts of the court fruitless. "The courts do not give any direction on their own. It always relies on the
report of the expert bodies. But, if the court has still failed to deliver in some matter, we would like to keep
off," the Bench said. At this juncture, advocates Sanjay Parikh and Prashant Bhushan intervened pointing
out the court's intervention provides the last recourse for a common man to protect his civil rights and
personal liberties. Bhushan said that where it appears there is no work done, the executive is to be
blamed for its inept functioning and failure to comply with Court orders. Justice Katju, while dealing with a
PIL last week had held the view that despite repeated Court orders, Yamuna still remains a drain. He
even rebuked the Courts' interference into traffic management in the city that failed to reduce road
accidents. "A study should be done for the benefit of all - litigants, lawyers and Judges about the
productivity of PILs," said the Bench adding, "People should know these things. When something good
happens through court orders, it is not highlighted. But when something is said about the failure of the
Supreme Court, it gets instant publicity" it rued. (Pioneer 9/4/08)

SC for study to see where PILs got results (19)

New Delhi, April 8: Barely a few days after Justice Markandey Katju wondered about the utility of PILs for
initiating corrective action, another Bench of the Supreme Court on Tuesday took a different view of it.
Chief Justice K G Balakrishnan and Justice R V Raveendran, during the hearing of a PIL on Tuesday,
acknowledged some beneficial aspects of PILs, that have actually helped the public. “We know some of
the PILs are unproductive and we have also seen some are very productive,” the court agreed to the
arguments of advocate Colin Gonsalves, who told the Bench how merely by filing the petition, the
Government had agreed to do lot of things. At which, Justice Raveendran wondered whether any
research has been carried out to find out how useful PILs have been. “Some research in the area would
be a positive step,” he remarked. “A general study of PILs would be helpful to know where it has been
unproductive and where it has been very productive. It can be inspirational for others,” opined Justice
Raveendran with a silent nod from the CJI. “We also learn from experience,” the Bench said. Earlier,
Justice Katju, while hearing a PIL in his court last week, had again warned courts not to encroach on the
domain of other organs of the state while hearing petitions, which is akin to legislation. Citing the case of
river Yamuna, Justice Katju had observed that despite the court closely monitoring it and crores of rupees
being spent on it, the quality of water had not improved. In fact, it had worsened, he said. On Tuesday,
however, several advocates also pitched in advocating the utility of PILs. Like advocate Sanjay Parikh,
who stood up during the remarks and informed the Bench how it was a PIL and monitoring by the court
that helped the implementation of a food scheme in Orissa’s eight worst poverty-hit districts including
Kalahandi. Earlier in December last year, the apex court had even suggested framing guidelines with
regard to what could be treated as PILs.(Indian Express 9/4/08)

Court monitoring committees illegal...stop PIL blackmail: (19)

NEW DELHI, APRIL 11: For the first time, a sitting Supreme Court judge has openly slammed the
practice of courts setting up monitoring committees — like in the sealing case — calling it “wholly illegal.”
And has also urged courts to be more selective while taking up PILs saying “much of PIL is really
blackmail.” Justice Markandeya Katju, who had last year pulled up the Delhi High Court for straying into
what was not its domain, held today that court-appointed committees or panels were “outsourcing of
judicial functions” which, he said, was illegal and “unconstitutional.” “The court cannot abdicate its
function by handing over its powers under the constitution or the CPC or the CrPC to a person or
committee appointed by it,” the judge observed underlining that these committees attract “adverse public
comment due to the alleged despotic behaviour...” “The power to issue a mandamus or injunction is only
with the court,” he said. Although he agreed that the court could certainly appoint a committee to gather
information or receive suggestions, he said “the court cannot arm such a committee to issue orders which
only a court can do.” Justice Katju’s remarks figure in his verdict where the Court refused to pass any
directions on a PIL filed by an NGO, Common Cause, seeking directions to the government to formulate a
suitable Road Traffic Safety Act, besides issuing directions like setting up procedures for licencing of
drivers and making readily available ambulances for shifting injured in accidents. Justice H K Sema, the
other judge on the bench however “disassociated” himself from Justice Katju’s views. However, he
agreed with Justice Katju on the point that relief sought in the petition is “adequately taken care of by the
Motor Vehicles Act itself and if there is any lacuna or defect, it is (up to) the legislature to correct it by
amending the Act and not the Court.” In a polite yet firm reminder to the judiciary, Katju remarked that
very often courts do not realize their own limits. “Apart from the doctrine of separation of powers, courts
must realise that there are many problems before the country which courts cannot solve, however much
they like to,” he said. “The country can ill afford to be governed through court decrees,” he said. Arguing
that any attempt to pass such writs/orders would not only be “grossly undemocratic” but would be most
hazardous as courts do not have the expertise or the resources in the connection, the judge urged the
judiciary to dispense justice according to law and Constitution. “He cannot ask other branches of the
State to keep within their constitutional limits if he exceeds his own, he said quoting the famous adage,
“Who will guard the Praetorian guards?” “Unless judges exercise self-restraint, each judge can become a
law unto himself and issue directions according to his own personal fancies, which will create chaos,” he
said. Strongly rebutting conventional wisdom that the judiciary is a panacea for all ills, Justice Katju noted
that it does great harm to people “because it makes them believe that their problems can be solved by
others and not by their own struggles and creativity but by filing a PIL.” “If the legislature or the executive
is not functioning properly, it is for the people to correct the defects by exercising their franchise properly
in the next elections and voting the candidates who will fulfil their expectations or by other lawful means,”
he said, “The court can play a catalytic role with regard to the social and economic problems of the
people. However, it has to apply somewhere and at sometimes brakes to its self-motion, described as
self-restraint.” ,……. (Indian Express 12/4/08)

No maintenance for wife who can't prove cruelty: HC (19)

MUMBAI: Justice V R Kingaonkar of the Bombay High Court ruled this week that a husband did not have
to pay maintenance to a wife who left her matrimonial house alleging cruelty and harassment but could
not prove the same before a magistrate. The order came after the court heard the plea of Sanjay Bhosale
(35), a ward boy at Pune's Yerawada Mental Hospital whose wife, Khristina, left him within five months of
their wedding in May 1998, alleging that Bhosale was a drunkard who often beat her up and demanded
gifts. Khristina had even said that she "apprehended danger to her life" at his house and therefore could
not live with him any longer. Khristina had filed for a separate monthly maintenance allowance of Rs
1,500 under Section 125 of the Criminal Procedure Code. Her plea was first turned down by a magistrate,
but a sessions court awarded her a monthly allowance of Rs 700. Bhosale took the matter to the high
court, saying that he had not treated Khristina cruelly and that she had left him of her own will. Justice
Kingaonkar, who heard Bhosale's plea, observed that Khristina had not produced any documents or
examined any witnesses in court to support her claims that she had lodged a police complaint against
Bhosale and written to her father about the cruel treatment she was suffering at his hands. On the other
hand Bhosale brought the two neighbours — Shubhangi and Bashid — to court as defence witnesses.
The neighbours testified that he was "not addicted to any vice" and that they had never him quarrel with
Khristina. Bhosale also told the high court that he had been granted restitution of conjugal rights by a
family court in 2003 which noted that Khristina had "withdrawn from the society without any reasonable
excuse". Justice Kingaonkar, after going through all the evidence, considered that Khristina could have
left Bhosale "under the burden of domestic chores" and the family court had also said she was "guilty of
deserting Bhosale without any reasonable excuse". (Times of India 12/4/08)

Notice to Centre on PIL for speedy disposal of cases (19)

New Delhi: The Supreme Court on Tuesday issued notice to the Centre on a public interest litigation
petition for a direction to take immediate steps for speedy disposal of cases pending and being filed in
various courts. A Bench consisting of Chief Justice K.G. Balakrishnan and Justice R.V. Raveendran
issued the notice on the petition filed by Janhit Manch for a direction to appoint more judges. The Chief
Justice told counsel Prashant Bhushan, appearing for the petitioner: “We are not able to fill about 3,000
vacancies in the subordinate judiciary as young law graduates are not coming forward to become judges,
as they join corporate houses.” Justice Raveendran said: “Even those who are appearing in the
examinations [for selection in the subordinate judiciary] are unable to meet the required standards. Others
don’t come as they feel that salary is less.” Counsel said it was for this very reason the PIL petition was
filed after a thorough research on how the problem vis-À-vis appointing more judges could be solved. The
petitioner analysed various Law Commission reports on arrears and delay, and came out with the
reasons for delay in the judicial process. The Bench then agreed to hear the petition. (The Hindu 16/4/08)

Top court ruling on tenant eviction (19)

New Delhi, April 17: A tenant occupying a commercial premises is no different than the one who lives in a
rented house and can be evicted by the landlord under the Delhi Rent Control Act, the Supreme Court
has ruled. The judgment, which may pave the way for reducing property dispute-related litigation,
assumes significance as until now only a tenant occupying a residential premises could be evicted by the
landlord if the latter wanted to use the premises for his own family. Whereas, under Section 14(1) (e) of
the Delhi Rent Control Act, eviction of a tenant occupying a commercial premises by the landlord is
barred. But the Supreme Court has now ruled that such classification of tenants on the basis of their
residential and commercial occupation was discriminatory and violative of Article 14 (equality before law).
(PTI) (Asian Age 18/4/08)

Surname not always indicative of caste: Bombay High Court (19)

Mumbai: : A person’s surname is not always a deciding factor in determination of his/her caste, the
Bombay High Court has held. The Caste Scrutiny Committee had refuted petitioner Deepika Nandnawar's
claim that she was a 'Halbi' (a Scheduled Tribe), because similar claims of 29 others, all of whom shared
her surname, had been disproved earlier. But a Division Bench of Justice Ranjana Desai and Justice
Roshan Dalvi overturned this reasoning recently. When it was not proved that these "other Nandanwars"
were not blood relatives of the girl, their caste has no relevance in determining her caste, the court said.
Nandanwar, an MBBS student of G S Seth Medical College, was given the certificate of being a 'Halbi'
while she was in school. In November 2005, prior to her Class XII exam, she filed an application with
Scheduled Tribes Certificate Scrutiny Committee, to get her certificate validated. The committee initiated
its first inquiry into her claim in February 2006. The inquiry was conducted by senior inspector Mahesh
Joshi, who reported that her claim was genuine. But the committee ordered another inquiry, which was
conducted by senior inspector Annasaheb Bandgar. His report said that in Amaravati there were 29
persons, all with the surname Nandanwar, whose claims of belonging to 'Halbi' tribe had been dismissed
by the Amravati scrutiny committee. (Indian Express 21/4/08)

Temporary worker cannot claim right to continue in service’ (19)

New Delhi: There is no principle of law that a person appointed in a temporary capacity in the government
has a right to continue till a regular selection is made, the Supreme Court has held. “Rather, the legal
position is just the reverse, that is, a temporary employee has no right to continue even for a day as of
right, far from having a right to continue till regular appointment,” said a Bench of Justices H.K. Sema and
Markandey Katju. The respondent, Ram Dhar was appointed a stenographer by the Uttar Pradesh
government on ad hoc basis for three months. He filed a writ petition seeking a direction that his services
be regularised. A single judge of the Allahabad High Court directed the authorities to continue his
services till a regularly appointed person joined the post. The same was confirmed by a Division Bench of
the High Court. The present appeal by the State government was against this judgment. The Supreme
Court Bench set aside the impugned judgment. It pointed out that as the High Court order had been
stayed, the respondent was no more in service. Even otherwise, an ad hoc employee appointed for three
months, whose term was extended, should not be allowed to continue in service in public interest when
he failed in a test. “Before parting with this case, we would like to mention that very often selection and
appointments are made on posts requiring special skills like that of a stenographer not on merit. On such
posts the only criterion should be merit. “Very often such appointments are not made on merit but on
some recommendations, and such appointees are very often incompetent. “If an incompetent
stenographer is appointed for the court, the result will be that the correct order passed by the judge will
not be recorded, and this will create many problems. Much of the time of the judge will be spent on
making corrections. “Hence great care must be taken by the selection committee for selecting persons to
be appointed on posts requiring special skills purely on merit disregarding any recommendation made by
anyone, howsoever high.” (The Hindu 23/4/08)

PF subscriber is a consumer: Supreme Court (19)

New Delhi: The Supreme Court has held that services rendered by the office of the Regional Provident
Fund Commissioner will come within the ambit of “service” under the provisions of the Consumer
Protection Act, 1986 and a subscriber of the Provident Fund scheme is a “consumer” under this Act. A
Bench, consisting of Justices Altamas Kabir and V.S. Sirpurkar, rejected the contention of the RPF
Commissioner (appellant) that the services rendered to the subscribers was not a service under the
Consumer Protection Act and such subscribers could not seek remedy under the Act. The appellant
submitted that the service amounted to “personal service,” which was of a free nature and would not
attract the Act. Writing the judgment, Mr. Justice Kabir said: “A perusal of the scheme, clearly and
unambiguously indicates that it is a ‘service’ within the meaning of Section 2 (1) (o) and the member a
‘consumer’ within the meaning of Section 2 (1) (d) of the Act.” The Bench said: “The RPF Commissioner
responsible for the working of the 1995 Pension Scheme must be held to be a ‘service giver’ under the
CP Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal
services as to bring the relationship between the appellant and the respondent [subscriber] within the
concept of ‘master and servant’.” In this case, respondent Bhavani was a worker in a cashew factory at
Naduvathoor, owned and managed by the Kerala State Cashew Development Corporation Limited,
Kollam. She retired from service on December 31, 1995 on attaining 60 years of age. As a member of the
Employees’ Provident Fund and Family Pension Scheme, 1971, she was eligible for pension, but the
same was not ordered by the RPF Commissioner. Bhavani moved the Consumer Disputes Redressal
Forum in Kollam and it directed the appellant to release her pensionary benefits. This was confirmed by
the State Commission and the National Consumer Disputes Redressal Commission. This was followed by
the RPF Commissioner’s appeal against this order in the Supreme Court. Subsequently five more
appeals were heard along with this matter. The Supreme Court Bench upheld the orders passed by the
National Commission and dismissed the appeals. (The Hindu 25/4/08)

CJI asks HCs to reject anonymous letters styled as PILs (19)

New Delhi : For all bad press earned by courts over their PIL jurisdiction, the Chief Justice of India has
asked all High Courts to reject anonymous letters styled as PIL at the threshold. At the recently concluded
Chief Justices Conference, the Chief Justices of High Courts who discussed upon steps to curb the
misuse of PILs were told by CJI KG Balakrishnan to follow this golden rule after a Supreme Court Bench
on March 11 this year laid down this principle in one of its judgments. The resolutions passed at the
conference said, "The Conference emphasised on the need to strictly follow the judgment of the Supreme
Court dated March 11, 2008 in Divine Retreat Centre v State of Kerala." In the judgment referred above,
the two-judge Bench headed by Justice SH Kapadia had halted proceedings initiated by a judge of the
Kerala High Court who acted against an institution on an anonymous letter received by it. Conscious of
the dangers lurking behind such practice adopted by the courts, the Bench held: "The court should not
allow itself to be arrived to be activised at the instance of such persons and must reject his application at
the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular
petition filed in court." The judgment sought to put an end to the practice of individual judges acting on
individual petitions addressed to them. "Independence of the judiciary is jeopardised when courts become
embroiled in the passions of the day and assume primary responsibility to resolve the issues which are
otherwise not entrusted to it by adopting procedures which are otherwise not known," it said. To
overcome such situations in future, the Chief Justices who unanimously resolved to follow this judgment
have given their consent to entertain only those petitions addressed to the entire court disclosing the
identity of the petitioner. If any petition is addressed to any individual judge, he/she would be required to
place it for consideration before the Chief Justice, who may decide on the proposed action on such
petitions. The Bench had recommended that a copy of its order be sent to all High Courts for the issue
being of grave concern. The unanimous resolution has given the final seal of approval to this verdict. In
the recent past, the PIL jurisdiction of the High Courts attracted scrutiny from the Supreme Court itself
where an apex court judge openly criticised the handling of certain matters by the High Courts to exceed
jurisdiction of courts. Justice Markandey Katju in a case decided in 2007 hit out against the Delhi High
Court, which set out on the course to fix admission criteria for nursery admissions, setting right the traffic
in the city, and demolition of illegal constructions. "Judges must know their limits and must not try to run
the Government. They must have modesty and humility, and not behave like emperors," formed the most
stinging part of Katju's judgment. The order created confusion as several High Courts turned down
hearing PILs forcing the Chief Justice of India to take control of the situation. When the matter was placed
in CJI's court on April 9, he commented, "What is to be done when large number of people are cheated.
Will the State Government go to court? Where do they go when the State Government is conniving?" He,
however, agreed to the proposal to frame guidelines, though he noted that the Supreme Court already
had in place the subjects to be dealt under PILs. (Pioneer 28/4/08)

Panel: Constitution amendment the only way to end impasse (19)

New Delhi: The Parliamentary Committee on Law and Justice has urged the Centre to amend the
Constitution to provide for establishment of regional Benches of the Supreme Court. In its 26th report
submitted to Parliament on Tuesday, the committee said: “It has been recommending time and again the
setting up of the Benches in far-flung areas with a view to providing justice to the poor.” The Supreme
Court, however, found no justification for them. In its report, the panel, headed by E.V. Sudarsana
Natchiappan, said: “The committee, in its second, sixth, 15th and 20th reports, dealt with the issue and
felt that establishment of the Benches in southern, western and northeastern parts would facilitate the
litigants to avail themselves of justice from the apex court, without travelling to Delhi from faraway places.”
The earlier committees recommended that the government decide on its course of action to resolve the
matter expeditiously. In its action taken report, the Centre told the present committee that the government
had been pleading with the Supreme Court for its approval for the proposal, as it was mandatory under
Article 130. (Article 130 says the Supreme Court sits in Delhi. It can, however, meet in any other place or
places as the Chief Justice may decide with the President’s approval.) It said a Full Court (comprising all
judges including the Chief Justice) of the Supreme Court considered the subject matter and the judges
were of the considered opinion that the demand could not be accepted. Initially, the Full Court rejected
the demand in 1999 and reiterated the same view in 2001, 2004 and 2006. On being asked whether the
Ministry planned to introduce a Constitution amendment to address this problem, the reply was: “the
government does not propose to bring in any amendment.” The committee said: “It is not happy with the
persistent opposition of the Supreme Court without giving any convincing reason or justification therefor.
The committee, therefore, endorses its earlier view that establishment of Benches of the Supreme Court
at least in Chennai on a trial basis and then in other parts of the country would be of immense help to the
poor who cannot afford to travel from their places to Delhi.” The Ministry should introduce a Constitution
amendment to break the deadlock, the committee said. (The Hindu 30/4/08)

