Nyaya Bharat

Game: Find the clean ex-CJI!

2010-09-28T14:04:00.001+05:30

http://www.tehelka.com/story_main47.asp?filename=Ne021010Chief_Injustices.asp

From the affidavits given by Mr Prashant Bhushan in contempt case against him, it is prima-facie evident that corrupt judges in SC have been spared only because many MPs do not want to sign on impeachment motions, since they have their own cases pending in SC!

So judiciary is independent of legislature, but legislators are not independent from judiciary!

Waking up to reality beyond making new laws!

2010-09-14T21:19:00.001+05:30

Finally, Mr Moily has said something (he makes statements often) which has elements of rationality beyond making newer laws to fix problems. This should be considered by lawmakers who are ever ready to create new laws to tackle honour killings, and what else – supposedly under pressure from media and public.

Without the ability to execute on newly created laws, they are in danger of going the same way as of 38 lakh number of pending cheque bouncing cases. You are carrying a bounced cheque in one pocket? No problem… file a criminal case and carry the papers in another pocket!

http://www.hindustantimes.com/Before-making-a-law-assess-extra-burden-on-courts-Moily/Article1-599124.aspx

With crores of cases pending in courts across the country, the Law Ministry has suggested that Law Ministry should make fresh laws only after assessing the extra burden they are likely to impose on the courts and ensuring the provision of money required for the purpose. "Assessment must be made for the purpose of estimating the extra load any new bill or legislation may add to the burden of courts and expenditure required for the purpose," Law Minister M Veerappa Moily has said in a letter to Finance Minister Pranab Mukherjee.

Nearly three crore cases are pending in courts (lower courts and higher judiciary) across the country, and the backlog is on a steady increase. According to government estimates based on 2009 figures, it takes 15 years on an average to finally decide a court case in India.

Moily's letter, based on the recommendations of the task force on Judicial Impact Assessment, says the government can anticipate the likely cost of implementing a legislation through the courts by a judicial impact assessment.

The task force, which based its findings on the research work by former Law Secretary T K Viswanathan, who is now Advisor in the Law Ministry, had recommended that it should be made mandatory to provide an estimate of the burden likely to be imposed on courts by every bill passed by Parliament or state legislatures.

In a similar letter recently, Moily had stressed the need for immediate setting up of special courts to deal with "surmounting" cases under Section 138 of the Negotiable Instruments Act. In that letter, also addressed to the Finance Minister, Moily had said that there are about 38 lakh cheque bouncing cases pending in the trial courts and this need to be speedily addressed by setting up special courts.

Girlfriend can't be called kin, says HC

2010-08-27T23:17:00.001+05:30

And we need a high court judgment to tell us this… after supreme court reportedly has already said so… Bharat Mahan… raho pareshaan!

http://timesofindia.indiatimes.com/city/mumbai/Girlfriend-cant-be-called-kin-says-HC/articleshow/6442289.cms#ixzz0xlDXEHbV

TNN, Aug 27, 2010, 01.39am IST

MUMBAI: With live-in relations being accorded sanctity by law, can a girlfriend be a relative, the Bombay high court wondered on Thursday. The court was hearing an application filed by a woman, Sunita, who had been named in a dowry harassment case. She had been dragged into the case filed by another woman, who claimed that Sunita was her husband's girlfriend and had accused her of cruelty.

A division bench of Justice A M Khanwilkar and Justice U D Salvi, in an interim order, stayed the criminal charges in the case against her till further orders.

Section 498 A of the Indian Penal Code deals with cruelty to a married woman by her husband or his relatives. The cruelty could also be for failing to meet the unlawful demands of property or valuable security. Cruelty could refer to the conduct of a husband or in-laws that is likely to drive a woman to commit suicide or cause grave injury to herself.

Earlier, the Supreme Court, in a landmark order, had said that a girlfriend cannot be treated as a "relative'' in a 498 A case. The apex court had held that a concubine or a mistress cannot be charged under Section 498A. By no stretch of imagination can a girlfriend or even a concubine... be a relative. The word relative brings within its purview a status that can be conferred either by blood or marriage or adoption, the SC bench had remarked.

AP Judges caught copying in law exam

2010-08-26T19:09:00.001+05:30

The only hope is that the ‘caught red-handed’ scenario does not later turn into ‘ no evidence found’ and the judges get reinstated. They are only suspended pending an inquiry, not really dismissed permanently!

http://timesofindia.indiatimes.com/city/hyderabad/Copy-cat-judges-suspended-by-HC/articleshow/6435474.cms#ixzz0xgTB9rFM

Aug 26, 2010, 12.59am IST

HYDERABAD: Five judges belonging to the state's subordinate judiciary were suspended by the AP High Court on Wednesday for allegedly copying while writing their LLM examinations at the Arts College of Kakatiya University in Warangal on Tuesday.

The judges were doing this course under distance mode from Kakatiya University as the degree would help them gain some increments in their careers.

Those placed under suspension include K Ajitsimha Rao, senior civil judge, Ranga Reddy district, M Kistappa, principal senior civil judge, Anantapur, P Vijayendar Reddy, second additional district judge, Ranga Reddy district, M Srinivasachary, senior civil judge in Bapatla of Guntur district and Hanumantha Rao, the additional junior civil judge in Warangal.

They were allegedly caught red-handed in the act of copying on Tuesday by the authorities and upon receipt of this information, the HC suspended them from service pending an inquiry. The HC would soon launch disciplinary proceedings against all these judicial officers, sources said.

How ex-CJI's sons got prime plot they had never bid for Read more

2010-08-26T19:05:00.001+05:30

Still believe in the white lie that Indian judiciary is highly respected in the world? By whom? Indian judiciary itself!

http://timesofindia.indiatimes.com/india/How-ex-CJIs-sons-got-prime-plot-they-had-never-bid-for/articleshow/6428954.cms#ixzz0xcCgO9gZ

Aug 25, 2010

NEW DELHI: The two sons of former chief justice of India Y K Sabharwal, who are being probed for their previous business deals, suddenly came to buy a Rs 122 crore property in Lutyens' Delhi four months ago, thanks to a series of controversial orders passed by the Delhi high court.

Chetan and Nitin Sabharwal, together with their partner Kabul Chawla, chief of real estate company BPTP, turned out to be the ultimate beneficiaries of high court orders passed since 2006 in connection with the auction of the 2.70-acre property at 7 Sikandra Road.

An appeal challenging the April 2010 sale deed revealed that the three partners had not participated in an auction in September 2006 on which a two-judge bench declared Triveni Infrastructure the highest bidder. Triveni was required to pay 25% of its bid amount, Rs 117 crore, within a week and the balance within three weeks thereafter, subject to the condition of the property being converted from leasehold to freehold.

But Triveni became liable to pay the 75% component only in February 2009 as it had taken so long for the property to be converted to freehold. It was then that a succession of single-judge orders, in breach of the schedule laid down by the larger bench, resulted in the payment being finally made, with a Rs 5 crore penalty, in April 2010, that too by the two Sabharwals and Chawla although they had no formal stake in Triveni.

The appeal being heard by a special bench headed by Justice A K Sikri shed light on the various ways in which the 2006 order had been bypassed, particularly by Justice Manmohan Singh, leading to a windfall for the Sabharwal brothers and Chawla:

* When the owners of the property filed a contempt application against Triveni for its failure to pay the balance in February 2009, Justice Manmohan Singh gave more time to the defaulter directing that it would have to pay Rs 3 crore by July-end and Rs 85 crore by October-end. Later, he extended the time further to December-end with a penalty of Rs 5 crore.

* The repeated extension of the deadline by Justice Manmohan Singh was contrary to the division bench's direction that if the highest bidder failed to make the payments on time, the property would have to be sold to the next highest bidder, Prime Commercial.

* In June 2009, Justice Manmohan Singh allowed a four-day old company, Angle Infrastructure, to come in place of Triveni for paying the balance and to take over the property. The owners of the property appealed against this order as it had been passed without any notice to them.

* A week before the expiry of the December 2009 deadline, Justice Manmohan Singh gave a fresh extension to Angle, this time by five months. He also granted Angle's request to introduce the condition that it would be required to pay the balance only when the owners were in a position to deliver immediate possession of the property. Most of the owners challenged this order, again because it had been passed without any notice to them.

* A month before the expiry of the May 2010 deadline, Triveni and Angle filed a joint application requesting that the balance be allowed to be paid by the Sabharwals and Chawla and that the property be registered in their names. Since the Sabharwal brothers and Chawla appeared in the court with demand drafts of the balance amount, Justice Rajiv Shakdher directed the owners on April 20 to execute the sale deed within two days.

That is how the Sabharwal brothers and Chawla acquired the property from an auction in which they had not participated at all. The appeal filed subsequently by the second highest bidder, Prime, challenged the manner in which the court had granted undue concessions to Triveni and deprived it (Prime) of its entitlement under the auction terms to buy out the property. Seeking a fresh auction of the Sikandra Road property, Prime offered to pay Rs 150 crore in keeping with the appreciation of the property value in these four years.

The real estate business partnership between the Sabharwal brothers and Chawla has been the subject of income tax probe following allegations that they had unduly benefited from the 2006 sealing drive against commercial properties in residential areas of Delhi launched by the then CJI, Justice Y K Sabharwal.

Judiciary cannot see the writing on wall!

2010-07-03T11:42:00.001+05:30

This speech by a Supreme Court judge merits point by point rebuttal, to let judiciary know what is wrong.

http://www.thehindu.com/news/states/kerala/article496951.ece

Cyriac Joseph, judge of the Supreme Court of India, on Friday came down heavily on the “unfair criticism” levelled against the judiciary and wondered why cultural leaders and institutions such as the Bar Association were silent on the issue.

Comments: Cultural leaders? … that’s a debate on its own. In India, there are religious gurus, political leaders, film stars, cricket leaders, some intellectual ‘leaders’ who debate with one another mostly or pat each other on the back. About Bar association: I bet they are lot more busy handling things like agitations or rowdyism by lawyers in court premises, or by one lawyers’ group against another, to be able to worry about such finer things!

Delivering the first K.K. Mathew Memorial Law Lecture series on the ‘Role of Judiciary in Democratic India,' organised as part of the centenary celebrations of the Kottayam Bar Association here, Mr. Joseph said the “abuse and intemperate outbursts” from any quarters were only a display of “ignorance of the constitutional provisions” as also a mark of “lack of culture.”

The people of India as represented by the Constituent Assembly had given shape to the Constitution and had “entrusted the judiciary with the responsibility of upholding the Constitution, constitutional values and constitutional institutions. Thus the people of India, through the Constituent Assembly, had assigned the role of a watchdog and corrective force for the judiciary in its functioning so that parliamentary democracy could flourish,” he said.

Comment: Public is tired of hearing the same old lectures given from a pulpit. With more than 3 crore pending cases, what justice and constitution are we talking about? Does not constitution say that speedy justice is a right of citizens?

“Judges think, speak and act in accordance with the provisions of the Constitution and cannot act like bull in a china shop,” Mr. Joseph said and added that whatever powers the judges have are derived from the Constitution. “They are not an unwanted, unauthorised group of people who wield self-acquired powers unaccounted for,” he said

Stating that unfair criticism of the judiciary would undermine democracy and the rule of law in the country, Mr. Joseph said India was ranked high internationally on account of its vibrant democracy which ensured elections every five years and the presence of an independent judiciary. “Independent judiciary is the hallmark of Indian democracy,” he said and added that the decision not to have an elected judiciary was a principled decision of the Constituent Assembly. “This does not make them less authentic,” he said and added that they are appointed on the basis of well laid out rules and guidelines.

Comment: This seems another attempt to stifle dissent against collegium based appointments in Supreme Court. When even a high court judge like Justice Shylendra Kumar raises voice, the SC is quite eager to shut him down with a judge having “tears in his eyes”. Of course they don’t have tears in eyes when a so called Chief Justice of Karnataka high court is barred from judicial functions by the lawyers themselves! After all, on paper he is Chief justice, and that is according to constitution so it must be all hunky dory!

“Judgments were not above criticism and any judgment could be subject to constructive criticism at an academic and intellectual level,” he said and stressed that judges who passed judgments that one does not agree with cannot be subjected to unfair criticism, abuse and ridicule. The Constitution provides for revision of judgments and the aggrieved parties should take recourse to such avenues, he said.

Comment: Except for the practical fact that taking recourse to revision or appeal is practicable for only well-heeled, powerful people.

“Unlike in a game of football, there is no provision to show the Red Card, though some believe that the provision for Contempt of Court was one such stipulation. “But, I fear even this would become ineffective if people are ready to go to jails,” he quipped.

Comment: So it is clear that there is so much widespread opposition to judiciary that even if contempt of court was used against public, the already struggling business in courts will grind to a halt!

Describing the late Justice K K Mathew, former judge of the Supreme Court of India, as a “saint among judges,” Mr. Joseph said he considered K.K. Mathew as the greatest jurist produced by Kerala.

K P Presanna Kumar, District and Sessions judge, presided. Senior lawyer and former Minister M P Govindan Nair; senior lawyer V.K. Satyavan Nair; George Boban, president of Kottayam Bar Association; and others spoke.

Corporation’s tactics to retaliate against activist?

2010-07-01T19:03:00.001+05:30

The interesting part of news is that the official of Jindal Steel and Power claim that they had given a shop to Agrawal’s son to dissuade him from raising environmental issues. So they are willing to engage in bribery if it serves their corporate interests?

The threat to kill company official makes it even more incredible? An activist threatening to kill an official of a large, powerful company? Makes sense to anyone?

http://timesofindia.indiatimes.com/India/Activist-faces-brunt-of-steel-magnates-fury/articleshow/6096632.cms

…

The police complaint has shocked environmentalists. "This is exactly the tactic American Corporations have used to browbeat environmental activists," said Sunita Narain, Director, Centre for Science and Environment. She said this reminded her of SLAPP or Strategic Lawsuits Against Public Participation used by companies in America "to shut up individuals who were raising issues of social and environmental concern".

"Ramesh Agrawal of Jan Chetana is well known to the environmental and human rights fraternity. He has been raising issues related to not just a single corporation but several agencies on a very systematic basis," said Kanchi Kohli of Kalpavriksha Environmental Action Group.

Agrawal has a long series of achievements to his credit. In 2009, a PIL filed by him in Delhi High Court resulted in a major amendment to the rules governing environmental clearance. The court made it mandatory for companies to publish their full environmental clearance order in two local newspapers to enable the affected people to access the order and challenge the clearance if need be.

Ritwick Dutta, well known environmental lawyer, who has represented Agrawal in several public interest cases, asked,
"Why has the company filed an FIR against Agrawal after MoEF acted against them? Why did it not go after him earlier?"

When asked why, Sanjeev Chauhan said, "We discussed the matter within the management. We were waiting for the right time". He added that the company "will definitely prove the allegations in court".
Environmentalists say proving allegations against Agrawal will not disprove allegations against the company.

"The Ministry did not rely on Agrawal's word. Its team did due diligence and found Jindal Power had clearly broken the rules," says Narain.

Fines should be imposed by judiciary like in this case

2010-06-17T11:24:00.001+05:30

One of the major problems in Indian courts is the ease with which cases can be filed, the ease with which they get adjourned, and the relative difficulty with which costs or fines are imposed on frivolous or false litigation. If judiciary needs to restore faith, they will need to impose heavy fines on frivolous litigants and dilatory tactics. Else judiciary will remain a relief-giving mechanism who no one fears!

http://expressbuzz.com/cities/bangalore/hc-blow-to-governor%E2%80%99s-office/178865.html

Rs 1 lakh fine for delaying hearing

THE High Court imposed a fine of Rs 1 lakh on a petitioner for not pursuing the petition it had filed in 1999.

Justice DV Shylendra Kumar imposed the fine on Electronics Research Limited, which had challenged the custom duty of Rs 3.88 crore, citing that the Customs department had levied additional customs duty on it. The second additional city civil court had rejected the application, after which the petitioner had moved the High Court.

When the judge called the petitioner’s advocate for hearing, the junior advocate sought an adjournment.

The judge refused to give the adjournment and imposed the fine.

Will Supreme Court apply same standards to corrupt judges?

2010-06-03T09:29:00.001+05:30

A bus conductor in UP was dismissed from service, for not remitting money to government for 25 passengers. Supreme court has upheld his dismissal from service.

Telecom minister Raja was involved in scam of 2G spectrum auction which resulted in loss of thousands of crores to government.

The message seems to be that one should be a minister, or judge in higher courts, to be able to escape all punishment and get immunity from charges of corruption. A high court judge need not worry about 15 lakh of cash kept at doorstep, but a bus conductor must worry about misappropriation of funds! These are the high standards judiciary wants to preach.

http://publication.samachar.com/pub_article.php?id=9200357&nextids=9200357

The apex court gave the judgement while upholding the dismissal of a bus conductor Suresh Chandra Sharma of the UP State Road Transport Corporation. Sharma was dismissed from service by the Corporation after a departmental inquiry held him guilty of collecting fares from about 25 passengers but not remitting them to the official exchequer.

The Uttaranchal High Court, however, had quashed the dismissal on the ground that the inquiry was vitiated as the authorities did not examine the passengers and ordered Sharma's reinstatement, but without any back wages.

Aggrieved by the order, both the corporation and the employee filed appeals in the apex court.

Upholding the Corporation's appeal, the apex court citing its 1996 judgement in the Municipal Committee, Bahadurgarh Vs. Krishnan Bihari case said, "In cases involving corruption - there cannot be any other punishment than dismissal.

"Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."

The apex court further cited the Vinod Kumar Vs UPSRTC case (2008) that "the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal."

The bench said that in a domestic inquiry, complicated principles and procedures laid down in the Code of Civil Procedure and the Indian Evidence Act need not be strictly adhered to.

"The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges.

"More so, the High Court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the High Court is found not duly supported by reasons, the judgment itself stands vitiated," the apex court added.

Another cockroach in cabinet – judiciary having control of public funds

2010-06-02T19:26:00.001+05:30

Justice Shylendra Kumar of Karnataka HC recently posted a new entry on his blog as given below.

http://sites.google.com/site/justdvskumar/netizens-citizens-vii-22-05-2010

What was a new revelation was about the extent of funds available (Rs 13 Crore) to judiciary at their discretion, under aegis of Karnataka State Legal Services Authority, and the disclosure by Justice Kumar that he himself had to wait for 3-4 months to get information related to certain expenditures under category of ‘hospitality expenditures’ from the Karnataka high court registry!

Here is information about what Legal Services Authority is all about from their website here: http://www.kslsa.kar.nic.in/aims_objectives.htm

The Legal Services Act 1987 is basically aimed to provide free and competent legal Service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

Creating Legal awareness, Legal Aid and Settlement of disputes through amicable settlement are the main functions of the Authority.

Needless to say, it is an authority with mandate of delivering effective justice, and esp to help poor people who may not be able to afford lawyers.

Here are the relevant part of Justice Kumar’s blog post with important points in bold:

Recently, I heard that there were some malpractices, particularly, some illegalities having taken place in the matter of expenditure incurred by the High Court under the head ‘hospitality expenditure’, more so, during the stewardship of Justice P D Dinakaran as Chief Justice of the Karnataka High Court.

Being a little disturbed with such development, I had sought for some factual information from the registry and the information which I received has not put me at ease, but on the other hand has put me to great uneasiness and anxiety, particularly about the way and the direction which our High Court is heading.

I am placing the particulars of expenditure incurred as furnished by the registry for the information and perusal of the general public, an information which is otherwise available to you all under the Right to Information Act, and to form your own opinion and of course to react and respond suitably.

Under our constitutional scheme, judiciary does not have financial independence and the expenses in the judiciary is also part of the budgetary proposal and being voted by the State legislatures and the Union in the Parliament and therefore to that extent judiciary was blissfully kept independent of any financial responsibilities and the concomitant accountability with regard to expenses.

While that is the scheme under our Constitution, in recent times, with all sorts of additional responsibilities having sprouted on the courts, particularly, at the level of the High Courts and the Supreme Court and the High Courts and the Supreme Court getting more and more active on the administrative side, have been privy to considerable extent of State funds and whom the amount is being spent at the sole discretion of the Members of the Judiciary.

The checks and balances which are available under the Constitutional scheme and the statutory scheme in respect of any State expenditure, particularly, the scrutiny by the Comptroller and Auditor General of India under Article 148 of the Constitution of India is not fully or strictly applied in respect of expenditure incurred by the Judiciary in respect of funds which are available at the disposal of the Judiciary wherein the discretion of the Chief Justices matters. The State making available vast funds as part of the services made available to the general public under the Karnataka State Legal Services Authorities Rules, 1996 and being at the sole discretion of the Executive Chairman who is a Member of the Judiciary and Judge in the High Court, while has given considerable financial independence and capability to the Judge heading this Authority, the manner of utilization/application of such large amount has come in for criticism and over a period of time, the public opinion is that Judges are most ill suited to occupy the position of a Executive Chairman of the Legal Services Authority and it should be looked after by other persons who do not have the onerous judicial responsibilities to discharge.

Well, opinions may differ, but the fact remains that Judges becoming privy to large or vast amounts has not been a healthy trend if one should look at the developments during the past two decades and it certainly calls for a debate, a rethinking and suitable changes if so felt and warranted.

I learnt that Karnataka State Legal Services Authority had received not less than Rupees Thirteen Crores for its annual expenses during the year 2009-10 and I was not very happy with the manner of the funds allocated to expenditure of this Authority and I had called for information about the same when I was serving at the Circuit Bench of the High Court at Gulbarga during November-December 2009.

It took more than three to four months for the Member Secretary of the Karnataka State Legal Services Authority to part with this information even to a Judge of the High Court and it is only with some pressure and threats I was able to get the information. This again is not a very healthy development, particularly, if persons who are entrusted with public funds are asked for accounting the same, it should be available at a minute’s notice and at fingertips, and not furnished after three months like some Judges, declaring the particulars of their assets and liabilities!.

Supreme Court concerned about judges throwing mud on other judges!

2010-05-28T10:51:00.001+05:30

This was bound to happen… The image of judiciary has taken a severe beating in last few years. Now even Supreme Court is concerned that at least judges don’t throw mud at their own brethren. It is difficult enough when public is doing it! News below:

http://beta.thehindu.com/news/national/article440114.ece

The Supreme Court has cautioned the High Courts against using intemperate language and passing castigating strictures on judges of the lower judiciary. For, doing so would diminish the image of judiciary in the eyes of the public.

A vacation Bench of Justices G.S. Singhvi and C.K. Prasad, quoting earlier judgments, stressed the need for the High Courts adopting the utmost judicial restraint against using strong language as in such matters the judicial officer concerned had no remedy in law to vindicate his position.

The Bench allowed an appeal filed by a senior judicial officer against certain observations made by the Andhra Pradesh High Court. The Bench expunged them, holding that these remarks were bound to adversely affect the appellant's image in the eyes of the public and his credibility as a judicial officer, and would also affect his career.

As Principal District Judge, Kadapa, the appellant granted a temporary injunction in favour of plaintiffs in a suit and restrained the defendants from interfering with the plaint schedule property.

On an appeal by the defendants, a Division Bench of the High Court set aside the order and made scathing criticism of the appellant as a judicial officer, and recorded highly disparaging remarks.

Allowing the appeal by the judicial officer for expunction of the remarks, the Supreme Court said: “The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.”

Judicial authoritarianism

It said: “The Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for its making highly disparaging remarks against the appellant as a judicial officer, casting doubts on his ability to decide the cases objectively. The use of the words ‘out of sheer arrogance and disrespect to the lawful order' and the expression ‘judicial authoritarianism' show that the Division Bench ignored the words of caution administered by this court in several judgments.”

And they say judges need independence – from kin maybe!

2010-05-26T20:34:00.001+05:30

http://www.tribuneindia.com/2010/20100523/main6.htm

Chandigarh, May 22
The Punjab and Haryana High Court has as many as 16 Judges with their kith and kin practising in the same court. The Chief Justice of the Punjab and Haryana High Court has already forwarded their list to the Union Ministry of Law and Justice.

The list was sent in response to a communication received by the high court from the ministry. In the beginning of this year, the ministry had asked the high courts across the country to identify and furnish the list of all such judges who have their kith and kin practising in the same court.

Available information suggests that some of the judges here not only have their sons, daughters but also their siblings and other relations like nephews and brothers-in-law practising in the same court. At least four judges have their relatives working in the office of the Punjab and Haryana advocates-general office. Some other judges have relatives appearing before the Bench in the same court.

The list forwarded by the high court mentions the names of Justice Adarsh Kumar Goel, Justice Ashutosh Mohunta, Justice M.M. Kumar, Justice S.K. Mittal, Justice Hemant Gupta, Justice V.K. Sharma, Justice TPS Mann, Justice Mahesh Grover, Justice S.D Anand, Justice K.C Puri, Justice K.S. Ahluwalia, Justice Sabina, Justice Jora Singh, Justice M.S. Sullar, Justice Gurdev Singh and Justice Harbans Lal.

The issue again gained momentum only recently after Union Law Minister Veerappa Moily told The Tribune in an exclusive interview that the Law Ministry was asking the judges to give an undertaking at the time of their elevation that they would not function in a court where their relatives were practising.

Moily’s assertion had come in the presence of Attorney-General Goolam E. Vahanvati, Additional Solicitor-General Mohan Jain and Haryana Chief Minister Bhupinder Singh Hooda at a ceremony to felicitate the law minister.

The Law Commission has discussed the issue in its 230th report as well. The commission has made it clear that it is against the policy of transferring Chief Justices; and he should rather be from the same high court. But while making appointment of judges, advocates with kith and kin practising in a high court, should not be posted in the same high court. This would eliminate “uncle judges”, it said.The Punjab and Haryana High Court’s former chief justice, Justice B. K. Roy, too had earlier issued an administrative order barring a group of 10-12 judges from hearing any case argued by their relatives. In his order, Justice Roy had said: “It was generally believed that A, B, C and D (all judges) constituted a mutual cooperative society in the sense it was believed that each of the four judges (A, B, C and D) would protect the sons of the three other judges.” The order had led to widespread protests.

List of judges

Justice Adarsh Kumar Goel

Justice Ashutosh Mohunta

Justice M.M. Kumar

Justice S.K. Mittal

Justice Hemant Gupta

Justice V.K. Sharma

Justice TPS Mann

Justice Mahesh Grover

Justice S.D Anand

Justice K.C Puri

Justice K.S. Ahluwalia

Justice Sabina

Justice Jora Singh

Justice M.S. Sullar

Justice Gurdev Singh

Justice Harbans Lal

Judiciary unable to check judge’s antecedents, can they check accused’s?

2010-05-21T14:28:00.001+05:30

Following news shows how lax are judiciary’s standards in checking the antecedents of one of their own.

http://www.indianexpress.com/news/indore-absconder-worked-as-judge-in-same-city-till-past-caught-up-with-him/621726/

A man who was declared an absconder by a court in Indore worked as a judge in a superior court in the same city for years before his past caught up with him.

The Madhya Pradesh High Court has suspended Additional District and Sessions Judge Narendra Kumar Jain for concealing the matter.

As a student of Christian College in Indore, Jain, along with four friends, was involved in a brawl with a hotel owner and his son in 1983. The owner, whose nasal bone was broken, lodged a police complaint that led to the arrest of Jain and his friends.

Jain was released on bail and appeared in court once in 1985. He was declared an absconder by the court when he did not appear later despite repeated summons.

