India Legal News

No excllucive guidelines to regulate media reporting of sub-judice matters: SC

2012-09-11T17:29:00.000+05:30

The Supreme Court on Tuesday laid down a constitutional principle where aggrieved parties can seek from appropriate court the postponement of the publication of court hearings and a decision taken on a case-by-case basis.

The court, however, refrained from framing broad guidelines for reporting of sub-judice court matters, saying it cannot be done "across the board."

The bench observed that freedom of speech and expression is not an absolute right under the Constitution and the journalists should understand the 'lakshman rekha' so that they do not cross the line of contempt.

A five-judge bench headed by Chief Justice SH Kapadia said it was laying down the constitutional principle which will allow the aggrieved parties to seek from appropriate court the postponement of the publication of court hearings.

The bench said the concerned court will decide the question of postponement of reporting court proceedings on case-by-case basis.

"We are not framing guidelines but we have laid down constitutional principle and appropriate writ courts will decide when the postponement order has to be passed on case-by -case basis," the bench also comprising justices DK Jain, SS Nijjar, Ranjana Prakash Desai and JS Khehar said.

"Hence, guidelines on media reporting cannot be framed across the board," the bench said.

While propounding the doctrine of postponement of publication of court proceedings, the bench said it is a preventive measure and not a prohibitive and punitive measure.

It further said that temporary ban on publication of court proceedings is necessary to maintain balance between freedom of speech and fair trial for proper administration of justice.

The bench said the postponement of publication of court proceedings would be required where there is a substantial risk of prejudicing the trial and administration of justice.

Further the CJI, who read the judgement, said reasonable restrictions on reporting of court proceedings were needed for societal interest and this doctrine of postponement is one of "neutralising technique".

Indian maid gets relief from US Court

2012-03-22T07:49:00.005+05:30

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An Indian maid, who had accused her former employer, an IFS officer, and her husband of harassment and "slavery", has received a favourable ruling from a US court, which approved her petition that she be awarded $ 1.5 million as compensation by the couple.In his order, US District Judge Victor Marrero "adopted in entirety" the report of US Magistrate Judge Frank Maas in which Maas had recommended that Shanti Gurung be paid 1.5 million dollars as compensation for the "barbaric treatment" and "emotional distress" Neena Malhotra and her husband Jogesh Malhotra caused her when she was employed as their domestic help for three years since 2006.

"The application of plaintiff Shanti Gurung for an award of damages is granted; accordingly, judgment is entered in favour of Gurung and against defendants Jogesh Malhotra and Neena Malhotra in an amount of $ 1,458,335 in accordance with the calculations and breakdown of that amount set forth in the report," Marrero said in his ruling on Tuesday. He also ordered that the case is now closed. Marrero said the Malhotras did not file any objections to Maas' report even though they had 14 days to do so. He said the court is not required to review any portion of a magistrate judge's report that is not the subject of an objection. After a thorough review of the documents submitted, "the Court concludes that the findings, reasoning and legal support for the recommendations made in the report are not clearly erroneous or contrary to law and are thus warranted.

"Accordingly... the court adopts the report's factual and legal analyses and determinations, as well as its substantive recommendations in their entirety as the Court's ruling as to Gurung's application for an award of damages," Marrero said. In his recommendation filed on February 21, Maas had said Gurung should be awarded the compensation as she was a victim of "outrageous and shocking conduct." Gurung was employed by the Malhotras when Neena was serving as a counsellor at the Consulate General of India in Manhattan. Gurung had alleged that she was treated like a slave by the Malhotras and forced to work long hours without adequate compensation.

Marrero's ruling came just days after the Delhi High Court restrained Gurung from pursuing her lawsuit in the US. The Delhi court had also accepted the argument that Neena is a diplomat in the services of the Government of India and was sent in official capacity to the US and thus enjoys sovereign immunity.Any order passed by a court there would tantamount to interfering with the right of the Indian government to determine terms and conditions of employment of its diplomatic officers abroad, Justice Kailash Gambhir had ruled.