Minor cannot be denied road accident relief: SC (19)

NEW DELHI, MAY 7: The Supreme Court has ruled that if a minor driving a vehicle is involved in a road
accident he cannot be denied compensation for not being in possession of a valid license. “If he was not
driving rashly and negligently, which contributed to the accident, we fail to see as to how, only because
he was not having a license, he would be held to be guilty of contributory negligence,” the SC queried
while upholding an appeal filed by a minor. The appellant, Sudhir Kumar Rana (17), was injured after the
two-wheeler he was driving collided with a mini-truck being driven rashly and negligently. Rana filed a
claim petition, but the Motor Accidents’ Claims Tribunal (MACT) awarded him a mere Rs 12,000 on the
ground that his action of driving the vehicle without a license amounted to “contributory negligence”. The
High Court upheld the tribunal’s argument following which Rana filed the SLP in the apex court. The
Supreme Court said “ordinarily the doctrine of contributory negligence is not applicable in case of children
with the same force as in the case of adults”. Hence the apex court while quashing the ruling of the
tribunal said Rana would be entitled to an enhanced compensation of Rs 30,000. (Indian Express 7/5/08)

Sexual harassment includes misconduct outside office: HC (19)

NEW DELHI: The Delhi High Court recently stated that a man can be accused of sexual harassment at
workplace even in cases where the misconduct has been committed outside the office premises. "If an
officer indulges in an act of sexual harassment with an employee, it would not be open for him to say that
he had not committed the act at workplace but at his residence and get away with the same," a Bench
headed by Justice A K Sikri said. The court referred to the recent phenomena of senior officials of the
private sector running their businesses from their residences with the advancement in information
technology. "An officer or teacher may work from the accommodations allotted to him. He would not be
allowed to say that it is not a workplace," the Bench also comprising Justice Vipin Sanghi said, adding "a
person can interact or do business conference with other persons while sitting in some other country by
means of video conferencing." The court passed its order on a petition filed by suspended Director of
National Academy of Audit and Account S K Mallick, facing departmental inquiry for allegedly indulging in
sexual harassment with his senior woman officer. Mallick had contended that he could not be accused of
sexual harassment at workplace as the alleged misconduct took place not at the workplace but at an
official mess where the woman officer was residing. "The conduct rules clearly stipulates that a
government servant shall not indulge in any act of sexual harassment with any woman at workplace. The
expression ‘any woman’ is broad enough to include a woman who may be senior in status as well," the
court said. In the case, Mallick had allegedly entered the room of the woman officer at Shimla in an
inebriated condition on March 30 last year and misbehaved with her. The woman filed an FIR the next
day and also intimated senior officials of the conduct of Mallick, leading to a departmental inquiry against
him. Mallick was suspended in May on the basis of criminal case pending against him. He then
approached the Central Administrative Tribunal (CAT) seeking to stay the departmental inquiry
contending that the alleged misbehaviour did not come fall under the ambit of sexual harassment at
workplace. He filed a petition before the HC after the CAT refused to stay the departmental proceedings.
(Times of India 13/5/08)

SC laments anticipatory bail provision in law (19)

New Delhi: An anguished Supreme Court on Monday lamented the growing misuse of anticipatory bail
provision in law, which, far from serving as a tool to prevent the arrest of innocent persons, has served a
cover for swindlers, triple murderers and rapists. The comment came from a Vacation Bench of Justices
Arijit Pasayat and PP Naolekar during the hearing of a petition where a multiple murder accused was
seeking pre-arrest bail. "Now swindlers, triple murderers and rapists are approaching for anticipatory bail
under Section 438 CrPC," said the Bench. "It is one of the most misused sections of the CrPC," it added.
Stating this reason the bench asked the concerned accused to first surrender before the trial court and
seek bail. The court was concerned about the rampant abuse of the section which was inserted into the
Code of Criminal Procedure (CrPC) as a defence against false arrest and motivated criminal cases. For
this reason, Sessions Courts and High Courts are authorised under Section 438 of the Code to grant bail
even before a person has apprehension of arrest. Such person, on arrest, has to simply produce the
order of the court to be immediately released on bail. At present, barring Uttar Pradesh, all States have
the power to grant pre-arrest bail to persons apprehending arrests. The Section was not originally found
in the Code, but later got incorporated following the Law Commission's recommendation in 1969. Since
then the provision has undergone several improvements. In 2007, the Law Commission gave its report on
the provision of anticipatory bail recommending that a person seeking bail need not be present in court as
there is a possibility of his arrest in the event of his request being denied. Currently the law requires the
accused to be present in court for seeking anticipatory bail. The Vacation Bench seemed to hint at the
recent Law Commission report to highlight the intent of the legislature to prevent frequent offenders from
seeking protection of this provision. (Pioneer 10/6/08)

Parents should have share in self-acquired property of woman intestate… (19)

NEW DELHI: The Law Commission has suggested that the self-acquired property of a woman who dies
without leaving a will or heirs be inherited equally by the heirs of her husband and her parents, and in the
absence of her parents, by the heirs of her husband as well as her father’s heirs. Recommending
amendments to Section 15 of the Hindu Succession Act, 1956, the Commission in its 207th report said
this section did not differentiate between the property inherited and the self-acquired property of a Hindu
female; it only prescribed that if a property was inherited from her husband or father-in-law, it would go to
her husband’s heirs and if the property was inherited from her parent, it would go to the heirs of her
father, and not to her husband’s heirs. Section 15 has not clearly enumerated and considered succession
of a Hindu female’s property where it is self-acquired and the same would devolve on her husband’s
heirs. Under the Hindu Succession Act, the basis of inheritance of a property of a Hindu female, who dies
intestate, is the source from which she came into possession of it and the manner of inheritance will
decide the manner of devolution. The subject matter was taken up by the Commission suo motu in view
of the vast social changes in the past few years. Women have made strides in all spheres and are owning
property earned by their skills. These situations do not seem to have been in the contemplation of
legislators when the Hindu Succession Act was enacted, the Commission said in its report. When
amendments were made to entitle women to inherit property from her parental side as well as from her
husband’s side, it would be quite justified if equal right was given to her parental heirs along with her
husband’s heirs to inherit her property. Another recommendation concerns enactment of a new Coroners
Act to be made applicable throughout India. The recommendation, in the form of the Coroners Bill 2008,
appended to the 206th report, provides for appointment of a coroner for each district and also for each
Union Territory. The existing Coroners Act, 1871, a Central Act, applies only to very limited territorial
jurisdiction — the ordinary original jurisdiction of the High Courts of Calcutta and Bombay. The matter was
taken up by the Commission following a Delhi High Court order for examining whether a piece of
legislation such as the Coroners Act, 1988, prevalent in the U.K. was needed in the country. The
Commission took up a study to examine the Coroners Act, 1871; the Coroners Act, 1988 (U.K.) and
various other legislation so as to include the right to know the correct cause of death of any person,
especially when it is unnatural and reported under suspicious circumstances. Commission Chairman A.R.
Lakshmanan presented both reports to Union Law Minister Hansraj Bhardwaj here on Tuesday. (The
Hindu 11/6/08)

Law panel to revise punishment for attempting suicide (19)

New Delhi : The Law Commission is all set to enter into a controversial row by deciding on whether to
keep the offence of attempt to commit suicide in the statute book.Under Section 309 of the Indian Penal
Code, any person who fails in his attempt to commit suicide is liable for a punishment of one-year
imprisonment. According to Law Commission sources, the issue has now come under the Commission
scanner, which seeks to sympathise with the person committing suicide rather than punishing him for
having attempted to end his life. In doing so, the Commission wants to revisit a Supreme Court decision
in Gian Kaur vs State of Punjab in 1996 where a Constitution Bench held that the provision of making
attempt to suicide punishable was constitutional. The decision followed an earlier apex court decision in P
Rathinam v Union of India (1994), where Section 309 was struck down as unconstitutional. According to
Commission sources, the subject has attracted attention in the changing international scenario where
attempt to suicide is not treated with contempt but compassion. In this regard, the Commission headed by
Justice AR Lakshmanan has decided to make a review of the prevailing laws in other countries and make
a considered recommendation to reduce, if not remove, the harsh provision in the law. The primary focus
of the study is the victim. The past Supreme Court decision in 1996 revolved around a case relating to
abetment to suicide where an accused sought relief citing the previous decision in Rathinam's case. Now
the Commission seeks to study the validity of the provision from the victim's point of view, the source
said.(Pioneer 16/6/08)

Hindu Marriages Act “has broken more homes than uniting:” judge (19)
New Delhi: The Supreme Court on Tuesday expressed its anguish and concern at the increasing number
of divorce cases. Justice Arijit Pasayat, heading a vacation Bench, orally observed that the Hindu
Marriages Act “has broken more homes than uniting.” He said: “The growing number of divorce cases in
the country is having a disastrous effect on children of families which get broken.” In a lighter vein, he
said: “Nowadays even at the time of marriages, anticipatory divorce petitions are being filed.” Hearing a
petition filed by Gaurav Nagpal, seeking custody of his minor son, Justice Pasayat said: “Ego should get
dissolved for the sake of the child,” even as the mother, Sumedha Nagpal, who argued in person,
opposed giving custody of the boy to her separated husband. Justice Pasayat told the couple that the
court was concerned about the welfare of the child rather than their mutual recrimination. “Ultimately the
child suffers. If it is a girl, the trauma is more, particularly at the time of the marriage of such children.”
Justice Pasayat said: “The provisions under the Hindu Marriages Act for granting divorce on grounds of
either of the spouses suffering from diseases like leprosy and mental illness are being misused by some
couples. Those days, our forefathers never had such problems and marital disputes were sorted out
within the four walls of the house.” Gaurav Nagpal filed his appeal against an order passed by the Delhi
High Court confirming a trial court order, which granted custody of the 11-year-old boy to the mother.
Justices Pasayat and G.S. Singhvi suggested to the couple that they sort out their differences for the
sake of the child. However, when Mrs. Nagpal turned down the offer, the judges heard the couple in the
chambers. The Bench will pass an appropriate order on Wednesday if there is no settlement in the in-
camera hearing. (The Hindu 18/6/08)

Study judicial impact before passing laws, advises panel (19)

New Delhi : There is certain good news for the judiciary. A panel formed to study the cause of judicial
arrears has suggested the Government to study the judicial impact of a Bill before it is made a law. With
pendency of cases climbing to crores in district courts, the panel 'Task Force on Judicial Impact
Assessment' asked the legislature to form an impact assessment authority at both the Central and State
levels to ensure lesser burden is passed on to courts which handle cases under the new law despite
overwhelming arrears. Panel chairman and former Supreme Court judge Justice M Jagannadha Rao
said, "Every Central Ministry that sponsors a Bill should fund the creation of new courts to handle cases
that may be filed after it becomes a law." Addressing mediapersons after submitting the findings of the
five-member panel to Union Law Minister HR Bhardwaj, he said, "There is no point in blaming the
judiciary for case arrears. The blame must also lie with other departments that help it." According to
Justice Rao, the problem gets compounded on analysing the total working strength of judges and the
pressure of work on them. Chief Justice KG Balakrishnan, while addressing a conference recently,
pointed out that each judge in subordinate courts handle an average of 4,000 cases per day. This is far in
excess of the prescribed international standards of cases handled per judge per day. At present the
pendency figures in trial courts across the country stands at a whopping 2.50 crore. Despite the courts
disposing of 1.50 crore cases annually, the pendency remains unchanged as an equal number of new
cases get admitted in courts, Rao said. He has recommended the Centre to consider setting up judicial
impact assessment centres across the country. The report further asked the Planning Commission and
the Finance Commission, in consultation with the Chief Justice of India to allocate sufficient funds for
judicial administration in the country. Pointing out the fund crunch faced by the judiciary, Justice Rao said
in the Ninth Five Year plan, the judiciary received 0.071 per cent of the Plan outlay. In the Tenth Plan it
got 0.078 per cent of the Plan outlay and in the Eleventh Plan it was allocated 0.07 per cent of the Plan
outlay, he said. The task force constituted in February 2007, on the recommendation of EMS
Natchiappan, Chairman of the Parliamentary Standing Committee on Law and Justice, comprised NR
Madhava Menon, Mohan Gopal, TCA Anant and Ramesh Abhishek. The panel studied the Arbitration and
Conciliation Act and other related laws before making its recommendations. (Pioneer 19/6/08)

Evidence by child witness crucial in trials, rules SC (19)

New Delhi, June 18: The Supreme Court has yet again held that a statement by a child witness can be
treated as a crucial piece of evidence like any other given by a witness in a criminal trial and may form the
basis for convicting an accused. A Vacation Bench comprising Justices Arijit Pasayat and P P Naolekar
asked the courts, including the high courts to treat such statements cautiously as minors can be
influenced easily. “The evidence of a child witness cannot be rejected outright, but the evidence must be
evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what
others tell him and thus a child witness is an easy prey to tutoring,” it said. While relying on their
statements, it further asked the court’s to assess whether the victim’s statement is voluntary and not
under the influence of others. The ruling came during the hearing of a case where the apex court decided
to go by the statement of a minor rape victim who held the accused, Md Kalam, guilty of the crime. It
observed that the trial court and the Patna High Court have found the evidence provided by the child
witness as “cogent, credible and had grain of truth.” It held that the HC rightly found that the evidence of
the victim was free from any influence. While the Bench upheld the conviction, it, however, felt that “five
years custodial sentence with fine imposed by the trial court and maintained by the HC would meet the
ends of justice.” Earlier, the Sessions Court in Bihar had sentenced Kalam to ten years imprisonment for
raping a six-year-old girl. Since the Patna High Court dismissed Kalam’s appeal, he had approached the
apex court. Kalam’s advocate contended that the two subordinate courts had wrongly convicted him by
relying upon the testimony of a child without further corroboration. The state counsel submitted that the
testimony of a child witness particularly in such a heinous case does not require corroboration, as long as
it is credible. It was pointed out that the victim, immediately after the rape, had told her mother about the
incident and, therefore, her evidence is of considerable importance. (Indian Express 19/6/08)

Assess judicial impact of new laws: task force (19)

New Delhi: Considering the huge backlog of cases in courts, a Task Force, set up at the instance of the
Supreme Court, has recommended that a judicial impact assessment (JIA) be done whenever a law is
introduced in Parliament or the State legislatures. The Task Force, under the chairmanship of Justice M.
Jagannadha Rao, former Law Commission Chairman, presented its report to Law Minister H.R. Bhardwaj
here on Wednesday. The Centre will submit it to the apex court, hearing the Salem Bar Association case
in which the Task Force was constituted. Justice Rao said a financial memorandum must be attached to
each Bill, giving an estimate of budgetary requirement of not only other staff but also for meeting the
expenses of additional cases that might arise out its passage in the legislature. Such a system had been
followed in the United States for over two decades. The report said: “The budget must mention the
number of cases likely to be generated by the new Act, how many courts and how many judges are
necessary. JIA must be made on a scientific basis to assess the extra case-load which any new Bill or
legislation may add to the burden of courts, and the expenditure required for adjudication of such cases
must be estimated by the government and adequate budgetary provision made therefor.” The task force
suggested the setting up of judicial impact offices in Delhi and in States for the assessment by involving
social scientists, statisticians and legal experts. Justice Rao said: “Every Central Ministry that sponsors a
Bill should fund the creation of new courts to handle cases that may be filed after it becomes law. There is
no point in blaming the judiciary for case arrears, the blame must also lie with other departments that help
it.” Over 25 lakh cases were filed after an amendment to Section 138 of the Negotiable Instruments Act
and no new court was set up to handle the cases. He said “2.5 crore cases are still pending in lower
courts despite their disposing of 1.5 crore cases annually. The backlog does not get wiped out because
fresh cases, almost equal to the number disposed of, get filed in courts every year.” Justice Rao said:
“We have 13 judges per million population and we need five times the present strength of about 14,000
judges. The Planning Commission and the Finance Commission must, in consultation with the Chief
Justice of India, allocate sufficient funds for judicial administration.” The State governments “must likewise
make adequate financial provision for meeting the expenditure of courts, at the stage of the Bills, for
implementation of the laws to be made by the legislature with respect to subjects in the State List and the
Concurrent List [in the Constitution].” Justice Rao said the credit for taking up the study should go entirely
to Law Secretary T.K. Viswanathan following an article written by him in The Hindu in 2002 under the title
“Judicial Arrears — Thinking outside the Box.” The other members of the Task Force are Prof. N.R.
Madhava Menon, former Director of the National Judicial Academy (NJC), Bhopal; Prof. Mohan Gopal,
Director NJC; T.C.A. Anant, Member-Secretary of the Indian Council of Social Science Research; and
Ramesh Abhishek, Joint Secretary, Department of Justice. (The Hindu 20/6/08)

Law panel split on making suicide legal (19)

New Delhi : Attempting to end one's life is punishable under law, but the Law Commission's recent
attempt to decriminalise such acts has raised a controversy within its ranks. A section of the Commission
members have opposed the move to remove Section 309 (attempt to commit suicide) from the statute
book. Sources in the Ministry said the Commission headed by former judge of the Supreme Court, Justice
AR Lakshmanan, is keen to submit its report by the month end. Following reports about the Commission's
viewpoint to abolish attempt to suicide as a crime, the Ministry sent feelers to the Commission expressing
concern that such a recommendation would go against a 1996 Supreme Court Constitution Bench
decision in Gian Kaur vs State of Punjab, sources said. In this decision the Court held that nobody had a
right to end his life and that any such attempt would be punishable with maximum sentence of one year
and fine under Section 309 of the Indian Penal Code. Later the Ministry was apprised that the
Commission's decision suffered on account of unanimity and in the event the final report contains the
recommendation to take away Section 309, it must highlight the note of dissent too. A highly placed
official in the Commission, who confirmed such a note of dissent, was indeed received by it said that this
is part of routine work of the Commission. He said, "The Commission's work requires it to suggest drastic
changes in law which have far been neglected or require a change due to the change in socio-political
settings." The Commission panel comprises of Chairman, Secretary and a permanent member along with
six part time members from various disciplines of law." It is natural for members to differ on a subject. In
such an event, the reports are passed by majority rule," the official said. The Commission attributes the
conflict on the subject over an early recommendation of the Law Commission recommending against
continuing the offence of attempt to suicide. In Report no 42, the first exhaustive review of the Indian
Penal Code undertaken by the Commission, it was stated, "We included in our questionnaire the question
whether attempt to commit suicide should be punishable at all. Opinion was more or less equally divided.
We are however, definitely of the view that the penal provision is harsh and unjustifiable and it should be
repealed." Those who support this view in the Commission argue that in several countries, for instance
Japan where committing suicide is considered a stigma, attempt to commit suicide has ceased to be an
offence. The Suicide Act of 1961 passed by the British Parliament was a step in this direction whereby
attempt to suicide ceased to be an offence. "This view is largely based on the fact that such persons
deserve the active sympathy of society and not condemnation or punishment," Commission sources
said……… (Pioneer 23/6/08)