Jain cleared an examination meant for judicial officers in 1994 but suppressed the fact that he was involved in a criminal case and was facing trial.

Judge who uncovered scam in Bangalore court is transferred

2010-05-14T09:56:00.001+05:30

Such is the secrecy and protection afforded to powerful vested interests who control the judiciary from behind, that no case of judicial corruption can ever be investigated thoroughly and properly. Read news below:

http://epaper.timesofindia.com/Default/Scripting/ArticleWin.asp?From=Archive&Source=Page&Skin=MIRRORNEW&BaseHref=BGMIR/2010/05/14&PageLabel=6&EntityId=Ar00600&ViewMode=HTML&GZ=T

A Gurumurthy, the judge in whose court a scam involving court officials, banks and financial institutions to the tune of hundreds of crores of rupees was unearthed, has been transferred.

Though transfers are routine, with four notifications on April 24 transferring District Judges, Fast Track Court Judges, Senior Civil Judges and Civil Judges, this transfer comes just three weeks after a departmental inquiry under the judge was initiated.

Gurumurthy, the XIV Additional Chief Metropolitan Magistrate (Mayo Hall), is one of the 33 judges of the ‘Senior Civil Judges’ cadre who has been transferred, according to the notification (no GOB(I).4(2)/2010) issued by the Registrar General of the High Court.
The notification says he will take charge as the Senior Civil Judge and JMFC, Ramdurg, Belgaum district, from May 24.

PROBE CURTAILED
It is feared that with the transfer of the judge, the departmental inquiry would suffer. It is learnt nearly a month after the inquiry was initiated in the first week of April, Gurumurthy submitted his report. But the same was sent back to him with directions for further probe. Now with less than two weeks for his transfer, Gurumurthy’s report may not be complete as the XIV ACMM has more than one lakh cases before it, according to sources.

Registrar General of the High Court, R B Budihal refused to talk about the issue. His office replied he would not entertain any journalist seeking information on the issue.

Bangalore Mirror had, on May 4, reported how thousands of citizens were cheated using fake seals of judges’ signatures and fake court papers for serving non-bailable warrants (NBW) on them.

Some 70,000 fake NBWs were said to have been issued in the last three years to people across the country.

Three officials of the court - Tulasamma, the sirastedar, Balasubramani, the bench clerk, and Narasaiah, a case worker, who allegedly ran a ‘parallel court’ in collusion with banks and their advocates, were suspended.

Banks and court staff colluded to issue NBWs to borrowers whose cheques had bounced. After these fake NBWs were issued, the banks, either with the help of police or musclemen, forced the debtors to pay up the entire loan amount.

As per the law, no sworn statement of any bank manager has been recorded. The fraud also involved sending fake NBWs to people who were not under the jurisdiction of the court, including Kolkata, Mumbai, Allahabad and Bihar.

Office of Chief Justice of India is covered under RTI now

2010-05-11T23:05:00.001+05:30

Maybe it is coincidence, but two days before retirement of CJI, the office of CJI has been agreed to be a Public Authority under RTI Act. See recent decision by CIC below. Also the important points are made bold below:

CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000279 dated 14.3.2009
Right to Information Act 2005 – Section 19
Appellant - Shri Nemi Chand Jain
Respondent - Supreme Court of India (SCI)
Decision announced: 10.5.2010

Facts:
Shri Nemi Chand Jain of Jaipur, Rajasthan applied to the Registrar,
Supreme Court of India on 27.11.08 seeking the following information:
“Copy of complete file relating to complaint dated 2.4.2007 against
Justice Shri Shiv Kumar Sharma, Rajasthan High Court, Jaipur.”
To this Shri Nemi Chand Jain received a response from CPIO Shri Raj Pal
Arora, Addl. Registrar dated 18.12.08 informing him as follows:
“I write to inform you that the complaints against Hon’ble Judges of
the High Court or Supreme Court are not handled by the Registry.
Therefore, the information is not held by or under the control of the
Registry and the CPIO, Supreme Court of India cannot accede to
your request.”

Aggrieved, Shri Nemi Chand Jain moved an appeal on 30.12.08 before
Appellate Authority, Supreme Court of India on the following grounds:
“As per Section 6(3) of the RTI Act the Learned CPIO should have
transferred the application within five days to the concerned public
authority with whom the information is available and inform the
Appellant / Applicant.”

Upon this, Appellate Authority Shri M. P. Bhadran in his order of 17.1.09 in
appeal No. 2 of 2009 decided as follows:
“Since the Hon’ble CJI is not a Public Authority within the meaning
of Sec. 2(h) of the RTI Act the application cannot be transferred as
per Section 6(3) of the RTI Act as requested by the appellant. I find
that no error in the impugned order. There is no merit in this appeal
and it is only to be dismissed.”

Appellant Shri Jain has then moved his second appeal before us with the
following prayer:
“It is prayed that the impugned order dated 17.1.09 passed by
Learned Appellate Authority and order dated 18.12.2008
passed by Learned CPIO may kindly be quashed and set
aside, and the Learned CPIO may be directed to transfer the
application to the appropriate Authority with whom the
information sought by Appellant is available.”

This prayer is grounded on the following contentions:
“Because the Hon’ble CJI is Public Authority within the meaning of
Section 2(b) of the RTI Act and hence the impugned order is liable
to the set aside.”

The appeal was heard by videoconference with Jaipur on 10.5.2010. The
following are present:

Appellant
Shri Nemi Chand Jain

Respondents
1. Shri Raj Pal Arora, CPIO / Addl. Registrar
2. Ms. Asha Ahuja, RTI Branch Officer, SCI
3. Shri Devadatt Kamat, Advocate

Shri Devadatt Kamat, Learned Counsel for the Supreme Court presented
his vakalatnama, which has been taken on record. Shri Kamat also submitted
that subsequent to the decision in the present case, it has been agreed by the
Supreme Court of India that the Office of Chief Justice of India is indeed a public authority within the meaning of sec. 2(h) of the RTI Act. In light of this, the
information sought by appellant Shri Nemi Chand Jain was that the complaint of
2.4.07 against Justice Shri Shiv Kumar Sharma of the Rajasthan High Court,
Jaipur had in fact been received, seen by the Chief Justice of India and lodged.
There is no file on the complaint. Upon this, appellant Shri Nemi Chand Jain
submitted that he had no further information to seek.

DECISION NOTICE

It is now established and agreed to by all parties that the office of Chief
Justice of India is a Public Authority within the meaning of Sec. 2(h) of the RTI Act, as part of the Supreme Court of India. The order of Appellate Authority, Shri
M. P. Bhadran on appeal No. 2 of 2009 dated 17.1.09 is, therefore, set aside.
Learned Counsel for the Supreme Court of India has also provided the
information sought by appellant Shri Nemi Chand Jain, in the hearing. The
appeal is thus allowed. There will be no costs.

Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
10.5.2010
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO
of this Commission.
(Pankaj K.P. Shreyaskar)
Joint Registrar
10.5.2010

AP Governor says RTI used for blackmail -- file RTI on that

2010-05-11T11:08:00.001+05:30

I will take excerpt of news below and refute the points made by governor of AP.

http://www.deccanchronicle.com/hyderabad/governor-says-rti-used-blackmail-tool-655

Hyderabad, May 10: The Governor, Mr ESL Narasimhan, condemned the misuse of the Right to Information (RTI) Act by some people, who have “vested interests”.

He said the RTI Act has become a tool to “blackmail” the government and its machinery.

“I can say with complete authority that the RTI Act is used for blackmailing people. If that was not the case, why do the same group of people apply for the RTI Act so often,” he asked while speaking at the Administrative Staff College of India, after inaugurating the Forum for Good Governance.

Ok. The logic is that if some people file RTI so often, they must be using it for blackmail! Well, governor ji, maybe you forget but the 86 year old ex-governor of Andhra Pradesh had left his office few months back after some pictures of his romps with young women were shown on TV. Such was the secrecy after that event that the media was stopped by High court order to show any further footage etc of the episode. When government along with judiciary is hell-bent on stopping people from knowing what is going on within government, RTI is the only forum available for people to find out the truth behind government’s inner workings.

Citing his own experiences on the misuse of the Act, Mr Narasimhan said: “I receive RTI applications that seek information on the dinner I hosted for my guests. They ask me to disclose the guest-list, the menu and the expenditure incurred for the purpose.” He said is not spared even when he visits temples. “The other day, I went to a temple. A person filed an RTI seeking information about whether my visit to the temple was an official visit? If so, who did I meet and what was the discussion? I replied that it was not an official visit. I met the Almighty at the temple and had long deliberations with him. I also prayed to him to please give good sense to such people,” he remarked.

You may think it is irritating to get RTIs about your dinners. But do not forget that people have very little faith in about people in government regarding use of taxpayer funds at their disposal. Even an ex-minister Shashi Tharoor was found to be staying in 5-star hotels instead of finding a more reasonable accommodation given the austerity drive of government in place at the time. If government was more transparent of less cruel with public money, people will have no desire to waste their time in filing RTIs asking about dinners hosted by you. That trust has yet to be built by government representatives.

Are judges powerless in face of misuse of law?

2010-05-10T19:41:00.001+05:30

The judges seem to be toothless in face of misuse of law! Such misuse of laws is the real reason behind 3.1 crore pending cases in Indian courts. When there is incentive to misuse the law, and no disincentive against it; more number of cases is exactly the result. While truly affected people fear going to courts, those who want to misuse the law are feted by lawyers, and indirectly by judiciary!

Married sister can’t be booked under DV Act

New Delhi, May 10, 2010

Married sisters of a man, living separately from the joint family, cannot be prosecuted under the Domestic Violence (DV) Act on a complaint of his wife, a Delhi court has held.

Additional Sessions Judge Kamini Lau expressed concern over “misuse” of special laws by making women parties in the petitions just because they happened to be sisters of the man.

“Married sisters residing in their own matrimonial houses are not a part of the shared household or joint family, as contemplated under the Domestic Violence Act,” the court said.

It, however, clarified that the married sisters were not denied the rights, which could be claimed from their parental home.

The observations were made by the court while dismissing the plea of a woman who challenged an order of the Metropolitan Magistrate, refusing to summon married sisters of her estranged husband in the case under the Domestic Violence Act.

If only it were true!

2010-05-10T19:39:00.001+05:30

The following statements by outgoing Chief Justice of India will not have many believers, except maybe in Supreme Court itself! The last sentence is really bothering, if people do not understand working of judiciary, is it really a good thing? Won’t it be good to have judiciary under ambit of RTI -- I know it already is except Supreme Court, but just try filing an RTI on any court and see for yourself.

http://www.indianexpress.com/news/corruption-in-judiciary-is-minimal-not-very-serious-cji/616901/

Outgoing Chief Justice K G Balakrishnan says corruption in judiciary was a cause of concern but the situation was "not very serious" and that it was actually "miniscule" considering the number of cases and judges.

"Corruption will always bother anyone. But considering the number of cases and judges, it is actually miniscule.

Situation is not very serious," the CJI said in an interview to CNN-IBN on Monday on the eve of demitting office after a tenure of a little over three years.

However, the CJI appeared to be haunted by Justice Dinakaran issue and expressed his disappointment over the motive even imputed to him on this score while maintaining that the apex court collegium/ judges work systematically in harmony with the norms.

"I felt sorry that some motives were attached to me as well. We work systematically following all the norms," he said.

On being asked whether the credibility of judges did not get erosioned as a number of them accept government posts after their retirement, he said it was the government which wants us there.

"There are so many tribunals that have to be manned by retired judges of the Supreme Court. There is TDSAT etc.

People think that SC judges may favour the government to get these posts, but now actually its other way. The government wants us there," the CJI said.

The CJI, who recently gave verdict on high-voltage Ambani brothers gas dispute, said that he never felt any pressure while adjudicating any case.

"I have never felt any pressure in any case that I have heard," he said adding that "people do not understand the working of judiciary. No politician will like to come and meet a judge. He will be in trouble, suppose the judge expose him, his political career can be in danger."

Judiciary: a laggard in implementing RTI

2010-05-09T14:26:00.001+05:30

It is not only the Chief Justice of India who wants his own office out of purview of RTI. Even some of high courts are quite uncooperative about honouring RTI.

Following news story sums it all. When it comes to implementation of right to information act (RTI), the courts are totally clueless and unhelpful to applicants. The fact that this happened with a high court bench shows the high-handedness and aloofness which has become a characteristic of Indian judiciary.

http://beta.thehindu.com/news/cities/Madurai/article391264.ece

M. Shanthi of Karur had filed an RTI application on February 25 seeking details of a civil miscellaneous appeal filed by an insurance company in 2001 against a judgment passed by a lower court earlier. Stating that the case was not listed for hearing for a long time, she sought to know whether it was still pending or had been disposed of.

N. Vijayakumar, Deputy Registrar (Administration) of the Bench and also Assistant Public Information Officer, replied to the application on March 3. Instead of giving a direct answer to the question, he asked the woman applicant to approach her advocate for obtaining the required information.

Not satisfied with the reply, Ms. Shanthi filed an appeal, under the RTI Act, before the Registrar (Administration) of the High Court Bench on March 13, 2010.

Subsequently, she received another letter from R. Susheela Devi, Deputy Registrar (RTI) dated March 31 asking her to come to the Bench during office hours at the earliest for verification of her residential address and signature.

The issue gains significance in view of the fact that there is no provision in the RTI Act which entitles a public information officer to ask an applicant to prove his/her identity. Section 6(2) of the Act categorically states a person seeking information need not give any personal details except those that were required for contacting him.

Section 6(2) of RTI Act, 2005 is given below:

(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

The only main requirement in RTI Act is that applicant be a citizen of India. Even an Indian living abroad can file an RTI through Indian embassy. But by asking the applicant to come personally to office, the RTI official of high court has shown either their incompetence, or their complete disregard for law of the land.

Corruption in ACMM court Bangalore: officials, banks, lawyers nexus

2010-05-06T13:04:00.001+05:30

Bangalore Mirror has broken a story which shows how corruption is seeping right through Indian judiciary. The Provident Fund scam was involved with high court judges and a supreme court judge too. The case below involves court officials but not judges.

So there is taint of corruption in courts right from Supreme court to lower courts… corruption has become the great leveller in Indian judiciary.

http://www.bangaloremirror.com/index.aspx?page=article&sectid=1&contentid=2010050420100504055439259caa09bd9

Bangalore Mirror has exclusive details of the cheating committed on innocent citizens of India. A room full of some 70,000 fake Non-Bailable Warrants (NBW) is being scrutinised at the court.

Officials investigating the scam have found fake seals of judges’ signatures, and cooked-up court papers. The documents were found in the pending branch of the court complex.

A bank-court staff ring used these papers against clueless borrowers of ICICI Bank, Kotak Mahindra Bank Limited, Cholamandalam DBS Finance Limited, Reliance Capital and HDFC Bank, among others. The fraud was committed against borrowers whose cheques bounced.

When an EMI cheque bounces, the bank and its advocates get into the act by getting forged documents and NBWs out of the ‘parallel court’ operating at the court.

Then, the bank sends its musclemen or takes the help of the police to confront the ‘accused’ with fake warrants.
After threatening the debtor, they recover the entire loan amount, and not just the EMI.

This is against the procedure laid down under Section 138 of the Negotiable Instruments Act, 1881. No sworn statement of the bank manager is recorded nor is any sworn statement taken in any of these cases.

Another major fraud is that most of the accused are not in Bangalore. Many live in cities like Kolkata, Chennai, Hyderabad, Mumbai, Allahabad, and in remote corners of Jharkand and Bihar. The story unfolded after many such harassed customers complained to the court, sources said.

NO JURISDICTION
The law says a Bangalore court cannot have jurisdiction on an offence committed outside the city.

The truth is, none of these accused had even visited Bangalore before. So, there was no question of the XIV ACMM having jurisdiction over these people.

The scam has shaken the judiciary in Karnataka. One source told this journalist that an advocate had filed 30,000 such cases allegedly on behalf of Cholamandalam DBS Finance in the last six months. An advocate reportedly representing Kotak Mahindra Bank has filed around 10,000 fake cases in the last six months.

The preliminary inquiry has revealed that advocates representing many banks, in collusion with court staff, have created their fake stationery for preparing the orders.

These orders don't have the date of execution nor are the so-called signatures supported by dates. A closer look at the order sheets reveals that they have been faked.

XIV ACMM A Gurumurthy refused to meet the Bangalore Mirror team when we said we wanted to get details from him.

Cheque bounce cases – penalty increased for compounding

2010-05-06T11:13:00.001+05:30

All this seems very nice and good on paper, but it has to be seen in practice why a cheque defaulter would not like to pay up to maximum 20% of principal amount, and delay the case till it reaches Supreme Court.

http://timesofindia.indiatimes.com/NEWS/India/SC-gets-tough-on-cheque-bounce-cases/articleshow/5887622.cms

NEW DELHI: Delay in settling cheque bounce cases will now cost the defaulter dear, up to 20% of the cheque amount. The penalty for delayed settlement of the cheque amount, after conviction in the trial court, would rise steadily from 10% in district courts, 15% in high courts to a whopping 20% in the Supreme Court.

The SC on Monday took this radical step through a pioneering judgment which aims to curb the tendency among defaulters to sit over the amount tendered through a bounced cheque.

Saddled with 30 lakh cheque bounce cases, the SC accepted most of the suggestions offered by attorney general G E Vahanvati.

A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal also laid down guidelines for early settlement in cheque dishonour cases under Section 138 of the Negotiable Instrument Act.

The judgment, authored by Chief Justice K G Balakrishnan, indicated that defaulters going for early settlement before the trial court would have to pay just the principal amount with applicable interest.

But if they approched the district court for settlement after being convicted by the trial court, they would have to pay 10% of the cheque amount to avoid going to jail. So if a chque amount is for Rs 1 lakh, then to compound the offence before the district court, the defaulter has to pay an additional Rs 10,000 to avoid going to jail.

Similarly, if the defaulter agrees for settlement and compounding of the offence at the HC stage, then he would have to pay 15% of the cheque amount. The amount so collected would be given to Legal Aid Authorities of the respective states which provide free legal assistance to poor litigants in various forums, the SC said.

This judgment will go a long way in reducing the pendency of over 30 lakh cheque bounce cases which have jammed the wheels of justice already slowed down by pendency of 2.7 crore cases. During the hearing of a Section 138 case between Damodar S Prabhu and Sayed Babalal, the Bench observed that there had been an enormous rush of cases after cheque bounce was made a penal offence in 1989, followed by the amendment in 2002 providing for summary trial for early resolution of the dispute.

The last line is the giveaway, there was enormous increase in cheque bounce cases AFTER it was made a penal offence in 1989. Normally, one would expect that a criminal penalty for an offence would deter people from committing that offence. It is clear that justice in India does not work the way it is supposed to be! There is a huge latent demand for justice, and it does not seem to be satisfied no matter how many new laws get created.

Not the end of story regarding Cash at door scam

2010-05-03T18:34:00.001+05:30

Only in India if a High court judge gets Rs 15 lakh cash delivered at door, the powers that be will look the other way! Now it seems the law ministry is siding with CPIO of Supreme Court on the matter of disclosure of information under RTI. If CJI was not enough in holding lid on happenings inside Supreme Court, now law ministry is backing him up as a spokesperson.

http://www.dnaindia.com/india/report_secrecy-in-yadav-case-moily-supports-chief-justice-of-india_1364645

CPIO had earlier this month denied information to RTI applicant Abhishek Shukla regarding chief justice of India (CJI) KG Balakrishnan’s inputs on transferring Punjab and Haryana high court judge Nirmal Yadav to another HC, saying the matter was confidential.

Yadav is mired in a controversy related to the scam in which Rs15 lakh was recovered from outside the door of her official residence nearly 19 months ago.

On Sunday, the law ministry defended CPIO, saying the CJI input on Yadav was indeed confidential and could not be made public.
CPIO had told Shukla that his query, whether CBI approached CJI in connection with the scam, was “confidential and exempted from disclosure under section 8(1)(e) and (j) of the RTI Act”. “You have no right to access the said information,” CPIO said.

The ministry, which has been working hard to introduce certain amendments in the RTI Act, which Congress president Sonia Gandhi has termed “landmark”, said the CJI input to law
minister Veerappa Moily on the issue was “in the nature of advice tendered by the cabinet” which is exempted from disclosure under the RTI Act.

The ministry cited section 8(1)(i) of the Act in its defence. The section exempts “disclosure of cabinet papers, including records of deliberations of the council of ministers, secretaries and other officers”, provided “the decisions of the council of ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete”.

Meanwhile, in a setback to the moves by a section in the government to put a lid on the scam, a special court in Chandigarh refused last Friday to accept the CBI plea for closing the case. Judge Darshan Singh asked CBI to probe the case further.

Anti-torture bill is much needed, even though most laws are ineffective in India

2010-05-03T18:28:00.001+05:30

From news of 9th April:

http://timesofindia.indiatimes.com/india/Cabinet-clears-anti-torture-bill/articleshow/5776064.cms

Though enacting the law is a step towards ratification of the UN convention against other cruel, inhuman punishment and degrading treatment, and has been pending for some time now, the timing of the bill gave rise to a question or two at the Cabinet meeting.

The argument was clinched as the PM pointed to the need for a law that underscored India's respect for human rights even as the government had promised to bring to book those guilty of killing 76 security personnel in a ruthless ambush on Tuesday. Singh has been particular that a detailed law be enacted to define torture, both physical and mental, that would attract penal action.

The proposed law has been hanging fire as over the past year, it was first suggested by home ministry that some changes in IPC would suffice. It was then argued that changes in the Evidence Act would also be needed. As it was felt that no less than three-four laws would have to be altered, the PM went along with a new law being framed.

The prevention of torture law is intended to align Indian law with the UN convention and India is now only one of a handful of signatory nations not to do so. The ratification of the convention will enable provisions in the convention to be part of Indian law. Though some of these exist in Indian law, they do not define "torture" as closely as the convention does.

The last para gives the probably most important reason that this law is being pushed. India does not want to be seen living in a ‘brutal’ image when all other countries have well-defined laws against torture and police brutality. Recent beating and torture of a foreign journalist has not helped either the ‘clean image’ India wants to project to international community.

Mission Justice’s presentation on judicial accountability

2010-05-03T11:05:00.001+05:30

Mission Justice has made a presentation on corruption, lack of accountability, lack of transparency, and so on in high judiciary of the country. The presentation is a clear eye-opener for those who still have faith that all is well with High Courts and Supreme Court in India.

You can download and read the presentation here:

http://dl.dropbox.com/u/2371641/Judiciary/MJ-2010-04-judicial-accountability-0001.pps

Lawyers’ heads are made of steel!

2010-05-01T10:25:00.001+05:30

I could not initially believe this news, but I read it in Deccan Herald also, so it must be true.

http://www.bangaloremirror.com/index.aspx?page=article&sectid=10&contentid=20100429201004290453347694579b370

The Federation of Bar Association (FOBA) has submitted a memorandum to CM B S Yeddyurappa asking him to spare lawyers from wearing helmets during summer. FOBA president K S Subba Reddy claims advocates find it very difficult to wear helmets from March to June even though the helmet rule is in the interest of a two-wheeler driver’s safety.

He adds, “It is very difficult, particularly for women advocates who have to compulsorily wear black coat and gown to attend the court. They must drive with the coat and gown, besides wearing the helmet.” Wearing a helmet is excruciating when vehicles are caught in heavy traffic and move very slowly, he added

Ok… so they want exception from helmet rule which is made in interest of safety of public. Normally one should have the freedom to decide how they run their own lives, but such safety rules are made because there are social costs too if the rate of injuries and deaths are higher.

Will the lawyers waive off their rights to claim accident compensations too in case the injuries and death when not hearing a helmet?

More importantly, if the lawyers are feeling uncomfortable due to heavy coat/gown along with helmet; isn’t it better to jettison that black coat for the 3 summer months? Whoever devised the rule that lawyers must wear black coats did not take tropical conditions into account.

What is more logical and reasonable: stop wearing black coat, OR stop wearing helmet? I hope some reasonable man stands up and makes a law doing away with need of black coats for lawyers.

Full SC judgment of Khushboo case

2010-04-30T10:52:00.001+05:30

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 913 of 2010
[Arising out of SLP (Crl.) No. 4010 of 2008]
S. Khushboo                                … Appellant
Versus
Kanniammal & Anr.                        ... Respondents
WITH
Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008
Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008
Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008
Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008
Criminal Appeal 918/2010 @SLP (Crl.) No. 7049 of 2008
Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008
Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008
Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008
Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008
Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008
Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008
Criminal Appeal 925/2010 @SLP (Crl.) No. 4761 of 2008
Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008
Criminal Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008
Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008
Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008
Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008
Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008
Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of 2008
Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008
J U D G M E N T
Dr. B.S. CHAUHAN, J
1. Leave granted in all the cases.
2. The appellant is a well known actress who has approached
this Court to seek quashing of criminal proceedings pending
against her. As many as 23 Criminal Complaints were filed
against her, mostly in the State of Tamil Nadu, for the
offences contemplated under Sections 499, 500 and 505 of
the   Indian   Penal   Code,   1860     [hereinafter   ‘IPC’]   and
Sections 4 and 6 of the Indecent Representation of Women
(Prohibition)   Act,   1986   [hereinafter   ‘Act   1986’].   The
trigger   for   the   same   were   some   remarks   made   by   the
appellant in an interview to a leading news magazine and
later on the same issue was reported in a distorted manner
in   another   periodical.   Faced   with   the   predicament   of
contesting the criminal proceedings instituted against her
in several locations, the appellant had approached the High
Court   of   Madras,   praying   for   the   quashing   of   these
proceedings   through   the   exercise   of   its   inherent   power
under Section 482 of the Code of Criminal Procedure, 1973
[hereinafter   ‘Cr.PC.’].   The   High   Court   rejected   her   plea
vide impugned judgment and order dated 30.4.2008. At the
same   time,   in   order   to   prevent   the   inconvenience   of

litigating   the   same   subject-matter   in   multiple   locations
directed   that   all   the   cases   instituted   against   the
appellant be consolidated and tried together by the Chief
Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the
aforesaid judgment, the appellant approached this Court by
way of a batch of Special Leave Petitions.
3. Before addressing the legal aspects of the case before
us, it would be useful to examine the relevant facts. In
September 2005, ‘India Today’ a fortnightly news magazine
had conducted a survey on the subject of the sexual habits
of people residing in the bigger cities of India. One of
the   issues   discussed   as   part   of   this   survey   was   the
increasing incidence of pre-marital sex. As a part of this
exercise, the magazine had gathered and published the views
expressed by several individuals from different segments of
society,   including   those   of   the   appellant.   The   appellant
expressed her personal opinion wherein she had noted the
increasing incidence of pre-marital sex, especially in the
context   of   live-in   relationships   and   called   for   the
societal   acceptance   of   the   same.   However,   appellant   had
also qualified her remarks by observing that girls should
take adequate precautions to prevent unwanted pregnancies
and   the   transmission   of   venereal   diseases.   This   can   be

readily inferred from the statement which was published, a
rough translation of which is reproduced below:
“According to me, sex is not only concerned with
the body; but also concerned with the conscious.
I could not understand matters such as changing
boyfriends every week. When a girl is committed
to   her boyfriend, she can tell her parents and
go out with him. When their daughter is having a
serious   relationship,   the   parents   should   allow
the   same.   Our   society   should   come   out   of   the
thinking that at the time of the marriage, the
girls should be with virginity.
None of the educated men, will expect that the
girl   whom   they   are   marrying   should   be   with
virginity.   But   when   having   sexual   relationship
the   girls   should   protect   themselves   from
conceiving and getting venereal diseases.”
These   remarks   were   published   alongside   a   survey,   the
relevant extracts of which are stated below:
“Will   you   marry   a   person   who   had   relationship
with    others?
18% - Yes, 71% - No
Is it necessary to be a virgin till the time of
marriage?
65% - Yes, 26% - No
The remaining percentage of people said: Do not
know/Cannot say
82% women had given an opinion that a girl should
be a virgin at the time of marriage.”
4. Subsequently, ‘Dhina Thanthi’, a Tamil daily carried a
news item on 24.9.2005 which first quoted the appellant’s
statement published in ‘India Today’ and then opined that

it   had   created   a   sensation   all   over   the   State   of   Tamil
Nadu. This news item also reported a conversation between
the   appellant   and   a   correspondent   from   ‘Dhina   Thanthi’,
wherein the appellant had purportedly defended her views in
the following manner (rough translation reproduced below):
“The   persons   who   are   protesting   against   my
interview,   are   talking   about   which   culture?   Is
there anyone who does not know about sex in Tamil
Nadu?   Is   there   anyone   who   does   not   know   about
AIDS?   How   many   men   and   women   do   not   have   sex
before marriage?
Why are people saying that after the marriage the
husband and wife should be honest and faithful to
each   other?   One   should   have   confidence   in   the
other,   only   to   avoid   the   mistakes   from   being
committed. If the husband, without the knowledge
of the wife, or the wife, without the knowledge
of the husband, have sex with other persons, if a
disease   is   caused   through   that,   the   same   will
affect both the persons. It will also affect the
children. Only because of this, they are saying
like that.”
However, soon after the publication of the above mentioned
news   item,   the   appellant   had   sent   a   legal   notice   dated
2.10.2005 to the Editor of ‘Dhina Thanthi’, categorically
denying that she had made the statement quoted above. In
fact, the appellant had asked the publisher to withdraw the
news-item   carried   on   24.9.2005   and   to   publish   her
objections prominently within three days of receipt of the
notice, failing which the appellant would be constrained to
take appropriate legal action against the newspaper.