A message left with Gurung's lawyer Mitchell Karlan seeking comment on the development in the case was not immediately answered. Neena, an Indian Foreign Service officer, served as a Press and Culture Counsellor at the Indian Consulate in New York from 2006-2009. When she came to New York in 2006, Neena brought Gurung from India to serve as her house maid. In July 2010, Gurung filed a complaint before the US court accusing Malhotras of ill-treating her.

Divorced woman can’t be evicted from home:SC

2011-11-22T09:26:00.001+05:30

A woman cannot be evicted from the matrimonial home after divorce except through procedure established by law, as there is no provision for her automatic eviction, the Supreme Court has ruled. A bench of justice GS Singhvi and justice SD Mukhopadhyay, in a judgment, said though a woman may not have a legal right to continue in the house of the ex-husband, yet the latter cannot forcibly evict her.

The court gave the ruling while upholding an appeal filed by Ranjit Kaur challenging the decisions of the Punjab and Haryana HC which had upheld her eviction from the house of a disputed property upon a decree of divorce granted to the husband Major Harmohinder Singh, an army officer.

“...even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorised, respondent No 1 (Singh) cannot evict her except after following the procedure established by law.

“The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1.

Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her,” the bench said.

The apex court, however, rejected the plea of the woman that Singh should be restrained from alienating the suit property (house).

The couple was staying at the disputed property in SAS Nagar, Mohali. They were married in 1978. A decree of divorce was granted on October 4, 2001, in favour of the husband who had filed a petition under Section 13 of the Hindu Marriage Act, 1955, for dissolution of marriage on the ground of cruelty.

Jayarajan appealed conempt judgment before SC

2011-11-13T09:02:00.001+05:30

Communist Party of India (Marxist) leader M.V. Jayarajan, who was found guilty of criminal contempt by the Kerala High Court for criticising the judiciary and sentenced to six months' simple imprisonment and a fine of Rs.2,000, has challenged the judgment before the Supreme Court.

In his appeal, filed by advocate P.V. Dinesh, Mr. Jayarajan maintioned that he never meant to denigrate the institution or judges. He was only making a fair criticism, absolutely bona fide, but it was misunderstood as an attitude of stubbornness on his part. His endeavour to establish that his alleged act was never an act of disobedience or challenge to the authority of law and judges was not properly appreciated.

There was no reliable document before the High Court to arrive at the requisite satisfaction, enabling it to issue him a contempt notice. Quoting a catena of the Supreme Court's decisions, Mr. Jayarajan said it had time and again held that only when criticism of the judicial institution transgressed all limits of decency and fairness or there was a lack of objectivity or there was a deliberate attempt to denigrate the institution, would the court use the power of contempt.

The appeal said: “In his speech he has emphasised that the judiciary is the last resort of the people, even when the executive and the legislature fail. The appellant was only making a fair criticism.” Further the words used were colloquial and commonly prevalent in the locality of the appellant where he made the speech. The entire controversy arose only when the speech was published by certain sections of the media after much editing and taking what was said out of context, admittedly for sensationalising the issue.

Mr. Jayarajan pointed out that witnesses who were examined to prove that he had committed contempt in fact proved contra, but the High Court discredited them for no valid reason. The reasoning process was erroneous to the extent of attributing baseless motives to the witnesses, he said. A close reading of the impugned judgment would reveal that the High Court was predetermined while approaching the issue. The appreciation of evidence tendered and the discussions appearing under various sub-headings of the judgment would reveal the same. The High Court pronounced the judgment in open court and he was taken to jail immediately.

Tribunalisation is a serious encroachment on the judiciary’s independence.

2011-11-11T08:55:00.001+05:30

Former Supreme Court judge Ruma Pal described the increasing tribunalisation (the executive decision to set up specialised tribunals) as a serious encroachment on the judiciary’s independence. The judiciary, she said, had been “timorous” in not fighting these tribunals that force it to share its adjudicating powers with the executive.