Don’t treat suicide bid as offence: law panel (19)

New Delhi: An attempt to commit suicide must not be treated as an offence under the Indian Penal Code,
and a person suffering to live must have a “right to die,” the Law Commission has suggested. It favours
deletion of Section 309, under which an attempt to commit suicide is a punishable offence, from the
Indian Penal Code. In its draft report, the Commission has said: “If a person has the right to enjoy his life,
he cannot be forced to live that life to his detriment, disadvantage or disliking. If a person is leading a
miserable life or is seriously sick or having an incurable disease, it is improper as well as immoral to ask
him to live a painful life and to suffer agony. It is an insult to humanity.” Commission Chairman A.R.
Lakshmanan told The Hindu on Friday that the report would be finalised and submitted to the
government shortly. Though the Supreme Court upheld Section 309 in 1996, things had changed since
then and a more liberal outlook was required to be taken now, he said. “The apprehension that repeal of
the law would cause an increase in suicides is belied by the fact that Sri Lanka repealed the law four
years ago and the suicide rate [there] is showing a trend in reduction.” According to the Commission
report, if a person is suffering from unbearable ailments or mental imbalance or is unable to take normal
care of his/her body, or if he/she has lost all the senses and if his/her real desire is to quit the world,
he/she cannot be compelled to continue with torture and painful life. It will indeed be cruel not to permit
such a person to die. “In many countries, attempt to commit suicide is regarded more as a manifestation
of a diseased condition of mind deserving treatment and care than as an offence to be visited with
punishment. The continuance of Section 309 in the IPC is an anachronism unworthy of a human society
like ours.” Quoting an English writer, the report says: “It seems a monstrous procedure to inflict further
suffering on even a single individual who has already found life so unbearable, his chances of happiness
so slender, that he has been willing to face pain and death in order to cease living. That those for whom
life is altogether bitter should be subjected to further bitterness and degradation seems perverse
legislation.” The report says it should be the endeavour of all to initiate steps to repeal Section 309.
However, it is for Parliament to decide whether the provision should continue in the statute or to have it
deleted with necessary amendments to the IPC. (The Hindu 28/6/08)

“Oral partition must have legal sanctity” (19)

NEW DELHI: All types of partition including ‘oral partition’ and ‘family arrangement’ must have legal
sanctity under the Hindu Succession (Amendment) Act, 2005, the Law Commission has recommended.
At present, Section 6 provides for vesting equal rights in daughters along with sons in coparcenary
property but protects partitions (registered or through court decrees) made prior to December 20, 2004
when the amendment Act came into force. The ‘Explanation’ under Section 6 (5) says: “For purposes of
this Section, ‘partition’ means any partition made by execution of a deed of partition duly registered under
the Registration Act or partition effected by a decree of a court.” In its recommendation, the Commission
says: “The Act has failed to include oral partition and family arrangement which are common and legally
accepted modes of division of property under the Hindu Law. Further by the 2005 amendment, oral
partition and family arrangement which were effected prior to the enactment would be set at naught.”
Commission Chairman A.R. Lakshmanan told The Hindu that the recommendations, to be submitted to
the government shortly, would remove an anomaly in the law as only registered partitions or decrees
were recognised. In many families, oral partition was made without any document and in the absence of
legal sanctity such divisions could not be enforced. To overcome this difficulty, the Commission
suggested an amendment to the ‘explanation’ under Section 6 (5) to include oral partition and family
arrangement in the definition of partition, he said. The draft report says: “By virtue of a family settlement
or arrangement, members of a family descending from a common ancestor or a near relation seek to sink
their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all
in order to buy peace of mind and bring about complete harmony and goodwill in the family.” “A family
arrangement is an agreement between members of the same family, intended, generally and reasonably,
to be for the benefit of the family either by compromising doubtful or disputed rights or by preserving the
family property or the peace and security of the family by avoiding litigation or by saving its honour.” The
report, quoting various judgments, says: “The courts have taken a very liberal and broad view of the
validity of the family settlement and have always tried to uphold and maintain it. The central idea in the
approach made by the courts is that if by consent of parties, the matter has been settled, it should not be
allowed to be reopened by the parties to the agreement on frivolous or untenable grounds.” Hence, the
Commission recommended amending the ‘explanation’ under Section 6 (5) to include oral partition and
family arrangement.(The Hindu 2/7/08)

Remove the discrimination against Hindus: Law panel (19)

New Delhi: The Law Commission has recommended removal of discrimination in the Indian Succession
Act (ISA) in execution of wills on properties owned by Hindus, Buddhists, Sikhs, Jainas (a sect of Hindus,
allied to Buddhists) and Parsis. Under Section 213, while Muslims and Christians can execute wills
anywhere on properties situated anywhere in India, Hindus and other religious sects can execute wills in
respect of properties situated only within the original jurisdiction of the High Courts of Bombay, Calcutta
and Madras. Commission Chairman A.R. Lakshmanan told the The Hindu that at present a Muslim or
Christian, residing in Hyderabad but owning property in Chennai, can execute his will in Hyderabad or
elsewhere. But, in a similar situation, Hindus, Buddhists, Sikhs, Jainas or Parsis can execute the will only
in Chennai, i.e. within the original civil jurisdiction of the Madras High Court. Justice Lakshmanan said:
“Section 213 (1) necessitates grant of probate of a will or letters of administration with the will by a court
of competent jurisdiction in order to establish the right as executor or legatee. It is now applicable only to
Hindus and other religious sects and not to Christians and Muslims [as per Section 213 (2)].” The
Commission, in its report to be submitted to the government, recommended deletion of Section 213 (1)
and (2), insofar as it discriminated against Hindus and other religious sects. The report, quoting Article 15
(1) of the Constitution, says: “The state shall not discriminate against any citizen on grounds of religion,
race, caste, sex, place of birth or any of these. While so the provisions of ISA, 1925 remind us of clear
discrimination.” (The Hindu 3/7/08)

“Speedy trial is a constitutional right” (19)

New Delhi: Holding that speedy trial is a constitutional right, the Supreme Court has said that the court
can quash criminal proceedings if there is inordinate delay in the investigation or conclusion of the trial. A
Bench comprising Justices C.K. Thakker and D.K. Jain said: “It is well settled that the right to speedy trial
in all criminal prosecutions is an inalienable right under Article 21 of the Constitution [right to life and
liberty]. This right is applicable not only to the actual proceedings in court but also includes within its
sweep the preceding police investigations as well. “The right to speedy trial extends equally to all criminal
prosecutions and is not confined to any particular category of cases. In every case, where the right to
speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into
consideration all the attendant circumstances and determine in each case whether the right to speedy
trial has been denied in a given case.” Writing the judgment, Justice Jain said, “where the court comes to
the conclusion that the right to speedy trial of an accused has been infringed, the charges or the
conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of
offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice.
In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable
including fixation of time for conclusion of trial.” A case was registered by the Anti-Corruption Bureau,
Maharashtra government in 1987 against 12 persons — nine employees off the government milk plant
and the remaining three, including the appellant Pankaj Kumar and his parents, —for various offences
under the Indian Penal Code and under the Prevention of Corruption Act. After three years of
investigation, a chargesheet was filed in 1991 and the trial court took cognisance of it. The appellant and
his mother moved the Bombay High Court. During the pendency of the petition, his parents died. A single
judge rejected the petition. “Having regard to the nature of accusations against the appellant, who was a
young boy of 18 years in 1981, when the acts of omission and commission were allegedly committed by
the concerns managed by his parents, who have since died, we feel that the extreme mental stress and
strain of prolonged investigation by the ACB and the sword of Damocles hanging perilously over his head
for over 15 years must have wrecked his entire career,” the Bench said.(The Hindu 16/7/08)

Lawyers can have websites, BCI tells Supreme Court (19)

New Delhi: The Bar Council of India (BCI) on Monday informed the Supreme Court that it allowed lawyers
to launch their own websites giving basic information about themselves to prospective clients. A Bench
consisting of Justices B.N. Agrawal, S.H. Kapadia and D.K. Jain is hearing a petition filed by advocate
V.B. Joshi challenging Rule 36 of the BCI, which prohibits lawyers from advertising their services in any
manner. Appearing for the BCI, senior counsel Krishnamani said it had passed a resolution to amend
Rule 36 for allowing lawyers to furnish information on the website — their names, addresses, telephone
numbers, email ID, enrolment number, date of enrolment, the name of the State Bar Council where they
originally enrolled, the name of State Bar Council on whose roll they are now, the name of the Bar
Association of which they are members, and professional and academic qualifications and areas of
practice. Justice Agrawal told counsel that it would be better if the BCI allowed lawyers to furnish
information about their experience and areas of specialisation also. Mr. Krishnamani said the BCI would
accept this suggestion. The suggestion that the BCI and the State Bar Councils furnish on their websites
particulars of lawyers enrolled in their States would also be considered. Earlier, the BCI and the Centre
opposed the petition, saying the legal profession was not a trade. It was always treated as a noble
profession. “The rule against soliciting is the foundation of the legal system in India and the Indian society
is quite different from western countries including the U.S. as our society cherishes different ethos, social
values and ethical norms.” The petitioner termed Rule 36 archaic. Over half-a-million lawyers, arbitrators
and legal experts in India could offer their services to the world with the help of advertising, he said. The
Bench adjourned the hearing. Additional Solicitor-General Gopal Subramaniam is appearing for the
Centre.(The Hindu 30/7/08)

Consider nature of cruelty in suicide by women: court (19)

New Delhi: The mere fact that a woman committed suicide within seven years of her marriage and that
she had been subjected to cruelty by her husband or any relative of her husband does not automatically
give rise to the presumption that he or she abetted in it, the Supreme Court has held. A Bench consisting
of Justices R.V. Raveendran and Mukundakam Sharma said: “The court is required to look into all the
other circumstances of the case. One of the circumstances which has to be considered is whether the
alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health of the woman.” Quoting an earlier judgment, the Bench said:
“Section 113-A of the Evidence Act was introduced to meet a social demand to resolve the difficulty of
proof where helpless married women were eliminated by being forced to commit suicide by the husband
or in-laws and incriminating evidence was usually available within the four corners of the matrimonial
home and hence was not available to anyone outside the occupants of the house.” Writing the judgment,
Justice Sharma said: “Under Section 113-A, the prosecution has to first establish that the woman
concerned committed suicide within seven years from the date of her marriage and that her husband or
any relative of her husband had subjected her to cruelty. This Section gives a discretion to the court to
raise such a presumption, having regard to all other circumstances of the case, which means that where
the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, within
the meaning of ‘cruelty’ in Section 498-A IPC.” The Bench said: “The presumption in that Section is not
mandatory; it is only permissible as the expression ‘may presume’ suggests. In a criminal trial, however
intriguing the facts and circumstances of the case are, the charges made against the accused must be
proved beyond all reasonable doubt.” In the instant case, Shanti Bai set herself ablaze. The prosecution
alleged that she took the extreme step, unable to bear harassment by her in-laws. The trial court in
Madhya Pradesh convicted her mother-in-law, Munni Bai, of abetting in suicide and sentenced her to
three years’ rigorous imprisonment. The Madhya Pradesh High Court confirmed the conviction and
sentence. Allowing the appeal against this judgment and acquitting her, the Bench said there was nothing
on record to prove the prosecution charge that the mother-in-law abetted in the suicide. (The Hindu
1/8/08)

‘I wanted a decision, not a nationwide debate on abortion’ (19)

MUMBAI, AUGUST 5: I didn't want a nationwide discussion on abortion laws. I wanted a decision on my
abortion. But now I will try to be happy and bring my child to this world,” said Niketa Mehta, a day after
her plea for medical termination of pregnancy was rejected by the Bombay High Court. Wanting to abort
their child, who doctors told them would probably have to live a life on pacemaker after birth, this couple
from Mumbai’s Bhyander took the chance of seeking a respite from the 37-year-old Medical Termination
of Pregnanacy Act, which prohibits abortions after 20 weeks of pregnancy. Schoolteacher Niketa Mehta,
bearing her first child with stockbroker husband Haresh, thought everything was going smooth till an
echocardiography of the foetus showed a heart block. Faced with the prospect of their child requiring at
least five pacemakers implanted through life—each costing Rs 1 lakh—the Mehtas approached the High
Court to allow the abortion as they wanted “a healthy child”. “The couple came to me for second opinion.
They have been extremely courageous in this entire matter. I think there should be justice for Niketa,”
said Dr Nikhil Datar, their gynaecologist and one of the petitioners in the matter. According to Dr Datar,
the first sonography during the 8th week of pregnancy did not reveal any abnormality in the foetus.
Another sonography conducted just before the 20th week was also normal. In another two weeks, she
underwent another sonography which showed some abnormality and her consulting gynaecologist
recommended an echocardiogram of the foetus’ heart. This report revealed two abnormalities in the
foetus’ heart. “They then came to me for a second opinion about what they could do. We again consulted
two pediatricians and cardiologists who confirmed the findings. That is when we decided to seek legal
intervention to allow an abortion,” said Dr Datar, adding that questions about the risk of life of the mother
need to be seen in comparison with the quality of life of the child. “I was faced with a moral and legal
dilemma. I wanted to help this couple but I could not, as the law of this country does not allow me. When
this law was formed, the methods of abortion were different. With the technology, we are almost
mimicking delivery for abortion. With these changes, it is medically safe to abort till the 24th week. More
so in such cases, where the abnormalities are detected only after 20 weeks,” said Dr Datar, adding that
the law needs to be reviewed. “The couple or the woman should have the choice of aborting.” “I was
hopeful till the last minute, till the judge pronounced his decision. The doctors, media, my family members
were all with me, but not the decision makers,” said a dejected Niketa. “Of course I am going to love my
child, whether girl or a boy, as much as when I first learnt about my pregnancy. It was never an unwanted
child. We are rearing a mentally challenged child in our family and we know the trauma the child’s parents
and even the child is going through and we didn’t want the same,” she added. “I now want to concentrate
on my health and my child. I will be as happy and will enjoy my delivery as much as any first time mother
would and will battle it out later,” said Mehta. Even as the matter was to come up in court for a decision,
an NGO offered to take care of the child. They have refused the offer. (Indian Express 6/8/08)

Legalising trade won’t help: Sex workers (19)

New Delhi: Aug. 5: A huge debate is raging amongst India’s sex workers on the pros and cons of
legalising the sex industry. If this is granted, several G.B. Road sex workers believe, it will mean providing
a legal status to pimps, traffickers and brothel-owners who maintain a stranglehold over the sex industry.
Bimla, a middle-aged sex worker, expresses the view of several women in her kotha when she says,
"Legalising prostitution is not going to provide any dignity to our lives. On the contrary, decriminalising
pimps and brothel-owners and procurers will help increase their profits as legal barriers come tumbling
down." Talking to these women comes as an eye-opener. Rama Devi, a new entrant from Karnataka,
expresses surprise at how registration will help ensure mandatory health check-ups for them. "The arrival
of HIV/AIDS has led to a situation where prostitutes are already subjected to compulsory check-ups. On
the subject of ‘sex work’ being treated as an employment choice, all I will say is that not one of us would
want to bring our daughters into this dhanda," said Rama Devi. Several NGOs are also opposed to this
move, stating that legalisation has not helped to improve the status of sex workers anywhere in the world.
Activist Rami Chabra quotes the example of countries such as Netherlands, Germany and Australia
where legalisation has seen a huge stepping up of trafficking, mostly from Africa, East Europe and East
Asia. "A Netherlands-based child rights group has estimated that the number of young kids in prostitution
shot up from 4,000 in 1996 to 15,000 in 2001 after it was legalised. Around 5,000 of these child
prostitutes were Nigerian girls," said Chabra. Western governments are often unwilling to take action
because legalisation has seen a quantum jump in earnings. The Netherlands government earns five per
cent of its GDP from this industry. Activists believe this is one of the main reasons why such a move is
being pushed in India. "Those who will gain from the sex industry are seen lobbying with different
ministers," pointed out an activist. Jyotsna Chatterjee from the Joint Women’s Programme believes that
legalisation will amount to sanctioning all aspects of this trade. "We will then have sex clubs, massage
parlours, pornography, peep shows, phone and Internet sex," she said. Another fear is that the traditional
stranglehold that the underworld has over the sex industry will be further strengthened if the government
takes such a step. Several health experts, including Sujata Rao, director-general of NACO, point out that
legalisation will help control HIV/AIDS. But prostitutes have a different take on this whole subject. G.B.
Road sex workers point out that "women only" health checks make no public health sense. Lalitha quotes
from a US-based study which reported that 73 per cent of male customers offered to pay more for sex
without a condom. And almost half the sex workers interviewed admitted they were willing to settle for the
extra money. Activists fear that governments that legalise prostitution as "sex work" have a huge
economic stake in the sex industry. If women in prostitution are counted as workers, pimps as
businessmen, and buyers as consumers of sexual services, then it amounts to the abdication of the
government for providing decent and sustainable employment for women. (Asian Age 6/8/08)