5. As outlined above, the publication of these statements
in ‘India Today’ and ‘Dhina Thanthi’ drew criticism from
some quarters and several persons and organisations filed
criminal   complaints   against   the   appellant.   For   instance,
the complainant in the appeal arising out of SLP (Crl) No.
4010 of 2008 has stated that she is a married woman who is
the Treasurer of a District-level unit of the Pattali Makal
Katchi [hereinafter ‘PMK’], a political party, and is also
involved in social service. She had quoted some parts of
the   statements   published   in   ‘India   Today’   and   ‘Dhina
Thanthi’   to   allege   that   the   appellant’s   interview   had
brought   great   shame   on   her   since   it   had   suggested   that
women   of   her   profile   had   engaged   in   premarital   sex.   The
complainant   further   alleged   that   the   appellant’s   remarks
had caused mental harassment to a large section of women,
and in particular women from Tamil Nadu were being looked
down upon with disrespect and contempt.
6. In the appeal arising out of SLP (Crl.) 4764 of 2008,
the   complainant   is   a   male   advocate   who   is   a   District
Secretary of the PMK for Salem District. In his complaint,
there is no direct reference to the news-item published in
‘Dhina Thanthi’ on 24.9.2005. Instead the complainant has
stated that he found second-hand accounts of the same to be

quite shocking since the appellant had questioned the need
for women to maintain their virginity or chastity. It was
alleged   that   these   remarks   were   an   abuse   against   the
dignity   of   the   Tamil   women   and   that   they   had   grossly
affected and ruined the culture and morality of the people
of   the   State.   It   was   further   submitted   that   these
statements could persuade people to involve themselves in
unnatural crimes and that the appellant’s acts amounted to
commission of offences punishable under Sections 499, 500,
504, 505(1)(b)   and 509 IPC read with Section 3 and 4 of
Act   1986.   Similarly,   in   the   appeal   arising   out   of   SLP
(Crl.) 6127 of 2008, the complainant is a lady advocate who
has been practicing in the Trichy District Courts for more
than   10   years.   She   has   quoted   some   portions   from   the
statements published in ‘India Today’ and ‘Dhina Thanthi’
to submit that the appellant’s acts were punishable under
Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509
IPC read with Section 6 of Act 1986.
7. Likewise, in the appeal arising out of SLP (Crl.) 6259
of 2008, the complainant has stated that she is a married
woman belonging to a reputed family and that she is serving
as the President of the District Magalir Association of the
PMK (in Thiruvarur) and rendering social service. In her

complaint,   some   parts   of   the   appellant’s   statements   have
been quoted to allege that she had suffered great mental
agony and shame since it was suggested that all women in
Tamil   Nadu   had   lost   their   virginity   before   marriage.   In
this   respect,   the   complainant   has   alleged   that   the
appellant had committed offences punishable under Sections
499, 500, 504, 505(1)(b) and 509   IPC read with Section 6
of Act 1986. It is noteworthy that in most of the other
cases   filed   in   various   districts   of   Tamil   Nadu,   the
complainants   are   functionaries   of   the   PMK   and   similar
allegations have been levelled against the appellant. Oddly
enough,   one   of   the   complaints   had   even   been   filed   in
Indore, Madhya Pradesh.
8. As mentioned earlier, the appellant approached the High
Court   of   Madras   to   seek   quashing   of   all   the   criminal
proceedings instituted against her in this connection. In
its judgment dated 30.4.2008, the High Court   refused to
quash the proceedings by    exercising its inherent powers
under Section 482 Cr.PC, on the premise that the relevant
considerations in this case were questions of fact which
were best left to be determined by a trial judge. The High
Court noted that two basic questions were involved in the
case. Firstly, whether the appellant could claim any of the

recognised   defences   against   the   allegations   of   having
committed defamation, as contemplated by Section 499 IPC.
Secondly,   whether   the   complainants   could   at   all   be
described   as   ‘aggrieved   persons’   within   the   meaning   of
Section 199 Cr.PC since that was linked to the question of
whether the complaints had been made in a bona fide manner.
The High Court thought it fit to leave both these questions
for   consideration   by   a   trial   judge,   and   in   a   partial
reprieve   to   the   appellant   it   was   directed   that   all   the
criminal   proceedings   pending   against   her   be   consolidated
and tried by the Chief Metropolitan Magistrate at Egmore,
Chennai. However, the High Court also proceeded to record
its   own   views   regarding   the   contents   of   the   appellant’s
statements   and   even   made   some   strong   observations
condemning   the   incidence   of   premarital   sex   and   live-in
relationships.
9. In the proceedings before us, Ms. Pinki Anand, learned
counsel appearing for the appellant, has submitted that the
complainants   (respondents   in   these   appeals)   were   not
‘persons aggrieved’ within the meaning of Section 199(1)(b)
Cr.PC   and   hence   they   were   not   competent   to   institute
private complaints for the alleged offences. It was stated
that the appellant had made a fair and reasonable comment

as a prudent person, and therefore, the opinion expressed
by the appellant is fully protected under Article 19(1)(a)
of the Constitution of India which guarantees freedom of
speech and expression to all citizens. Furthermore, it was
contended   that   even   if   the   allegations   in   the   various
complaints are taken on their face value and accepted in
their   entirety,   the   same   do   not   disclose   any   offence
whatsoever and the opinion of the appellant does not, by
any means, fall within the ambit of Sections 499, 500 and
505   IPC   or   Sections   3   and   4   of   Act   1986.   It   was   also
canvassed that the criminal proceedings had been instituted
in   a   mala   fide   manner   by   the   workers   of   a   particular
political   party,   with   the   intention   of   vilifying   the
appellant and gaining undue political mileage.
10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman,
Adv. and Sh. B. Balaji, Adv. appearing for the respondents,
submitted that since the High Court has refused to quash
the   complaints,   this   Court   should   not   interfere   either
since   the   complaints   require   determination   of   factual
controversies that are best left to be decided by a court
of first instance. They have asserted that the complainants
in these cases are mostly women belonging to Tamil Nadu,
who were personally aggrieved by the appellant’s remarks.

It was argued that the endorsement of pre-marital sex by a
prominent person such as the appellant would have a morally
corruptive   effect   on   the   minds   of   young   people.   Her
statement would definitely obscure some basic moral values
and expose young people to bizarre ideas about premarital
sex,   thereby   leading   to   deviant   behaviour   which   would
adversely   affect   public   notions   of   morality.   It   was
contended that the constitutional protection for speech and
expression   is   not   absolute   and   that   it   is   subject   to
reasonable restrictions based on considerations of ‘public
order’,   ‘defamation’,   ‘decency   and   morality’   among   other
grounds.
11.   We   have   considered   the   rival   submissions   made   by
learned counsel for the parties and perused the record.
12. In order to decide this case, it will not be proper for
us to either condemn or endorse the views expressed by the
appellant.   When   the   criminal   law   machinery   is   set   in
motion,   the   superior   courts   should   not   mechanically   use
either   their   inherent   powers   or   writ   jurisdiction   to
intervene   with   the   process   of   investigation   and   trial.
However, such forms of judicial review can be exercised to
prevent a miscarriage of justice or to correct some grave

errors that might have been committed by the subordinate
courts.   [See   decision   of   this   Court   in: M/s   Pepsi   Foods
Ltd.   &   Anr. Vs. Special   Judicial   Magistrate   &   Ors.,   AIR
1998 SC 128]. In the past, this Court has even laid down
some guidelines for the exercise of inherent power by the
High   Courts   to   quash   criminal   proceedings   in   such
exceptional cases. We can refer to the decision in State of
Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604,
to take note of two such guidelines which are relevance for
the present case :-
“(1).   Where   the   allegations   made   in   the   First
Information Report or the complaint, even if they
are   taken   at   their   face   value   and   accepted   in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
… (7). Where a criminal proceeding is manifestly
attended   with   mala   fide   and/or   where   the
proceeding   is   maliciously   instituted   with   an
ulterior   motive   for   wreaking   vengeance   on   the
accused   and   with   a   view   to   spite   him   due   to
private and personal grudge.”
13. It is of course a settled legal proposition that in a
case   where   there   is   sufficient   evidence   against   the
accused,   which   may   establish   the   charge   against   him/her,
the proceedings cannot be quashed. In M/s Medchl Chemicals
& Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors., AIR 2000
SC 1869, this Court observed that a criminal complaint or a
charge   sheet   can   only   be   quashed   by   superior   courts   in

exceptional circumstances, such as when the allegations in
a   complaint   do   not   support   a   prima   facie   case   for   an
offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd.
& Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this
Court has held that criminal proceedings can be quashed but
such a power is to be exercised sparingly and only when
such an exercise is justified by the tests that have been
specifically   laid   down   in   the   statutory   provisions
themselves.   It   was   further   observed   that   superior   courts
“may examine the questions of fact” when the use of the
criminal law machinery could be in the nature of an abuse
of   authority   or   when   it   could   result   in   injustice.   In
Shakson Belthissor Vs. State of Kerala & Anr., (2009) 14
SCC 466, this Court relied on earlier precedents to clarify
that   a   High   Court   while   exercising   its   inherent
jurisdiction should not interfere with a genuine complaint
but   it   should   certainly   not   hesitate   to   intervene   in
appropriate cases. In fact it was observed:
“One   of   the   paramount   duties   of   the   superior
courts is to see that a person who is apparently
innocent   is   not   subjected   to   prosecution   and
humiliation on the basis of a false and wholly
untenable complaint.”
14. There can be no quarrel about this Court’s competence
to   quash   criminal   proceedings   pending   before   the

subordinate courts. However, this power must be exercised
sparingly and with circumspection. In light of the position
summarized above, we can examine the present case with two
considerations in mind, namely whether the allegations made
against the appellant support a prima facie case for the
offences   mentioned   in   the   respective   complaints,   and
whether the complaints were made in a bona fide manner.
15.   Perusal   of   the   complaints   reveals   that   most   of   the
allegations have pertained to offences such as defamation
(Sections   499,   501   and   502   IPC),   obscenity   (Section   292
IPC), indecent representation of women and incitement among
others. At the outset, we are of the view that there is
absolutely no basis for proceeding against the appellant in
respect of some of the alleged offences. For example, the
Act, 1986 was enacted to punish publishers and advertisers
who knowingly disseminate materials that portray women in
an indecent manner. However, this statute cannot be used in
the present case where the appellant has merely referred to
the incidence of pre-marital sex in her statement which was
published by a news magazine and subsequently reported in
another   periodical.   It   would   defy   logic   to   invoke   the
offences mentioned in this statute to proceed against the
appellant, who cannot be described as an ‘advertiser’ or

‘publisher’   by   any   means.   Similarly,   Section   509   IPC
criminalises a ‘word, gesture or act intended to insult the
modesty of a woman’ and in order to establish this offence
it is necessary to show that the modesty of a particular
woman   or   a   readily   identifiable   group   of   women   has   been
insulted by a spoken word, gesture or physical act. Clearly
this   offence   cannot   be   made   out   when   the   complainants’
grievance is with the publication of what the appellant had
stated in a written form. Likewise, some of the complaints
have   mentioned   offences   such   as   those   contemplated   by
Section   153A   IPC   (‘Promoting   enmity   between   different
groups   etc.,’)   which   have   no   application   to   the   present
case since the appellant was not speaking on behalf of one
group   and   the   content   of   her   statement   was   not   directed
against any particular group either.
16. Coming to the substance of the complaints, we fail to
see how the appellant’s remarks amount to ‘obscenity’ in
the context of Section 292 IPC. Clause (1) to Section 292
states   that   the   publication   of   a   book,   pamphlet,   paper,
writing,   drawing,   painting,   representation,   figure,   etc.,
will be deemed obscene, if –
• It   is   lascivious   (i.e.   expressing   or   causing   sexual
desire) or

• Appeals   to   the   prurient   interest   (i.e.   excessive
interest in sexual matters), or
• If its effect, or the effect of any one of the items,
tends to deprave and corrupt persons, who are likely
to   read,   see,   or   hear   the   matter   contained   in   such
materials.
In the past, authors as well as publishers of artistic and
literary works have been put to trial and punished under
this section. In the present case, the appellant takes full
responsibility   for   her   statement   which   was   published   in
‘India Today’, a leading news magazine. It would be apt to
refer   back   to   the   decision   of   this   Court   in Ranjit   D.
Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein
it was held that if a mere reference to sex by itself is
considered obscene, no books can be sold except those which
are purely religious. It was observed that in the field of
art and cinema, the adolescent is shown situations which
even   a   quarter   of   a   century   ago   would   be   considered
derogatory to public morality, but having regard to changed
conditions, the same are taken for granted without in any
way tending to debase or debauch the mind. What is to be
considered is whether a class of persons, not an isolated
case,   into   whose   hands   the   book,   article   or   story   falls
will suffer in their moral outlook or become depraved by
reading   it   or   might   have   impure   and   lecherous   thoughts

aroused in their minds. Even though the decision in that
case had upheld a conviction for the sale of a literary
work,   it   became   clear   that   references   to   sex   cannot   be
considered obscene in the legal sense without examining the
context of the reference.
17. This position was later clarified in Samaresh Bose Vs.
Amal Mitra, AIR 1986 SC 967, where the Court held that in
judging the question of obscenity, the judge in the first
place should try to place himself in the position of the
author   and   from   the   viewpoint   of   the   author,   the   judge
should try to understand what is it that the author seeks
to   convey   and   whether   what   the   author   conveys   has   any
literary and artistic value. Judge should thereafter place
himself in the position of a reader of every age group in
whose hands the book is likely to fall and should try to
appreciate   what   kind   of   possible   influence   the   book   is
likely to have on the minds of the reader.
18. There are numerous other decisions, both from India and
foreign   country   which   mandate   that   ‘obscenity’   should   be
gauged   with   respect   to   contemporary   community   standards
that   reflect   the   sensibilities   as   well   as   the   tolerance
levels of an average reasonable person. Owing to the clear

formulation on this issue it is not necessary for us to
discuss these precedents at length. In the present case,
the   appellant   has   merely   referred   to   the   increasing
incidence of pre-marital sex and called for its societal
acceptance.   At   no   point   of   time   appellant   described   the
sexual   act   or   said   anything   that   could   arouse   sexual
desires   in   the   mind   of   a   reasonable   and   prudent   reader.
Furthermore, the statement has been made in the context of
a survey which has touched on numerous aspects relating to
the sexual habits of people in big cities. Even though this
survey was not part of a literary or artistic work, it was
published in a news magazine thereby serving the purpose of
communicating   certain   ideas   and   opinions   on   the   above-
mentioned   subject.   In   the   long   run,   such   communication
prompts a dialogue within society wherein people can choose
to either defend or question the existing social mores. It
is difficult to appreciate the claim that the statements
published   as   part   of   the   survey   were   in   the   nature   of
obscene communications.
19. We must also respond to the claim that the appellant’s
remarks could have the effect of misguiding young people by
encouraging them to indulge in premarital sex. This claim
is   a   little   far-fetched   since   the   appellant   had   not

directed   her   remarks   towards   any   individual   or   group   in
particular.   All   that   the   appellant   did   was   to   urge   the
societal   acceptance   of   the   increasing   instances   of
premarital   sex   when   both   partners   are   committed   to   each
other. This cannot be construed as an open endorsement of
sexual activities of all kinds. If it were to be considered
so, the criminal law machinery would have to take on the
unenforceable task of punishing all writers, journalists or
other   such   persons   for   merely   referring   to   any   matter
connected with sex in published materials. For the sake of
argument,   even   if   it   were   to   be   assumed   that   the
appellant’s   statements   could   encourage   some   people   to
engage in premarital sex, no legal injury has been shown
since the latter is not an offence.
20. “Offence”   means   ‘an   act   or   instance   of   offending’;
‘commit an illegal act’ and illegal means, ‘contrary to or
forbidden by law’.
“Offence” has to be read and understood in the context
as it has been prescribed under the provisions of Sections
40, 41 and 42 IPC which cover the offences punishable under
I.P.C. or under special or local law or as defined under
Section   2(n)   Cr.P.C.   or     Section   3(38)   of   the   General
Clauses   Act,   1897   (vide   Proprietary   Articles   Trade

Association Vs. Attorney General for Canada AIR 1931 PC 94;
Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram
& Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962
SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate
of Enforcement & Ors. AIR 2006 SC 1301).
21. While   it   is   true   that   the   mainstream   view   in   our
society   is   that   sexual   contact   should   take   place   only
between   marital   partners,   there   is   no   statutory   offence
that   takes   place   when   adults   willingly   engage   in   sexual
relations outside the marital setting, with the exception
of   ‘adultery’   as   defined   under   Section   497   IPC.   At   this
juncture, we may refer to the decision given by this Court
in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522,
wherein it was observed that a live-in relationship between
two consenting adults of heterogenic sex does not amount to
any   offence   (with   the   obvious   exception   of   ‘adultery’),
even though it may be perceived as immoral.   A major girl
is free to marry anyone she likes or “live with anyone she
likes”.   In that case, the petitioner was a woman who had
married   a   man   belonging   to   another   caste   and   had   begun
cohabitation with him. The petitioner’s brother had filed a
criminal complaint accusing her husband of offences under
Sections   366   and   368   IPC,   thereby   leading   to   the

commencement   of   trial   proceedings.   This   Court   had
entertained a writ petition and granted relief by quashing
the criminal trial. Furthermore, the Court had noted that
‘no offence was committed by any of the accused and the
whole criminal case in question is an abuse of the process
of the Court’.
22. It would also be instructive to refer to a decision of
the House of Lords (U.K.) in Gillick Vs. West Norfolk and
Wisbech Area Health Authority, (1985) 3 All ER 402. In that
case, mother of a teenage girl had questioned the decision
of the National Health Service (NHS) to issue a circular to
local   area   health   authorities   which   contained   guidelines
for rendering advice about contraceptive methods to girls
under the age of 16 years. Objections were raised against
this   circular   on   the   ground   that   the   health   service
authorities   had   no   competence   to   render   such   advice   and
that doing so could adversely affect young children while
at the same time interfering with parental autonomy in the
matter   of   bringing   up   children.   The   majority   decision
rejected the challenge against the circular by clarifying
that   the   rendering   of   advice   about   contraceptive   methods
and their provision by medical professionals did not amount
to a sexual offence. Among the several aspects discussed in

that case, it was held that the provision of information
about contraceptive facilities to girls under the age of 16
years   could   not   be   opposed   on   the   ground   that   such
information   could   potentially   encourage   more   sexual
activity by the teenagers. For the purpose of the present
case,   this   decision   supports   the   reasoning   that   we   must
fully   understand   the   context   and   the   purpose   for   which
references to sex have been made in any given setting.
23.   We   now   turn   to   the   question   whether   the   appellant’s
remarks could reasonably amount to offence of defamation as
defined under Section 499 IPC.   In the impugned judgment
dated 30.4.2008, the High Court observed that as to whether
the appellant could claim a defence against the allegations
of defamation was a factual question and thus would   be
decided by a trial Court.   However, even before examining
whether   the   appellant   can   claim   any   of   the   statutory
defences in this regard, the operative question is whether
the allegations in the impugned complaints support a prima
facie case   of   defamation   in   the   first   place.   It   is   our
considered   view   that   there   is   no   prima   facie   case   of
defamation   in   the   present   case.   This   will   become   self-
evident if we draw attention to the key ingredients of the

offence   contemplated   by   Section   499   IPC,   which   reads   as
follows:
“499.   Defamation.- Whoever,   by   words   either
spoken or intended to be read, or by signs or by
visible   representations,   makes   or   publishes   any
imputation   concerning   any   person   intending   to
harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter
expected, to defame that person.
Explanation 1. – It may amount to defamation to
impute   anything   to   a   deceased   person,   if   the
imputation   would   harm   the   reputation   of   that
person if living, and is intended to be hurtful
to   the   feelings   of   his   family   or   other   near
relatives.
Explanation 2. – It may amount to defamation to
make   an   imputation   concerning   a   company   or   an
association or collection of persons as such.
Explanation 3. – An imputation in the form of an
alternative   or   expressed   ironically,   may   amount
to defamation.
Explanation 4.- No imputation is said to harm a
person’s   reputation,   unless   that   imputation
directly   or   indirectly,   in   the   estimation   of
others,   lowers   the   moral   or   intellectual
character of that person, or lowers the character
of that person in respect of his caste or of his
calling, or lowers the credit of that person, or
causes it to be believed that the body of that
person   is   in   a   loathsome   state,   or   in   a   state
generally considered as disgraceful. …”
(emphasis supplied)
The definition makes it amply clear that the accused must
either intend to harm the reputation of a particular person

or reasonably know that his/her conduct could cause such
harm. Explanation 2 to Section 499 further states that ‘It
may amount to defamation to make an imputation concerning a
company   or   an   association   or   collection   of   persons   as
such.’
24.   With   regard   to   the   complaints   in   question,   there   is
neither any intent on part of the appellant to cause harm
to the reputation of the complainants nor can we discern
any actual harm done to their reputation. In short, both
the elements i.e. mens rea and actus reus are missing. As
mentioned earlier, the appellant’s statement published in
‘India   Today’   (in   September   2005)   is   a   rather   general
endorsement   of   premarital   sex   and   her   remarks   are   not
directed   at   any   individual   or   even   at   a   ‘company   or   an
association or collection of persons’. It is difficult to
fathom   how   the   appellant’s   views   can   be   construed   as   an
attack on the reputation of anyone in particular. Even if
we refer to the remarks published in ‘Dhina Thanthi’ (dated
24.9.2005)   which   have   been   categorically   denied   by   the
appellant, there is no direct attack on the reputation of
anyone in particular. Instead, the purported remarks are in
the nature of rhetorical questions wherein it was asked if
people in Tamil Nadu were not aware of the incidence of

sex. Even if we consider these remarks in their entirety,
nowhere has it been suggested that all women in Tamil Nadu
have engaged in premarital sex. That imputation can only be
found   in   the   complaints   that   were   filed   by   the   various
respondents. It is a clear case of the complainants reading
in too much into the appellant’s remarks.
25. This takes us to the question of whether the impugned
complaints   were   made   in   a   bona   fide   manner.   As   we   have
already noted, most of the complainants are associated with
the PMK, a political party which is active in the State of
Tamil   Nadu.   This   fact   does   add   weight   to   the   suggestion
that   the   impugned   complaints   have   been   filed   with   the
intention   of   gaining   undue   political   mileage.   It   may   be
reiterated   here   that   in   respect   of   the   offence   of
defamation, Section 199 Cr.PC mandates that the Magistrate
can take cognizance of the offence only upon receiving a
complaint by a person who is aggrieved. This limitation on
the   power   to   take   cognizance   of   defamation   serves   the
rational   purpose   of   discouraging   the   filing   of   frivolous
complaints   which   would   otherwise   clog   the   Magistrate’s
Courts. There is of course some room for complaints to be
brought by persons other than those who are aggrieved, for
instance when the aggrieved person has passed away or is

otherwise unable to initiate legal proceedings. However, in
given facts of the present case, we are unable to see how
the   complainants   can   be   properly   described   as   ‘persons
aggrieved’ within the meaning of Section 199(1)(b) Cr.PC.
As explained earlier, there was no specific legal injury
caused   to   any   of   the   complainants   since   the   appellant’s
remarks were not directed at any individual or a readily
identifiable   group   of   people.   In M.S.   Jayaraj Vs.
Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552,
this Court observed as under:
“The   ‘person   aggrieved’   means   a   person   who   is
wrongfully deprived of his entitlement which he
is legally entitled to receive and it does not
include   any   kind   of   disappointment   or   personal
inconvenience. ‘Person aggrieved’ means a person
who is injured or one who is adversely affected
in a legal sense.”
26. We can also approvingly refer to an earlier decision of
this Court in G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR
1972 SC 2609. In that case a controversy had arisen after
‘The   Hindu’,   a   leading   newspaper   had   published   a   report
about   a   resolution   passed   by   the   Dravida   Kazhagham,   a
political party, in its conference held on January 23-24,
1971. Among other issues, the resolution also included the
following words:
“It should not be made an offence for a person’s
wife to desire another man.”