Pal, a widely respected jurist said that “The process of appointment of judges to the superior courts was possibly the best kept secret of the country. The criticism of appointments by the executive to the judiciary applied equally well to appointments made by judges to the judiciary.”

The “mystique” of the process, the small base from which the selections were made and the “secrecy and confidentiality” ensured that the “process may, on occasions, make wrong appointments and, worse still, lend itself to nepotism”, she said.

An indiscreet comment or a chance rumour was enough to rule out a person’s perceived suitability for the post, she said. Friendships and obligations also sometimes colour recommendations, she added.

Consensus in the collegium is often arrived at by “trade-offs”, she said, with “disastrous effects”. Pal also lamented the growing “sycophancy” and “lobbying” which colour these appointments.

These appointments, she said, should be done by a judicial commission of non-partisan members. Unless the process is made transparent and the resource pool widened and some objective criteria laid down, “arbitrariness” in appointments will remain, she said.

There has been a good deal of talk in recent years on the judicial accountability and standards bill but it is still pending. It proposes a judicial commission made of people from all walks of life and strong representation from the executive.

Pal was delivering the fifth V.M. Tarkunde memorial lecture here. Tarkunde, considered the father of the human rights movement in the country, was a lawyer in the Bombay Bar. He became a high court judge but later gave up the post to don black robes again. Tarkunde was never elevated to the Supreme Court because of extraneous reasons, speakers at the lecture said. His landmark judgment, that a person was entitled to a passport as a matter of right under Article 21 of the Constitution (right to life and liberty), was later adopted by the Supreme Court in the Maneka Gandhi case.

Pal also listed several sins of the judiciary. She called for a judicially “embedded” strong mechanism to ensure accountability. Any non-judicial mechanism will impinge on the judiciary’s independence, she said. The current solutions adopted by the judiciary — which give the CJI only the power to transfer, or not allot work, to erring judges — were inadequate and ad hoc, she said.

Mass protest against Jayarajan Judgment

2011-11-10T08:43:00.001+05:30

Setting the stage for a confrontation with the judiciary, Kerala’s opposition Communist Party of India (Marxist) on Wednesday called mass protests against the high court verdict sentencing party leader M V Jayarajan to six months imprisonment in a contempt of court case.

The decision to wage a political fight against the judiciary was announced by party secretary Pinarayi Vijayan after visiting Jayarajan, a member of the party secretariat, at the Poojappura Central jail here along with former home minister and deputy leader of opposition Kodiyeri Balakrishnan.

Activists of the CPM and the party’s mass and class organisations will be staging demonstrations in front of the high court at Cochin, on Monday. The protests will be held from 10am to 5pm, Vijayan said.

He said that a close examination of the judgment had revealed that the high court had exceeded its limits. The judgment creates an impression that the court was trying to suppress people’s protests against injustices.

He said that the verdict also showed that the court was prejudiced against Jayarajan. The judges had first pronounced rigourous imprisonment but later changed it to simple imprisonment after finding that the law had no provision to award rigourous imprisonment in contempt of court cases.

Vijayan pointed out that the judges had also called Jayarajan a ‘worm’ in their verdict. “Calling people worms was highly improper in a democratic set up. The court should remember that the people are supreme in democracy,” he added.

The CPM politburo member pointed out that the division bench verdict in the contempt of court case had deviated from the essence of democracy and the basic principles of the constitution.

He clarified that the party’s struggle was not against the judiciary. “We are not against the judiciary. It is the only forum available to the people to seek protection from the excesses of the executive,” he added.

The CPM leader said that the party will also continue its legal battle against the high court verdict. He said that the party had taken steps to file an appeal in the Supreme Court.

Meanwhile, the Bharatiya Janata Party came out openly in support of Jayarajan. Party state president V Muralidharan said the high court verdict had given rise to a feeling that the court had acted in a vengeful manner against the CPM leader. Rejection of Jayarajan’s plea for suspension of the verdict to file an appeal in the apex court has strengthened this feeling among the general public.