Judges need to declare assets to their Chief, not to public: draft Bill (19)
New Delhi, August 6: Senior judges would have to compulsorily declare their wealth to their respective
Chief Justice at the time of joining and then every subsequent year but these declarations won’t be open
for public scrutiny. “The Code of Conduct may, inter alia, provide that every judge at the time of
appointment as a judge of the Supreme Court or of a High Court and thereafter shall annually give
information of his assets and liabilities to the Chief Justice of India or the Chief Justice of the High Court,”
says Clause 36 (3) of the Judges (Inquiry) Amendment Bill. The Bill, redrafted by the Law Ministry after
consultations with the Standing Committee on Personnel, Public Grievances, Law & Justice as well as
ministries concerned, is awaiting Cabinet approval. Significantly, the ministry is silent on the Standing
Committee’s suggestion to provide reservation for Scheduled Castes, Scheduled Tribes and other
backward castes in the higher judiciary. Although there have been demands from political parties and
lawyers that judges declare their assets to bring about accountability and transparency in the judiciary,
the Supreme Court in May dismissed a PIL asking for this by the People’s Union for Civil Liberties. Even
though the Chief Justices adopted “Restatement of Values of Judicial Life” in 1999 pledging to
periodically declare their assets, there is no confirmation whether anyone is following it. Chief Justice K G
Balakrishnan has earlier called for “voluntary” disclosure. But now the ministry says that it would be
mandatory in the Code of Conduct containing guidelines for conduct and behaviour of judges, with the
proposed National Judicial Council amending it from time to time. The NJC, chaired by the Chief Justice
will have two senior-most Supreme Court judges and two chief justices of High Courts. And until the NJC
is formed, the ‘Restatement of Values of Judicial Life’ — which provides for confidentiality to judges’
declaring assets — would apply, says the amendment bill. It makes it mandatory to publish the Code of
Conduct in the official gazette. It has also declined the committee’s recommendation that the process of
judges appointment be reverted to pre-1993 era with a committee including parliamentarians, government
and the Bar authorised to suggest the names of probable to the NJC for final recommendation. The
ministry denied the change saying that the objective of the amendments was to address judicial
accountability, not appointments. Until 1993, the Executive had a say in these appointments, but an
October 1993 Supreme Court ruling handed it to a collegium of judges.(Indian Express 8/8/08)

The right to abort vs unborn's right to live (19)

New Delhi : The recent verdict by the Bombay High Court turning down the plea of a mother to abort her
26-week-old foetus bears the imprint of the golden rule applied by successive judicial decisions
maintaining the unborn child's right to live. Yet the case of Niketa Mehta has thrown open an area of
debate that should the right of a woman to abort as part of her right to privacy clash with that of an unborn
child's right to live, which is to prevail. The Indian courts have generally attached a moral outlook towards
abortion being an act against ethics. This explains the discussion by a two-judge Bench of the Supreme
Court in Jacob George vs State of Kerala (1994) where the punishment to a doctor who aborted a foetus
was upheld. Quoting a hymn from Rig Veda II celebrating life, the judges remarked, "Life is beyond price
and it is not only a legal wrong, but a moral sin as well to take away life illegally." This perception
remained with the lawmakers while drafting the Indian Penal Code inserting Section 312 making abortion
punishable. Defining an unborn child's legal status, the Division Bench of the Kerala High Court in
Oriental Insurance vs Santhilal Patel case (2007) said, "The life may enter immediately on the date of
conception in the form of a small cell, which gets multiplied, but physically a mother can feel the
movement of child only when the foetus is twenty weeks old, i.e. five months... an unborn child aged five
months onwards in the mother's womb till its birth can be treated as equal to a child in existence." Yet
abortion is permitted under the Medical Termination of Pregnancy Act 1971 that requires three conditions
as necessary grounds for a woman to undergo abortion. These include: an extreme risk to the mother's
physical or mental health, when pregnancy results from a sex crime like rape or intercourse with a lunatic
woman, and where there is a substantial risk that the child, if born, would suffer from deformities and
disease. To this extent abortion is lawful. But as in the instant case, the judges of the Bombay HC
dismissed Mehta's plea unwilling to be satisfied by the extent of the unborn child's deformity as sufficient
to cause its termination. Here the question arises whether Mehta could take recourse to her right to abort
as part of her right to privacy. Unfortunately this aspect is yet untouched. But a discussion of this right is
discussed under the celebrated judgement of the Supreme Court in R Rajagopal vs State of Tamil Nadu
(1994) which is a treatise on the right to privacy. The judgement quotes an American decision where a
dispute arose between the right of an unmarried pregnant woman to terminate her pregnancy by abortion
and a Government order which invaded this right. Justice Blackmun who delivered the majority decision
in the case (Roe vs Wade) upheld the woman's right to privacy under the American Constitution in the
following words, "The right of privacy, whether it is founded in the Fourteenth Amendments... or as the
District Court determined in the Ninth Amendments reservation of rights to the people, is broad enough to
encompass a woman's decision whether or not to terminate her pregnancy." While it is true that the status
of an unborn child is well recognised under the law, the scope of whether it is subservient to a mother's
right to choose her birth in a situation that existed in the present case, is an area which the Supreme
Court could consider, in the event an appeal is brought against the Bombay HC decision. (Pioneer
11/8/08)

Don't repeal Section 377: Homosexuals (19)

MUMBAI: While the homosexuals in India have welcomed Health Minister Anbumani Ramadoss'
statement seeking the removal of provisions in Section 377of the Indian Penal Code (IPC) that classifies
sex between two men as a criminal offence, they do not want the repeal of the section to protect the boy
child from abuse. Delhi based NGO Naz Foundation challenged arrests made under Section 377 and the
Delhi High Court is hearing a petition by the Foundation. Says, Nitin Karani, Board of Trustee of Mumbai
based Humsafar Trust "Section 377 is applicable even to the heterosexuals, as it prohibits anal sex
(even) between husband and wife. We are demanding that consensual sex in private between individuals
not be considered illegal. But Section 377 is needed so that children are not abused. Hence, it should be
read down but not abolished." The health ministry had supported the gay community's call to remove the
law but the home ministry was not in favour of it. "It's nice to know people at the top level are speaking for
us," said Geeta Kumana of Mumbai based lesbian group Aanchal Trust. She was reacting to Ramadoss'
statement made on Friday at the 17th International Conference on Aids in Mexico City. The gay and
lesbian community is relieved that with immense pressure built over a period of time the government was
waking up to the rights of the homosexuals in the country. However, they say the society as a whole is
still to accept gays and lesbians in their fold. "When one speaks individually to parents and friends there
is a conditional change and acceptance. But, when one starts agitating for rights in front of police,
politician etc I find there is a huge homophobia; there is no acceptance," rues Geeta. A day after India's
61st Independence Day on 16 August this year, a Queer Azaadi (Independence) March will be organised
by the queer community (homosexuals, lesbians, transgender, bisexual and all those marginalised by
society that labels them as 'strange') in Mumbai to state that while the rest of India had achieved
independence from the British on 15 August1947, queer Indians were still bound by a British Raj law
(Section 377 of the Indian Penal Code, introduced in 1860) and Victorian puritanism. The March aims to
highlight issues that affect queer communities in India - Like Act that outlaws same-sex intercourse,
forced marriage of homosexuals, harassment of queer community by using sec 377 against them etc.
The closeted queer community, especially in small towns, hopes to gain visibility for their cause through
this rally. Leading gays and lesbian rights group Humsafar Trust and Aanchal Trust are in the forefront of
the three hours March that will start from August Kranti Maidan and end at Girgaum Chowpatty in south
Mumbai. In June this year, gays in Delhi, for the first time, marched through the heart of the city
proclaiming their sexuality. The homosexual community gradually seems to be coming out in the open in
India (Times of India 11/8/08)

Custody cases need human touch, rules SC (19)

New Delhi, August 12: Hearing a child custody case recently, the Supreme Court held that these cases
could not be decided “solely” by interpreting legal provisions. It even laid out that while dealing with such
cases a court “is neither bound by statutes nor by strict rules of evidence or procedure nor by
precedents”. “It is a humane problem and is required to be solved with human touch,” observed a Bench
headed by Justice C K Thakker. The Bench, which also comprised Justice D K Jain, noted that in
selecting a guardian, the court exercises parens patriae and is expected, and indeed bound to give due
weight to a child’s comfort, contentment, health, education, intellectual development and favourable
surroundings. The Bench even asked courts to consider “moral and ethical values” which, it felt, “cannot
be ignored” while deciding as to who should get the custody rights. According to the apex court, “they are
equally, even more important, essential and indispensable considerations”. The court made these
observations while dealing with a petition filed by Nil Ratan Kundu and his wife, who opposed the granting
of custody of their six-year-old grandson to be their son-in-law. They urged the court to take into account
the “preference” of the child as well. “Normally, in custody cases, wishes of the minor child should be
ascertained by the court before deciding as to whom custody should be given,” the court said while
declining the father’s plea that he was the natural guardian. Setting aside the trial court’s decision, upheld
by the High Court of West Bengal, the Bench agreed that character of the proposed guardian was one of
the issues required to be considered by a court of law. In the present case, the father, Abhijit Kundu, is
facing a criminal trial for the murder of his wife, Mithi Kundu, over dowry demands. Finding infirmities in
the earlier decisions, the SC allowed the grandparents to be the guardians of the child. (Indian Express
13/8/08)

PIL: prohibit release of harmful GM seeds (19)

New Delhi: The Supreme Court on Tuesday issued notice to the Centre on a public interest litigation
petition seeking a moratorium on release of genetically modified organism/seeds having the potential of
causing major health hazards. After hearing counsel Prashant Bhushan, a Bench, consisting of Chief
Justice K.G. Balakrishnan and Justices P. Sathasivam and J.M. Panchal, asked the Centre to file its
response in two weeks and the applicant, Aruna Rodrigues, a rejoinder in one week thereafter. It directed
that the matter be listed for the third week of September. Aruna Rodrigues and three other petitioners
contended that the GMO seeds were a pest-resistant, high-producing variety, but with the inherent
drawback of passing on strands of pesticide to the human body that could in future blow up as multiple
health problems. These included risks of new kinds of allergies, greatly increased resistance to
antibiotics, and severe toxicity to humans, animals and micro organisms, resulting in serious import on
human health, loss of wildlife and biodiversity. The petitioners said the use of technology of genetic
engineering and release of GM organisms into the environment would require application of precautionary
principle to ensure that no harm was caused to human and animal health and environment. The petition
pointed out that a large number of biosafety tests, required to be conducted on GMOs before they could
be approved for safe release into the environment, were not being done. An “irreversible loss of genetic
diversity through the release of GMOs is the most serious hazard to be confronted and it will hugely
impact the farming environment. This will devastate Indian agriculture.” In these circumstances, the
petition said, it became imperative to immediately put a moratorium on further environmental release of
any GMO until a comprehensive and independent testing facility was set up in India, and to ban import of
any GM product. (The Hindu 13/8/08)

Plea in SC against sex-selection technique on three websites (19)

New Delhi: : The Supreme Court on Wednesday issued notices to the Centre on a PIL which says
adequate steps have not been taken to block Google, Yahoo and Microsoft websites that are allegedly
promoting sex-selection technology in India. A Bench headed by Chief Justice K G Balakrishnan issued
notices to the Ministry of Health, Ministry of Communication and Information Technology and CEOs of
India operations of the three popular websites on the contention that promotion of sex selection
technologies violates the provision of the Pre-conception and Pre-natal Diagnostic Techniques (PC-
PNDT) Act. The PIL filed by Kerala-based doctor Sabu Mathew George says despite bringing it to the
notice of the departments concerned in the Government, no step has been taken to block the websites.
Advocate Sanjay Paril, appearing for the petitioner, said the PIL had been filed for the full and effective
implementation of the Act. The PIL also sought a direction that Google India, Yahoo India and Microsoft
Corporation should stop immediately all forms of promotion of sex-selection which includes
advertisements on their websites. (Indian Express 14/8/08)
Bar files PIL in HC (19)
Jammu : Former president of the Bar Association, Jammu Advocate AK Sawhney on Monday filed a PIL
(Public Interest Litigation) in the High Court of J&K. The petitioner has sought the reliefs as under a
direction to the State- respondent to restore the land i.e. 39.88 Hectares of Forest Land situated at Baltal
and Domail which was diverted to the Shree Amarnath Shrine Board vide Govt Order no. 184-Fst of 2008
dated 26.5.2008, to enforce and implement the J&K High Court Order pass by the Hon'ble Division Bench
of the Court, dated 17.5.2005 ,to direct the respondents to implement and enforce the order no. 148-FST
of 2005 dated 29.3.2005, whereby the Land was diverted to the Shree Amarnath Shrine Board, which is
in vogue, but respondents have failed to implement it in letter and spirit the petitoner has also demanded
that Shree Amarnath Shrine Board may be directed to be reconstituted, and further pending disposal of
the PIL, the Land in question may be attached by the Hon'ble Court and kept under the Board of
Receivers to be appointed by the Hon'ble HC. (Pioneer 19/8/08)

“Dowry cruelty conviction possible without specific charge” (19)

NEW DELHI: Courts can convict an accused for dowry harassment and cruelty even if there is no specific
charge of that offence, the Supreme Court has held. A Bench consisting of Justices Altamas Kabir and
G.S. Singhvi said: “Section 498 A was added to the Indian Penal Code in the backdrop of the growing
menace of dowry-related cases in which the women were subjected to cruelty and harassment and were
forced to commit suicide. This Section lays down that if the husband or his relative subjects a woman to
cruelty, then he/she is liable to be punished with imprisonment for three years and a fine.” Writing the
judgment, Justice Singhvi pointed out that Section 304 B was inserted in the IPC to deal with cases of
dowry deaths occurring within seven years of marriage. The ingredient of cruelty was common to 304 B
and 498 A, but the scope of the two Sections was different. The Bench said: “Section 498 A has a wider
spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or his relative
which may result in suicide or grave injury or danger to life, limb or health (whether mental of physical) or
even harassment caused with a view to coercing the woman or any person related to her to meet the
unlawful demand for dowry of property or valuable security.” The Bench said: “An accused can be
convicted of dowry offence with which he may not have been specifically charged and that an error,
omission or irregularity in the framing of charge by itself is not sufficient for upsetting the conviction.” For
purposes of conviction under Section 498 A, it was sufficient to prove that the woman was subjected to
cruelty by her husband or his relative. The Bench was dismissing an appeal filed by Dinesh Seth against
a Delhi High Court award of three-year imprisonment for an offence under 498 A even though he was
charged only under Section 304B. His wife, Rama, had died on November 22, 1986 in her matrimonial
home in Multani Dhanda, Pharaganj, due to alleged harassment for dowry, within two years of marriage.
The High Court reduced the sentence from seven-year imprisonment imposed by a sessions court. Seth
filed the appeal contending that he could not be convicted of an offence with which he was not actually
charged. But the Bench said: “A reading of Sections 221 (1) and 2 of the Cr.PC shows that if a single act
or series of acts constitutes several offences and the prosecution is not certain about the particular
offence then the accused can be charged with having committed all, some or any of the offences. In such
a case, the accused can be convicted of the offence with which he may not have been specifically
charged but [in which] evidence produced by the prosecution proves that such an offence has, in fact,
been committed.” The Bench held that the evidence produced was sufficient to prove that the appellant
had subjected the deceased to cruelty and the High Court did not commit any error in convicting him
under Section 498 A of the IPC. (The Hindu 24/6/08)

SC refers 14 cases to Constitution Bench (19)

New Delhi, August 29: In a rare instance, the Supreme Court, at one go, referred as many as 14 distinct
cases “involving questions of law” to be heard by the Constitution Bench. The petitions, some of which
have been pending with the apex court for a decade, touch upon a wide array of issues, ranging from
whether the high courts have jurisdiction to order a CBI probe without the concurrence of the state
government to whether it is lawful to allow the appointment of ‘tainted’ persons as MPs or MLAs. The 14
cases referred by a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J
M Panchal will now be considered by a larger Bench of five or more judges. The Bench asked the
counsels appearing in these matters to frame “questions of law” and furnish them before the court by
October 1. It further indicated that the Constitution Bench would be ready to examine the cases by
November 11. What many petitions have in common is their politically sensitive nature. For example,
Manoj Narula, who filed his PIL in 2005, challenged the inclusion of chargesheeted ministers in the
Cabinet, while another batch of petitions led by former Goa CM Manohar Parrikar had questioned the
appointments of politically inclined persons as Governor,s who are constitutionally expected to be free of
any political affiliations. The Constitution Bench to be set up will also have to deal with a batch of petitions
— filed by Prof Bhim Singh and the NGO, Common Cause — that have urged the court to scrutinise the
MP Local Area Development (MPLAD) scheme. (Indian Express 30/8/08)

Maharashtra, Orissa, Haryana oppose SC directive on FIRs (19)

New Delhi, Septebmer 3: The recent direction of the apex court that police officials who don't register an
FIR after receiving complaints should be penalised has been questioned by some state governments.
The contention of the states is that such a step would make it easier for individuals to file false, frivolous
and malicious cases against innocent persons to settle personal scores. On July 14, a Bench of Justice B
N Aggrawal and Justice G S Singhvi, while noting that there were several complaints of cops not promptly
registering FIRs on the complaint of citizens, had asked the states and Union Territories to take
disciplinary action against erring cops, which could include sending them to jail. It had also sought the
response of chief secretaries and DGPs on the direction. On Wednesday, while most states agreed with
the direction, Haryana, Maharashtra, Orissa and Chandigarh opposed it. These states took the stand that
FIRs could be registered after a preliminary enquiry by the investigating officer. However, the court didn’t
agree with the argument and said, “What a noble argument. There is no such law that preliminary enquiry
has to be conducted before an FIR. What's happening in our country?” After taking on record the
affidavits filed by the states and UTs, the Bench indicated that it might refer the issue to a larger Bench as
it involved important questions of law. (Indian Express 4/9/08)

‘Set up National Judicial Commission’ (19)

New Delhi: A Rajya Sabha member, Parimal Nathwani, has suggested to Prime Minister Manmohan
Singh to set up a National Judicial Commission (NJC) with powers to inquire into complaints against
judges and to transfer them for misconduct. In a recent letter to Dr. Singh, Mr. Nathwani said that he had
taken up the issue regarding vacancies in the High Courts and also working conditions and poor pay
structures of the Supreme Court and High Court Judges. He pointed out that the Constitution (67th
Amendment) Bill 1990 — providing for a frame work for the NJC which would recommend appointment of
Judges and their working conditions — was introduced in the Lok Sabha but it could not become a law.
As a result the NJC could not be constituted and appointment of judges was being made as per the
Supreme Court judgments. “This adhocism has hit the High Courts and the Supreme Court the worst.”
“The most important question is of obtaining good judges in the Supreme Court and the High Courts. The
vacancies in the High Courts are large. The reason is that suitable bar members are not prepared to work
as judges because of the poor working conditions and low pay structure. The ideal methodology to avoid
this [situation] is the establishment of the NJC which would decide the working conditions and pay
structure of judges and this should be a regular periodical exercise,” he said. The Commission should
have powers to transfer judges and inquire into complaints against them, a mechanism — which would
prevent unilateral transfers and/or inquiries, the apprehension of which preclude efficient bar members
from accepting judgeship.” The MP urged the Prime Minister to ensure the setting up of the NJC at the
earliest. (The Hindu 17/9/08)