The Hindu, in its report, gave publicity to this resolution
by using the following words:
“The   Conference   passed   a   resolution   requesting
the Government to take suitable steps to see that
coveting   another   man’s   wife   is   not   made   an
offence under the Indian Penal Code.”
A complaint under Sections 499, 500 and 501 IPC was filed
in   response   to   this   report.   Like   the   present   case,   the
Court   had   to   consider   whether   the   complainant   had   the
proper legal standing to bring such a complaint. The Court
did examine Section 198 of the Code of Criminal Procedure,
1898   (analogous   to   Section   199   of   the   Cr.PC.   1973)   and
observed that the said provision laid down an exception to
the general rule that a criminal complaint can be filed by
anyone irrespective of whether he is an “aggrieved person”
or not. But there is a departure from this norm in so far
as the provision permits only an “aggrieved person” to move
the Court in case of defamation. This section is mandatory
and it is a settled legal proposition that if a Magistrate
were to take cognizance of the offence of defamation on a
complaint filed by one who is not an “aggrieved person”,
the trial and conviction of an accused in such a case by
the   Magistrate   would   be   void   and   illegal.   This   Court
further   noted   that   the   news-item   in   question   did   not
mention   any   individual   person   nor   did   it   contain   any

defamatory imputation against any individual. Accordingly,
it   was   held   that   the   complainant   was   not   a   ‘person
aggrieved’ within the meaning of Section 198   CrPC, 1898.
The Court also took note of Explanation 2 to Section 499
IPC   which   contemplates   defamation   of   ‘a   company   or   an
association   or   any   collection   of   persons   as   such’.
Undoubtedly,   the   explanation   is   wide   but   in   order   to
demonstrate the offence of defamation, such a collection of
persons must be an identifiable body so that it is possible
to say with precision that a group of particular persons,
as   distinguished   from   the   rest   of   the   community   stood
defamed. In case the identity of the collection of persons
is not established so as to be relatable to the defamatory
words or imputations, the complaint is not maintainable. In
case a class is mentioned, if such a class is indefinite,
the complaint cannot be entertained. Furthermore, if it is
not possible to ascertain the composition of such a class,
the criminal prosecution cannot proceed.
While deciding the case, this Court placed reliance on
the judgment of the House of Lords in Knupffer Vs. London
Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had
been held that it is an essential element of the cause of
action for defamation that the words complained of should
be published “of the complainant/plaintiff”.   Where he is

not   named,   the   test   would   be   whether   the   words   would
reasonably   lead   people   acquainted   with   him   to   the
conclusion that he was the person referred to.
In fact, it is the reputation of an individual person
which must be in question and only such a person can claim
to have “a legal peg for a justifiable claim to hang on”.
27.   Coming   back   to   the   facts   of   the   present   case,   the
complainants   have   alleged   defamation   in   respect   of
imputations against the character of Tamil-speaking women,
which   could   perhaps   be   viewed   as   a   class   of   persons.
However,     we   have   already   explained,   the   appellant’s
remarks did not suggest that all women in Tamil Nadu have
engaged in premarital sex. In fact her statement in ‘India
Today’ did not refer to any specific individual or group at
all. If we refer to one of the questions asked as part of
the concerned survey, one of the answers shows that 26% of
the people who responded to the same did not think that it
was necessary for women to retain their virginity till the
time of marriage. Clearly the appellant was not alone in
expressing such a view, even though it may be unpopular or
contrary   to   the   mainstream   social   practices.   Even   if   it
were assumed that the news-item carried in ‘Dhina Thanthi’
caused   mental   agony   to   some   sections   of   women   in   Tamil

Nadu, there is no prima facie case for any offence. What is
interesting to note is that not all of the complainants are
women,   and   in   fact   almost   all   the   complainants   are
associated with a particular political party.
28. We are of the view that the institution of the numerous
criminal   complaints   against   the   appellant   was   done   in   a
mala   fide   manner.   In   order   to   prevent   the   abuse   of   the
criminal law machinery, we are therefore inclined to grant
the   relief   sought   by   the   appellant.   In   such   cases,   the
proper   course   for   Magistrates   is   to   use   their   statutory
powers   to   direct   an   investigation   into   the   allegations
before taking cognizance of the offences alleged. It is not
the task of the criminal law to punish individuals merely
for expressing unpopular views. The threshold for placing
reasonable   restrictions   on   the   ‘freedom   of   speech   and
expression’ is indeed a very high one and there should be a
presumption in favour of the accused in such cases. It is
only when the complainants produce materials that support a
prima facie case for a statutory offence that Magistrates
can   proceed   to   take   cognizance   of   the   same.   We   must   be
mindful   that   the   initiation   of   a   criminal   trial   is   a
process which carries an implicit degree of coercion and it

should not be triggered by false and frivolous complaints,
amounting to harassment and humiliation to the accused.
29. Even though the constitutional freedom of speech and
expression   is   not   absolute   and   can   be   subjected   to
reasonable   restrictions   on   grounds   such   as   ‘decency   and
morality’ among others, we must lay stress on the need to
tolerate unpopular views in the socio-cultural space. The
framers   of   our   Constitution   recognised   the   importance   of
safeguarding this right since the free flow of opinions and
ideas is essential to sustain the collective life of the
citizenry. While an informed citizenry is a pre-condition
for meaningful governance in the political sense, we must
also promote a culture of open dialogue when it comes to
societal attitudes. Admittedly, the appellant’s remarks did
provoke   a   controversy   since   the   acceptance   of   premarital
sex   and   live-in   relationships   is   viewed   by   some   as   an
attack on the centrality of marriage. While there can be no
doubt   that   in   India,   marriage   is   an   important   social
institution, we must also keep our minds open to the fact
that   there   are   certain   individuals   or   groups   who   do   not
hold the same view. To be sure, there are some indigenous
groups within our country wherein sexual relations outside
the marital setting are accepted as a normal occurrence.

Even in the societal mainstream, there are a significant
number   of   people   who   see   nothing   wrong   in   engaging   in
premarital sex. Notions of social morality are inherently
subjective and the criminal law cannot be used as a means
to unduly interfere with the domain of personal autonomy.
Morality   and   Criminality   are   not   co-extensive.   In   the
present   case,   the   substance   of   the   controversy   does   not
really   touch   on   whether   premarital   sex   is   socially
acceptable.   Instead,   the   real   issue   of   concern   is   the
disproportionate   response   to   the   appellant’s   remarks.   If
the complainants vehemently disagreed with the appellant’s
views, then they should have contested her views through
the news media or any other public platform. The law should
not be used in a manner that has chilling effects on the
‘freedom   of   speech   and   expression’.   It   would   be   apt   to
refer to the following observations made by this Court in
S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574,
which spell out the appropriate approach for examining the
scope of ‘reasonable restrictions’ under Art. 19(2) of the
Constitution that can be placed on the freedom of speech
and expression:-
“   …   Our   commitment   of   freedom   of   expression
demands that it cannot be suppressed unless the
situations   created   by   allowing   the   freedom   are
pressing   and   the   community   interest   is
endangered. The anticipated danger should not be
remote,   conjectural   or   far-fetched.   It   should

have   proximate   and   direct   nexus   with   the
expression. The expression of thought should be
intrinsically   dangerous   to   the   public   interest.
In   other   words,   the   expression   should   be
inseparably   locked   up   with   the   action
contemplated like the equivalent of a ‘spark in a
powder keg’.
The Court further held:
“ … The standard to be applied by the Board or
courts for judging the film should be that of an
ordinary man of common sense and prudence and not
that of an out of the ordinary or hypersensitive
man   …   The   different   views   are   allowed   to   be
expressed by proponents and opponents not because
they are correct, or valid but because there is
freedom   in   this   country   for   expressing   even
differing   views   on   any   issue.   …   Freedom   of
expression   which   is   legitimate   and
constitutionally   protected,   cannot   be   held   to
ransom   by   an   intolerant   group   of   people.   The
fundamental freedom under Article 19(1)(a) can be
reasonably   restricted   only   for   the   purposes
mentioned   in   Article   19(2)   and   the   restriction
must be justified on the anvil of necessity and
not the quicksand of convenience or expediency.
Open   criticism   of   government   policies   and
operations   is   not   a   ground   for   restricting
expression.   We   must   practice   tolerance   of   the
views of others. Intolerance is as much dangerous
to democracy as to the person himself.”
30. Thus,   dissemination   of   news   and   views   for   popular
consumption is permissible under our constitutional scheme.
The   different   views   are   allowed   to   be   expressed   by   the
proponents and opponents. A culture of responsible reading
is to be inculcated amongst the prudent readers. Morality
and   criminality       are   far   from   being   co-extensive.   An
expression of opinion in favour of non-dogmatic and non-

conventional   morality   has   to   be   tolerated   as   the   same
cannot be a ground to penalise the author.
31. Before saying omega, it is necessary for us to point
out certain unwarranted developments that have taken place
ever since the matter was heard till date. In fact, during
the   course   of   hearing,   certain   queries   were   put   to   the
learned counsel appearing for parties so as to clarify the
legal issue involved in the matter but unfortunately, those
queries have been highly misunderstood not only by media
but also by common man. As a result thereof, we have been
flooded with several letter petitions making a prayer for
review   of   the   order   passed   by   us.     It   is   pertinent   to
mention here that no order was passed by us and only during
the course of hearing, we had either given some instances
or   put   some   questions   to   the   learned   counsel   which   were
answered by them. Thus, this hyper active attitude of the
common man was, indeed, not called for.    Some have even
gone to the extent of telling us that we should have known
the   Indian   mythology   before   putting   such   question.   Thus,
whatever   we   have   said   during   the   course   of   the   hearing
should   be   reviewed.     We   fail   to   understand   how   such   an
attitude could be adopted by those learned persons who were
involved   in   sending   various   letter   petitions   to   us.

Admittedly, all those persons who have sent letters to us
were   not   present   on   that   particular   date   but   must   have
gathered   information   from   the   print   and   electronic   media
which evoked their sentiments to such an extent that they
prayed for review.
32. It   is,   therefore,   not   only   desirable   but   imperative
that electronic and news media should also play positive
role in presenting to general public as to what actually
transpires during the course of the hearing and it should
not be published in such a manner so as to get unnecessary
publicity   for   its   own   paper   or   news   channel.     Such   a
tendency, which is indeed growing fast, should be stopped.
We   are   saying   so   as   without   knowing   the   reference   in
context of which the questions were put forth by us, were
completely ignored and the same were misquoted which raised
unnecessary hue and cry.
33. We hope and trust in future, they would be little more
careful, responsible and cautious in this regard.
34.   In   conclusion,   we   find   that   the   various   complaints
filed against the appellant do not support or even draw a
prima   facie   case   for   any   of   the   statutory   offences   as
alleged.   Therefore,   the   appeals   are   allowed   and   the

impugned judgment and order of the High Court dated
30.4.2008 is set aside. The impugned criminal proceedings
are hereby quashed.
……………………….CJI.
.………………………. J.
(DEEPAK VERMA)
.………………………. J.
(Dr. B.S. CHAUHAN)
New Delhi
April 28, 2010

Why there are so many pending cases in Indian courts

2010-04-22T10:32:00.001+05:30

Because the system loves the false cases that are filed. See the bold sentences below about the impunity with which false cases are filed including dowry death when wife is alive, kidnapping when the girl and boy have married out of choice, and so on.

http://timesofindia.indiatimes.com/articleshow/136812.cms

Hajipur: “About 80 per cent of total cases of alleged dowry deaths in Vaishali district are lodged by so-called victims’ relatives for blackmailing the in-laws,” says the Vaishali SP Shobha Ohatker.

Talking to TNN here recently, the SP said that there is a trend of levelling allegations of demand of money as dowry in most of the cases. Married women often do this under the pressure of their “greedy” parents, she added.

“This is all because of a lack of social protest against the lodging of false cases. The district police have now initiated action against people whose cases for dowry murder or harassment were found “false” during the investigation,” said Ohatker adding that, at least four women, declared “killed” for dowry by their in-laws, were recovered “alive” by her from different parts of district during her stint here as SP.

According to official figures, as many as 60 cases of dowry death were registered in the district in 2002 and out of them, more than 20 cases were found totally false by police. Ohatker said that six dowry death cases out of 25 lodged up to July this year were found false after probe.

About 75 cases for harassments for dowry were registered in 2002 in the district and more than one third of them were found false, the SP added.

Besides, a new trend for lodgings the cases of kidnapping through the court complaints has also been witnessed. “Whenever young girls elope with their ‘lovers’ for marriage in Vaishali district, their parents, in a bid to save their social prestige, lodge a case of kidnapping,” added Ohatker.

In 2002, 28 cases of girls’ kidnapping were lodged in the district. Of them, police investigation found 10 cases as completely false. “The rest 18 cases were declared “true”, but not because they were cases of kidnapping in true sense but because the girls in question, though had eloped with their lovers, were found minor,” she said.

As many as 12 cases of girls’ kidnapping had been lodged in the district till July this year, and six of them have been found false, the SP said. She added that rest of the cases were of elopement with consent but the girls in questioned were found minor.

Appeal to PM to allow RTIs from Indian citizens all over the world

2010-04-17T17:33:00.001+05:30

Appeal to PM to allow RTIs from Indian citizens all over the world

Appeal to PM
To
Dr. Manmohan Singh
Hon’ble Prime Minister of India
thru
Ms. Meera Shankar
Ambassador
2107 Massachusetts Avenue, N.W.,
Washington D.C.
USA

April 2010

Dear Dr. Manmohan Singh,

We the Citizens of India staying abroad would like to thank the UPA Government for enactment of the ‘Right to Information (RTI) Act’ in 2005. We also trust that you can recognize the legitimate desire of Indian living abroad to exercise their franchise and to have a voice in the governance of India.

However, we regret to inform you that even after over 4 years of RTI act in place, Indian citizens living abroad are unable to access information as per their right, in the absence of procedure/rules to be framed by the government for payment of RTI fees in foreign currency from abroad.

It is to be appreciated that the issue applies to all Indian Citizens’ abroad that includes citizens who may be residing abroad for a short visits, long stay for education and job purposes, and even officials posted in Indian Missions or on deputation to International bodies and so on.

Our suggestion is that just as the government has facilitated APIOs by the postal department in India for all Central Public Authorities, along similar lines, the government should facilitate an APIO in each Indian Mission/Post to act as nodal officer for accepting RTI and appeal applications for onward dispatch to concerned Public Authorities in India. The RTI fee as applicable can be deposited by the applicants in the respective mission/post in local currency (FE) equivalent to rupees. If required, applicants may be asked to pay for postal charges for dispatch of applications to concerned public authority in India.

Alternatively, we suggest arrangements may be made by the MEA, the administrative ministry for Indian Missions abroad, for missions to accept RTI fees in foreign currency from applicants filing RTI to central public authorities using the same procedure as they are hitherto doing for RTI applications concerning their own ministry. In this case mission’s role would be to accept the fee along with a copy of passport to verify citizenship (as they do now) and to issue a receipt/E-receipt to the applicant for the fee. Thereafter either the mission or the RTI applicant with proof of fee paid, can forward the application to the concerned central public authority (PA) online (where facilities exist) or by post and deal directly with the PA. Any additional costs for providing the information can be remitted to the mission in the same way and the receipt/E-receipt given by the mission can serve as proof of payment.

In this context, we have also written to the Hon’ble Ministers of MEA and MOIA respectively. Presently, Central Information Commission (CIC), MEA, MOIA and DoPT are all alive to this problem. Social & RTI Activist Commodore (Retd.) Lokesh. K. Batra living in Noida (INDIA), conversant with the issue, has agreed to liaise with the authorities.

Since the issue involves multiple agencies, we humbly seek your intervention to resolve this issue speedily and enable our right to know as bestowed by the RTI Act to all citizens. It is with information that citizens living in India and abroad can participate more effectively in nation building activities.

Sincerely,
Indian citizens residing abroad.

Delhi police picks the wrong guy, its time for payback!

2010-04-14T16:03:00.001+05:30

Sometimes it seems that it is necessary that some foreigner has to be beaten, murdered, raped in India to enable the police, and administrative system in India to wake up and hopefully do some reforms. The logic of reform follows because although many Indians will make do with a bad government and injustice, when the matter gets international attention, the government wants to act so as to keep faith with international community about India’s democracy, principles, etc etc.

Following story of a US journalist having been beaten by Delhi police made news a while ago, and now it has been published in Outlook India giving story and pictures of the torture.

An Encounter With Delhi Police

This is what Delhi police has to say:

Joel Elliott, an award-winning American freelance journalist, working as a staff writer at Caravan magazine in Delhi since May this year, has charged "six to seven hours of beating and torture" by Delhi Police, for intervening while the cops were thrashing another man. Delhi Police, on its part, insists that Elliot was drunk, trying to steal a taxi, and had beaten up a couple of police men and an elderly driver.

This is what happened according to the journalist and going by the details it seems quite plausible to be the true story, and Delhi police’s version being their concocted version:

I came around the comer of a building and walked literally into the middle of an altercation between at least four Delhi Police Officers, in uniform, beating a person beside the street. As I had not been paying attention, one police officer's baton struck me, perhaps by accident, while he was beating the other person on the ground. Startled. I shouted. When I realized what was happening to the person on the ground, I shouted again. The police officer closest to me turned and advanced, shouting something in a language I did not understand. I shouted back, saying they couldn't just beat people in the street. In the middle of the exchange, the officer swung his baton and struck me in the left upper arm area and began to raise his baton to strike again. I struck him in the jaw, and as he reeled back, turned and fled, turning off of the way to my home, as the officers were in the way. They gave chase, but I had somewhat of head start, and it was quite dark, so I was able to evade their line of vision for a time. It took me a few moments to find my way back to a road that I recognized. The problem was that they could easily catch me in their mobile command post. I began searching for a hiding place, and the most obvious places were in the row of cars parked along the left hand side of the road. I slowed to a fast walk, trying door handles to see if one were unlocked. I was hoping I could hide inside one of the cars until the polite passed, since I was afraid they found me. Door after door I tried, to no avail. The last Car I tried was an Ambassador cab -- I had been particularly hopeful about this car, because it had darkened windows. However, I had apparently chosen a car near Bhogal Marker that was parked next to a guard, or a driver, because someone came out of the shadows shouting. I tried to explain I wanted a hiding place, not to steal a car (after all my home was only five or six blocks away - why would I need a taxi?) But the man was shouting in a language I did not understand, and apparently did not understand me, either. His shouts alerted the police, who were already in pursuit, as was mentioned before, and they arrived quickly and surrounded me. Advancing quickly, they began beating me with their batons. In self-defense, I swung at, and connected, with a few of them, but I quickly went down beneath a rain of blows on my head, back, arms, thighs, shins, buttocks and ankles. The beating continued for some time after I had fallen.

……

I request a thorough inquiry into the six to seven hours of beating and torture I endured at the hands, feet and batons of Delhi Police. I request that the police officers responsible be removed from their positions

Further, I seek $500,000 US dollars in compensation for pain and suffering and mental anguish the Delhi Police inflicted upon me.

Enough Indians need to follow the same approach if they hope to change the system instead of complaining about it.

Police custody deaths are on rise

2010-04-14T15:52:00.001+05:30

Custody deaths on rise

For eight years since 2000, a 54.02 per cent increase has been recorded in prison deaths, while deaths in police custody have gone up by 19.88 per cent, says a report released by the Asian Centre for Human Rights.

The report, Torture in India 2010, comes at a time when the government is pushing for an anti-torture law. Last week, the cabinet approved the prevention of torture Bill, 13 years after the country signed an international treaty against torture.

The numbers of deaths in judicial custody (jail) between 2000 and 2008 were 10,721, while 1,345 people died in police custody, says the report, based on figures released by the National Human Rights Commission and government departments.

…

…

He demanded scraping of the law requiring sanction to prosecute police and other government officials and implementation of the Law Commission’s report on “custodial crimes” that calls for shifting the burden of proof on the police in custodial death cases.

And that is the crux of the problem of police brutality and high-handedness! A common citizen can be prosecuted based on complaint by someone, but when it comes to those in positions of trust and power over people, a sanction for prosecution is required. Indeed the system in India is designed to fool the international community (and many Indians) into thinking that we have a great system of constitution, legal principles, and judiciary; when in reality the ‘system’ is no more than some kind of functioning anarchy.

Indian illegal bail industry could be 4300 – 8600 Cr

2010-03-25T19:58:00.001+05:30

NCRB Crime Data for 2008 are published. They have not put the link in the main page (it still shows 2007).

However, this is the direct link for 2008 data.
http://ncrb.nic.in/cii2008/home.htm

All the Tables are in the following file.

http://ncrb.nic.in/cii2008/Statistics2008.pdf

Page 363:
=========
Number of Males and Females arrested in IPC Crimes
==================================================
27,13,971 male 1,68,315 female

Number of Males and Females arrested in SLL Crimes
==================================================
40,96,743 male 1,59,245 female
Total Number of Males and Females arrested in Both Crimes
==================================================

6810714 male 327560 female
Grand Total of all People Arrested: 71,38,274

Now out of these arrests around 60% are unnecessary or unjustified, according to police commission report.

If an arrest is made, the arrested person has to arrange bail to get out of judicial custody. So if 60% of these arrests are unnecessary or unjustified, the number of such arrests comes to be 42,82,964, i.e. around 43 lakh unjustified arrests. Assuming a conservative amount of Rs 10,000 – 20,000 needed to pay a lawyer, bribes etc to secure a bail, the total amount ranges from 4,282 Cr to 8565 Cr which lubricates, or better word is flood, this illegal bail industry.

No wonder there is such hue and cry from lawyer groups against all proposed CrPC amendments aimed at stopping unjustified arrests by police, so much so that they have been successful at stopping the notification of Sec 41 in official gazette.

Quality going down, so create regional benches of Supreme Courts

2010-03-23T09:02:00.001+05:30

In another post on topic of having regional supreme courts, I had mentioned the need to have benches of supreme courts in other states too so that highest court of justice can be available to more people. This is especially important in a large country like India with a billion plus population. Now it seems the Supreme Court has at least admitted that due to more workload the quality of their judgments is going down!

http://timesofindia.indiatimes.com/india/Flood-of-appeals-affecting-verdicts-SC/articleshow/5706707.cms

NEW DELHI: A concern expressed in hushed voices by senior lawyers for quite some time in the corridors of the apex court has become official. The Supreme Court has admitted that deluge of appeals is affecting the quality of its judgments, which are abided by all and sundry as the law of the land.

It does not want the apex court, set up to decide constitutional issues and inter-state disputes in addition to giving opinion to the President on tricky legal questions, to get reduced to just a final court of appeal being mired in the volumes.

To devise a way out of the jungle of files eating into judicial time and affecting the quality, a Bench comprising Justices Markandey Katju and R M Lodha said the time has come for a constitution Bench to firmly lay down guidelines as to the categories of cases that the apex court should entertain rather than get engaged in deciding routine appeals or mundane issues.

It will be much better to create regional benches of Supreme Courts so that the workload can be shared across higher no of benches and judges who can be drawn from state. Currently a Supreme Court judge has to be in Delhi since that is the only place which has SC. Having regional benches will also allow more judges to be closer to their home state and will allow more and better judges to come into Supreme Court.

"However, sadly the position today is that it is under such pressure because of the immense volume of cases in the court that judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of out judgments," the Bench said.

It issued notices to the SC Bar Association, Bar Council of India and the SC Advocates on Record Association to assist the constitution Bench in framing appropriate guidelines to limit the flooding of appeals.

This is another short sighted attempt, the kind which can happen only in India. The lawyers are supposed to suggest reform and citizens who need justice are nowhere involved. It just shows the high-handedness of the higher court judges towards general public.

With the computerisation of the Supreme Court registry and use of information technology in the docket management, the pendency of the cases in the 1990s was brought down from over one lakh to a manageable 20,000.

So if a good thing has worked in the past, what stops the Supreme Court from doing better things now?

Judges really need a course in RTI!

2010-03-18T16:53:00.001+05:30

When I said in earlier post on this blog that judges need a course in RTI, I thought it applied to a few of them. But now I am seriously thinking that many judges are used to conducting them imperiously and above any kind of answerability. They do not think that Right to Information is a fundamental right of citizens and cannot be denied without good grounds. Maybe they should spend some time reading the RTI act.

http://www.deccanherald.com/content/58410/gulbarga-judge-rejects-rti-application.html

The information sought included index catalogues of files, a public authority is bound to maintain under Section 4 (1) (a) of the RTI Act, and suo motu declaration of office functioning required to be obliged under Section 4 (1) (b) of the RTI Act; copy of the notification/order appointing PIO and Assistant PIOs, and copy of the record retention schedule.

Though the information sought was specific and clear, the PIO in his letter dated
November 13, 2009 stated that the application for issue of copies of documents has been rejected by an order of the Principal District and Sessions Judge for want of full particulars.

New CrPC amendments tabled for police arrest procedures

2010-03-17T10:39:00.001+05:30

Newly suggested CrPC amendments seem to be doing some things right but also muddling up things in the sense that there is too much reliance being placed that efficiency of police and public justice will be served by forever tinkering with rules and procedures. On face of it, the rules seem to be good but in absence of copy of the proposed amendments, we are not too sure of the real matter based on news below.

Also there is lurking suspicion that law ministry and other stakeholders are forever trying to tinker with procedures and rules to placate public and powerful lawyer community. Actually it is powerful lawyer community which seems to be the main stakeholder who no one wants to alienate, going by the whole drama so far ever since CrPC 2008 amendments were proposed! Many of Lok Sabha MPs are lawyers and Home Minister P Chidambaram himself is a lawyer.

http://beta.thehindu.com/news/national/article245953.ece

Home Minister P. Chidambaram on Monday introduced in the Lok Sabha the Criminal Procedure Code (Amendment) Bill, 2010, that seeks to restrain the police from arresting a person for criminal offences for which the maximum sentence is seven-year imprisonment and mandates the police officer to record in writing the reasons for not making the arrest.

In 2008, the government introduced amendments to Section 41 Cr.PC which says: “No person concerned in a non-cognisable offence or against whom a complaint has been made or credible information received or reasonable suspicion exists of his having been so concerned shall be arrested except under a warrant or order of a magistrate.”

However, arrest can be made without a warrant, after recording the reasons in writing if the police officer is satisfied that it is necessary for proper probe, or to prevent the person from committing any further offence or making any inducement, threat or promise to anyone acquainted with the facts of the case.

Soon after the amendment, lawyers were up in arms and urged the government not to notify the amended law.

The new amendment incorporates a clause in Section 41 which says: “A police officer shall, in all cases where the arrest of a person is not required, record the reasons in writing for not making the arrest.”

Further, as per Section 41 A, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.

This provision is now amended to the effect that “where such person fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to orders as may have been passed by a competent court, arrest him for the offence mentioned in the notice.”

Statement of objects

According to the Statement of objects and reasons, in the light of objections from certain quarters to certain provisions of the Cr.PC amendment Act 2008, the Act could not be brought into force. The Law Commission discussed the issue with all concerned, including the Chairperson(s) of the Bar Councils and the Bar Council of India. After consultations, it recommended a further amendment of Section 41 to make it compulsory for the police to record the reasons for making as well not making an arrest for a cognisable offence for which the maximum punishment is seven years. The Commission also suggested that unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued could be a ground for arrest. The Bill seeks to achieve these objectives.

Condoning Rape by marriage is bad idea

2010-03-11T18:25:00.001+05:30

Recent news of chief justice of India Mr Balakrishnan supporting choice of rape victim to marry the accused has shocked several among public.

http://news.in.msn.com/national/article.aspx?cp-documentid=3687586

"Due regard must be given to their personal autonomy since in some cases the victim may choose to marry the perpetrator or choose to give birth to a child conceived through forced intercourse," Balakrishnan said.

It seems the CJI has in mind those cases where a rape is alleged after the woman was promised marriage but the man turned on his word. The choice of someone to allege the crime of rape and then be able to change their mind should not be allowed. Any rape allegation should proceed to its end with either acquittal or conviction of accused, or prosecution of alleged victim in case accusation was found to be patently false.

The freedom to accuse someone of crime and then do some kind of settlement with the accused is not allowed on most criminal justice systems. If that was allowed, following absurd and perverse situations could arise:

Rob or defraud a person or company of property and money, and then invite them to a joint partnership with the allegedly stolen/fraud money.
Murder someone, and then allow family members of murdered person to accept compensation in turn for withdrawing murder allegations. Needless to say, law does not allow condoning such offences as murder.