Let appeals against tribunal order go straight to SC, suggests Law Commission (19)
New Delhi: For speedy disposal of cases filed by government servants before administrative tribunals, the
Law Commission has suggested that appeals be filed directly in the Supreme Court and not in the High
Court. State and Central Administrative Tribunals were constituted pursuant to the 1985 Administrative
Tribunals Act. As per this Act, appeals against the tribunal orders could be filed directly in the Supreme
Court. However, after the judgment in L. Chandrakumar’s case in 1997, appeals would have to be filed
first in the High Court concerned and then before the Supreme Court. The Commission, headed by
Justice A.R. Lakshmanan, in its report to be submitted to the Centre, has recommended to the
government that it request the Supreme Court to refer the matter of filing the first appeal for adjudication
by a larger Bench. The report said it was necessary to reconsider the judgment in Chandrakumar’s case
in the interest of Central and state government servants to achieve the object of the 1985 Act, to provide
speedy and less expensive justice. “If this proposal [to reconsider the judgment] is taken up in the right
perspective, it will reduce not only the heavy expenditure by way of fee, etc, to counsel but also the time.”
The Commission noted that the very purpose and rationale of the tribunals would be defeated if all cases
had to go to the High Courts concerned again. In view of the delay in the disposal of the appeals in the
High Courts, some States abolished the State tribunals.The Commission said that by an amendment to
Article 227 (4) of the Constitution, it would be possible to include the Central Administrative Tribunal side
by side with the Armed Forces Tribunal (which provides for direct appeal to the Supreme Court) so that
appeals against tribunal orders could be filed in the Supreme Court. This would prevent explosion of
cases in the High Courts. As an alternative, “if there is an impression that there has to be at least one
appeal provided against the orders of the tribunal before the matter reaches the Supreme Court, an intra-
court appeal, similar to the one provided in every High Court, can be provided under the 1985 Act itself.”
The report said: “The decision of a single Bench can be challenged before a Bench consisting of three or
more members. “For this purpose, four zones, North, East, West and South, can be made where appeals
from various Benches may be filed. “After the decision by an appellate Bench, the matter can be taken to
the Supreme Court.” The Commission recommended to the Centre that it take up the issue with the
Supreme Court in the larger public interest. (The Hindu 18/9/08)

Preventive detention is no tool of oppression: court (19)

New Delhi: Preventive detention laws, which are an evil necessity, must not become an instrument of
oppression in the hands of authorities or to avoid criminal proceedings which will entail proper
investigation, the Supreme Court has held. As personal liberty and individual freedom are curtailed by
prevention detention, the detaining authorities “must apply their minds carefully and exercise great
caution in passing such an order,” said a Bench consisting of Justices Altamas Kabir and Markandey
Katju. The authorities must be fully satisfied, from the material placed before them both for and against
the detenu, that the detention order was required to be passed in the interest of the state and for the
public good. They must keep in mind the fact that of all human rights, personal liberty and individual
freedom were probably the most cherished. Writing the judgment, Justice Kabir quoted a verse from Joy
Adamson’s classic ‘Born Free’ describing the importance of personal liberty, and said “courts which are
empowered to issue prerogative writs have, therefore, to be extremely cautious in examining the manner
in which a detention order is passed in respect of an individual so that his right to personal liberty and
individual freedom is not arbitrarily taken away from him even temporarily without following the procedure
prescribed by law.” The Bench said the detaining authority must be provided with all material available
both for and against the detenu to enable him to reach a just conclusion. The detenu must be supplied
with all documents and material to enable him to make an effective representation against the detention
order in compliance with Article 22 (5) of the Constitution (making available the grounds of detention),
whether or not he had knowledge of the same. “These have been recognised by this court as the
minimum safeguards to ensure that preventive detention laws do not become instruments of oppression
in the hands of the authorities concerned. In most cases, the decision of this court has gone in favour of
the detenu when even one of the grounds of detention did not satisfy the rigours of proof of its
genuineness as a foundational fact in support thereof.” In the instant case, Sanjay Bhandari was detained
under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act on December
15, 2005 on the ground that he violated various provisions of the Exim and foreign trade policy. On a
habeas corpus petition from his wife alleging that the detenu was not supplied with all documents for
making a proper representation, the Delhi High Court quashed the detention. Dismissing the appeal by
the Centre against this ruling, the Supreme Court said that due to non-supply of documents the detenu
was prevented from making an effective representation and therefore “we do not see any reason to
interfere with the High Court judgment.” (The Hindu 19/9/08)

20 States asked to set up law commissions (19)

New Delhi: Law Commission of India Chairman Justice A.R. Lakshmanan has asked Chief Ministers of 20
States to set up State law commissions to review outdated laws and to update the legal system. In his
letter to them, Justice Lakshmanan said: “In the fast-changing social, economic and political scenario in
the country and to meet the ever increasing aspirations of the common man the legal system needs to be
continuously reviewed and updated, otherwise it would be prone to become obsolete, losing its efficacy
and adequacy and consequently cease to be an instrument of dynamic social order and development.”
The letter said that “courts, in the process of interpreting the statutes, may give conflicting and divergent
decisions. Contradictory and inconsistent case laws may accumulate around some statutory provisions
and thereby necessitating from time to time reconciliation of conflicting cases, to assimilate the judicial
pronouncements and to improve and revise the laws in the light of these rulings.” The revision of laws
was a continuous process in any developing country and the role of the law commission in each State
was all the more important to seriously deliberate and make recommendations to the government for
effecting changes in the existing statute and to enact new laws. So far only Maharashtra, Gujarat, Punjab,
Uttar Pradesh, Kerala and Meghalaya had set up law commissions to critically study the existing laws and
to understand whether “there are any lacunae which need to be improved so as to impart speedy justice
to the common man.” (The Hindu 29/9/08)

SC: Civil cases cannot be shifted outside state (19)

New Delhi, Sept. 28: In a ruling which assumes significance for many couples involved in matrimonial
disputes, the Supreme Court has ruled that high courts have no power to transfer civil matters, including
marital discord cases, to courts outside a state. In other words, if in a matrimonial dispute the husband is
residing in Madhya Pradesh and the wife in Maharashtra, then neither the high court of Madhya Pradesh,
much less the Bombay high court, has the power to transfer the case of the couple from one state to
another. The power to transfer civil proceedings from one state to another in vested only in the Supreme
Court and the high courts have no such power, a two-judge bench of Justices C.K. Thakker and D.K. Jain
has ruled. The bench said that by this decision it is overruling all previous decisions of various high courts
in the country wherein the respective high courts had assumed the power to transfer civil proceedings to
other states. The top court passed the ruling while upholding the appeal of Durgesh, a resident of Ujjain,
challenging the Madhya Pradesh high court’s order to transfer his matrimonial dispute case to a court in
Nasik in Maharashtra on the plea of his wife Jayashree. (Asian Age 29/9/08)

High court can review acquittal: SC (19)

New Delhi, Oct. 9: The Supreme Court has ruled that the high court dealing with an appeal has full
powers to re-appreciate, review and reconsider the evidence against an acquittal order passed by the trial
court. "When such an appeal is filed, the high court has full power to re-appreciate, review and reconsider
the evidence at large, the material on which the order of acquittal is founded and to reach its own
conclusions on such evidence," a bench of Justices Arijit Pasayat and Mukundakam Sharma observed.
The top court said that both, questions of fact and of law are open to scrutiny by the high court in an
appeal against an order of acquittal. "It cannot, however, be forgotten that in case of acquittal, there is a
double presumption in favour of the accused," the bench said. It explained that firstly the presumption of
innocence is available to him/her under the fundamental principle of criminal jurisprudence that every
person should be presumed to be innocent unless he is proved to be guilty by a competent the court of
law. "Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly
not weakened but reinforced, reaffirmed and strengthened by the trial court," the bench said. The bench
passed the ruling and observations while dismissing the appeal by Murgan and another accused in an
attempt to murder case. On October 3, 1989, the accused attempted to murder Ramaiah in Tamil Nadu’s
Tirunelveli district with a lethal weapon resulting in grievous injuries to the victim. The trial court, however,
disbelieved the evidence of the prosecution and acquitted the accused, but the high court on an appeal
from the Tamil Nadu government reversed the acquittal and convicted the accused to four years RI.
Aggrieved by the conviction, the accused moved the top court by way of a criminal appeal. The top court,
while dismissing the appeal, said that the Code of Criminal Procedure (CrPC) does not put any limitation,
restriction or condition on exercise of such power and an appellate court on the evidence before it may
reach its own conclusions. "A person has, no doubt, a profound right not to be convicted of an offence
which is not established by the evidential standard of proof beyond reasonable doubt. Although, this
standard is a higher standard, there is, however, no absolute standard. What degree of probability
amounts to ‘proof’ is an exercise particular to each case," the bench observed. In the present case, the
top court said that the high court was right in passing the impugned judgement. Accordingly, it directed
the accused who are on bail to forthwith surrender and serve the remainder of the sentence. —PTI
(Indian Express 10/10/08)

High court can review acquittal: SC (19)

New Delhi, Oct. 9: The Supreme Court has ruled that the high court dealing with an appeal has full
powers to re-appreciate, review and reconsider the evidence against an acquittal order passed by the trial
court. "When such an appeal is filed, the high court has full power to re-appreciate, review and reconsider
the evidence at large, the material on which the order of acquittal is founded and to reach its own
conclusions on such evidence," a bench of Justices Arijit Pasayat and Mukundakam Sharma observed.
The top court said that both, questions of fact and of law are open to scrutiny by the high court in an
appeal against an order of acquittal. "It cannot, however, be forgotten that in case of acquittal, there is a
double presumption in favour of the accused," the bench said. It explained that firstly the presumption of
innocence is available to him/her under the fundamental principle of criminal jurisprudence that every
person should be presumed to be innocent unless he is proved to be guilty by a competent the court of
law. "Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly
not weakened but reinforced, reaffirmed and strengthened by the trial court," the bench said. The bench
passed the ruling and observations while dismissing the appeal by Murgan and another accused in an
attempt to murder case. On October 3, 1989, the accused attempted to murder Ramaiah in Tamil Nadu’s
Tirunelveli district with a lethal weapon resulting in grievous injuries to the victim. The trial court, however,
disbelieved the evidence of the prosecution and acquitted the accused, but the high court on an appeal
from the Tamil Nadu government reversed the acquittal and convicted the accused to four years RI.
Aggrieved by the conviction, the accused moved the top court by way of a criminal appeal. The top court,
while dismissing the appeal, said that the Code of Criminal Procedure (CrPC) does not put any limitation,
restriction or condition on exercise of such power and an appellate court on the evidence before it may
reach its own conclusions. "A person has, no doubt, a profound right not to be convicted of an offence
which is not established by the evidential standard of proof beyond reasonable doubt. Although, this
standard is a higher standard, there is, however, no absolute standard. What degree of probability
amounts to ‘proof’ is an exercise particular to each case," the bench observed. In the present case, the
top court said that the high court was right in passing the impugned judgement. Accordingly, it directed
the accused who are on bail to forthwith surrender and serve the remainder of the sentence. —PTI (Asian
Age 10/10/08)

National council coming to probe complaints against higher judiciary (19)

New Delhi: The Union Cabinet on Wednesday gave its nod for introducing a newer version of the Judges
(Inquiry) Amendment Bill 2008, in the coming session of Parliament, to make High Court and Supreme
Court judges accountable for their acts, including corruption and incapacity. The meeting decided to
withdraw the Judges (Inquiry) Bill, 2006, introduced in the Lok Sabha on December 19, 2006. That
measure drew criticism from a parliamentary committee and many retired judges for lacking the teeth to
deal with cases of corruption in the higher judiciary. The new Bill provides for establishing a National
Judicial Council (NJC) to investigate and inquire into allegations of misbehaviour or incapacity on the part
of a judge of the Supreme Court or of a High Court as well as regulate the procedure for investigation and
inquiry. According to the government, the provisions of the new Bill would bring about transparency in the
functioning of the judiciary, make judges more accountable and would also enhance its prestige. In 1997,
the Supreme Court passed two resolutions establishing in-house procedures for examining any complaint
against a judge, and adopting “The Restatement of Values of Judicial Life” against which judicial conduct
would be measured. The Bill seeks to give statutory backing for this procedure. The NJC will comprise the
Chief Justice of India (CJI); two seniormost judges of the apex court and two seniormost Chief Justices of
the High Courts to be nominated by the CJI. Any person can complain to the NJC against judges of the
Supreme Court (except the CJI), and the Chief Justices and judges of the High Courts. If the complaint is
against a Supreme Court Judge, the NJC will consist of the CJI and four seniormost judges of the apex
court. If it is against the CJI, the CJI will not take part in the proceedings and the President shall nominate
the next seniormost judge. There is a provision for preliminary scrutiny and verification by the NJC. If a
judge is proved guilty, the NJC can recommend his or her removal through impeachment by Parliament.
Where the proved misbehaviour does not warrant removal, the NJC can impose minor measures such as
issuing advisory, requesting retirement; stoppage of assignment of judicial work for a limited time, and
warning, censure or admonition (public or private). However, in the case of a reference by the Speaker of
the Lok Sabha or the Chairman of the Rajya Sabha on a motion for removal, the NJC cannot impose or
recommend any minor measure. E. Sudarsana Natchiappan (Congress), who headed the parliamentary
panel, told The Hindu that it recommended the setting up of an empowered committee outside the
judiciary to scrutinise the complaints. He expressed the hope that this suggestion would be incorporated
to ensure more transparency in the procedure. (The Hindu 10/10/08)
Delhi HC directs govt to produce evidence on deaths caused by HIV (19)
The Delhi High Court directed the Government to produce some evidence to prove their stand that HIV
deaths were caused due to homosexuality and removing section 377 from the Indian Penal Code (IPC)
will lead to more such cases. A bench comprising Chief Justice A P Shah and Justice S Murlidhar
directed the Home Ministry to establish their stand scientifically but not merely by religious beliefs. They
told the High Court that it was not scrapping the present law on homosexuality as it was a ‘criminal
offence’ and would ‘disturb the law and order situation and create unnecessary problems in society.’
Additional Solicitor General P P Malhotra had supported the section 377 (unnatural sex) as an offence
and said the Government was not in a position to scrap the law at that time. ‘It (homosexuality) is a
criminal offence and will remain so,’ he said. Earlier, the Court had pulled up the Government counsel for
the casual manner in which it filed its response to a PIL on gay rights and also of its two views in this
matter. Health Ministry had earlier filed an affidavit asking the Government for relaxation of section 377
which leads to moral degradation in the society whereas the Home Ministry opposes it. The IPC, at
present, holds homosexual acts as an offence and section 377 provides a punishment of upto life
imprisonment for indulging in it. Morality could not triumph over Constitutional rights in a democratic
society where fundamental rights prohibit any discrimination on the ground of sex, lawyer Shyam Diwan,
appearing on behalf of the activists had argued. He added that homosexuals in the country did not have
full moral citizenship and were being treated as second-class citizens. The government in its earlier reply
had taken a contradictory stand with the Home Ministry favouring the retention of the penal provision for
homosexual acts while the Health Ministry was against the enforcement of the section in cases involving
consenting adults. ‘Indian society strongly disapproves of homosexuality and the disapproval is strong
enough to justify it being treated as a criminal offence even where consenting adults indulge in it in
private,’ Mr Malhotra said. ‘Enforcement of section 377 can adversely contribute in pushing the person
suffering from AIDS underground which will make such risky sexual practices go unnoticed,’ this was the
stand taken by the National Aids Control Organisation (NACO), which comes under the Health Ministry.
Gay activists contention is section 377 demeans a gay man. It silences a him into accepting the
discrimination against him. He will not come out to declare his orientation. (Indlawnews 16/10/08)

SC clears air on trial of doctors (19)

New Delhi, Oct. 19: A doctor can be criminally prosecuted for a patient’s death only on the ground of
negligence and not for culpable homicide not amounting to murder, the Supreme Court has said. It has
also clarified that not all patient deaths can be treated as a result of negligence on the doctor’s part, and
that a genuine error of judgement did not amount to negligence. The apex court set aside an Allahabad
High Court judgment and quashed proceedings against Dr Mahadev Prasad Kaushik under Section 304
(culpable homicide not amounting to murder). It, however, said a doctor could be tried under Section
304A (causing death by negligence), which covers cases where there is “neither intention to cause death
nor knowledge that the act in all probability will cause death”. Section 304 entails a minimum jail term of
10 years and a maximum punishment of a life sentence, whereas 304A carries a maximum punishment of
two years with or without a fine. The court also explained why “every failure or misfortune in the hospital
or in a clinic of a doctor cannot be termed an act of negligence” to be tried under Section 304A. “Criminal
prosecution of doctors without adequate medical opinion pointing to their guilt would be doing a disservice
to the community,” it said. “If courts were to impose criminal liability on hospitals and doctors for
everything that goes wrong, doctors would be more worried about their own safety than giving the best
treatment to patients.” A physician cannot promise the patient full recovery in every case, or guarantee
that the result of his treatment would invariably be beneficial, the court said. The only guarantee a
professional can give is that he possesses the requisite skill in his profession and would be exercising his
skill with reasonable competence. So, the court said, a professional can be held liable for negligence on
one of two findings: he either did not have the skill he claimed to possess or he did not exercise, with
reasonable competence, the skill that he did possess. The standard for judging this would be that of an
ordinary competent person exercising ordinary skill in that profession, the court said. But “mere deviation
from normal professional practices is not necessarily evidence of negligence”, the court added. “An error
of judgement on the part of a professional is also not negligence per se.” Complainant Devender Kumar,
a villager from Mathura, had taken his father Buddha Ram to Dr Kaushik’s clinic on July 4, 2001, after he
complained of pain. Kumar claims Dr Kaushik administered three injections to Buddha Ram, who died
within half an hour. Three villagers who claim to have accompanied Kumar to the clinic have backed the
allegation. Kumar says local police refused to register an FIR and that the doctor threatened him. Kumar
then obtained a magisterial order on January 9, 2002, that directed the police to register an FIR. The
police probe concluded that Buddha Ram had died of a heart attack on the way to the doctor’s clinic.
Kumar then went to the Mathura magistrate, who ordered that a case be started against the doctor under
Section 506 — criminal intimidation of the dead patient’s son — as well as Section 304. This judgment
was upheld by Allahabad High Court. In his appeal to the Supreme Court, the doctor argued that even if
the complainant’s version were true, he could not be criminally prosecuted. The apex court quashed the
proceedings, rejecting the charge of criminal intimidation on the ground of factual inaccuracy and that of
culpable homicide on the ground of law. It quoted an earlier judgment, which said that in every mishap or
death during medical treatment, a doctor could not be prosecuted criminally. (Telegraph 20/10/08)