The problem seems to be that judiciary and reportedly some NGOs are trying to fix what arises from a social issue of consensual sex before marriage using legal and judicial means. To avoid the issues arising from rehabilitating the rape victim, they are proposing a quick formula which has no guarantee to work. From news below:

http://newsblaze.com/story/20090624083208iwfs.nb/topstory.html

However, in a recent case in Cuttack district, the Orissa High Court asked a rape accused to either languish in jail without bail or marry the victim. The accused had sexually abused the girl on the pretext of marrying her and later deserted her after she became pregnant. The victim subsequently lodged a complaint against him. "Permanent bail would be allowed only if the accused tied the knot with the victim within this two-month period and allow his name to be the baby's father," the Bench specified.

"The practice of rapists marrying their victims may be condoned in some instances. But it should also be remembered that several such cases are based on the false promise of marriage and result in desertion," says Sneha Mishra, Orissa State Coordinator of the "We Can" Campaign to end violence against women. She also observes that many of these cases involve couples who are already in a relationship and the man usually deserts the women or refuses to marry her upon discovering that she is pregnant. This, she believes, is also a serious offence.

So in this case, the HC judge took it upon himself to ensure welfare of the pregnant woman. The only problem is what will happen if the accused got the bail, and later still deserted the woman, say after 2 years. What offence will be be charged with then? Who will take care of rehabilitating the woman and child at the time?

The most important thing is for judiciary to function effectively and in time bound manner, so people have some faith in approaching the judiciary. All the other suggestions are like putting fresh paint on a building which is crumbling down.

Delhi High Court exposes how lawyers do ‘business’ in India

2010-03-11T10:00:00.001+05:30

The following recent judgment of Justice Dhingra of Delhi HC exposes how lawyers make flimsy excuses to delay cases and put both litigants and witnesses to hardship. But the larger question is that if the lawyers are doing it, then why are not the judges putting exemplary costs to discourage such behaviour, as done in this case by having petitioner pay the respondent Rs 25,000.

The important parts are made bold in judgment below:

--------------------------------------------------------------------------------------------

http://lobis.nic.in/dhc/SND/judgement/10-03-2010/SND09032010CMM4962009.pdf

CM (M) No. 496/2009 Smt. Rampyari & Ors.v. Ms. Kamlesh

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 2nd
February, 2010
Date of Order: 9th
March, 2010
CM (M) No. 496/2009 & CM No. 7663/2009
%                     09.03.2010
Smt. Rampyari & Ors.        ... Petitioners
        Through: Mr. Rakesh Prabhakar, Advocate
Versus
Ms. Kamlesh            ... Respondent
        Through: Respondent-in-person
JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not?            Yes.
3. Whether judgment should be reported in Digest?        Yes.
JUDGMENT
     By this petition, the petitioner has assailed an order dated 25th
March, 2009 whereby an application of the petitioner for recalling witness PW-2 for cross examination, whose cross examination was closed on 29th
September, 2008 by the trial Court, was dismissed. The application for recalling was made on 6th December,2008. The trial Court after observing the history and manner in which the petitioners
impeded the trial, found no force in the application and dismissed the application.

2. This case represents a typical example how the trial goes on in Indian
Courts and how the Courts are taken for granted. Issues in this case were framed on
3rd August, 2006 and thereafter plaintiff’s witnesses appeared for their testimony on
21st February, 2007, when the cross examination of the witnesses was to be
conducted. An application was made on behalf of the petitioner stating that their
Counsel had suddenly fallen ill and adjournment was sought, which was allowed.
Next date for cross examination was fixed as 16th
April, 2007. On 16th April, 2007
when witness appeared for cross examination an application was made on behalf of
defendant no.8 stating that there was a death in the family of the petitioners’ Counsel
case be adjourned. The case was then adjourned for 17th
July, 2007 for cross examination of the plaintiff. On 17th
July, 2007 a proxy Counsel appeared and stated
that the petitioners’ Counsel was down with fever and adjournment was sought which
CM (M) No. 496/2009 Smt. Rampyari & Ors.v. Ms. Kamlesh was granted and case was listed for 17th September, 2007. On 17th September,
2007 again a prayer was made to the Court stated that the Counsel for the
petitioners was down with fever and adjournment was sought. The trial Court
observed that there was no written request made on behalf of the Counsel for the
petitioners. The same excuse was being taken again and again so, the Court closed
the cross examination of PW-1. Again an application was made on behalf of the
petitioners for recalling PW-1 for cross examination. The application was allowed
vide order dated 25th April, 2008 subject to cost of Rs.500/- and the case was listed
for remaining cross examination of PW-1 on 3rd
July, 2008. On 3rd July, 2008 again,
Counsel for the petitioner made a prayer for adjournment on the ground that he had
not gone through the relevant record and could not prepare the cross examination.
This adjournment was allowed subject to cost of Rs.1,000/- and a last opportunity
was given. The matter was now listed on 18th August, 2008, and the Counsel for the
petitioners again did not appear and it was told that he was busy in High Court.
Since it was the last opportunity and the matter had already been passed over twice,
the Court refused to give further pass over or adjournment. The other Counsel Mr.
B.N.Sharma who had appeared for the petitioners, cross examined the witness and
this is how PW-1 was treated and cross examined in the Court. The matter was then
listed for cross examination of other witnesses on 29th September, 2008. The
witnesses appeared and were present in the Court since morning. The counsel for
the petitioners again did not turn up and the case was passed over twice and at the
third call still when the counsel for the petitioner was not available, the Court closed
the cross examination of this witnesses. The application for recalling them was made
after 2 ½ months and was dismissed by the trial Court by a speaking order noting the
history of the case. The present petition has been filed by the petitioner for recalling
the order.

3. I consider that the manner in which petitioners had impeded the trial
and the manner in which the treatment was given to the witnesses, the petition
deserves to be dismissed with heavy costs. It only seems that the petitioners had
taken the Courts for granted. It is considered as if Courts exist for providing business
to the advocates and if advocates are busy in High Court or in other Courts and
choose not to appear for false and lame excuses, the witnesses are to suffer and the
system has to suffer, the party has to suffer but the advocates’ business should not
suffer. I consider this attitude towards the litigation and courts must be brought to an
end it must be made clear that the Courts do not exist for providing business to the
advocates. They exist for adjudicating the disputes between the parties and the
CM (M) No. 496/2009 Smt. Rampyari & Ors.v. Ms. Kamlesh witnesses or litigants cannot be given shabby treatment by taking adjournment after
adjournment in the Courts as if they had done something wrong by bringing suit to
the court and they are made to appear in the Court 20 times when the evidence can
be over in one hearing.

This petition is hereby dismissed with cost of Rs.25,000/- to be paid to
the respondent.
March 09, 2010 SHIV NARAYAN DHINGRA, J.

PM Manmohan Singh will lose respect at this rate

2010-03-05T19:57:00.001+05:30

Recent news of PM wanting to cut citizens’ rights under RTI act is highly deplorable. This is the same PM who has reportedly vouched for aam-aadmi in his speeches, and at one instance chided Indian business houses on dangers of crony capitalism. Well, now he has to answer who will benefit by following actions:

1. Chief justice of India will be outside purview of RTI act. Isn’t it some kind of cronyism developing between Executive and Judiciary?

2. No frivolous queries will be allowed. The courts in India have 3 crore pending cases. No body checks how many are frivolous. In elections, 100s of candidates can stand for an election seat. Inspite of huge cost incurred due to so many candidates, no body condemns that some of the candidates are ‘frivolous’. But when it comes to RTI, the frivolous ones must be disallowed. And of course, it goes without saying, the information behind decision to decide what is frivolous will not be disclosed so that the bureaucrats are safe. So it is some kind of crony bureaucratism.

http://ibnlive.in.com/news/pm-says-no-to-sonia-wants-rti-act-amended/111065-37.html?from=tn

New Delhi: Prime Minister Manmohan Singh and Congress President Sonia Gandhi are reportedly split over amending the Right to Information Act.

In a rare instance, the Prime Minister has said a firm no to Sonia's suggestions and has decided to go ahead with amendments in the RTI Act.

Singh has reportedly written a letter to Sonia saying that changes are needed in the RTI Act after the Congress President expressed her doubts and made it clear that she does not want it to be amended.

The proposed changes in RTI by the Prime Minister will keep the Chief Justice of India out of purview of the Act.

Some of the amendments proposed to the RTI Act are:

Chief Justice of India would be outside the purview of the Act.

Discussions on policy decisions cannot be made public.

No frivolous queries would be allowed and necessary changes in the Act would have to be made.

The Congress President, who is also the Chairperson of the United Progressive Alliance, had written to the Prime Minister about two months ago explaining her why she does not want any amendment to the Act, which was a landmark legislation of UPA 1 and seen as her baby.

Her views on not amending the RTI have been endorsed by NGOs and the Left parties.

But with the Prime Minister himself stepping in and saying no to her, changes in the Act seem inevitable.

Decongesting prisons: 42 undertrials freed

2010-02-24T20:11:00.001+05:30

It was not easy to believe but it may have started! The earlier news about release of undertrials from prisons seems to have started with a somewhat substantial number of 42 undertrials being released in a day in Delhi.

http://sify.com/news/decongesting-prisons-42-undertrials-freed-news-national-kb1t4dhgffc.html

A city court released 42 undertrial prisoners Wednesday in a start to a project to put the criminal justice system on a fast track. The plan is to reduce the number of undertrial prisoners by two-third in the next six months. About 170,000 prisoners will be released countrywide by July.

The process, an initiative of Law and Justice Minister M. Veerappa Moily who was present at the Patiala House court along with Delhi High Court Justice Madan B.Lokur here to witness the first such release Wednesday, was started in view of the overcrowding in Indian jails, the huge pendency of cases and long delays in the justice delivery system.

'It's a reformative process and should be encouraged,' Moily said on the occasion.

Forty six cases were listed Wednesday in the special court of Additional Chief Metropolitan Magistrate Ajay Pandey, all dealing with petty offences. The list included prisoners who are still in jail just because they cannot raise their bail bond money.

Among 42, 12 prisoners were released after they furnished their personal bonds and the remaining 30 prisoners pleaded guilty and were acquitted.

Hello? Prisoners pleaded guilty and then were acquitted? I know there is a process of law that a judge can order trial to continue for a person even if he/she pleads guilty; but for someone to be acquitted after pleading guilty cannot be possible.

Those prisoners who were released or granted bail are offenders involved in petty offences like theft, pick-pocketing, snatching and robberies.

Four prisoners could not be freed as they are involved in other cases as well.

'Need of the hour is to release prisoners who are lodged in jails for years together and are involved in petty offences so that they don't become hard core criminals when they come out,' Moliy said.

Ok. So the law minister has admitted publicly at least that being in jail for long time can make one into hardcore criminal. It is like a university of crime, right?

'We are planning to release 1.7 lakh prisoners till July 31 around India. To begin this, we have informed all the courts and the various legal services authorities to prepare the list of prisoners who can be released,' Moily said.

The government has asked all state high courts to identify undertrials who are not involved in heinous crimes and whose cases can be expedited.

Moily said the union cabinet has 'in principle' agreed to operationalise and implement the national legal mission - 'a step towards guaranteeing access to justice for every citizen, including those in jails'.

The minister said chief justices of state high courts have been asked to prepare a report 'as fast as possible' about the people in jails, their offences, the nature of cases, and the maximum punishment they can invite so these trials can be completed by July 31.

Indians wanna be safe? – then become hard targets

2010-02-18T10:07:00.002+05:30

Home minister P Chidambaram has conveniently explained away the blasts in Pune saying that the blast was done on a soft target, and hence could not be avoided!

http://www.indianexpress.com/news/No-intelligence-failure-in-Pune-blast--Chidambaram/579572/

The Pune blast was not the result of any intelligence failure but an 'insidious' planting of a bomb in a 'soft' target establishment, Union Home Minister P Chidambaram said.

So terrorists should inform you in advance and be gentlemanly rather than insidious! India is sometimes said to be soft state, but at this rate we will come to be known as a fool state.

Again he rants about the ‘insidious’ nature of the attack:

"There is no intelligence failure, but please remember this is not an overt attack by gunmen. This is an insidious bomb that had been planted in what appears to be a backpack," the Home Minister said.

Further he explains the government’s definition of hard vs soft targets.

Terming Osho Ashram and the Chabad House as "hard targets", he said, "But apart from hard targets, there are soft targets...All these (the German bakery and an Italian restaurant nearby) are soft targets where foreigners and Indians congregate especially during the peak hours."

Now any Indian who wants to stay alive and safe, should attempt to become into a hard target. Hard targets are ministers, MPs, MLAs who are provided high security cover and do not need to bother about bombs blasting around them while having a cup of tea. Soft targets is everyone else.

Delhi High Court chief justice who allowed RTI on Supreme court is not elevated to SC

2010-02-17T17:46:00.001+05:30

Chief justice Ajit Prakash Shah of Delhi High court retired recently, and there is news that he did not get elevation to Supreme Court even though the file was sent by government to collegium for a second time.

http://www.dnaindia.com/india/report_judge-who-legalised-homosexuality-hurt-at-not-being-elevated-to-sc_1346438

New Delhi: Chief justice Ajit Prakash Shah of the Delhi high court, who scripted landmark judgments legalising homosexuality and bringing the office of the chief justice of India within the ambit of the Right to Information Act, today said he was "hurt" at being bypassed for elevation to the Supreme Court.

"I cannot pretend that I am not hurt," justice Shah said during an interaction with reporters on his last working day. "A sense of hurt is always there. These things happen in life."

It will be good if now some progress can be made on bringing transparency in appointment of judges. Although judges do not speak a lot to the media, the very fact that a retiring judge expresses his personal disappointment means that all is not well in judicial appointments.

The Supreme Court collegium bypassed justice Shah, one of the most senior high court chief justices, for elevation while recommending to the Centre names of other judges who were junior to him in October 2008.

The government refused to accept the collegium's decision and returned the file. But it had to accept the recommendation when the collegium refused to give in.

It is high time that this football mechanism of appointments file being going back and forth between collegium and government is replaced by something more transparent.

Further, justice Shah does not think too much about corruption in higher judiciary. We disagree! Read here about Prashant Bhushan of CJAR stating about corrupt justices in SC.

With regard to the charge of corruption in the judiciary, justice Shah said there is corruption but it is minimal at the higher level. "I will not be telling you the truth if I say no corruption is there in the judiciary. It is a reality, corruption does exist, but minimal corruption is there in the higher judiciary."

Judges need a course in RTI Act, or maybe fundamental rights!

2010-02-17T16:50:00.001+05:30

It was horrifying to read the judgment below, where an accused husband was given bail but with the condition that he will not file RTI regarding her wife or her family members (see bold sentence in judgment below).

http://courtnic.nic.in/dhcorder/dhcqrydisp_O.asp?pn=10933&yr=2010

   IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLN. 2102/2009
RAJESH VERMA .....
Petitioner
Through: Mr. Kunal Duggal and Mr. C.M. Verma
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP.
ASI Shyamlal Bhardwaj, PS Lajpat Nagar.
Mr. Ajay Digpal for the complainant.
CORAM:
   HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
   O R D E R
   18.01.2010
Mediation is reported to have failed.
The petitioner is the accused in the FIR of offences under Sections
498A/406/34 of the IPC. He is working as a senior scientist with CSIR. According
to the complainant wife, she is living separately from petitioner since 26th
November, 2008. FIR was lodged on 4th June, 2009. The petitioner as well as the
complainant wife had been married earlier. Each of them has a grown up child
from the earlier marriage.
The APP contends that no jewellery has been recovered from the
petitioner. The counsel for the complainant wife contends that the petitioner is
not paying any maintenance also. The petitioner had on 12th November, 2009
before this court paid Rs.50,000/- to the complainant wife. It is further
contended that the petitioner is harassing the complainant wife and her family.
In the circumstances aforesaid, it is directed that in the event of
arrest, the petitioner be released on bail on furnishing security bond of
Rs.10,000/- to the satisfaction of the arresting officer. The following further
conditions are agreed by the petitioner:-
a. That the petitioner shall not file any complaint and/or RTI enquiries qua the
affairs of the complainant wife or any of her family members.
b. That the petitioner shall continue to pay a sum of Rs.10,000/- to the
complainant wife w.e.f. 1st December, 2009 and till the date of decision on the
application for interim maintenance in maintenance proceedings stated to have
been separately instituted. The amounts so paid shall be adjusted in the interim
maintenance if any to which complainant wife is so found entitled. It is
clarified that the amount of Rs.10,000/- per month offered by petitioner as a
condition for bail, shall not influence the court where application of
complainant wife for maintenance is pending.
c. The petitioner shall not leave Delhi without the permission of IO and shall
deposit his passport with the IO.
Copy of this order be given dasti to the counsel for parties.
RAJIV SAHAI ENDLAW,J
JANUARY 18, 2010
pp

Let’s look at it from the following viewpoints:

It is a well accepted principle of law that a person accused of a crime is innocent until proven guilty. Will the judges curb freedom of RTI if the accused was a powerful person?
Further, Right to Information is a fundamental right derived from Article 19 of Indian constitution, and also considered a fundamental right from various international conventions. World over, fundamental rights cannot be curtailed except under very special situations of national security and the like.
Here it seems an accused if fit to be granted bail, but he is not fit enough to exercise his fundamental right of RTI. He can exercise his right to vote, stand for elections, and so on, but only not be able to exercise RTI! Under what rule can a judge trample upon fundamental right of a citizen, especially considering that no rationale or reason for the order has been given in judgment.
Right to Information grants an Indian citizen to get public information from public authorities. Such information is already in public domain and no one can be said to be harassed or inconvenienced by disclosure of such public information. The Right to Information is not right on private information of another person, but on public information which cannot be said to be private property of any person. Then how can a judge decide that a particular person cannot file for RTI on another person. The RTI is only on public information.
It seems clear that the judge has tried to cut off the source of information this accused man could use to prove himself innocent. Read this story about how a man was able to prove his innocence using RTI in a very similar situation where he was accused by his wife in a dowry case.

Our hopes are that other judges will read this blog post and understand that their actions and judgments are being watched by citizens.

Now love police more – they are coming to a place near you

2010-02-17T16:12:00.001+05:30

Here is a recent directive in Karnataka police which aims to bring better and more conviction in dowry death related cases. I cannot comment on the whole bureaucratic structure of police, CID etc as given in this news, but on reading this news it is clear that it is quite bureaucratic. That apart, I did not find anything unusual except the last part of news which made me write this blog post.

Local police to handle dowry cases

MANGALORE/BANGALORE: Now onwards the relatives of dowry death victims or the complainants need not go to Bangalore all the way for justice.

Victims or complainants from Mangalore, Bijapur, Hubli or any other city or village, who had to go to Bangalore for getting the accused convicted, can now heave a sigh of relief.

The state government has planned to transfer the investigation powers from Criminal Investigation Department - CID (earlier Corps of Detectives - CoD) to the local police to speed up the investigation and prosecution, so that conviction rate in dowry death cases goes up.

The government has cancelled the power of investigation of CID in dowry death cases and asked the local police (deputy superintendents of police) to investigate these cases, with effect from January 1.

Earlier, except police commissionerates like Bangalore, Mysore and Hubli, all other districts used to transfer the dowry death cases to CID for further investigation.

Now, the district police will investigate such cases on their own.

Dowry harassment cases and dowry death cases have their own sensitivity.

Earlier, the local police were investigating these cases. But due to the negligent attitude of the SI-level officers and inadequate power that DySPs had, the government had handed over the power of investigation to the CoD (now CID) almost a decade ago.

“Now the situation has changed.

There are about 224 DySPs in the state and if dowry death cases are investigated by them, it will help the victim’s family to get relief early,” said DV Guruprasad, Director General of Police (CID).

“In September, 2009 the CID had requested the government to transfer the dowry death investigation powers to the local police. Hence, the government has decided to get such cases investigated locally. If the government refers any emergency or sensitive case, the CID will investigate it,” he said.

“The government’s decision will help solve dowry death cases fast. It will help the victim’s family and complainants, particularly from remote villages. It will also help raise the conviction rate,” A Subrahmanyeshwara Rao, Superintendent of Police told Express.

“The dowry death cases were registered at local police stations in the initial stage and simultaneously it was transferred to CID also. While registering a case, information about the accused were collected in detail," said an IPS officer.

"The dowry death cases took a minimum of 15 days to be transferred to the CID in Bangalore from the remote villages. This caused lapses in the investigation as well as procuring evidences," the officer said.

At least 25 per cent of the investigation made by the local police was a mere waste during the process of transferring the cases, he said.

The victim’s relatives, witnesses and others were then made to go to Bangalore many times for interrogation and for giving statements. In some cases, the complainants themselves preferred to turn hostile, the officer said.

Witnesses turning hostile was also a common thing. Police conducting investigation locally will always help the complainants and also the investigators,” the officer added.

It is the last part of news which is really the tragicomedy. if witnesses are made to travel long distances to Bangalore, wouldn’t they prefer to turn hostile and save themselves the hassle? If government has been given the right to collect taxes as per constitution, then it is also government’s duty to provide safety to citizens too. If that means that detectives and police has to go to witnesses’ place for investigation, so be it. How else it is supposed to be?

Lawyers cannot resolve their matters using law!

2010-02-17T15:57:00.001+05:30

This is one of the news 2 weeks ago where bar lawyers in Gulbarga protested in a way only lawyers are known to, against formation of a new association of high court lawyers in Gulbarga bench. No wonder common public is more scared of dealing with lawyers than even courts!

http://timesofindia.indiatimes.com/city/hubli/Gulbarga-lawyers-attack-HC-Bench-association-head/articleshow/5532278.cms

GULBARGA: The High Court premises turned into an arena of high drama, as lawyers attacked the president of the newly-formed High Court Advocates' Association, and manhandled him.
Members of the Gulbarga Bar Association appeared to resent the new association, and protested in the High Court Circuit Bench premises. They manhandled the president, S V Deshmukh, and forced him to ban the new association.
A group of 20 advocates of the Gulbarga district court -- attached to the Gulbarga Bar Association -- arrived at the High Court Circuit Bench and started shouting slogans against the existence of the new association. Then, they started pushing Deshmukh around the advocates' hall in the HC premises. Later, they locked him into the hall and forced him to dissolve the new association. When he refused, they began threatening him.
Under force, Deshmukh temporarily suspended the association work, and said so to the media. He said he would discuss the issue with the members, and take a decision. Until then, the association stands suspended.
Speaking to The Times of India, Deshmukh later said he did not understand why the lawyers were against the formation of the Advocates' Association, High Court Circuit Bench, Gulbarga. "We have around 100 members in our association and it is registered on January 25. There are associations at the High Court in Bangalore, the Dharwad High Court Circuit Bench and the district court. I don't know why the Bar members are opposed to it," he said.
Gulbarga Bar Association president Shivaputrappa Barode said the association had planned to form the unit in the high court by appointing a president acceptable to the members. "We will not allow them to form another association in Gulbarga. Within a week, we will form a second unit of our association in the High Court."

To arrest or not to arrest -- Home ministry in excruciating pain

2010-02-15T22:01:00.001+05:30

Ministry of home affairs had notified the CrPC amendments recently after full one year delay. It seems they are in agony over the matter of restraining powers of arrest by police. Read below:

http://timesofindia.indiatimes.com/india/MHAs-plan-to-curb-powers-of-arrest-hits-a-bump/articleshow/5532925.cms

NEW DELHI: The Centre’s efforts to simplify and restrict powers of arrest may take a while longer to yield fruit as the home ministry’s draft proposal to make it mandatory for a police officer to give reasons in writing for both arresting or not arresting a person has run into some resistance.

The contentious amendment to Section 41, CrPC, passed by Parliament, was not notified following voluble protests by lawyers who opposed the move to give police discretion over making an arrest in cases where the likely punishment was less than seven years. It was feared dilution in mandatory arrest provisions would hurt lawyers who depend on bail cases.

Even if we assume that people getting falsely arrested is no big deal, the real reason is not that a livelihood of a few lawyers will be hurt. The real reason is that most of the lawmakers themselves are lawyers or have good knowledge of how to game the legal system, several of them having criminal cases pending or even convictions. Having the full knowledge themselves of how to manipulate the system, they do not want to lose their power to terrorize common public or enemies by arrests in false cases manufactured by police. Don’t we remember how ex-DGP Rathore allegedly put false cases against Ruchika’s family? If police could not arrest arbitrarily, the powerful people will become just like the rest of us – citizens.

Now, the home ministry feels the amendment can state reasons for both arrest and non-arrest and this is likely to pass muster with bodies representing lawyers. The catch seems to be that the proposal may end up working contrary to the intended reform of making arrests less whimsical, arbitrary and opaque than has been the case. Though home minister P Chidambaram has said the existing provisions of arrest are capable of being misused and this perception is widely shared, some pertinent issues have arisen. It has been pointed out that asked to record reasons for arresting or letting a person go will see most police officers opt for the former. The instinct would be to play safe rather than be blamed for letting a suspect or criminal walk away.

This kind of anxiety on making decision is some kind of tragic-comedy on state of affairs in India. It reminds of Hamlet and “to be or not to be” kind of dilemma. If police has to give reason, then we assume it will be reasonable reason, and not just formality like “hereby I arrest this person because I feel that he could be a dangerous criminal”. Come on, the whole idea of recording reason for arrest is that there is a written record which can later be used to bring guilty police person to book.

Discussions in government have seem PMO voice the view that the notification can either be held back for a while longer to allow a detailed review of various offences and decide whether they should be dealth with arrest, made compoundable or bailable. The review could also look at the quantum of sentencing — issues that have typically arisen in sexual molestation or drunk driving cases.

Just look at how meandering the decision making has gone from simple task of arrest/ no-arrest to quantum of sentencing and specific crimes. This is just putting wool over eyes of public that something is being done by bureaucrats when all they are doing is delaying things and not taking any decisions whatsoever.

The need for a careful look at the arrest laws has been occasioned by a view that the guidelines for making detention more accountable, while in keeping with the government’s push for reform, may not cover certain important eventualities. Conditions such an apprehension of flight, recovery of stolen property or threat to witnesses may not always be easily established. This had to be addressed in a non-draconian manner.

And all these things are possible when fundamental issues are solved – a better police force, well-paid, in larger numbers, without interference from political and power bosses. Right now the people who take police career in India probably do it because they could not get anything better, rather than doing it with spirit of service and pride. With such low pay and atrocious working hours, it is ensured that police in India can do only one thing properly – do bidding of political masters and powerful people.

Delhi High Court Snubs 90% of Indians – says speak only English

2010-02-15T17:19:00.001+05:30

Delhi High Court has rejected demands of lawyers’ association to argue in Hindi.

http://blog.taragana.com/law/2010/01/31/court-rejects-plea-of-lawyers-to-argue-in-hindi-19871/

This is what lawyers’ association has to say:

“When lawyers argue in Hindi, judges do not pay attention to them. English has become a status symbol,” Aggarwal said. Moreover, Article 348 of the constitution provides for arguing court cases in English as well as in regional languages, he pointed out.

“Hindi is being used in the high courts of Rajasthan, Allahabad and Madhya Pradesh, but not in the national capital,” he said.

Article 348, clause 2 deals with issue of allowing other languages apart from English.