48,000 cases pending in top court (19)

New Delhi, Oct. 20: There are over 48,000 pending cases in the Supreme Court and a backlog of over 38
lakh cases in various high courts, the Lok Sabha was informed on Monday. The Allahabad high court has
the dubious distinction of having the maximum number of 8.59 lakh pending cases, while the Madras high
court has the second-highest arrear of 4.34 lakh cases. The government has also approved the increase
in the judge strength of the Supreme Court from the present 25 to 30 excluding the Chief Justice of India,
law minister H.R. Bhardwaj said in a written reply. To handle backlog of cases, the government is
implementing a scheme for application of information and communication technology, the minister said. In
a reply to another question related to computerisation of district and subordinate courts, the minister said
funds have been provided to high courts and state government agencies for taking up site preparation
activity at 1,514 court complexes under the various high courts. (Asian Age 21/10/08)

No trial under POTA if review panel decides otherwise: SC (19)

New Delhi, October 21: : The Supreme Court on Tuesday held that a trial under POTA couldn't proceed
once the review committee gives the finding that the offence against the accused cannot be made out
under the anti-terror law. However, the apex court said the state can always file an appeal against POTA
review committee. The verdict was pronounced by a bench headed by Chief Justice K G Balakrishnan on
a bunch of petitions filed by the accused in the Godhra train carnage challenging the decision to
prosecute them under the anti-terror law even after the Gujarat state POTA review committee had held
that offence under POTA cannot be made out against them. (Indian Express 22/10/08)

Limited Liability Partnership Bill passed by RS (19)

The much-awaited Limited Liability Partnership (LLP) Bill was passed on Friday by the Rajya Sabha.
Once approved by the Parliament and becomes an Act, the Bill will help make a company's exit simpler.
The structure of LLP is likely to be flexible and the number of partners is likely to be unlimited. The
finance ministry is expected to decide on the taxation aspects of LLP. The LLP would provide the benefits
of limited liability and at the same time give flexibility to its members for organising their internal structure
as a partnership based on an agreement. It is expected that LLP will have an advantage of giving the
ownership of assets to the partners. In such a case, the partner can use his asset anytime if he exits from
the LLP. He will be in a position to easily withdraw his money without the LLP being dissolved. Further, no
partner would be held responsible for the unauthorised actions of other partners, thus letting the individual
partners to be protected from the joint liability created by some other partner's wrongful business
decisions. In the case of companies and partnerships, this flexibility does not exist. LLP, which is an
alternative corporate business form having benefits of limited liability of a company and the flexibility of
the partnership, could prove to be more convenient and sustainable for many, particularly for micro, small
and medium enterprises (MSMEs), professionals such as chartered accountants, company secretaries,
advocates and also for others in scientific, technical and artistic services. The industry chamber,
Assocham has complimented the UPA government for the smooth sailing of the LLP Bill in the upper
house. It is of the view that the Bill will be enacted shortly to give relief to the Indian corporate sector.
(Financial Express 25/10/08)

Make registration of marriage and divorce a must: Law Commission (19)

New Delhi: The Law Commission has recommended the enactment of a “Marriage and Divorce
Registration Act” to be made applicable to the whole of India and to all citizens irrespective of their
religion and personal law and without any exception or exemption. In its 211th report submitted to the
Centre, the commission, headed by Justice A.R. Lakshmanan, said: “The law should deal only with
registration of marriages and divorces and not with any substantive aspect now governed by various
matrimonial laws — general and community-specific.” “Accordingly, the Births, Deaths and Marriages
Registration Act, 1886 be repealed and Births and Deaths Registration Act, 1969 be re-named as “Births,
Deaths and Marriages Registration Act” with a provision that officials working and records maintained
under the former Act shall be deemed to be working and maintained under the latter Act.” The
Commission, which took up this issue suo motu, said: “In very few States all marriages, irrespective of the
law under which these may have been solemnised, have to be compulsorily registered. The majority of
States have not enacted any general law on marriage registration applicable to all communities. In those
States where there are laws for compulsory registration of all marriages, such laws are faulty and
ineffective. This creates a lot of confusion with registration officials as well as people wanting or required
to register their marriages.” “Under the Constitution, family matters are in the concurrent jurisdiction of the
Centre and States. Parliamentary legislation on compulsory registration of marriages is, therefore, not
only possible but also highly desirable. This will bring country-wide uniformity in the substantive law
relating to marriage registration and will be helpful in effectively achieving the desired goal. Rules under
the proposed Act may be made by the State governments, and this will take care of the local social
variations.” “Similarly, for registration of divorces, the laws which provide for any kind of registration of
divorce are that of Muslims and Parsis. All other marriage registration laws do not provide for registration
of divorces although it is a socially beneficial proposition. “Registration of out-of-court divorces among the
Hindus, the Buddhists, the Jains and the Sikhs — which the Hindu Marriage Act 1955 recognises — is
extremely desirable. In the Muslim society, there is a system of private registration of marriages by the
kazis, which needs to be streamlined and linked with registration of marriage with State Registry.
Absence of registration of divorces in a community whose personal law allows out-of-court divorce leaves
abundant room for misuse of law and often causes great hardship to women.”….. (The Hindu 29/10/08)

SC stays custody battle started by wife (19)

NEW DELHI: The Supreme Court invariably supports a woman in matrimonial or child custody litigations
by transferring cases nearer to her place of residence. But on Monday it stayed the proceedings in a
child custody case initiated by an estranged wife, after the husband alleged desertion following his having
suffered a serious paralytic attack. Married in Jodhpur in 1993, Dinesh and Manisha moved to Singapore
in August 1993 and the couple enjoyed a carefree life. But things turned upside down for Dinesh who
suffered a major paralytic stroke on October 4, 2002 in Singapore, that left his right side paralysed. The
couple returned to India in March 2004 and tried settling down at Jodhpur. But the husband through
counsel Aishwarya Bhati alleged that his wife found it difficult to adjust to living with in-laws and helping
out her husband, who needed constant help to do daily routine jobs. Dinesh alleged that his wife then left
the matrimonial home. The bone of contention now is his two sons aged 15 years and 11 years, both
studying in boarding schools, as the wife moved the Chennai family court seeking custody of the two
sons. Appearing for the husband, senior advocate Jagdish Dhankar told a bench comprising CJI K G
Balakrishnan and Justice Aftab Alam that the husband was not in a state to travel to Chennai. He pleaded
that it would be appropriate to transfer the case to Jodhpur. The bench issued notice to the wife and
stayed the proceedings. (Times of India 4/11/08)

SC: Tenant can't dictate terms on premise use (19)

NEW DELHI: The Supreme Court has dished out a bitter pill for tenants sticking on to rented premises for
years on one pretext or the other. "Tenants cannot dictate terms to landlords," was the long and short of
this recent ruling from the apex court. The apex court has seen many a tenant-landlord dispute pertaining
to vacation of the rented premises with the landlord citing bona fide requirement and the tenant contesting
it by terming the plea as a tactic to increase the rent. But the case in hand, where a tenant had frustrated
a landlord for 26 years by successfully pleading in court after court that the premises were not suitable for
the business intended to be carried out from there by the owner, came as shocker for the apex court.
Landlord Maganlal wanted to start manufacturing oxalic acid and use the three-storey house located in
Bapurao Gali, Itwari, Nagpur, as an office for his technically educated son to supervise the sales of the
chemical product. When the owner moved the Rent Controller with an eviction petition in 1982, it was
contested by the tenant on the ground that the house was not suitable for the business. Though the
landlord succeeded in his eviction petition before the Rent Controller, all other appellate forums, including
the high court, ruled in favour of the tenant. The apex court on October 16 allowed the landlord's petition
and cited three previous rulings to say: "It is not for the tenant who can dictate the terms to the landlord
and advise him what he should do and what he should not. It is always the privilege of the landlord to
choose the nature of the business and the place of business." A Bench comprising Justices R V
Raveendran and L S Panta said the landlord's M.Tech educated son could not have settled down in a
small town and that was the reason why the owner decided to shift from Gondia and move to Nagpur,
where he owned a house. Upholding the Rent Controller's March 7, 1988 order allowing termination of
tenancy, the Bench directed the tenant to hand over vacant possession of the house on or before July 31,
2009. (Times of India 5/11/08)

SC stays custody battle started by wife (19)

NEW DELHI: The Supreme Court invariably supports a woman in matrimonial or child custody litigations
by transferring cases nearer to her place of residence. But on Monday it stayed the proceedings in a
child custody case initiated by an estranged wife, after the husband alleged desertion following his having
suffered a serious paralytic attack. Married in Jodhpur in 1993, Dinesh and Manisha moved to Singapore
in August 1993 and the couple enjoyed a carefree life. But things turned upside down for Dinesh who
suffered a major paralytic stroke on October 4, 2002 in Singapore, that left his right side paralysed. The
couple returned to India in March 2004 and tried settling down at Jodhpur. But the husband through
counsel Aishwarya Bhati alleged that his wife found it difficult to adjust to living with in-laws and helping
out her husband, who needed constant help to do daily routine jobs. Dinesh alleged that his wife then left
the matrimonial home. The bone of contention now is his two sons aged 15 years and 11 years, both
studying in boarding schools, as the wife moved the Chennai family court seeking custody of the two
sons. Appearing for the husband, senior advocate Jagdish Dhankar told a bench comprising CJI K G
Balakrishnan and Justice Aftab Alam that the husband was not in a state to travel to Chennai. He pleaded
that it would be appropriate to transfer the case to Jodhpur. The bench issued notice to the wife and
stayed the proceedings. (Times of India 5/11/08)

Legal adalat to hear 740 cases (19)

KOLLAM: An adalat of the District Legal Services Authority (DLSA) will be held at the civil station complex
here on November 8. DSLA secretary and Kollam Principal Sub Judge S. Shajahan told press persons on
Monday that 740 cases will come up before the adalat. The adalat is being held in association with the
Rotary Club of Quilon Central. It will comprise ten booths. The bulk of the cases coming up before the
adalat on that day pertain to those from the Motor Accidents Claims Tribunal. One hundred and eighty
cases pertaining to compensation from the Power Grid Corporation of India will also be taken up, Mr.
Shajahan said. In addition to that there are a good number of civil cases and criminal cases of
compoundable nature coming up before the adalat. More than 10,000 tsunami petitions are pending
before the adalat and these will be taken up soon. Earlier an equal number of tsunami petitions had been
settled. Mr. Shajahan said that any social issue or dispute can also be brought directly before the adalat.
He said that in the coming days, disputes pertaining to the National Rural Employment Guarantee
Scheme (NREGS) will also be taken by the DSLA adalats since there has been a directive from the
Supreme Court and the Central government that NREGS disputes should come up only before DSLA
adalats. Mr. Shajahan informed that the district level Mediation and Conciliation Centre would soon begin
functioning. The centre is being set up with Central government fund. Pre-litigation cases will be taken up
by the Centre for settlement. A retired judicial officer will be appointed by the DSLA as the mediator of the
centre. The president of the Rotary Club of Quilon Central R. Sugathan was also present.(The Hindu
5/11/08)

Orissa High Court dismisses plea for change of judge (19)

BHUBANESWAR: Orissa High Court on Monday rejected a plea by a Christian body for change of the
judge heading the judicial commission appointed by the government to probe communal violence in the
state, a lawyer said. The division bench of Orissa High court comprising chief Justice Balbir Singh
Chauhan and justice BN Mohapatra dismissed the petition filed by the Utkal Christian Council Nov 7, the
council's lawyer Prasanna Kumar Nanda said. Orissa government appointed SC Mohapatra, a retired
judge of the Orissa High Court September 2 to the one-man judicial commission that will probe the killing
of a Hindu leader Aug 23 and the communal violence that followed. The council, represented through its
secretary Jyotsna Rani Patro, filed a writ application in the Orissa High court describing the appointment
of Mohapatra as illegal. The council in its petition had said that 'Mohapatra, a former Lok Pal (vigilance
body member), cannot be appointed to head the commission because he is not eligible as per law. 'As
per section 5 of the Lokpal Act, on ceasing to hold office the Lokpal or Lokayukta shall be ineligible for
further employment under the state government,' the council had said. "The court dismissed the plea. The
court said that the commission of inquiry is not a government service so as to come within the purview of
the word 'employment' and upheld the appointment," Nanda said. Kandhamal district, some 200 km from
here, had seen large-scale communal violence, mostly attacks on Christians and their places of worship,
after the Aug 23 killing of Vishwa Hindu Parishad (VHP) leader Swami Laxmanananda and four of his
aides. Though Maoist rebels claimed responsibility for the killings, some Hindus held Christians
responsible for the crime, despite repeated denials by Christian organisations. The communal violence
that ensued claimed at least 38 lives and thousands of Christians had to flee to the jungles to escape
rampaging mobs. While some have returned to their homes, more than 10,000 are still living in
government-run relief camps in Kandhamal. (TOI 17/11/08)

SC gives new meaning to right to life (19)

Post-1980, the Supreme Court has virtually been on an overdrive to maintain the sanctity of right to life
guaranteed to all — citizens and foreigners — under Article 21 of the Constitution. If in 1978, in Maneka
Gandhi case, it ruled that the expression ‘‘life’’ did not mean mere animal existence but with dignity, it
added another legal leaf in 2008 in Deepak Bajaj case, when it said right to life encompassed a person’s
reputation as well. The ground reality in India is somewhat worrisome, despite the thunderous applause
the apex court received from eminent jurists for breathing new meaning into Article 21, which simply read:
‘‘No person shall be deprived of his life and personal liberty except according to procedure established by
law.’’ The situation must have been indeed grave to warrant the Supreme Court, from time to time, to
breathe new life into these lifeless words. For, it is the same Supreme Court, which in A K Gopalan case
in 1950, had taken a very conservative view to rule that right to life extended to only as much as allowed
by Parliament. Confining this archaic interpretation of ‘right to life’ to the judicial museum, the apex court
has marched forward infusing hope among victims of excesses to demand a better deal from the
government and law enforcing agencies. More than 28 years after the A K Gopalan case, the Supreme
Court gave a whole new expansive meaning to ‘right to life’ in the Maneka Gandhi case. It had then said:
‘‘The expression ‘life’ in Article 21 does not connote merely a physical or animal existence. Right to life
includes right to life with human dignity.’’ This new meaning of Article 21 helped the court in subsequent
years to give relief to prisoners. It asked the government to clean up Ganga and Yamuna as it read right
to clean drinking water a part of right to life. It banned child labour, for it found that this stunted right to life.
It ordered closure of polluting industries as it saw the noxious fumes stifling citizen’s right to clean air and
environment, which again was included within the ambit of right to life. Constitutional expert K K
Venugopal aptly summarized this in one of his articles: ‘‘A whole new catena of rights was read into
Article 21, which embodies the right to life and liberty. These, in various decisions, have been held to
include the right to legal aid, right to go abroad, right to reputation, right to shelter, right to privacy, right
against sexual harassment of women, right to education and right to clean and healthy environment.’’ The
recent decision by Justices Altamas Kabir and Markandey Katju, in Deepak Bajaj vs State of
Maharashtra, saw a reiteration of the earlier ruling of the apex court that reputation of a person was part
and parcel of his right to life. This reiteration was necessary in the present scenario where suspicion has
become the driving force for the police to pick up and detain individuals in utter violation of their right to
life, dignity, and reputation included. Justice Katju, writing the judgment for the bench, aptly quotes
celebrated British Judge Lord Denning’s 1970 statement in a famous judgment: ‘‘A man’s liberty is
regarded highly by the law of England that it is not to be hindered or prevented except on the surest
grounds.’’ The message from the quote — be sure about the involvement of a person in a crime before
arresting him — is basically for the police, which is facing a tough time given the spate of bomb blasts
coupled with the demand from citizens for instant results in its investigations. (TOI 17/11/08)

Court concerned over spurt in writ petitions filed by panchayat chiefs (19)
MADURAI: The Madras High Court has expressed concern over the increasing number of writ petitions
being filed by panchayat presidents seeking its intervention even for solving petty problems faced by
them while administering local bodies. Disposing of one such writ petition filed before the Madurai Bench,
Justice G. Rajasuria on Monday asked the Government Advocate to convey the court’s anxiety to the
Municipal Administration Secretary and the District Collectors concerned. The Judge suggested that the
Secretary call for a meeting of panchayat presidents and instruct them to solve local problems with the
assistance of officials such as Block Development Officers and Tahsildars before moving the High Court.
“The people have to come to panchayat presidents seeking redress of their grievances. In that way, they
are a court unto themselves. How can one court move another court, that, too, complaining of very basic
problems,” he asked the petitioner’s counsel. Turning to Government Advocate Mr. Justice Rajasuria
said: “I am at a loss to understand where we are heading. I have seen at least 10 writ petitions of this
nature. See to it that these kinds of cases don’t come to the court.” In the present petition, S. Arivukkodi,
president of Peruvalappur panchayat in Lalgudi taluk of Tiruchi district, had alleged that a few villagers
had damaged the fence put up by the local body around a government land spread over 0.36 hectare. A
criminal complaint was lodged against the perpetrators but the Siruganur police did not initiate any action,
she said, seeking a direction to government officials to initiate appropriate action to protect the public
property. Taking cognisance of the issue, the Judge directed the Tiruchi Collector to interfere in the
matter and resolve the problem by issuing necessary directions to his subordinates. He made it clear
(The Hindu 19/11/08)

Regressive politics threat to statute: CJI (19)