(2) Notwithstanding anything in sub-clause (a) of
clause (1), the Governor
1
*** of a State may, with the
previous consent of the President, authorise the use of the
Hindi language, or any other language used for any official
purposes of the State, in proceedings in the High Court
having its principal seat in that State:
Provided that nothing in this clause shall apply to
any judgment, decree or order passed or made by such
High Court.

So this basically means that even though the final judgment will be only in English but arguments and other high court activities can be allowed in Hindi or any other language.

The lawyers had earlier started a campaign on allowing usage of Hindi in Sep 2009 as given below.

http://www.legalindia.in/advocates-started-signature-compaign-for-allow-hindi-in-courts

It is interesting that the lower courts allow regional languages in courts, but the higher you go the access to justice will be limited to those who know English language.

Maybe first government should first make use of English mandatory in all public and government dealings in police, armed forces, government offices and so on. Also the constitution should be changed to allow free English language learning to all children till age of 14. Else how can it be hoped that 90% of Indians who don’t know English can get justice in courts? Or probably the Delhi high court thinks that 90% of Indians don’t deserve to get to high court and above! They should settle their matters in lower courts and be happy.

CJI Balakrishnan speaks like a politician, is this independence of judiciary?

2010-02-12T22:26:00.002+05:30

The chief justice of India does not think the case fit for having Indian citizens access to supreme court bench nearer to where they stay. They must come to SC in Delhi because – hold your breath – that is the capital of India!

http://timesofindia.indiatimes.com/india/CJI-against-having-regional-SC-benches/articleshow/5518179.cms

NEW DELHI: Virtually slamming the Law Commission's radical recommendation for a Supreme Court each in four regions for easy access to litigants and fight pendency, Chief Justice of India K G Balakrishnan on Saturday warned that such a move could lead to disintegration of SC's authority.

Oh pleeeaaase… with Mr Prashant Bhushan of CJAR asserting “half of previous 16 chief justices of India were corrupt”, the aam aadmi citizen does not give high value on a concept called SC authority. As far as disintegration of SC authority is concerned, that has already happened starting with when Justice D V Shylendra Kumar had said that CJI cannot speak for HC judges in matter of declaration of assets by judges; and further recently when Delhi HC bench also gave judgment that Supreme Court cannot escape purview of RTI.

Speaking at the inaugural R K Jain Memorial Lecture on "Towards Holistic Restructuring of the Supreme Court of India", the CJI said: "I am not in favour of the disintegration of the Supreme Court. Personally, I feel the SC cannot be in any other part of India. This is the highest court of the land and should be in the capital city of the country. It is in the capital city of the land."

Mr CJI, with all due respect this is not about personal opinion of a CJI. The Lok Sabha can be in Delhi being capital city, because only 545 legislators need to travel to Delhi to be present for law making and other parliament’s business. But the 1.3 crore and counting population of India can be better served if there were more SC benches closer to where they stayed. They don’t need to be reminded that they were not fortunate enough to be born in Delhi or closer to Delhi.

"It is a final court and we should maintain the integrity of the Supreme Court," Justice Balakrishnan said, while agreeing with the suggestion of senior advocate K K Venugopal that there could be an additional appellate court in between the high courts and the Supreme Court.

The CJI said there was nothing wrong in attempting to restructure the functioning of the three-tier justice delivery mechanism but the Supreme Court should not be allowed to be disintegrated. Another speaker, senior advocate A M Singhvi, also agreed with the CJI that there should not be furcation of the apex court on a regional basis.

Though the filing of cases in the apex court was rising at an alarming rate and pendency was mounting despite increase in the sanctioned strength from 26 to 31 judges, the CJI was against crowding the apex court with more judges.

"It is not possible for the Supreme Court to handle that much of cases and it is also not possible to increase the strength of the judges in the Supreme Court. As a national court, I feel that 31 judges are slightly on the higher side," he said.

Of course, once the ‘learned people’ make up their mind that there can be only 1 SC, and only 1 SC building in Delhi which cannot expand upwards or sideways, then obviously there will be limitation on number of SC judges.

"We don't agree to increase the number of judges anymore and it is also not possible to reduce its jurisdiction," he said and cited examples from the US, the UK and other countries where the top courts have only 10 to 15 judges.

And what is the population of US and UK compared to India? Should we reduce the number of MPs also from 545 to some lower number being closer to that in US or UK? What about 1.3 billion people who have to depend on 31 judges of SC for justice?

Unfortunately, the whole drama seems to be of concentrating power of judiciary at the centre of power of executive in Delhi. With credibility of SC going down especially in recent times, it is highly suspect if the real reason is not to allow future SC judges in newly created SC benches to go their own way against corruption in judiciary. A concentration of highest seat of judiciary close to highest seat of executive, and centre of political hobnobbing can only give rise to such suspicions.

Blame judges for adjournments and 3 crore pending cases!

2010-02-12T22:00:00.002+05:30

Justice S N Dhingra of Delhi High Court believes that it is both judges and lawyers who are responsible for culture of adjournment in courts. We will come to the part where we decide who is to get more blame between judges and lawyers, but first let’s read the news below:

http://timesofindia.indiatimes.com/city/delhi/HC-judge-lashes-out-against-culture-of-adjournments-/articleshow/5511075.cms

NEW DELHI: A Delhi high court judge has blamed his colleagues for the "culture of adjournment'' that often prolongs cases for years.

Rueing the "latitude shown by the high court'' to lawyers who plead for adjournments, justice S N Dhingra said: "It appears as if there is an understanding between the courts and advocates that come what may the orders of trial courts refusing adjournments shall be set aside on mercy pleas and one more opportunity shall be granted.''

Claiming that courts often grant adjournments on "frivolous grounds'', Dhingra said: "A separate breed of advocates has cropped up who are experts in pleading for adjournments and dragging cases. This culture has to be brought to an end,'' the HC noted, while upholding a order passed by a guardianship court in a child custody dispute between a couple. The court refused to adjourn the case when the woman's lawyer claimed that he had left the case files in his car which was stolen 11 days ago.

The last line shows the cute argument by the lawyer! If you think that a lawyer will not lie about his car being stolen, maybe you need an education in what lawyers in India can get away with. In BMW hit and run case by Nanda, the ‘well-respected’ defence lawyers who influenced a key witness and were caught in a sting operation were fined a mere Rs 2,000 by the bar council and were not allowed to take cases for 2 months. Long live bar councils! I am not saying that, lawyers are.

The HC agreed with the decision of the lower court to proceed with the hearing and close cross examination of witnesses, despite protests by the advocate of the child's mother. "Adjournments are sought in the name of strikes, elections, personal difficulties of the senior or briefing counsels or because two counsels agree to an adjournment...

Did you read the last part… two counsels agree to an adjournment… so now if you have a doubt how come your case drags on for so long, don’t just blame other party’s lawyer; it could well be your own lawyer is a willing party to this adjournment game at your expense.

This whole culture of adjournment is a major reasons why a case or a petition, which should be decided in two or three hearings, is disposed of in more than 100 hearings,'' the HC noted while dismissing the appeal filed by the child's mother against the lower court's order.

This is a damning indictment of judiciary and judges. On one hand, prime minister, law minister, and chief justice rue about 3 crore plus cases pending in courts; but if a case is dragged from 3 hearings to more than 100, even god in his next avatar cannot reclaim the judiciary from sinking down.

Since lawyers do their job in representing their clients, the majority of blame lies with judges in granting adjournments at the drop of a hat.

The problems of mai-baap culture

2010-01-29T20:11:00.005+05:30

This is the kind of news which tells what is wrong with the way things work or rather not in India. A woman who booked ticket in first class coupe for purpose of safety was assaulted and molested by other passengers in same coupe who probably were 'more powerful' in some way, or so they thought at least!

http://www.ndtv.com/news/india/woman_molested_beaten_on_rajdhani_express.php

Twenty-eight-year-old Alka decided that for her journey home from Patna, a first-class ticket on the Rajdhani was worth it. After all, she was returning alone to Delhi.

In the middle of the night, however, two men who were travelling in the same coupe allegedly molested her. Ironically, the offenders were on the train to guarantee the safety of another woman, Jyoti Kumar, a Congress politician from Aari in Bihar - who was travelling in another coupe near Alka.

Really, it is a reflection of the power structure of Indian society -- a mai-baap culture in which you can feel secure not by following the law and rules but only by being under wings of someone more powerful. And of course, the fundamental problem with a mai-baap driven culture is that someone you have placed your trust in should not turn from protector to predator.

Further...

The Rajdhani is meant to have four armed commandos from the Railway Protection Force patrolling the entire train. There was no sign of them while she was being assaulted. Alka shouted out for help. That summoned Jyoti Kumar, the employer of the guards.

Kumar allegedly responded to Alka's SOS by beating her. This version of events is confirmed by other passengers. Though the politician says, "I did not beat her. It was she who assaulted me."

This if true is the real crux of the problems in a power driven society. The politician thought it fit to protect her own guards than stand for justice and rule of law. Because only then can she command the respect and loyalty of her own guards. Otherwise they may think that she has left them in the lurch and not fit to be their employer or protector!

Justice Shylendra Kumar rues about corruption in judiciary

2010-01-26T22:00:00.002+05:30

Justice Shylendra Kumar of Karnataka High court takes stock of the situation in country on 26th Jan, Republic Day on his personal blog:

http://sites.google.com/site/justdvskumar/republic-day-message

Interestingly, he is of the opinion that both Executive and Judiciary have failed people, but some flashes of hope are seen from Legislature.

Excerpt here:
A vocal and aggressive Executive Government is attempting to regulate and takeover Judiciary even by corrupting the Judiciary. An inept and corrupt Judiciary is playing second fiddle to the Executive. It is only the legislature albeit corrupt, rudderless and inefficient, has nevertheless on an occasion or two, has adhered to its assigned role, has occasionally flashed sparks of brilliance by competent performances, is holding out a ray of hope!

Comments:Let's hope the body and limbs also start to move in coordinated fashion if the brain is doing some things right.

Further...

Though all three organs of the State have miserably failed in playing their respective roles, the real hope and strength, is emanating from the goodness of the common man of the country, the right values the common man of the country has, a nascent, intrinsic perception of rights and wrongs, which is imbedded in the psyche of every citizen of this country, that sustains an optimist like me.

Comments: This is the real hope. If we, the people give power to ourselves, and act in a powerful way for benefit of nation, only then we can deserve to live in a just nation.

Further he says...

I am of the opinion that amongst the three organs of the State, Judiciary has to take the major share of the blame, as the Judiciary by not being alright and upright by itself, has failed to check and keep the other two organs of the State in control and in the right mode.

Comments: What is sad is that common person is scared of accessing judiciary, leave alone police. There is a saying that justice should not only be done, but it should also be seen to be done. Maybe it is right time for people in judiciary to rise to the occassion, and give the confidence to Indian public that they will uphold justice in its fullest sense, and not merely go through motions of legal procedures.

Justice is coming for undertrials, if intentions are to be realized!

2010-01-23T10:47:00.002+05:30

UPA govt and Law minister Moily has recently made the mother of all promises, i.e., to get 75% of undertrials out of prison by 31st Jul 2010.

http://timesofindia.indiatimes.com/india/Moilys-mission-Get-75-of-undertrials-out-of-prison-by-July-31/articleshow/5454196.cms

Excerpts from the news:

The UPA government is setting a six-month deadline, starting January 26, for the release of 1.25 lakh of the 1.7 lakh undertrials languishing in jail though booked for petty offences and despite having served a major part of the prescribed maximum sentence.

Comments: It is interesting why no govt before thought of an easy solution like this.

Further, some statistics on population in jails and that of undertrials:

India has around 1,500 jails having a capacity to lodge 2.5 lakh prisoners. But these house as many as 3.5 lakh inmates. As many as 70% of the jail population comprises undertrials, which means their number could be pegged at 2.45 lakh. As 70% of the undertrial prisoners are booked for petty offences, this category of population in jails would be 1.7 lakh.

Further...

"I have requested the chief justices of all high courts to instruct the district courts to do everything possible under the Criminal Procedure Code and other laws to ensure that those languishing in prison unnecessarily be forthwith released," he said.

Comments: Nice intentions. It is moot point how the courts which are said to be overburdened with cases will handle these new cases. Read here about lack of judges in high courts.

Further....
Asked how so many undertrial prisoners could be released within six months, he said there are many ways to achieve the result -- plea bargaining system in which the undertrial accepts guilt and the court records conviction and releases him by sentencing him to the period of imprisonment already undergone, expediting their cases by holding trial on a day-to-day basis, holding court proceedings inside the prison premises or through video-conferencing.

Comments: Plea bargaining has been there on paper since CrPC amendments of 2005, notified in 2006. It is not so simple that you ask a prisoner to agree to a lesser charge etc, and if he agrees, and court also says yes; then everybody is happy and they go home. Under Sec 265C of CrPC, specific guidelines have to be followed for plea bargaining in which public prosecutor, accused, victim, and courts are involved. So a defined court process is inovlved here too.

About expediting trials on day-to-day basis, that is like asking a wish from genie in the bottle. If that could be done, then what is currently stopping courts from having day to day trials?

Further...
To ensure that there is no hitch from the government side, the law minister has divided the country into various zones and put an additional solicitor general in charge of each to see that the first actual legal reform by way of releasing undertrials becomes successful.

"Guidance to the ASGs would come from attorney-general G E Vahanvati and solicitor-general Gopal Subramaniam," Moily said.

Comments: All of the said measures like writing to chief justices, ASG, dividing into zones, and so on smack of a high-level approach handed from top levels of govt and judiciary to levels below. There is no clarity on how the lower courts, police, prosecutors will be involved in such a massive undertaking. Till that happens, it can be treated more like a nice wish of the UPA govt and law ministry.

Brand new, better, faster Dowry Law for you... any takers?

2010-01-22T19:46:00.002+05:30

Much news has come out recently about proposed amendments to Dowry Prohibition Act, or DP Act in short.

http://beta.thehindu.com/news/national/article82087.ece

http://www.dnaindia.com/india/report_all-wedding-gifts-may-now-have-to-be-listed_1335335

My eyes must have widened in amazement, when I read some of the interesting provisions of the new DP act.

e.g. here is the provision which says it is mandatory to maintain list of all gifts exchanged, or go to jail.

The ministry of women and child development (MWCD) is planning to make it mandatory for the families of the bride and the groom to maintain a list of gifts and other exchanges made at the time of marriage. The Dowry Prohibition Act (DPA), 1961, will be amended to provide it with more teeth while plugging loopholes that allow women to misuse the act.

The list, in the form of a sworn affidavit, has to be notarised and signed by a protection officer or a dowry prohibition officer. Both the parties will have a copy of the list. The punishment for lapse is heavy, including a three-year jail term, not only for the bride and the groom but also their parents.

Comments: Right now even all marriages are not registered in India. In many places, you will have to give bribe just to get that marriage certificate. There are many child marriages in rural India, so registration of marriage in such cases is quite impossible, since no one will try to register a marriage, which is illegal to begin with.

Now, even if we were to assume that all the infrastructural issues in registering of marriages could be fixed, and on top of that new infrascturcture could be created by hiring more dowry prohibition officers, buying computers, databases, filing systems, and what not; isn't it slightly over the top to think that things will become hunky dory so easily and dowry problems will be solved?

Has any study been done on why dowry giving/taking has only increased even after propagation of so many anti dowry laws like DP Act, IPC 498a, and so on. Even communities where dowry was not prevalent now are following this custom.

further...

The amendments include lesser penalty for dowry givers; allowing a woman to file a case where she resides permanently or temporarily; including parents and relatives of the bride as aggrieved persons who can complain; and linking the Protection of Women from Domestic Violence (PWDV) with the dowry laws for quick relief.

Comment: It is always amusing to read the words "quick relief" in context of Indian judicial system. By some magic wand of proposals, just by linking PWDVA with DP Act, somehow quick relief will be ensured under DP Act. Never mind that no serious study would have been done on how quick is the relief under PWDVA itself! Make more laws, and you make more money for lawyers if not anything else.

further...

For a change, this amendment has also been welcomed by the men’s organisations. “This saves even the man from getting caught in false dowry cases,” said Virag Dhulia, of Save Indian Family Foundation, an organisation of harassed husbands.

False cases is a different problem than existence or absense of provisions in a particular act. The Indian laws relating to perjury are hardly applied by courts, so it is a free-for-all in terms of allegations that one can make and get away with them.

further...

Among other amendments, the ministry has also proposed a lighter punishment for dowry givers since a five-year imprisonment was acting as a deterrent for the girl’s family to complain. The amendment seeks one-year imprisonment for dowry givers unless they prove that they were compelled. Tulsi agreed that this would encourage more parents to come up and complain.

“Parents are often compelled to pay dowry to ensure the security and happiness of their daughter in her matrimonial home. Hence, the giver and the taker of dowry cannot be placed on the same footing under the law,” the NCW clarified.

Comments: The WCD and NCW seem to be animated by the same spirits that believe that more we tinker with the laws, the better. Crush the dowry takers, but go easy on dowry givers! Further it smacks of the arrogance that laws can do some kind of social engineering and change the society's attitudes. In any case, treating dowry givers and takers differently is like saying -- Let the pimp be let off lightly, but you must punish the prostitute! A paradise for lawmakers.

Mr Moily needs to do refresher course in Family law

2010-01-22T19:16:00.003+05:30

Law minister Moily has been in news ever since he became, well, law minister. He has been making all the right noises like: make fast-track courts, finish pending cases within 3 years, decide divorce cases within 1 year, reduce pendency of cases, accountability of judges, and so on.

Only time will tell whether all or any of these can materialize. My best wishes to him if he is sincerely doing all these things, rather than just making tall promises to an Indian public which has grown highly suspicious and cautious of courts, lawyers, and police.

But in a recent interview, it was perplexing to read when he says Indian family laws (matrimony, divorce etc) are slightly biased towards men. Hellooooo? If you read Hindu Family Law, then it is clear that almost all of the sections are worded in gender-neutral way, e.g. HMA 24 on maintenance during court proceedings can provide maintenance to needy party, be it wife or husband. Of course given practical situations, it is used mostly by wives. Many other sections especially related to maintenance, e.g. HAMA 18 are specifically meant to provide maintenance to wife/children with man/husband having the sole responsibility.

This is the excerpt of interview with Mr Moily:

http://business.in.com/interview/magazine-extra/m-veerappa-moily-people-are-going-to-goondas-as-faith-in-the-judiciary-has-eroded/9122/1

There is also some talk about your attempts at improving gender equality in Indian laws. Could you elaborate?
There are many laws in the country that are in favour of men and put women in a disadvantageous position. We are trying to set that right.

In adoption, women sometimes face a problem. In divorce petitions when one spouse holds up marriage, the other cannot marry again. I am trying to sanitise Acts which have a gender bias. Indian laws are skewed in favour of the man to a certain extent, which needs to be corrected.

Comments: Either Mr Moily should come in the open with the list of such biased laws, or stop giving utopia like statements to media who will lap it up and publish it for the 'benefit' of public. Such a statement could only mean that the law minister has forgotten much of the law which he once practised as a lawyer.

Even supreme court judges had asked a man to wait for few more months who has been fighting to get divorce from wife for 17 years. All this after he was acquitted of charges like "he bathes like a dog" from his lovely wife (on paper). Such is the so called 'bias' in law and judiciary towards men.

http://timesofindia.indiatimes.com/india/Wife-is-always-right-says-SC/articleshow/4553002.cms

So it is clear that neither Indian laws, nor Indian judiciary has bias towards men. It is the judicial system where the needy will always get crushed under the weight of bureaucracy, inefficiency, corruption of legal and judicial fraternity, and so on.

Thumbs up to Delhi HC: Supreme court credibility ... further down the slopes

2010-01-15T23:19:00.003+05:30

The Delhi High Court on Tuesday reinforced its earlier verdict that the office of the Chief Justice of India (CJI) was within the purview of the Right to Information (RTI) Act.

http://www.deccanherald.com/content/46384/supreme-court-loses-rti-battle.html

Comments:What was a single judge order of Delhi HC has not got the stamp of approval of a 3 judge bench of Delhi HC.

Further,

The apex court registry is likely to challenge this judgment before the Supreme Court.
A three-judge bench comprising Chief Justice A P Shah and Justices Vikramjeet Sen and S Muralidhar said that the CJI cannot be said to have a fiduciary relationship (between a trustee and a beneficiary) with other judges.

Comments: Now the options of the Supreme Court are to appeal against this decision, and finally to get its back broken completely! Because even if they win somehow in appeal to Supreme Court, sooner or later a law or mechanism will be passed to break this nexus where asset declaration of judges to CJI are being held like they are a top-secret information. History will judge the decision to appeal to SC as a very absurd one at best.

Further,

According to the bench, judges of the superior courts should make public their assets as they were not “less accountable” than the judicial officers of the lower courts, who were bound by service rules to declare assets.

Comments: So if you are still in doubt if judges of lower courts are bound to do more disclosure, here is presented a quote from Justice Shylendra Kumar's article on RTI for judges' disclosure of assets (here):

In fact, it is a misnomer to think that the judges of the superior courts are not ready to disclose their assets. The judges of the High Courts are appointed after being drawn from the Bar or on promotion from the subordinate judiciary in the ratio of 2: 1 which means that for every promotee judge, there will be two judges appointed directly from the Bar. Judges promoted from the subordinate judiciary happen to be occupants of the post of district judge and every district Judge is required to declare his/her assets every year, as part of the conditions of service. The judges drawn from the Bar and appointed to the High Courts would all have disclosed their income for the previous five years. This is an essential requirement.

Signing Hague Convention is the right thing, crying about NRI brides is not!

2010-01-15T22:40:00.005+05:30

National Commission for Women (NCW) has asked government to sign international convention of Hague, ostensibly to protect NRI brides.

http://in.news.yahoo.com/20/20100109/1416/tnl-ncw-asks-govt-to-sign-international.html

Sat, Jan 9 06:42 PM New Delhi, Jan 9 (PTI) The National Commission for Women today asked the Indian government to sign the international convention of Hague on laws of marriage as well as safety of women to help protect NRI brides. Speaking at a seminar on women''s issues at the Pravasi Bhartiya Divas here, NCW Chairperson Girija Vyas said, most of the cases of divorce and separation of NRI brides create problems as the laws of the land are different in India and in the country where these women live.

Comments: Only problem with above statement is that justice is quick and transparent in foreign countries... Only in India a divorce can take 17 years and still Supreme court judge will condescendingly advise the husband to wait for a few more months since he has waited for 17 years.

The real story is that signing the Hague convention is the right thing to do, and better to do it late than never. It has been triggered by the fact of recent cases coming to Supreme court where SC had to send the parties back to foreign courts since India is not signatory to Hague convention. For example, recently there was a recent high profile case which went to Supreme Court, about a child Aditya Vora whose joint custody granted by US courts to NRI father was violated by mother who had come with child to India and had gone missing with the child. Eventually the Supreme Court had to ask CBI to trace the child. Read here.

If India was signatory to Hague convention, the mother would not have been able to violate US court orders with such impunity. And the child will not unnecessarily have to travel to US and then back to India, just because Indian supreme court is helpless!

Former SC Judge and chairman of the Law Commission of India A.R.Lakshmanan has strongly recommended that India should sign the Hague Convention at the earliest. Signing Hague Convention will strongly discourage either of the warring spouses from indulging in cross border parental child abduction. Read here.

Fast track justice in 4 or more years, shine India shine

2010-01-15T22:22:00.004+05:30

A case of rape and murder of a working woman in Bangalore few years back has been going on in Fast Track court for 4 years now. The case had made much headlines and concerns were raised over safety of working women, especially those who work in night shifts.

http://www.timesnow.tv/Which-fast-track-court-takes-4-years/articleshow/4335882.cms

Excerpt from news below with emphasis mine:

When TIMES NOW's editor-in-chief Arnab Goswami put forward the question in Newshour, whether judges of the fast track courts should also be questioned on why cases such as Pratibha's were allowed to extend beyond the stipulated time of 6 months, noted lawyer and human rights advocate Soli Sorabjee said one recourse for the affected parties against the "granting of adjournments for the asking" would be to approach a higher court to seek speedy redressal. Union Law Minister Veerappa Moily said: "Even the fast track courts are frustrated with this kind of an attitude. A fast track court meant that a case once taken up for trial should be over within 6 months including judgement. That is what we have proposed in our draft Bill for the Sexual Offences Special Courts Act, the Special Courts Bill 2010.

Comments: You know I have problems with both of the above 2 suggestions.

Regarding Mr Sorabjee's suggestion about approaching higher court in case of adjournments, this is like saying that if the child did not get milk from mother when he cried first time; so he should cry second time, only now with a higher noise! What about the fact that adjournments being granted on flimsy grounds is part and parcel of justice Indian style? Even the recently notified and gazzetted CrPC amendments cleverly did not notify the clause on disallowing adjournments on flimsy grounds! Read here.

Regarding law minister suggestion, I can only say "tussi great ho sir ji! ". If the number of laws were not enough, the remedy for some problem in justice delivery system is to create one more special law for special need to fast-track sexual offences' trial. Just pray if you are a victim of crime in India, it somehow falls under this special act for you to get speedy justice!

CrPC Amendment now gazetted with changes, a full one year later!

2010-01-04T13:09:00.003+05:30

Finally after a gap of one year, the CrPC amendments have been notified.

http://www.indianexpress.com/news/In-New-Year-gift-for-India--victims-get-a-voice--the-right-to-appeal-judgments/561778

The only problem is, the one amendment which was most useful for common people to escape clutches of powerful people controlling police -- i.e. power of arbitrary arrest by police; HAS NOT BEEN NOTIFIED.

Instead, the 'gift' seems to be that if you fought for 5 years in criminal court against a crime-accused, and he was acquitted by court; then you can appeal against acquittal and run around courts for another 5 years hoping for a conviction this time! What are the chances that someone who got acquitted due to delay, shoddy investigation by police, witnesses not available etc will be nailed the second time?

The New Year will bring a special gift for victims of crime in India. On the second last day of 2009, the government decided to notify a landmark amendment to the Criminal Procedure Code (CrPC), giving victims the right to appeal against a court order acquitting an accused, or convicting the accused of a lesser offence.

Under the amended Sec 372 CrPC, the victim will not need the permission of any law enforcement or prosecuting agency to appeal a court order. Currently, an appeal can be made only if the prosecution so decides.

Now coming to a few other amendments which were of real importance to litigants and public but which were NOT NOTIFIED:

However, the Ministry has decided not to notify two amendments that the lawyers had opposed strongly to CrPC Sections 41(A) and 309.

The amendment to Sec 41(A) barred police from arresting an accused for an offence that carries a maximum punishment of seven years without first issuing him/her a notice of appearance.

Comment: What do lawyers gain from above? You guessed it right. The money they get from arranging bails for people accused in false cases by powerful people who can game the police and judicial system to their advantage.

The amendment to Sec 309, aimed at speeding up trials, disallowed the granting of adjournments on flimsy grounds.

Comment: And what a crime it would have been if adjournments were not granted on flimsy grounds! Justice must be given and seen to be given, but make sure after so many adjournments that any remaining witnesses are untraceable, pass away to heavens, or become hostile just to save themselves trouble!

An important amendment that will be notified is Section 357A, making it mandatory for state governments to draw up a scheme in coordination with the Centre to provide funds for compensation to victims or their dependents. Victims will be entitled to compensation if the offender is not caught and tried.