NEW DELHI: Chief Justice of India K G Balakrishnan on Tuesday said the recent spate of violence
caused by caste, religion, gender, class and regional differences was possibly a strategy to polarise the
electorate. Terming this strategy as "regressive brand of political action", the CJI said it threatened the
very foundations of the country's constitutional order, that is respect for 'rule of law', 'equal treatment
before the law' and 'due process of law'. Speaking at a conference for restoration of national values,
Justice Balakrishnan was unusually frank in airing his views on the streak of violence that has crept into
society with political patronage. Referring to the violence in several parts of the country in the last few
months, the CJI said, "In many instances, such extreme measures are clearly a strategy to polarise the
electorate. Agitations are resorted to on the flimsiest of reasons and public order is threatened even in
circumstances where an inclusive dialogue is the best solution. Such a regressive brand of political action
is threatening to undo the very foundation on which our constitutional order has been built." On
corruption, he was of the view that something more was required to be done over and above the statutory
provisions under Prevention of Corruption Act. But, he was pained to explain his position at a time when
there had been several instances of corruption in the judiciary. "In recent months, there has been
considerable anxiety on account of allegations of corruption in the higher judiciary. The judiciary is the
watchdog of the rights of citizens and these instances have once again raised the question 'who will
watch the watchdogs'," he said. (Times of India 19/11/08)

Money has no meaning in custody battles: SC (19)

NEW DELHI: A husband's riches cannot be cited as logical reason to get custody of a child by contrasting
it with the humble economic condition of the estranged wife, SC said on Wednesday while entrusting a
teacher mother the task of bringing up a minor son. The husband — Gaurav Nagpal — allegedly
snatched his son almost a decade ago and since then played hide-and-seek with his wife and the courts
to deny her custodial rights. This weighed heavily with a Bench comprising Justices Arijit Pasayat and G
S Singhvi in asking the husband to restore the child to the wife, Sumedha Nagpal. A husband may be
taking best care of the child, but could still end up losing the custody battle once the ‘welfare of the child’
scale judicially tilts towards the mother, the court ruled. "In determining the question as to who should be
given custody of a minor child, the paramount consideration is the ‘welfare of the child’ and not rights of
the parents under a statute," said Justice Pasayat, writing the judgment for the Bench. "Simply because
the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to a
conclusion that the welfare of the children would be better promoted by granting their custody to him," the
Bench said, adding, "Children are not mere chattels nor are they toys for their parents." The guardian
court, in case of a dispute between the mother and father, was expected to strike a just and proper
balance between the requirements of welfare of the minor children and the rights of their respective
parents over them, it said. Contrasting his financial affluence to the humble conditions of his estranged
wife, the husband had pleaded for custody saying that he was spending a good amount of money to
provide the child with excellent education. Agreeing with the husband that child's education was of
paramount interest, SC said the father would do well to continue providing the educational expenses
while the child remained in custody of the mother. (Times of India 20/11/08)

Child welfare supreme factor in custody cases: Supreme Court (19)

New Delhi: Holding that the welfare of the child must be the paramount consideration in granting custody
to either of the divorced parents, the Supreme Court on Wednesday rejected a father’s claim that he was
the natural guardian and entrusted an 11-year-old boy to his mother. Settling a decade long dispute, a
Bench, consisting of Justices Arijit Pasayat and G.S. Singhvi, however, said the welfare of the child was
not to be measured only by money or physical comfort. “The word ‘welfare’ must be taken in its widest
sense. The moral or religious welfare of the child must be considered as well as its physical well-being.
Nor can the tie of affection be disregarded.” Writing the judgment, Justice Pasayat said: “Merely because
there is no defect in his [father’s] personal care and attachment to his children — which every normal
parent has, he would not be granted custody. Simply because the father loves his children and is not
shown to be otherwise undesirable, [it] does not necessarily lead to the conclusion that the welfare of the
children would be better promoted by granting their custody to him.” Expressing concern over the
increasing divorce rate among young couples, the Bench said: “It is a disturbing phenomenon that a large
number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is
gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 have led to such a
situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving
them. This may be too wide a view because actions are suspect. But that does not make the Section
invalid. Actions may be bad, but not the Section.” The Bench said: “People rushing to courts for breaking
up of marriage should come [there] as a last resort, and unless it has an inevitable result, courts should
try to bring about conciliation. The emphasis should be on saving marriage and not breaking it. This is
more important in cases where the children bear the brunt of dissolution of marriage. Marital happiness
depends upon mutual trust, respect and understanding. A home should not be an arena for ego clashes
and misunderstandings. There should be physical and mental union.” The Bench said: “It is not
uncommon to see that at the time of negotiation of marriage, parents shy away because the girl is from a
broken family and/or the parents are divorced. The child has practically no role in the breaking of the
marriage, but he or she suffers. In the instant case, Gaurav Nagpal and Sumedha Napgal got married in
1996 and after a boy was born to them, they got separated and the child was with the father. Both the trial
court and the Delhi High Court granted its custody to the mother. The Supreme Court dismissed Mr.
Gaurav Nagpal’s appeal against the High Court judgment with Rs. 25,000 as costs to Sumedha and
directed that the custody of the boy be given to the mother, who herself argued the case. (The Hindu
21/11/08)

Husband needs to reimburse medical expenses, rules SC (19)

NEW DELHI: Cost of estrangement continues to mount for husbands -- who are mandated by law to pay
the wife maintenance -- with the Supreme Court churning out judgments giving a very expansive
meaning to the word `maintenance'. Soon after its ruling that maintenance for estranged wife included a
house at par with the one in which the husband lived, the court has now said that he also has to
reimburse her medical expenses. These two rulings will surely make men think twice before seeking
separation from wives, especially after the SC had made registration of marriages mandatory under
Special Marriage Act, 1954, for all couples irrespective of their religion. The recent judgment came on a
petition filed by one Rajesh Burman, who had married Mithul Chatterjee on January 26, 2000, in Kolkata.
The couple started living in Mumbai from February 25, 2001. But differences arose between the two
within months. It led to a scuffle on June 16, 2001, in which Mithul got injured. She filed a petition in an
Alipore court seeking dissolution of marriage as well as reimbursement of the money spent by her father
in the treatment of her injuries, which required two surgeries. The husband had moved the apex court
challenging an order of the Calcutta High Court, which had upheld the trial court decision asking him to
reimburse the medical expenses. The husband resisted it, saying he was already paying maintenance to
her. Dismissing his appeal, the apex court said, "Under the Act, it is clear that a wife is entitled to
maintenance and support." Expanding the meaning of the two terms -- `maintenance' and `support' -- a
Bench comprising Justices C K Thakker and D K Jain, in a judgment earlier this month, agreed with the
estranged wife's counsel to say that they included her medical expenses, which was a little over Rs 2
lakh. "The terms are very wide so as to include medical expenses and both the courts were right in
granting medical reimbursement," the Bench said. "We see no infirmity in the decision or reasoning of the
courts below which calls for our interference in exercise of discretionary and equitable jurisdiction under
Article 136 of the Constitution. The appeal in our view has no substance and must be dismissed," it said.
When the husband, after losing the case, pleaded for permission to reimburse her medical expenses in
instalments, the apex court agreed and asked him to pay the total sum by December 31, 2008. (Times of
India 21/11/08)

Residence is part of right to maintenance: apex court (19)

New Delhi: Right to residence is part and parcel of the wife’s right to maintenance and the husband
cannot throw away his divorced spouse without ensuring this right, the Supreme Court has held. “A wife is
entitled to be maintained by her husband, whether he possesses property or not. When a man, with his
eyes open, marries a girl accustomed to a certain style of living, he undertakes the obligation of
maintaining her in that style. Maintenance necessarily must encompass a provision for residence.
Maintenance is given so that the lady can live in the manner, more or less to which she was accustomed,”
said a Bench consists of Justices Arijit Pasayat and Mukundakam Sharma. “The concept of maintenance
must, therefore, include provision for food and clothing and the like and take into account the basic need
of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or
property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and
money for other necessary expenditure.” Writing the judgment, Justice Pasayat said: “A Hindu wife is
entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is
also entitled to a separate residence if by reason of her husband’s conduct or by his refusal to maintain
her in his own place of residence or for other just causes she is compelled to live apart from him. Right to
residence is part and parcel of the wife’s right to maintenance. The right to maintenance cannot be
defeated by the husband executing a will to defeat such a right” In the instant case, Komalam Amma
obtained a decree for maintenance against her husband and claimed a right to reside in the matrimonial
residence. Both a trial court in Kerala and the High Court held that since the property was purchased by
the husband with his own funds, she could not claim a right over that property. Disposing of her appeal is
against this judgment, the apex court pointed out that the High Court did not consider the issue of the
wife’s right of residence. While remitting the matter to it for fresh consideration, the Bench said: “It would
be appropriate for the High Court to consider the issues by re-hearing the appeal in the light of what has
been stated.”(The Hindu 25/11/08)

SC entertains pilots' appeal challenging HC verdict on duty hours (19)

NEW DELHI: The Supreme Court on Monday entertained an appeal filed by a pilots' association
challenging a Bombay High Court verdict dismissing its challenge to the Directorate General of Civil
Aviation's decision to implement the 1992 rules instead of the newly framed ones regarding duty hour
limitations. The Bombay HC had dismissed the petitions filed by the Joint Action Committee of Airline
Pilots Association and others. Earlier, the apex court had asked the pilots to get back to the gruelling
flying duty schedule framed in 1992 instead of the relaxed duty hours under the 2007 norms by staying an
interim order of the HC asking DGCA to implement the later rules. The HC, which undertook a detailed
hearing of the petitions filed by the pilots after the stay on its interim order by SC, had dismissed the pleas
against the 1992 rules. The counsel for petitioners, who challenged the HC verdict, argued before a
Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam that the new rules were
framed without taking into account the prevalent conditions in the civil aviation sector and the pilot's
fatigue factor. Though the Bench did not grant any stay on the HC verdict, it agreed to hear the appeal
and issued notice to DGCA seeking its response to the pilots' plea against 1992 rules. The 1992
schedule, which was in smooth operation for 15 years, envisaged a pilot to do three landings during the
nine-hour long duty at a stretch. This was relaxed to nine-hour duty with two landings by the 2007 norms,
but this was kept in abeyance after airline operators raised serious objections before the DGCA. (Times
of India 2/12/08)

Hearing on rallies adjourned (19)

BANGALORE: A division Bench headed by S R Bannurmath adjourned to December 9 the hearing of a
batch of PILs that highlight inconvenience caused to Bangaloreans on account of rallies and processions
over the past four years. The court had asked for submission of proposals on conditions to be imposed
for bandhs, processions and rallies. The hearing was adjourned as advocate general Udaya Holla is not
in town. Holla has already submitted a copy of the draft of Licencing and Controlling of Assemblies and
Processions (Bangalore city) order, 2008. Draft rules framed under Sec 31(O) of the Karnataka Police
Act, 1963, speak of conditions to be fulfilled by organizers and police, precautions and the time-frame for
considering applications seeking permission for rallies, processions and assembly. During the hearing,
the Bench suggested many changes in the wording of some provisions to make them more appropriate
and complete. The PILs were filed by city-based advocate A V Amaranathan, senior citizen B Krishna
Bhat, litterateur Dr K Marulasiddappa and Shudra Shrinivasa and others. The petitioners have cited
problems faced by residents during various processions like the Daridranarayana rally held by former
Prime Minister H D Deve Gowda, Congress leader Siddaramaiah's rally, pro-Saddam rally and Hindu
Samajotsav rallies. ……. (Times of India 2/12/08)

SC: Pension, gratuity can’t be attached for debt recovery (19)

New Delhi: The Supreme Court has held that retirement benefits like pension and gratuity cannot be
attached by authorities for recovery of dues. The apex court passed the ruling while quashing a
Rajasthan High Court ruling which had ordered attachment of the retirement benefits of Radhey Shyam
Gupta, who was a guarantor in a mortgage deal. The High Court had ordered attachment of Gupta’s
retirement benefit deposited in the Punjab National Bank (PNB) as principal debtor Durga Prasad, for
whom he stood guarantor for a loan of Rs 83,000, defaulted in the repayment of the loan taken for a
vehicle. The vehicle mortgaged by Prasad was also untraceable. The High Court ordered the attachment
of retirement benefits after recording the submission of the bank that the Matador van of Prasad which
was mortgaged was not traceable. It also ordered Gupta to produce the Matador vehicle so that it could
be auctioned and the loan amount recovered. (Pioneer 4/12/08)

Hindu Marriage Act is only for Hindus (19)

NEW DELHI: In a first ever judgment on the validity of a marriage between a Hindu and a Christian under
the Hindu Marriage Act, the supreme court on Friday held that such a wedding was illegal or nullity even if
registered under Hindu law.HMA provides marriage among two Hindus in accordance with the formalities
provided in it. Quoting the HMA’s preamble, the apex court says it’s “an Act to amend and codify the law
relating to marriage among Hindus”.The crucial judgment came in an appeal by a Christian, Gullipilli
Sowria Raj, who married a Hindu, Bandaru Pavani.Within months of the temple marriage by exchange of
thalis when no relative or guest was present, wife Pavani sought nullity of the relationship before the
Vishakhapatnam family court saying her husband had concealed the fact that he was a Christian and
continued to practice Christianity even after marriage.While the family court rejected her plea, the high
court accepted it and declared in 2002 that “the marriage between a Hindu and a Christian under the
1955 Act is void ab initio and the marriage was, therefore, a nullity”.Pavani married a Hindu man soon
thereafter. But her former husband moved the apex court contesting the nullity. He contended that the
HMA “does not preclude a Hindu from marrying a person of some other faith”. That meant that a Hindu
woman had married him, a Christian, thus it couldn’t be declared illegal, more so when it’s registered
under the Hindu Marriage Act.Pavani’s counsel Y Rajagopala argued that HMA’s Preamble “makes it
clear that it was promulgated to amend and codify law relating to marriage among Hindus”. The language
of the Preamble “leaves no room for doubt that the Act would apply to Hindus only and specifically
excludes a person professing the Christian faith”. “Each religious community in India had their own form
of marriages which excluded members of other religious communities,” Rajagopala added.DNA 6/12/08)

Hindu-Christian wedlock invalid (19)

New Delhi: Marriage between a Hindu and a Christian is invalid under the Hindu Marriage Act, as the Act
provides for only Hindu couples to enter into a wedlock, the Supreme Court has ruled. A bench of
Justices Altamas Kabir and Aftab Alam upheld the judgment of the Andhra Pradesh High Court that
nullified a marriage, after the wife, Bandaru Pavani, a Hindu, claimed that her husband, Gullipilli Sowria
Raj, a Christian, had misled her by pretending to be a Hindu before marrying her at a temple. The wife in
her plea seeking divorce had alleged that her husband had misinformed about his religious
status.According to the couple, Raj, a Roman Catholic Christian, married Pavani on October 24, 1996, at
a temple by way of exchanging the “Thali” (sacred thread) in the absence of any representative from
either side. Subsequently, the marriage was registered on November 2, 1996 under Section 8 of the
Hindu Marriage Act, 1955. The matrimonial court rejected her plea for divorce, saying the marriage was
valid under the Hindu Marriage Act 1955, though one of the parties belonged to another faith. However,
the high court upheld her plea saying the marriage was void, as the Act postulated marriage between
Hindus alone. Subsequently, the husband filed the SLP in the apex court. Dismissing the Christian
husband’s appeal, the apex court said Section 5 of the Act made it clear that a marriage might be
solemnised between any two Hindus, if the conditions in the said Section were fulfiled. “The usage of the
expression ‘may’ in the opening line of the Section, in our view, does not make the provision of Section 5
optional. On the other hand, it, in positive terms, indicates that a marriage can be solemnised between
two Hindus, if the conditions indicated were fulfilled. “In other words, in the event the conditions remain
unfulfilled, marriage between two Hindus could not be solemnised. The expression ‘may’ used in the
opening words of Section 5 is not directory, as has been sought to be argued, but mandatory and non-
fulfilment thereof would not permit a marriage under the Act between two Hindus,” the bench observed.
The apex court also upheld the validity of Pavani’s subsequent marriage to another person, as the high
court had granted divorce to her holding the first marriage as illegal. (Deccan Herald 7/12/08)

Government mulling law to rein in communal elements: Congress (19)

ALLAHABAD: The Congress on Sunday said the UPA government is working on a legislation to rein in
elements involved in spreading communal hatred so that the menace of terror can be nipped in the bud.
"The UPA government at the Centre is of the view that it is religious fundamentalism which further
degenerates into terrorism. "A proposed Act is under consideration before a Parliament standing
committee wherein there are a number of proposals to tighten the noose around those involved in
whipping up communal passions. This will help us nip terrorism in the bud," AICC general secretary
Digvijay Singh told newspersons here. Rejecting the demand for re-enactment of POTA, Singh, however,
said the Prime Minister himself was considering "feasible amendments to the National Security Act which
would give more teeth to the agencies fighting the menace of terrorism". He, however, maintained that the
need of the hour was preventing acts of terrorism "irrespective of the religious or ideological beliefs of the
perpetrators". "Our laws must be able to effectively deal with people like Raj Thackeray, who in the name
of regional pride, cause much social tension just because there is no way they can be booked under a
non-bailable section," Singh added. Rebutting the BJP's charge that the UPA has been soft on terror, the
AICC general secretary said, "While the Congress-led coalition has already done its political bit in the
aftermath of Mumbai blasts, the NDA did nothing of that sort when it was in power. "Shivraj Patil has
resigned from the post of Union Home Minister so has Vilasrao Deshmukh from the Chief Ministership of
Maharashtra. Why did the then Home Minister L K Advani made no such gesture when Parliament was
attacked, which was undoubtedly a much bigger intelligence and security lapse," Singh asked. The senior
Congress leader also defended the minuscule cut in petrol and diesel prices and said, "We need to
remember that the domestic prices had not risen in the same measure as the international crude prices.
Hence, it is not fair to expect a drop in petrol prices in proportion to the fall in international prices." The
former Madhya Pradesh Chief Minister expressed the hope that the Congress will "fare well" in the states,
where polling was held recently and results were expected shortly. He also asserted that the party's ties
with the Samajwadi Party were heading in the right direction and hoped that the contentious issue of seat-
sharing will be resolved before the Lok Sabha polls. (Times of India 8/12/08)

RS nod to changes in CrPC Bill to ease rape victims' agony (19)