Comment: Would like to see this one implemented! How state governments will decide the amount of compensation, how much compensation for what kind of victim, and so on. And most importantly, how will funding for the comensation be arranged -- will States and Centre fight for another 4 years (when elections are due) on the funding requirements?

Is Supreme Court unnecessarily setting legal precedent in rape cases

2010-01-02T20:58:00.005+05:30

Is our Supreme Court spending court time on laying down legal gyan and more seriously, legal precedents, where none of the two were required in the first place. On first reading of the news item below about a recent SC judgment, that seems to be the case.

http://www.dnaindia.com/india/report_supreme-court-indian-women-won-t-make-false-rape-claim_1329929

Mumbai: In an observation that could have far-reaching implications in the prosecution of rape cases, the Supreme Court recently observed that an Indian woman would never make a false allegation of rape, given the social stigma attached to it. This is likely to bolster the cases of rape victims and may have a bearing on recent cases involving actor Shiney Ahuja and Shree Ram Mills scion Abhishek Kasliwal.

“In Indian society, any girl or woman would not make such allegations (of rape) against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false (sic), she would be looked at by society with contempt throughout her life,” the apex court observed.

Upholding the seven-year imprisonment handed out to an auto-rickshaw driver who raped a 12-year-old in 1988, a bench of justices JM Panchal and Deepak Verma stated: “For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity (sic). She would also be conscious of the danger of being ostracised by society.”

Comments: 7 years is the maximum sentence for rape, and well deserved by the accused for raping a minor. However, if you read the IPC 375 which defines rape, there is no need to go into details of case like whether the minor gave consent or not. The fact that a girl is below 16 years of age makes it as rape in any case.

Section 375. Rape
¹[Sexual offences]

1. Subs. by Act 43 of 1983, sec. 3, for the heading "Of rape".

¹[375. Rape.
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -
...
...
Sixthly: - With or without her consent, when she is under sixteen years of age.

Mincing no words to describe the social stigma faced by rape victims in India, the judges said, “It would be difficult for her to survive in Indian society which is not as forward-looking as the western countries are.”

If the observations of the apex court are applied by the prosecution in the cases of Ahuja and Kasliwal, they may have to brace themselves for a tough trial ahead.

While Ahuja’s trial against rape allegations made by his 20-year-old maid in June this year is yet to begin before the Sewri fast track court, charges have been framed against Kasliwal for raping a 52-year-old woman in March, 2006.

“The judgment can be relied on by the prosecution or the defence in any of these trials but how the sessions court will interpret it cannot be predicted as the facts of each case will vary,” criminal advocate Rohini Salian said. Since this precedent has been laid down by the Supreme Court, it is likely to be cited in rape trials before subordinate courts, she added.

“The court conducting the rape trial can certainly take these observations into account while appreciating the rest of the evidence before it,” said senior advocate Amit Desai. He, however, added that the Supreme Court’s observations alone cannot lead to conviction. “Their weightage may differ according to the totality of the facts and the defence taken by the accused,” Desai said.

Twenty-one years after the incident, the appeal of Wahid Khan, who was caught ‘red-handed’ by the police in Bhopal, was dismissed by the apex court. Under the guise of rescuing the girl from eve-teasers, Khan gave her a ride in his auto-rickshaw and took her to a deserted location where he raped her.

The apex court also took note of the fact that the girl’s statement had been consistent in her FIR as well as before the court. Moreover, the sub-inspector of police, BB Subba Rao, had told the court that when the accused was caught he and the girl were both naked waist-down.

The court held that the consistent statement of the victim and the testimony of the police officer who caught him red-handed had established the guilt of the accused.

Comments: So what was the need for Supreme court in giving so much gyan, or worse, giving scope for precedent setting in rape trials given that SC judgment has "binding precedent" effect on lower courts? It is already clear from the evidence etc that rape was committed. Now you are trying to tell the world why or under what circumstances a rape victim will or will not tell lies? Is this not an injustice to the victim in this case itself, when the law of the land clearly says it falls under rape, then where is the need to bolster the case on behalf of victim ? Or is it about some kind of fantasy where law can be created by the stroke of a judgment given by Supreme Court?

Law Minister Moily talks tough on new molestation law, where's the bite!

2010-01-02T19:46:00.002+05:30

Wasn't my country already so beautiful, that we need more and more laws to protect the weak and downtrodden! Now there is a proposal to make molestation into a cognizable and non-bailable offence. A cognizable offence means that police can arrest without warrant. A non-bailable offence means that bail is not matter of right of the accused but can be granted by judicial magistrate. For more information on bail read here.

http://www.hindustantimes.com/newdelhi/No-bail-5-years-jail-for-molestors-soon/492505/H1-Article1-492595.aspx

Previously the maximum jail term for molestation was 2 years. I would first like the government to give statistics on molestation cases filed all over India, and percentage of convictions, along with amount of jail term. If you guessed it by now, such statistics don't exist; or the government cannot be bothered anyway by previous experiences and statistics! After all -- the weak must be protected. And what better way to do that than increase the punishment and make it non-bailable, never mind the conviction rates, and the fact that a recent molestation case in the country took 19 years to decide!

Here is the news with my comments:

The government will soon make molestation a non-bailable offence, increasing the maximum imprisonment for the crime from two to five years.

The draft Sexual Offences (Special Courts) Bill, 2010 — prepared by the law ministry — and currently awaiting the home ministry assent, also defines what constitutes molestation much more sharply than at present.

It proposes allowing the police to arrest a person accused of the crime without a warrant. A simple complaint from the victim will be enough.

Comments: And what is proposed to be done if the complainant happens to be a 14 year old girl, and the accused happens to be a high-ranking police official? Will you arrest the police official immediately and throw him behind bars based on the simple complaint? Or will it require permission from government to prosecute the police officer?

“Tough measures are required to deter sexual offences against women,” Law Minister M. Veerappa Moily told Hindustan Times. “Following the shocking Ruchika case, it is clear that molestation needs to be treated as a serious sexual offence as rape.”

Comments: Holy intentions all these! Except for the fact that the record on conviction for rape cases itself is not good. So what great expectations can public have merely from passing of a law which makes molestation as serious as rape!

The bill seeks to modify relevant sections of both the Indian Penal Code and the Criminal Procedure Code.

Home Ministry swings magic wand, and henceforth police will register FIRs!

2009-12-30T10:58:00.003+05:30

If good intentions could lead to good governance, we could already be living in Utopia or Ram Rajya or some such la la land of abundant peace and prosperity for all.

Recent directive by Ministry of Home Affairs to convert all police complaints into FIR is a knee-jerk reaction (yes reaction) to the recent news of an ex-DGP's indictment in a molestation case. However reprehensible that case is, the idea that conversion of all police complaints into FIR will lead to justice in society is a fantastical idea at best.

Firstly, don't the citizens have the right to know that if so far all police complaints were not being converted into FIRs, then what was the rationale behind that? Does it mean we were living in law of the jungle so far? If yes, then was Home ministry sleeping till this one incident came to light? If no, then what is the rationale now? Given the fact that most people are scared of going to police and would resort to that as a last option, what great benefit will accrue to citizens knowing that their complaint will be converted into FIR.

Is there a study conducted on how many people are able to get FIR copy easily, without paying bribe or through influence etc ? What will change regarding that now?

Read the news in deccan herald here:
http://www.deccanherald.com/content/43900/discipline-them.html

Discipline them

“Govt should first ensure discipline of the police.”

The Union Home Ministry’s proposed directive to state governments that police stations be advised to treat all complaints they receive as first information reports (FIRs) is fraught with danger. The step is, without sounding cynical, all bark and no bite. Yes, S P S Rathore, the lecherous former Haryana director-general police, whose creepy behaviour caused Ruchika Girhotra to end her own life, exemplifies the abuse of authority. And yes, it has come to dismay a nation already weary of the canoodling and peccadilloes of a governor. Indian society has become a cesspool of tolerance.

As Indians, our collective memory is woefully short. It was not too far back in the past that one of India’s best known cops, K P S Gill, a former Punjab police chief, was let off lightly by the law after being proved he had slapped a lady IAS officer’s backside and ‘outraged’ the lady’s ‘modesty’. This country treats its VIPs, whether criminals in khaki or khadi, very well. There is no denying that there can be value, and even justice, in ensuring that bad and wayward behaviour, that is protected and even condoned, is exposed. But directing police stations to treat all complaints as FIRs is not the answer. A few years back, the Justice Malimath Committee on reforming the criminal justice system had pointed out that police stations routinely refuse to lodge even credible complaints.

While there are men in power who use their positions to shield themselves from the law, there are also innumerable number of cases in which alleged victims of spousal, sexual, workplace and other kinds of harassment have cynically, wilfully and deviously used specific provisions of the Indian Penal Code to their advantage. There are citizens who will attest to the vicious and malicious use of the IPC’s Section 498A that deals with dowry-related cases of cruelty. Also, fake police complaints are routinely used to settle scores, often by city-bred people. It is society’s under-privileged and dis-empowered whose valid and well-founded complaints are ignored and not taken cognisance of by police stations across the country. The Indian police and legal non-systems reflect a dangerous dysfunction. The Centre need not offer platitudes to state the obvious — that police stations must treat all complaints as FIRs. It must, along with the state governments, ensure that the police is disciplined — if need be by awarding exemplary punishments to individual offenders.

People of India are bigger than President, CJI, Parliament, MPs, MLAs etc

2009-12-29T15:07:00.003+05:30

PREAMBLE OF INDIA

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Purpose of Having a Preamble:
The Preamble to our Constitution serves two purposes: -
A) It indicates the source from which the Constitution derives its authority;
B) It also states the objects, which the Constitution seeks to establish and promote.

The Preamble seeks to establish what Mahatma Gandhi described as The India of my Dreams, "…an India in which the poorest shall feel that it is their country in whose making they have an effective voice; …an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of Intoxicating drinks and drugs. Woman will enjoy as the same rights as man."

The Keynote of the Preamble was to emphasize the positive aspect, “the unity of the Nation”, as much as the “dignity of the individual”. “Dignity” was a work of moral and spiritual import: it implied an obligation on the part of the Union to respect the personality of the citizen and to create condition in which every citizen would be a sovereign in himself and will cherish and fulfill his desire of self-fulfillments and self-satisfaction

It must be noted that the Supreme Court may have power to strike down a legislation as unconstitutional, but still it derives its powers from the Constitution. If one reads the source of the Constitution, it starts with a declaration “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India in a Sovereign…..”. Thus, it is not the Court, the CJI, the PM, the President who has declared the Constitution, but it is we, the sovereign citizens, the people of this Nation, who in exercise of their powers, have declared this nation as a Sovereign, Socialist, Secular, Democratic, Republic. All others including the CJI, PM, CM, MP, MLA, PRESIDENT are under this constitution and not over it. It is we, who have ourselves decided to subject our own selves to the Judiciary and law. This does not mean that we have empowered any one to be a Constitutional Authority, and those who claim so, are living in the world of illusions, and must be shown the mirror of truth. Truth is painful and bitter for one or a handful, but gives peace of mind to al,l as we feel save under the umbrella of truth and are sure that our dignity and life will not be snatched.

We have put Justice before liberty and equality. This is because the drafters were well conscious that unless there is Justice, liberty is meaningless and would not survive for truth but will be a weapon of destruction. They were sure that once Justice and liberty is there, equality will blossom automatically, as Justice is the seed, Liberty is the tree and equality is the flower of the tree. Naturally, last but not least fraternity is the sweet and cherished fruit of this tree.

This is to remind you all and myself that we have forgotten who we are. We have forgotten the best gift we got at the time of independence and have started living the life of slaves of our own “PUBLIC SERVANTS”. This is to remind you that you were born free, born independent, born with right of Justice first followed by liberty, equality and Fraternity.

Please rise tomorrow and remind your self of this preamble and remind your mind and soul that you are the person who controls everything, you are a sovereign citizen, and have a right to Justice and no one can stop you. If the person claims to be too powerful, then go back to the preamble and read the message to him and yourself also, “WE THE PEOPLE........”, calling us to unite and fight, and enjoy the services of our “RESPECTED AND HONOURED PUBLIC SERVANTS” and not be subjected to them.

JAI HIND……..

Prepared by SIDDHARTH MURARKA advocate high court 09324175771
siddharthmurarka@gmail.com
for this article and more see http://fightyourrights.blogspot.com/

If you are innocent - Beware of Police!

2009-12-29T11:08:00.002+05:30

It is the fact of how government runs in India, that most of government machinery (because humanity seems to be absent), has no disincentive on making mistakes or gross negligence. Doctors can be sued if they leave a scissor inside patient's stomach, but it seems police can just get away with any kind of 'mistake' they commit. Read below:

http://timesofindia.indiatimes.com/city/patna/What-IPC-Cops-set-to-arrest-kids-for-killing-bhabhi/articleshow/5389977.cms

SASARAM: Can Class I and LKG kids torture and assault a woman to death? Or, to be more liberal, can children of this age collude with their grown-up kin to execute a killing in their household? Indian Penal Code (IPC)'s Section 82 says: "Nothing is an offence which is done by a child under seven years of age." But either Kaimur police have not read the rule book or they care a damn about it.

In yet another instance of sham police investigations making ridiculous conclusions in criminal cases, Chaniya Khatun, 6, and her sister Soni Khatun, 5, along with six other family members have been held guilty by police of having killed an 18-year-old woman.

With Kaimur superintendent of police P K Srivastava agreeing to the Bhabhua DSP Sanjay Kumar's supervision note and ordering the arrest of the accused, the eight, including the two girls, are likely to be arrested "any moment now". "I have already procured a warrant of arrest against the eight accused," said R K Singh, station house officer of Sonhan police station.

It was the Sonhan PS which lodged an FIR in the case on September 2 this year after the court of Bhabhua chief judicial magistrate (CJM) forwarded a complaint case to it for investigation. In his complaint, filed in the CJM's court on August 18, one Shah Mohammad of Khair village alleged that his 18-year-old daughter Akhtari Begum, who was married to one Md Tajuddin of Pawandi village in Rohtas district, was killed by her husband and in-laws on July 26 for dowry. As it happens in such cases, all the in-laws were named as accused.

On September 24, Bhabhua DSP Kumar along with the investigating officer visited Pawandi and supervised the case. He also interrogated the minor sisters and arrested the girl's father-in-law. His supervision note concluded that the accusation appeared to be true as those named accused had tortured and assaulted Akhtari to death for dowry. Akhtari was the wife of the brother of Chaniya and Soni, who study in a primary school.

Srivastava just okayed the DSP's findings and ordered the arrest of the accused. In case they elude police, their property will be attached, he further ordered.

Ironically, Srivastava on Monday evening told TOI: "Aisi galtiya hote rahti hai (Such mistakes keep happening)" if the children are named accused and witnesses also corroborate the accusation. When told about IPC and asked about police wisdom, he said: "We will do something about it now."

A senior lawyer and member of the Bihar Bar Council described the police action as illegal. "Nor only does it border on incredulity, but it also reveals an insensitive face of the state police," said Akhauri Mangala Charan Srivastav.

No this is not a one-off case of its kind. Earlier this month, this newspaper reported how an SP found the accusation true against all the members of a family in a case of kidnapping that never took place. So, all of them, including an octogenarian, were jailed for months.

In another case, an alleged murderer fooled police into arresting two innocent persons for the crime he had committed.

Taking cognizance of the two cases of "violation of rights of innocent persons by police" the State Human Rights Commission has sought a reply from director-general of police Anand Shankar.

Justice D V Shylendra Kumar on judicial accountability through power to the people

2009-12-26T07:51:00.006+05:30

Justice Kumar writes this article on Judicial Accountability on his official website, where he talks about judicial accountability, appointment of judges, constitution's protection to judges, role and authority of Chief Justice of India etc:

http://sites.google.com/site/justdvskumar/netizens-1

And do not forget to send your message of support to justdvskumar@gmail.com

Some of the important highlights of the article followed by my comments:

I have contributed an article titled Judicial Accountability, at the request of the organizers of IX Conference of Karnataka State Advocates, sponsored by the Karnataka State Bar Council, Bangalore and cosponsored by the Bar Association, Hubli, which is being inaugurated on 27^th December, 2009 at Hubli, on which occasion, a souvenir containing my said article will be released.

I am herewith posting the article in advance for information and the benefit of all viewers of my web-site, particularly for the benefit of the advocate viewers, who can, on reading the article, debate the contents in the conference in a meaningful way.

Comment: It is heartening that the spirit of discussion, openness, debate is being fostered in the judicial and legal community. Without support from within, it will be difficult to act against entrenched interests that hold judiciary in a inactive, inert state.

While judges of the subordinate judiciary, which is judiciary up to the level of district courts in a state, i.e. on the civil side, civil judge (junior division), civil judge (Senior Division) and district judge and on the criminal side, comprising of judicial magistrates of first class, chief judicial magistrates and sessions judges, are all made accountable in respect of their acts, judicial or non-judicial, as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states within which the subordinate courts are located, and that can definitely, to a great extent, take care of the need for ensuring judicial accountability of the judges in the subordinate judiciary.

However, the position insofar as judges of the superior courts i.e. the judges of the high courts and the supreme court, are concerned, it is strictly governed by the provisions of the Constitution of India and in so far as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by the Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, reads as under:

Comment: So this exposes the flaws of the system. Citizens can approach High Court in appeal against order of lower courts, and that may lay to rest any sense of injustice if they have had from the lower courts. However when it comes to incentives and dis-incentives present for judges of superior courts, they are all governed only by constitution and not answerable for misconduct to another authority except by an impeachment procedure which is more difficult to execute than pulling rabbit out of a hat.

...a high court being not a court subordinate to the supreme court, supreme court cannot have any say in the matter of the functioning of the high courts and the only authority of the supreme court vis-a-vis high courts is on the appellate side, as provided under the laws and under the Constitution.
...
The Chief Justice of India, in so far as the relative position for such purpose is concerned, is more like a serpent without fangs, who can only hiss, but not bite, which will be an open secret in no time and the serpent will not be feared by any one, however manacing it may look, however loud it may hiss! Unfortunately, that is the reality. ...

With the constitutional mechanism and the inside mechanism failing to usher in any measure of judicial accountability, the only alternative is by taking the issue to the people who are the masters in our polity.

It is so, as we are a federal system governed by a written Constitution, which proclaims that our country is a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC, as envisaged in the preamble of our Constitution, reading as under:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
...
...

Comment: It is clear that Justice Kumar believes situation to be serious enough that the existing mechanisms of control, good sense, moral authority etc within judiciary are not going to work! So the mechanism left is for common citizens to raise their voice and shape the emergence of new standards of judicial accountability.

...
...
The first persons who come to know that a judge is not conducting properly while functioning on the judicial side are the lawyers who are appearing in the case the moment an order is passed by the Judge in the court hall ! Of course, a judgment reserved and rendered later may also send signals as to the manner in which the judgment is produced, whether the judge was guided by the merits of the matter and on the submissions made in the course of hearing and on a proper evaluation of the whole thing, or on other considerations. This will be obvious to the lawyers the moment they go through the judgment.
It is for the lawyers of this state/country to ensure that the judges behave and conduct themselves in a proper manner in the course of discharge of their judicial functions. That alone can ensure a degree of judicial accountability and as a result we can have an independent, responsible and effective judiciary, with the help and assistance of the enlightened, responsive, vigilant members of the Bar and not otherwise.

Comment: It is commendable that Justice Kumar is trying to involve the legal community into reforms on judicial accountability. However a suspicion in public remains, and this is by no means due to the low trust public has of lawyers in general, that if legal community makes its living by functioning in courts; can they retain their sense of independence and raise voice against judicial misconduct?

It is the duty and the responsibility of the members of the Bar to ensure that the judiciary not only remains fiercely independent, upright, effective and useful for the people of the country, but also that the members of the judiciary do not go astray, do not deviate from their duties and responsibilities, do not misuse or abuse their powers and achieve this objective by boldly and openly bringing to the notice of the judge himself/herself, if there are such instances or signs of deviations. This is a very onerous responsibility bestowed on the members of the Bar in our legal system and unless the lawyers fulfill this obligation towards the society, they will be failing in their professional duty !

Our courts are open courts and the functioning of judges is in open courts and to the glare and visibility of members of the public. That is the greatest safety and assurance of an upright quality judiciary...

Comment: Indeed, this seems to me the greatest safeguard against usurpation of control by self-seeking authorative powers in a democracy. This can work provided a critical mass of judiciary is seen to be non-corrupt and of high moral authority. There is a critical point of no return which one crossed can destroy all confidence of public in the systems and institutions of democrary.

Following are excerpts from a book ‘JUDGES’ written by Sir David Pannick, quoted by Justice Kumar in the same article:

Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.
...
...
It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions … The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts [Cited in Jerome Frank, Courts on Trial (1949) (1973 Ed.), p.40].
...
...
It is unlikely that men and women will ever cease to wound, cheat, and damage each other. There will always be a need for judges to resolve their disputes in an orderly manner. As people grow ever less willing to accept unreservedly the demands of authority, the judiciary, like other public institutions, will be subjected to a growing amount of critical analysis. The way in which ‘Judge & Co.’ [Jeremy Bentham’s term for the judiciary: in The Works of Jeremy Bentham (ed.Bowring, 1843), vol.5, p.396] is run is a matter of public interest and will increasingly become a matter of public debate.”

Mr Prashant Bhushan's reply to contempt petition filed by Supreme Court on him

2009-12-21T16:07:00.002+05:30

Mr Prashant Bhushan, a lawyer in Supreme Court and a campaigner for judicial reforms and accountability, was slapped with contempt of court notice by Supreme Court of India for his interview remark to Teheleka magazine that " about half of the last 16 chief-justices of Supreme Court were corrupt"...

This is the affidavit and reply filed by Mr Prashant Bhushan in this contempt petition.

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IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRIMINAL CONTEMPT PETITION NO. 10 OF 2009

IN I.A. NO. 1374, 1474, 2134 OF 2007
IN WRIT PETITION (c) NO. 202 OF 1995
IN THE MATTER OF: AMICUS CURIAE …PETITIONER

VERSUS
PRASHANT BHUSHAN & ANOTHER …RESPONDENTS

AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT NO.1
I, Prashant Bhushan s/o Shri Shanti Bhushan, r/o B-16, Sector 14, Noida, do hereby solemnly state and affirm as under:

1. That I am the first Respondent in this Contempt Petition and am fully acquainted with the facts of this case. I have read and understood the contents of the Contempt Petition filed by Shri Harish Salve in his capacity as Amicus Curiae and my reply to it is as under:

2. From the report in Tehelka, which is relied upon as the basis of the alleged contempt, reliance has been placed on the following sentences:
Firstly, “In my view, out of the last 16 to 17 Chief Justices, half have been corrupt. I can’t prove this, though we had evidence against Punchhi, Anand, and Sabharwal on the basis of which we sought their impeachment”. This could have been better phrased, but, by the word corrupt, I meant, “of doubtful integrity".
The second part of the interview relied upon is my answer to the question as to whether there were other ways in which judicial corruption manifests itself. In response to which I had said: “There are so many---“. Here again, when I said, “There are so many”, it was only with reference to non financial behaviour, or other kinds of conflict of interest or misconduct by judges. It is in this context that my answer to the question should be understood.

3. I have been involved in the Campaign for Judicial Accountability since 1991 when the impeachment proceedings began against Justice V. Ramaswami. Since then, I have been an active member of the Committee on Judicial Accountability and subsequently the Convenor of the Campaign for Judicial Accountability and Reforms which was set up in early 2007. It has been my
understanding at least since 1991, and even prior to that, that there has been considerable corruption in the higher judiciary, the main reason for which has been the lack of credible mechanisms for securing accountability of the higher judiciary. The focus of our Campaign for Judicial Accountability, therefore, has been to generate public opinion for putting in place credible legal institutions and mechanisms for investigating complaints against judges and for holding judges committing misconduct to account. I, along with my colleagues in the Campaign, have always held the view that an independent full time National Judicial Commission should be
created for a transparent method for selecting and appointing judges of the higher judiciary, as well as for investigating complaints against them.
Copies of some of the resolutions passed in the National Conventions on Judicial Accountability organised by our Committee on Judicial Accountability between 1991 and 2003 to this effect, are collectively annexed hereto as Annexure-A which would attest to these publicly stated
perceptions.

4. Our campaign has also repeatedly highlighted the fact that the lack of accountability in the higher judiciary is not only on account of the lack of a credible mechanism for investigating complaints against judges, but also by the virtual prevention of criminal investigation of judges by the Veeraswami judgement. This lack of accountability is further accentuated by the takeover of the power of appointing judges by the judiciary through the SCAORA judgement (Supreme Court Advocate-on-Record Association vs. UOI, (1993) 4 SCC 441). Appointments by the judiciary after this judgement have often been made arbitrarily and with complete lack of transparency. Even after the passage of the Right to Information Act, the Supreme Court has refused to share any information with the public about the manner in which judges have been selected for appointment and transfers. It has gone to the extent of filing Special Leave Petition directly to the Supreme Court against
orders of the Central Information Commission asking the Court to disclose information about the manner of selection and appointment of judges. On top of all this, contempt powers have also often been sought to be used to silence outspoken criticism and public exposure of corruption in the judiciary. The Campaign for Judicial Accountability and Reforms has
taken up all these issues of judicial accountability and has made constructive suggestions for the legal and constitutional changes required to redress these problems.
In order to build public opinion to bring the required constitutional and other legal changes for securing judicial accountability, it is necessary to freely and frankly discuss the existing state of affairs including the existing state of corruption in the judiciary, including the higher judiciary. In fact, the problem of judicial accountability or rather the lack of it, is mainly with the higher judiciary since the lower judiciary is accountable to the High courts. It has been our perception that corruption in the higher judiciary is not and would not be substantially lower than that in the lower judiciary, since in that case, the High courts would take serious steps to curb corruption in the lower judiciary which can be curbed if the High courts have the will to do it. The recent Ghaziabad Provident Fund scam is a stark illustration of some of the reasons why the higher judiciary is benignly tolerant of corruption in the lower judiciary.

5. Due to my personal observations during more than 26 years that I have been practicing in the Supreme Court and in the Delhi High Court, and also because of my close involvement in the Campaign for Judicial Accountability for the last 20 years or so, I have become aware of a good deal of corruption that has prevailed in the courts in which I have practiced as well as in other parts of the country. In order to develop a perception of corruption in the judiciary in general and particularly in the court where one practices, one does not need to have actual documentary evidence of corruption. This perception is formed on the basis of various kinds of circumstantial evidence surrounding judicial and administrative acts of judges which one learns from ones own experience as well as from the experience of other responsible and reliable lawyers and observers, apart from occasional documentary evidence. Documentary evidence about corruption
in the higher judiciary is rarely and only fortuitously obtained, since all investigation into such corruption is prohibited except by the written permission of the Chief Justice of India. However, as one of the active members of the Campaign for Judicial Accountability, I have also had the
occasion to examine, sift through, and deal with a large volume of documentary evidence which discloses what in my view must be called acts of judicial corruption. I would like to clarify, however, that financial corruption is by no means the only kind of corruption prevalent in the
judiciary, and whenever I use the word “corruption” in relation to the judiciary, it is not used in the narrow sense of financial corruption by way of taking direct bribes, but in a more general sense of anything which corrupts or influences by extraneous considerations, the judicial process.
Thus, I regard the act of a judge who decides the cases of a political party or sits in a Commission of Enquiry involving that political party and thereafter, after retirement, gets elected to the Parliament, on the ticket of a political party, as an act of corruption. Similarly, if a judge hears and decides the case of a person, who is so friendly with the judge that his grand daughter’s wedding is held in the judge’s official residence, it ought to be regarded as a case of corruption of the judicial process. So also the judicial acts of a Judge who takes up cases (even part heard cases) of a particular company during vacations to decide in their favour by convoluted reasoning would be clear indicators of corruption of the judicial process.
Thus, when asked as to what made me get involved in this Campaign for Judicial Accountability, I referred to my experience with the Judiciary, and in this spirit I said that it was my perception that roughly half of the last 16/17 chief justices have been corrupt. That is my honest and bonafide perception. It is a belief formed on the basis of direct and circumstantial evidence about judicial acts and other acts, as well as on the basis of information gathered from other responsible lawyers and judges including former Chief Justices of India.