New Delhi, December 18, 2008: Far-reaching changes in the Code of Criminal Procedure were approved
by the Rajya Sabha on Thursday to lessen the agony of rape victims by involving women in all stages of
investigation and trial. The path-breaking bill provides for protection to rape victims and hearing of the
cases by women judges as far as practicable, Home Minister P Chidambaram told the House while
winding up a brief discussion on The Code of Criminal Procedure (Amendment) Bill. The Bill also
envisages providing compensation to victims of crime, he said. He said an important feature of the Bill is
that a rape victim would be medically examined by a female medical practitioner and the victim's
statement would be recorded at her residence by a woman officer. The Bill discourages frequent
adjournments of hearings and provides for special facilities for trial of people of unsound mind,
Chidambaram said. He said the Bill has been brought to the House after giving due consideration to the
recommendations of the Sanding Committee. The Bill was first introduced in the Upper House in August
2006 and referred to the Standing Committee. "The effort is to make the Bill more humane to law-abiding
citizens and more difficult for those who try to violate the law," the Home Minister said. The Bill has
provision for audio-video recording of a statement of witnesses and trial of cases through video
conferences. The need for amending the CrPC Bill was felt in view of the "growing tendency" of witnesses
being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful,
the statement of objects and reasons of the Bill said. At present, the victims are the worst sufferers in a
crime and they do not have much role in the court proceedings. "They need to be given certain rights and
compensation, so that there is no distortion of the criminal justice system," it said. The application of
technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible
evidences and minimise the risk of escape of the remand prisoners during transit, it said. The Bill seeks to
provide relief to women, particularly victims of sexual offences, and fair trial to persons of unsound mind
who are not able to defend themselves. Chidambaram said that the exercise of finalising the amendments
has been taken in an elaborate manner keeping in mind the recommendations of the Law Commission.
"As we live and learn, we will amend the CrPC from time to time," he said. The Home Minister expressed
concern over the pendency of a large number of cases in courts. (Hindustan Times 18/12/08)

Bill on social security for unorganised workers passed (19)

NEW DELHI: Parliament on Wednesday passed the ambitious Unorganised Workers’ Social Security Bill,
2008 that seeks to provide welfare measures for the unorganised worker. The Bill has already been
passed by the Rajya Sabha. The Lok Sabha passed the Bill, being described as the first major step in 60
years to remove the difficulties of the poor, after several amendments moved by the members of the Left
parties were defeated. Winding up the debate, Minister for Labour and Employment Oscar Fernandes
said it was a millennium scheme that would cover 34 crore workers in the next five years. Agricultural
workers and migrant labourers will also be covered under the Act. He said 94 per cent of the working
class in the country employed in the unorganised sector would get the benefit of health, life and disability
insurance, old-age pension and the group accident scheme. Mr. Fernandes said the government had
already started implementing some of the schemes such as health insurance and old-age pension for
those below the poverty line while appealing to the States to cooperate in the successful implementation.
The Minister said the government was extremely concerned at the problems of the poor and hence
introduced the National Rural Employment Guarantee Scheme that gave a minimum of 100 days of
employment to those in the unorganised sector, thereby raising the income of the workers from Rs. 20 to
the equivalent of $2 a day. This was a revolutionary measure, he said. The Bill was introduced in the
Rajya Sabha in September 2007 and subsequently referred to the Standing Committee. It was passed in
October this year. (The Hindu 18/12/08)

House secures country, passes anti-terror bills (19)

New Delhi, December 18, 2008: The Lok Sabha on Wednesday night unanimously passed two bills –
introduced by the UPA government in the wake of Mumbai terror attacks — for setting up of the National
Investigation Agency (NIA) and amending of the Unlawful Activities (Prevention) Act (UAPA). But not
before a heated debate that saw politics come into full play and after an assurance by Home Minister P
Chidambaram that the government had not “copied” the infamous POTA or used it as a bench mark.
While the NIA bill was passed unanimously, the CPI(M)’s bid to seek changes in the Unlawful Activities
(Prevention) Amendment Bill were nullified through a division and later adopted by the House.
Chidambaram said the government only tried to strike a “fair balance” with a respect for fundamental
rights without compromising the ability of security and law enforcement agencies to tackle the menace of
terrorism effectively. Calling for eternal vigilance against terrorism, Chidambaram said, “we need it 24 x7.
We cannot afford to lose guard. I have called a meeting of Chief Ministers on January 6 and also written
to them to take specific steps.” Leader of Opposition L K Advani set the tone by demanding that the
Congress-led coalition should accept its “mistake” of not bringing such legislations earlier and alleged that
the delay has "harmed" the country a lot. Pressing for admissibility of confessions before police as
evidence, Advani said the Congress had done a U-turn on the issue in the wake of the outrage caused by
the Mumbai terror strikes and reminded the treasury benches that the BJP-led NDA had been a votary of
strong anti-terror laws. Science and Technology Minister Kapil Sibal said Advani must first apologise for
the NDA government releasing Jaish-e-Mohammad chief Masood Azhar. “Had Azhar not been released,
the attack on Parliament would not have taken place.”HT Correspondent (Hindustan Times 18/12/08)

Won’t allow misuse of terror law: (19)

New Delhi, December 19, 2008: The National Investigation Agency and a tighter anti-terror law will soon
come into effect with Rajya Sabha giving its consent to the new arrangement on Thursday night after a
seven-hour debate. The new agency and the Unlawful Activities (Prevention) Amendment Act (UAPA) will
become effective once the President signs the two Bills, which have now been passed by both Houses of
Parliament. Lok Sabha passed the Bills on Wednesday. Cutting across party lines, all members
supported the Bills. The Left wanted some changes, but its proposals were defeated. “We’ve created a
new, lean agency which would investigate eight terror-related offences and provisions of the UAPA would
be applied for prosecution. Sufficient safeguards have been taken to prevent misuse,” Home Minister P.
Chidambaram said in reply to the debate. “Previous laws like TADA and POTA were punitive laws; if
anyone thinks they were preventive they’re living in a make-belief world. The new agency would be able
to act as a deterrent,” he said. The minister’s reply followed a lively debate that turned acrimonious at
times and saw Kapil Sibal, Arun Jaitley and Abhishek Singhvi, all lawyers, make legal points. Initiating the
debate, the BJP’s Jaitley demanded stronger anti-terror laws and slammed the government for bringing in
the two laws after “95 per cent of its tenure” was over. “What we’d been saying for four years and seven
months has now been accepted. This proves objections to POTA were spurious and measures taken by
the government are still not strong enough,” he said. The former law minister said the 10 “evil men” who
attacked Mumbai forced the government to take steps that should’ve been taken much earlier. The
remarks were rebutted by Science and Technology Minister Sibal, who accused the BJP of “playing
politics with issues concerning the country’s security”. He said the NDA had failed to set up a federal
agency to deal with terror during its tenure. He also sought the BJP’s apology for accusing the UPA of
making the country vulnerable to terror strikes. Participating in the debate, the CPM’s Sitaram Yechury
cautioned the government against making the laws too harsh. “The fight against terror cannot be won on
the playground of politics and politicking. Unnecessary harassment only provides fertile ground for
breeding terrorists,” he said. (Hindustan Times 19/12/08)

Bill to ease rape victims’ agony passed in RS (19)

New Delhi, December 19, 2008 A landmark bill to enable rape victims to appeal against acquittal of the
accused, to entitle them to compensation and to be medically examined only by women medical
practitioners was cleared in the Rajya Sabha on Thursday. The Code of Criminal Procedure
(Amendment) Bill also provides that only women officers would record a victim’s statement at her
residence and for cases to be heard by women judges, “where practicable,” Home Minister P
Chidambaram said. The bill also provides for trial through video-conferencing and video recording of
witness statements. Chidambaram told the Upper House that the government aimed to provide protection
to rape victims and ensure that they were not caused to suffer any further anguish during investigation of
the case, as is quite frequently the case. A key feature of the bill is that victims would only be medically
examined by a woman medical practitioner. Samajwadi Party (SP) member Jaya Bachchan was on
reprimanded in the Rajya Sabha and was asked to “behave properly”. As P.J. Kurien, who was in the
Chair, asked Virendra Bhatia of SP to conclude his remarks on the CrPC Amendment Bill, Bachchan
intervened saying her colleague should be given more time. Kurien said it was not an interruption.
Bachchan said, “You cannot point fingers at me.” There is no need to make CAT-IIIB training mandatory
for airline pilots operating across the country, the government has told the Lok Sabha on Thursday. “The
problem of dense fog is unique to only certain parts of the country. There is no need to make CAT-IIIB
training mandatory for all pilots,” Civil Aviation Minister Praful Patel said. Union Minister for External
Affairs Pranab Mukherjee told Rajya Sabha that over one lakh illegal Indian immigrants were in Western
countries. He said said the Government has planned to introduce biometric passports by 2010 to check
human trafficking. “Our policy is whenever the nationality (of the worker detained) is identified, we bring
them back," he said. Mukherjee, however, categorically stated that India was not sending any “terrorist” to
foreign countries. “These (people going illegally from India to foreign land) are civilians, job seekers... We
are not sending any terrorist or infiltrators into any country.” (Hindustan Times 19/12/08)

Law panel wants no appeal on tribunal(19)

New Delhi: Dec. 22: The Law Commission of India has in its latest report submitted to the law minister
H.R. Bharadwaj asked doing away with the practice of allowing an appeal of an administrative tribunal’s
decision before a high court. The Law Commission proposal, if accepted by the government, would help
reduce the work load of the higher judiciary. The report — L. Chandra Kumar be revisited by larger bench
of Supreme Court — was submitted by commission chairman Justice A.R. Lakshmanan to the Union law
minister. The commission has, in its report, said the 1997 view of the seven-judge bench of the Supreme
Court in L. Chandra Kumar’s case, which allowed appeals against tribunal decisions before high courts
should be revisited by a larger bench. In 1997, the top court had held that all decisions of the
administrative tribunals are subject to scrutiny before a division bench of the high court within whose
jurisdiction the tribunal concerned falls. (Asian Age 23/12/08)

Disagreement postpones FCRA amendment (19)

Mumbai: The government’s half-hearted approach to commodity futures trading has again come to the
fore with the Centre again failing to consider a bill to amend the Forward Contract (Regulation) Act
(FCRA), 1952 in the winter session of Parliament following disagreement among various political parties.
The amendments would have allowed commodities market regulator the Forward Market Commission
(FMC) to function as an independent regulator for the commodity markets and exchanges, similar to
counterpart Sebi’s role in respect of the securities markets. Official sources told FE, “The bill has been
pushed into cold storage till the next session. The bill will be placed for consideration before Parliament in
the Budget session.” Apart from giving more powers to the FMC, the amendments would have also paved
the way for allowing options trading in commodities. The Centre had issued an ordinance in May to
amend the FCRA Act, but the ordinance lapsed subsequently as Parliament could not provide approval to
the bill. “There won’t be another ordinance to amend the FCRA,” sources said. Highlighting the
importance of the amendments in the view of growth in commodities futures, officials said, “The passage
of the bill was quite necessary as the FMC regulates the operations of commodity exchanges through
margins as well as limits on open positions. The bill would have given the body all the necessary powers
to do so, apart from ensuring autonomy and independence of a regulator.” The amendments to the FCRA
Act confers power upon the regulator to recruit officers, employees and create a FMC general fund to
which all receivables will be credited except penalties, which will go to the Consolidated Fund of India.
This fund will be used for the management of the affairs of the FMC and to enforce provisions of the Act.
At present, India has three national and 20 regional exchanges across India. Around 50% of the volume
in the exchanges comes from bullion (gold and silver), 20% from other metals and commodities like
copper, zinc and crude and about 30% from agricultural commodities (including food grains and essential
commodities. (Financial Express 23/12/08)

Nod for SC/ST Bill (19)

NEW DELHI: The Rajya Sabha on Tuesday passed the Scheduled Castes and the Scheduled Tribes
(Reservation in Posts and Services) Bill, 2008 to give statutory backing to the reservation for SC/STs in
government jobs. The Bill, passed amidst noisy scenes by the Opposition, would provide for reservation
in appointments or posts in civil services for SC/STs in establishment and for matters connected therewith
or incidental thereto. At present, administrative instructions are issued by the Union government from time
to time to provide reservation in appointments to SC/STs in civil services. The Bill will elevate the
provisions of reservation to a statutory right. (The Hindu 24/12/08)

Insurance Bills against India’s interests, says AIIEA (19)

HYDERABAD: “People’s money for people’s welfare is our motto. Funds mobilised from people should be
invested for public cause,” according to K. Venugopal, general secretary of All-India Insurance
Employees’ Association (AIIEA), the largest employee’s union in the country. “In spite of the bitter global
experience in the wake of the economic meltdown, the government is going ahead with the two Bills that
are detrimental to the country’s interests,” said Mr. Venugopal in an interview here on Tuesday. He
strongly opposed the two insurance Bills introduced in Parliament. “Insurance should be the natural
monopoly of the public sector. Increase in FDI from 26 per cent to 49 per cent would result in more
control of foreign capital on domestic savings.” “We believe that the domestic savings accounting for 36
per cent of the gross domestic product of the country plays a major role in the development of
infrastructure needed for a growing economy. LIC contributed Rs.4.80 lakh crore to Central and State
sectors and infrastructure investment,” he said. Increasing the share capital of LIC from Rs.5 crore to
Rs.100 crore might not stop at that, and this would also lead to disinvestment. The companies which
wanted their foreign investment to be raised were themselves failed insurance companies in their
respective countries. The Hindu 24/12/08)

Lok Sabha passes Bill to protect agricultural products (19)

NEW DELHI: The Centre on Tuesday moved a step closer towards protecting Intellectual Property Rights
(IPR) of special agricultural products, including the famous basmati rice, and saving misuse of famous
products and brands from trademark infringement by foreign traders and manufacturers. With the Lok
Sabha passing the Agricultural and Processed Food Products Export Development Authority
(Amendment) Bill, 2008, on Tuesday, the Agricultural and Processed Food Products Export Development
Authority (APEDA) is empowered to take measures for registration and protection of IPR in respect of
special products in India and outside. Recalling the famous cases of copying of Basmati variety by U.S.
firms by naming rice grown in Texas as ‘Texmati’ and in Kansas as ‘Kansmati’ which were successfully
contested by the Indian government, Union Minister of State for Commerce and Power Jairam Ramesh
said APEDA would immediately take up the case of basmati rice and file applications for registration of
trademarks or grant of patent. “APEDA is likely to get ‘Geographical Indication’ (GI) for basmati rice by
June 2009, which would help farmers growing basmati and boost exports of this long-grain, aromatic
variety of rice.. “Similarly, APEDA would also take up cases related to other special agricultural products
like ponni rice grown in Tamil Nadu and Kerala, Nagpur oranges, Hyderabadi biryani and Benarasi paan,”
said Mr. Ramesh, adding APEDA already managed to get GI for 104 products, starting from Darjeeling
tea in 2003. Underlining the urgency of APEDA taking the case of basmati rice, Mr. Ramesh said India
was a major exporter to the U.S., the European Union and West Asia. “In the last fiscal, basmati rice
worth over Rs. 4,300 crore was exported. Over three lakh farmers grow basmati rice, mostly in Punjab,
Haryana, western Uttar Pradesh, Uttarakhand and Jammu. All of them would be benefited by the new
legislation.”. The Minister disclosed that over 300 cases of misuse of Basmati rice brand hadbeen
reported from 47 countries, of which the government successfully contested 76 cases. “The new
legislation would empower APEDA to safeguard IPR of our other special products and safeguard
interests of farmers and traders. In this era of globalisation and open market, it is imperative that India
takes proactive measures to safeguard and protect IPR of its products. This legislation would help us in
achieving this,” Mr. Ramesh said. The Hindu 24/12/08)

Statutory backing to Law Commission on anvil (19)

New Delhi: The tardy implementation of the Law Commission's reports may be a thing of the past. The
Government is planning to make the Commission a statutory body on the lines of National Human Rights
Commission, to ensure implementation of the panel's recommendations. The Law Commission, entrusted
with the task of recommending crucial amendments in law and to suggest legal reforms, currently
functions as an advisory body, headed by a former Supreme Court judge. In over its five-decade
existence, the Commission has submitted about 214 reports ranging across various legal issues, many
among which have been let to gather dust in the Ministry. To make the reports binding on the
Government, the Law Commission of India Bill, as the proposed legislation is to be called, would be
introduced in the coming session of Parliament. The Bill is a result of a recommendation by Parliamentary
Standing Committee on Personnel, Public Grievances, Law and Justice in June 2006 demanding a
statutory status to the Law Commission of India as in the United Kingdom and Canada. The Committee
felt, the Law Commission's Reports form the basis for reviewing the country's judicial system and framing,
amending and repealing the legislations as per the needs of the changing circumstances. "It
(Commission) can function effectively only with the desired empowerment," it said. This view was echoed
by the present Chairperson of the Law Commission, Justice AR Lakshmanan on October 18, 2007 while
addressing a seminar on law reforms. Ruing the fact the Commission was still not a statutory body
despite being in existence for half-a century, he said, "Of the 202 reports submitted by the LCI so far,
more than 50 were yet to be implemented." Comparing the position vis-à-vis the NHRC, the Chairperson
raised the pitch for getting a statutory tag to avoid tardy implementation of recommendations made by it.
The position is no different in the present day. Member of Parliament EMS Natchiappan, who heads the
Parliamentary panel on Law and Justice, informed, "Of the 214 reports submitted by the Commission till
date, about 57 still await implementation." Giving reference to its June 2006 recommendation, he said,
"We want the Commission to have a sanctity which is on the lines of a parliamentary standing committee.
Its report should necessarily evoke a response from the executive, as is the case of a Standing
Committee." The Law Ministry should make concerted efforts for timely implementation of the
recommendations contained in the Reports. He recalled that the 6th report of the Law Commission
presented to the Government as far back as 1957 is yet to be implemented. The Committee had even
recommended the Parliament should be informed of the status of implementation of Law Commission
reports, at least once a year. Natchiappan said increasing the number of shelved reports, made by
spending people's tax money is totally unwarranted and uncalled for. Suggesting a means for increasing
the utility of Commission's report, Natchiappan suggested the panel should hear the concerned
government departments before proposing recommendations. This was felt necessary since as per the
current practice, on receipt of a report from the Law Commission, the Law Ministry forwards it to the
ministries and department concerned for implementation. While the Ministry claims it constantly remains
in touch with the departments and ministries over the status on implementation of reports, no response is
forthcoming. (Pioneer 26/12/08)