6. Such an expression of honest and bonafide opinion about my perception of corruption at the very top of the judiciary cannot be regarded as Contempt of Court. If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article 19 (1) (a) of the Constitution. It is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs within any institution, and build public opinion in order to reform
the institutions. This is what I have always believed, and have, therefore, always freely and frankly expressed my honest views about the state of affairs within the judiciary and what needs to be done to remedy them.

7. It may not be out of place to point out that several responsible observers of the court including former chief justices have publicly and privately voiced their views about the extent of corruption prevailing in the higher judiciary. Newspaper reports of the views expressed by some of the judges including former Chief Justices such as Justice Bharucha are annexed hereto as Annexure-B. The fact that there will be difference in the perception among different persons about the extent and level of corruption prevalent in the judiciary would not make any difference to the question of whether expression of such views amounts to Contempt. In fact, Transparency
International, a respected global anti-corruption institution, has also done global as well as national surveys of corruption perception within various institutions in the country including the judiciary, which also showed the judiciary to be perceived by the people as among the most corrupt institutions in the country. Copy of the relevant pages of the report of the Transparency International is annexed hereto as Annexure-C.

8. In this context, it is pertinent to remember the words of Lord Denning in R Vs. Metropolitan Police Commissioner, Ex parte Blackburn (1968) 2 All England Reporter, Page 319, where while dealing with a particularly harsh criticism of the Court of Appeal by Mr. Quintin Hogg, he observed as follows:
“This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For, there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast to make fair comment, even outspoken comment, on matters of public interest.”
It is the application of this doctrine enunciated by Lord Denning that the Contempt of Court jurisdiction of “scandalizing the court or lowering the authority of the court” gradually fell into disuse in UK .

9. It is a mistaken notion to think that the authority or dignity of the courts can be maintained by using the contempt of court jurisdiction to punish and thus stifle public criticism, however harsh, of the judiciary, or even public discussion of the perception of the extent or levels of corruption prevailing in the judiciary, be they at the apex of the judiciary. The dignity, authority and public confidence in the courts or judges cannot be maintained by seeking to silence outspoken criticism or even outspoken expression of perception of corruption in the judiciary. That confidence is maintained by the public perception of the actions of the judiciary and the conduct of its judges, and whether they are perceived to be generally just, fair and in public interest. The public perception of the conduct of the judiciary and its judges is built on the basis of observation over a long period of time and by the shared perception of a large number of people.
Any wild accusation or allegations by irresponsible persons or disgruntled litigants are dismissed by the people with the contempt that they deserve. It is only when persons, who are generally perceived to be responsible, are voicing opinion and criticism which is perceived by the public to be responsible and based on facts and circumstances which are relevant, that such opinion or criticism is taken seriously by the people and is going to affect their perception about the judiciary. This is exactly how it should be in a democracy. Any attempt to use contempt of court jurisdiction to silence such voices of criticism or dissent or such airing of corruption perception by such people, would cause far greater damage to the image, the public perception of, and public confidence in the judiciary.
It would in fact lead people to suspect that things are more seriously amiss in the judiciary than even they had suspected, and it will engender great resentment and even contempt for the judiciary. Such actions would have exactly the opposite effect of what law of Contempt seeks to prevent.
This is also obvious from the backlash that has followed two of the most celebrated cases of contempt recently. The sentencing of Arundhati Roy for contempt, for merely saying in her reply affidavit (in response to another contempt petition, in which the notice was finally discharged) that for the court to have issued contempt notice on an ex-facie absurd petition showed a disquieting inclination on the part of the court to stifle criticism and muzzle dissent, led to such a backlash that it only succeeded in lowering the image of the Supreme Court in the eyes of the people. Similarly, the sentencing of the journalists of Midday for having written well-documented investigative stories about Justice Sabharwal, a former Chief Justice of India who heard and passed orders for sealing of commercial properties, which had the effect of benefiting his own sons who were in partnership with shopping mall and commercial complex developers, also outraged civil
society and the media. The result of the use of the contempt power against these
journalists was again to heighten suspicion about corruption in the judiciary. These actions have contributed in no small measure to a drastic increase of the perception of corruption in the judiciary in the eyes of civil society. This has also been accentuated by the eruption of corruption scandals about the judiciary in quick succession recently. The recent judicial scandals involving Justice Soumitra Sen of Calcutta , the Ghaziabad Provident fund scam, the cash at judges door scam at Chandigarh , and the case of Justice Dinakaran, among others have been given a lot of publicity by the media recently. The resentment caused by the use of or threatened use of the contempt power to stifle outspoken comment (as in the Arundhati Roy case) or to silence the exposure of corruption (as in the Midday case), have contributed in no small measure to the increasingly widespread and outspoken coverage of judicial scandals in the media.
In conclusion on this issue, I wish to state that what I have stated about corruption at the apex of the judiciary is what I honestly believe to be true and have said so with a full sense of responsibility. I have not said anything which is at variance with my bonafide belief. Even Mr. Salve has not accused me of making false statements in this regard.

10. Regarding the Vedanta-Sterlite matter, it may be stated at the outset that this question and my answer was in the context of “other kinds of corruption of the judicial process different from bribe taking or financial corruption”. This is why in my response, I have clarified what exactly I
meant by “corruption” in this case. If some people have understood my response to the question to mean that I have accused Justice Kapadia of financial corruption, that would be wrong and most unfortunate, for that was certainly not what I meant or intended to say. Justice Kapadia is widely perceived to be a judge of financial integrity and I have no reason to doubt that perception. However, I do believe that Justice Kapadia acted improperly by hearing a matter involving very large financial stakes of a company and proceeding to pass orders on it, while he had shares in the company in whose favour he passed those orders. However, I may not have been impelled to say what I did, if I did not feel that quite apart from the impropriety of Justice Kapadia having heard and passed orders in the case of a company in which he held shares, the orders that he passed were quite extraordinary and totally unwarranted.

11. Consider the orders which were passed, and the facts and circumstances in which they were passed. Sterlite Industries had transferred an Alumina Refinery Project to be built at Lanjigarh, Orissa to its subsidiary company M/s Vedanta Alumina Limited (VAL). Environmental clearance for this Refinery had been granted by the Ministry of Environment and Forest . On 12th May 2005, at the instance of Shri Harish Salve, Amicus Curiae in the case, the Court asked the Centrally Empowered Committee (CEC) of the Court, which is the court’s own expert body to examine this clearance and give its report within eight weeks. The Committee gave a detailed report in September 2005.
The CEC in its report, observed that the environmental clearance for the Refinery had been fraudulently obtained by Vedanta without disclosing that the Refinery Project was linked to the mining project. In this Project, the Alumina Refinery required the diversion of 58.93 hectares of forest land for the Refinery and 672.018 hectares of forest land for the mining. After examining the matter in great depth, the CEC concluded that the refinery and the mining projects in this place would destroy the forests, the wildlife, the water sources, and the lives and livelihoods of thousands of a rare and vanishing species of tribals living in this area. The CEC finally recommended:
“32. The CEC is of the considered view that the use of the forest land in an ecologically sensitive area like the Niyamgiri Hills should not be permitted. The casual approach, the lackadaisical manner and the haste with which the entire issue of forests and environmental clearance for the
alumina refinery project has been dealt with smacks of undue favour/leniency and does not inspire confidence with regard to the willingness and resolve of both the State Government and the MoEF to deal with such matters keeping in view the ultimate goal of national and public interest. In the instant case had a proper study been conducted before embarking on a project of this nature and magnitude involving massive investment, the objections to the project from environmental/ecological/ forest angle would have become known in the beginning itself and in all probability the project would have been abandoned at this site.
33. Keeping in view all the facts and circumstances brought out in the preceding paragraphs it is recommended that this Hon'ble Court may consider revoking the environmental clearance dated 22.9.2004 granted by the MoEF for setting up of the Alumina Refinery Plant by M/s and directing them to stop further work on the project. This project may only be reconsidered after an
alternative bauxite mine site is identified."
The CEC also noted that Vedanta started construction on the Alumina Refinery in violation of the guidelines of the MoEF even prior to obtaining forest clearance for the forest land to be diverted for the Refinery. A copy of the CEC’s report is annexed as Annexure D.

12. When the matter was taken up for hearing on 26th October 2007, before the Forest Bench, the Bench, virtually without discussing the CEC report, and without even allowing Mr. Sanjay Parikh, who was appearing for the tribals in a connected Writ Petition challenging the environmental clearance to the Project, to make submissions on the various objections to the
project, straightaway proceeded to discuss the terms on which the mining should be allowed to be carried on!
Eventually, after hearing the Counsel for Vedanta, the Orissa Mining Corporation (which was to be a partner of Vedanta in the mining), the State of Orissa (which had granted the mining lease and permission to set up the Refinery Project to Vedanta) and the Counsel for the Ministry of Environment and Forest (which had granted environmental clearance for the Alumina Refinery) and briefly the Junior Amicus, Shri Uday Lalit, the court reserved the judgment. It proceeded to pronounce its order on 23th November 2007, which is authored by Justice Kapadia. In this judgment, it is stated that since Vedanta Resources, UK , the holding company of Vedanta Alumina Ltd., had been blacklisted by Norway for non-compliance of labour laws and human rights, it would not be proper to give this Project to Vedanta Alumina Ltd. However, the judgment proceeds to grant liberty to Sterlite Industries Limited, which is noted in the judgment to be the holding company of VAL, to
make an application for this Project! It is astounding as to how the court could even consider granting liberty to apply for this Project to a related company owned and controlled by the same holding company i.e. Vedanta Resources Ltd. UK, which is blacklisted and thus not considered fit to receive any concession by the court. If one subsidiary (VAL) was
disqualified on this basis, surely the other subsidiary, Sterlite would also be disqualified on the same logic. Moreover, the court almost totally glosses over the very detailed report of the CEC about the seriously adverse environmental and social impacts of the Project and after merely noting the CEC’s conclusions, goes on to talk about the poverty of the local people living in Lanjigarh including the tribal people. In the words of the court, “CEC has objected to the grant of clearance as sought by M/s VAL on the ground inter alia that the refinery is totally dependent on the mining of bauxite from Niyamgiri Hills, Lanjigarh, which is the only vital wildlife habitat, part of which constitutes elephant corridor and also on the ground that the said project, including the mining area, would obstruct the proposed wildlife sanctuary and the residence of tribes like Dongria Kandha.
According to CEC, Niyamgiri Hills would be vitally affected if mining is allowed in the above area as Niyamgiri Hills is an important water source for two rivers. According to CEC, the project would also destroy flora and fauna of the entire region and it would result in soil erosion. According to
CEC, use of forestland in an ecologically sensitive area like Niyamgiri Hills should not be permitted.”
“On the other side, we have a picture of abject poverty in which the local people are living in Lanjigarh Tehsil including the tribal people. There is no proper housing. There are ho hospitals. There are no schools and people are living in extremely poor conditions which is not in dispute.
“Indian economy for last couple of years has been growing at the rate of 8 to 9% of GDP. It is a remarkable achievement. However, accelerated growth rate of GDP does not provide inclusive growth. Keeping in mind the two extremes, this court thought of balancing development vis-à-vis protection of wildlife ecology and environment in view of the principle of Sustainable Development.”
Thus, without discussing and overruling the serious objections of the court’s own expert body of the Project on the forests, the environment, on water, on the lives of tribals and the wild life, in fact, rather cruelly using the poverty of the tribals as an argument to further impoverish them, the court just brushed them aside with the now clichéd rhetoric of providing “inclusive growth.” This when the local tribals who ought to be credited with the intelligence to be the best judges of their own welfare, had been and continue to be totally opposed to the refinery as well as the mining and had filed a detailed Writ Petition against it. The court refused to even consider the writ petition. Worse still, though the issue before the court was only regarding the clearance for diversion of the 58.943 Hectares of forest land for the Alumina Refinery, the court in the next order of 8th August 2008 proceeded to grant clearance for the diversion of 606.749
hectares of forest land for the bauxite mining of the Niyamgiri Hills! This is even before the government had granted environmental clearance or forest clearance for the diversion of the forest in the matter of the bauxite mines. Copies of the courts orders dated 23/11/07 and 8/8/08 are collectively annexed as Annexure E.

13. It was under these circumstances, coupled with the fact that Justice Kapadia had shares in Sterlite, that I made my comments. It may be noted that there were many observers present in the court in the hearing on 26th October 2007 and many e-mails were contemporaneously sent detailing the proceedings. A copy of the detailed note sent the very next day by Mr. Felix Padel, a highly respected social anthropologist working in Orissa for the last several decades and another detailed contemporaneous report by another responsible observer present in court that day about the hearing that they witnessed on 26th October 2007 are collectively annexed hereto as
Annexure-F. These are only two of the several detailed reports of the hearing that I had seen and heard when I made my comments on this case.

14. Regarding the issue of Code of Conduct of Judges and the fact that Justice Kapadia had disclosed his shareholding in Sterlite, and since nobody objected, his continuing to hear the case was in accordance with the Code of Conduct and, therefore, not objectionable, I beg to differ. Firstly, Justice Kapadia’s disclosure about his shareholding in Sterlite came only on 26th
October 2007, though he had been hearing this case at least from 2005 onwards. Secondly, the disclosure of his shareholding was casually made in the context of Sterlite being a listed company as opposed to Vedanta which is a non-listed company. According to several observers who were present at the hearing, no one expressly was asked and no one expressly said that they had no objections to his continuing to hear the matter. In fact, at the stage at which Justice Kapadia had disclosed his shareholding in Sterlite, the effective party before the court was Vendanta. Sterlite came back into the matter only after the order of 23rd November 2007 where the order itself
permitted Sterlite to make an application.

15. Moreover, the only counsel who could have objected and who had an adverse interest to Vedanta in the matter was Mr. Sanjay Parekh who was appearing in a connected Writ Petition on behalf of the tribals. However, he was not permitted to even argue his case, and was told in no uncertain terms that he would not be heard, since the Amicus was good enough to represent the tribals. All the other counsel present i.e. of Vedanta, Orissa Mining Corporation (which was in partnership with Vedanta for the mining), State of Orissa (which had granted the lease) and the Ministry of Environment and Forest (which had granted environmental clearance for the Project) had a common interest. Moreover, the senior Amicus in this case, Mr. Harish Salve, already had a retainer from Vedanta and it was left to Mr. Uday Lalit, the junior Amicus to object or not to object to Justice Kapadia’s continuing to hear the case. The fact that Mr Uday Lalit did not object in no way
excuses Justice Kapadia’s non recusal in the matter.

16. It is well settled in India as well as internationally that any Judge who has the slightest pecuniary interest in a case must automatically recuse himself from hearing the case. Shareholding in a company, particularly in a case where the order would have enormous impact on the financial status and thus share values of that company as in the case of Vedanta/Sterlite, is certainly a pecuniary interest.
In Manak Chand Vs. Dr. Premchand, (AIR 1957 SC 425), the Supreme Court held that, “It is obvious that pecuniary interest, howsoever small, it may be in the subject matter of the proceedings, would wholly disqualify a member from acting as a judge”. While saying this, the Supreme Court has followed a long line of English decisions starting with Dimes Vs. Grand Junction Canal, (1852 3 HLC 759) where the judgement of the Lord Chancellor who decided the case of a company while he had shares in the company, was set aside by the House of Lords, observing, “This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such influence.” It has thereafter been consistently held in a long line of English cases that “the least pecuniary interest in the subject matter of the litigation will disqualify any person from acting as a
judge” (R Vs. Farrant, 1987 QB 58), (R Vs. Rand, 1866 LR 1, QB 230), (R Vs. Myer 1875 1
QBD 173).

H.M. Seervai has also authoritatively pronounced on this principle in his Constitutional Law of India, where he says:
“Least pecuniary interest in the subject of the litigation will disqualify any person from acting as a judge: the pecuniary interest may be so small that no one will think it likely to produce bias in a judge, e.g. if a judge held shares worth five pounds in a company with a capital of five million; where pecuniary interest exists, the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest; the rule applies to judge of the highest tribunal as it does to tribunals and bodies of persons obliged to act judicially or quasi-judicially”.
The basis for this principle is a higher principle which has been clearly stated by Justice Venkatachalaiah in Ranjit Thakur v. UOI and Ors. AIR 1987 SC2386
“The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice".
“As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party.
The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?" but to look at the mind of the party before him.”

The principle of automatic recusal if a judge holds shares in the company is the norm in the US as well. Quite recently, 4 judges of the US Supreme Court recused themselves (due to their shareholding) from a case filed by 50 companies that did business in apartheid era South Africa leading to the automatic affirmation of the lower court’s judgement. A copy of the New York Times report to that effect is annexed as Annexure G.

17. In these circumstances, in my opinion, the Code of Conduct which was internally adopted by the courts, does not provide an adequate justification to Justice Kapadia to continue to hear the case. The consent of lawyers is not a safe basis for deciding whether one should recuse oneself from a case.
Most lawyers who appear before a judge every day would be reluctant to ask a judge to recuse himself from a case, even if they feel that there is a serious conflict of interest. This is because asking a judge to recuse himself seems like an expression of no confidence in the ability of the judge to rise above his personal interest. That is why, after this controversy arose, most judges have come to accept that the Code of Conduct does not provide the correct guide for recusal in such matters. Judges should automatically recuse themselves from hearing the cases of those companies in which they hold shares. Recognizing this fact, after this controversy, many judges including Justice Kapadia have recused from hearing cases where they had shares, despite the lawyers saying that they had no objection. Newspaper reports to this effect are annexed as Annexure H.

18. In these circumstances, my comment on Justice Kapadia’s role in the Vedanta-Sterlite matter is a legitimate opinion which I am entitled to express.

19. There is however another important aspect of this contempt petition and the manner in which it has been initiated. This Contempt Petition has been filed by a person who has repeatedly misused his position as Amicus Curiae and has taken briefs/retainers to appear for various private parties in matters in which he has been appearing as Amicus Curiae as well. In the case
of Vedanta/Sterlite which is the subject matter of this complaint against me, Shri Salve first appeared as Amicus in this matter, and then took a retainer from Vedanta/Sterlite, after which he asked Shri Udai Lalit to appear as Amicus in the case. For a person who is Amicus and who has not only appeared as Amicus in a matter involving a particular party, to subsequently accept a brief or retainer on behalf of that party, in my view amounts to professional misconduct. Once he has been appointed Amicus in a matter by the Court, he has no business to accept a brief or retainer on behalf of a private party in the same matter. In fact, in my view, in either case, whether he took retainer on behalf of a private party after appearing as Amicus in the same matter or appeared as amicus though he was holding retainer of a private party in the same matter amounts to serious professional misconduct. Even in this application, he has misled the court
by consciously concealing his retainership and connection with Vedanta/Sterlite, once again misusing his position as Amicus. For this reason alone, this application filed by him should not be entertained. In fact the Court should discharge him as Amicus in the matter. Copies of the orders showing Shri Salve was appearing as Amicus and the newspaper report showing his retainership with Vedanta-Sterlite are collectively annexed hereto as Annexure-I

20. This is however not the only instance where Shri Salve has misused his position and accepted a brief of a private party in cases where he is also acting as Amicus. He was Amicus in the forest matter when the issue of the Delhi Ridge and constructions of hotels/shopping malls on the Ridge came up before the Forest Bench. He still chose to take up a brief of M/s Unison Hotels which involved construction on 92 hectares of forest land on the Ridge. Subsequently, in another Writ Petition of Mr. Santosh Bhartiya challenging the construction by Unison Hotels (now called the Grand Hyatt Hotel) on the Delhi Ridge, Shri Salve appeared again in the matter, this time for the DDA. Copies of orders in the aforementioned cases related to Vasant Kunj Ridge area and the officer report dated 06.12.06 in Ridge Bachao Case are collectively annexed hereto as Annexure-J.

21. In the case of the construction of statues in the Noida Park , Shri Salve appeared as Amicus, though he had already been appearing on behalf of the UP Government in the same or connected matters involving construction of statues at the Noida Park and at other places. (Writ Petition No. 266 of 2009, Ravi Kant & Another Vs. State of U.P. ). Copies of the orders in the two cases showing Shri Salve appearing as Amicus in the Noida Park matter and on behalf of the State of UP in Ravi Kant’s case involving the same park as well as the relevant pages of the petition of Ravi Kant’s case, are collectively annexed hereto as Annexure-K.

22. However, these are not isolated instances of professional misconduct on the part of Shri Salve, who has chosen to style himself as Amicus Curiae in this Contempt Petition. In a large number of cases, Shri Salve has accepted briefs/retainers from one party and thereafter gone on to appear on behalf of the other party by just returning the retainer despite the protest of the
opposite party. Some instances of these cases are the case of K.K. Birla Vs. Lodha and the case of Lilavati Hospital (Charu Kishore Mehta vs. Lilavati Kirtilal Mehta M. Trust & ors., SLP (C) No.4911/2007). Copies of the correspondence between Shri Birla and Shri Salve published in Shri Birla’s autobiography to this effect are collectively annexed hereto as Annexure-L.
Copy of the order of 26/3/07 and a copy of a newspaper report regarding Shri Fali Nariman’s public expression of outrage at Shri Salve’s totally unprofessional behaviour in the Lilavati Hospital matter where after being briefed by one party, he chose to appear for the opposite party is annexed hereto as Annexure-M.

23. I have been constrained to point out these instances of professional misconduct of Shri Salve in this context because he has repeatedly misused his position as Amicus and involved himself in conflict of interest situations which has influenced the course of justice.

Deponent

Verification:

I the deponent above named do hereby verify that the contents of the above affidavit are true and correct to my knowledge and nothing material has been concealed therefrom.
Verified at New Delhi on this the 7th day of December 2009.
Deponent

Justice D V Shylendra Kumar's open letter to citizens

2009-12-19T10:36:00.005+05:30

Justice D V Shylendra Kumar has written an open letter to public about worsening situation about corruption in judiciary and specifically about continutation of Chief Justice of Karnataka high court P D Dinakaran in administration even though he is barred from doing judicial duties.

http://www.deccanherald.com/content/42040/extraordinary-situations-call-extraordinary-measures.html

Extraordinary situations call for extraordinary measures
By Justice D V Shylendra Kumar

No one can, and should, sit as a judge in his own cause

I had never imagined that I will be getting back to you so soon. But we are not living in normal times and even high court judges like me are driven to a state of despair and helplessness and are being compelled to approach the masters in our constitutional scheme ie the citizens of our country, time and again.

Extraordinary situations call for extraordinary remedies and I am testing one such remedial measure.

The judicial system in our country has been shrouded in mystery, and secrecy as is perhaps the position elsewhere in the world and judges are expected to maintain distance, aloofness and should be inaccessible to the common people outside their office and outside normal course of judicial function, which is performed only in the court halls.

Well, I am a little different, I am not averse to take issues to the people of this country, I am not averse for inviting the people of this country to express their reactions and opinions to the happenings even within judiciary and particularly when, in-house corrective measures fail and I have a very strong feeling that things are going radically wrong even within the judicial system.

I am now confronted with such an extraordinary situation and as a judge of the High Court of Karnataka, I feel morally and constitutionally compelled to take certain steps and measures which can better the situation, improve the situation and at any rate at least arrest the negative developments.

In the wake of the news that the chief justice of Karnataka High Court is not sitting on the Bench and will not be discharging judicial function until notified otherwise having been very extensively covered in the press and other media today morning, I naturally expected that the chief justice will gracefully proceed on leave and will henceforth desist from exercising any functions which are part of the duties and responsibilities of a chief justice of the high court and even if one should not proceed on leave, I expected the chief justice not to exercise any authority and act on the administrative side of the high court which power and authority is a very important incidental function of the chief justice of the high court.

While it may not be necessary to go into all the details of the powers and functions exercised by the chief justice of a high court on the administrative side, for the present purpose it is suffice to inform you that the chief justice, exercises vast and important powers on the administrative side also. If a person exercising such vast powers on the administrative side is a suspect person, is a person under cloud, is a person whose past conduct and exploits does not inspire the confidence of the people and can possibly misuse and abuse the powers of a chief justice on the administrative side also, then it is highly desirable that the chief justice of the high court is prevented from exercising and using his powers on the administrative side also.

Administration

After I read the news items which had been prominently covered by the press, that the chief justice of our high court, will not henceforth exercise any judicial functions till notified otherwise, I was curious to know as to whether the chief justice is exercising powers on the administrative side and to learn about the same, I had called R B Budihal, registrar general of the High Court of Karnataka at Bangalore over the phone, to ascertain the position. I was shocked and surprised to know that the chief justice has continued to exercise his power and authority on the administrative side, though he is not, now discharging his duties on the judicial side.

I immediately felt this is a strange and extraordinary situation and unless corrected immediately things may continue to deteriorate.

To work out the modalities, I was of the sincere opinion that all judges of the high court, should sit together, discuss the matter and take a collective decision to prevail upon the chief justice to refrain from discharging any administrative duties also, and for such purpose sent a communication to Budihal, to circulate a letter amongst my colleagues apprising them of the meeting of the judges to take place at 11 am on Saturday, Dec 19, to take a decision in this regard.

I learnt on the evening of Dec 17, from Budihal, that the chief justice before whom the matter was placed for orders, has declined permission for the meeting to take place on Saturday.

Now, this development is the cause for my present communication. This kind of response from the chief justice, to a proposal to hold a meeting of all judges of the high court to discuss an issue involving the conduct of the chief justice himself and is definitely not a matter over which the chief justice should take a decision by himself, has only confirmed my worst fears that the chief justice may even now continue to abuse and misuse his powers (including the power to recommend the names of persons to be appointed as judges of the high court after eliciting the views of his colleagues in the collegium) even when he is no more discharging his duties as chief justice of the high court.

In fact, grace and propriety require that a file containing a proposal of this nature, should have been directed to be placed before any other judge of the high court for orders, if at all an order is needed.

Well grace, propriety and good conduct are definitely not the strong points of our chief justice. Well, I will work out a way. But the point here is, that the people of the state and the country should be aware of such developments and also react to the same. It is for this purpose, I am posting this communication on the net.

Your response may be aired in public and also sent to justdvskumar@gmail.com.
I may get back to you as and when further developments take place and as and when the situation so warrants.

No one can and should sit as a judge in his own cause — even the chief justice of a high court.

My comment: Please send personal email at justdvskumar@gmail.com to show your support for the cause of corruption free judiciary and judicial accountability.