Six month jail to CPM leader for criticising judgment banning roadside meetings

2011-11-09T07:53:00.000+05:30

Even as the Kerala High Court's decision on legislation allowing roadside meetings is pending, CPM state secretariat member M V Jayarajan was shown no mercy by the court on Tuesday, imposing the highest punishment possible for contempt of court for calling a high court judge, who banned roadside meetings, an idiot (sumbhan) in Malayalam. The division bench of Justice V Ramkumar and Justice P Q Barkath Ali sentenced Jayarajan to six months of simple imprisonment along with a fine of Rs 2,000, which is the maximum punishment for contempt of court allowed under Section 12 of The Contempt of Courts Act, 1971.

Suo moto proceedings were initiated by the high court against Jayarajan after he ridiculed the single bench order banning roadside meetings, at a public meeting held in Kannur on July 1 last year. Immediately after the verdict, Jayarajan's advocate pleaded for a suspension of sentence to appeal to the Supreme Court, but was turned down by the bench. According to the Criminal Procedure Code, courts have the discretion over suspension of sentence to facilitate appeal to a higher court if the duration of the sentence is less than three years.

Last week, a state government legislation overcoming the high court ban on roadside meetings was stayed by division bench of acting chief justice C N Ramachandran Nair and Justice P S Gopinathan citing violation of Article 19 of the Constitution, which deals with Right to Freedom, including right to move freely throughout the territory of India. Coming out of the court room after hearing the sentence, Jayarajan told media that further action depends on the procedures of the court and that he would consider appealing to the Supreme Court soon.

While Jayarajan had continued his tirade against the court as the trial was going on, he took a U-turn on Tuesday and expressed caution while talking to media. Last week, Jayarajan had said at a public meeting that the courts were haunted by the ghosts of British Raj.

While the trial of the contempt case was going on, Jayarajan had accused the court of being unfair to him. In an affidavit, Jayarajan said the court was not recording the objections raised against the bench's questions to a language expert who was presented as a witness. The court had asked the language expert whether he was afraid of Jayarajan and the CPM. This, the CPM leader said, showed that the process was unfair. "The court is not appreciating the case in a dispassionate and fair manner," Jayarajan had alleged in the affidavit.

During the deposition of the case on September 6, Jayarajan had told the court that the speech being held in contempt was intended against the judge who banned roadside meetings and was not meant to dishonour the court system as a whole. "My belief about the law and order system was damaged by the judgment about roadside meetings. That is the reason why I criticised the judgment. Judiciary should protect the interests of the people. I believe this judgment is one that cannot be implemented. The judgment opposes people's right to strike," the CPM leader had told the court during the deposition.

It should allow some people to become less poor

2011-11-04T23:12:00.001+05:30

On Thursday the Constitutional Court heard a case involving this balance. Slightly surprisingly, several of the judges appeared to be standing up for the rights of the landlord. Yes really. STEPHEN GROOTES was in the public gallery.

We at the Daily Maverick have a proud interest in the creation of capital. We like to discuss, think about and examine how wealth can be created. We believe, strongly, that part of the foundation to this process is property rights. This is why we have such a strong interest in the balance between the rights of landlords, and the rights of tenants. I, personally, believe that this balance is currently heavily tilted towards tenants, in a way that is destructive to the rental market. As a result, there is not enough low-cost housing.

It's a case that seems to directly pit the right of a landlord to seek profit against the right of a tenant to adequate housing. The landlord is Aengus Lifestyle Properties. It owns, among other things, some buildings in the Joburg CBD. The applicants are a group of around 17 (I say "around" because there's a bit of confusion around how many people are actually involved in this case) people who have been renting their flats for between four and 17 years. The landlord decided it needed to make more money from its properties. Thus it terminated the renters' leases, using the termination clause in the contract it had with them. The renters went to court, lost, went to Bloemfontein, lost, and then had their day on Constitution Hill.

On the face of it, it would seem incredibly heartless to turf people out simply to make more money. Of course, it's far more complicated than that. For a start, there are agreements in place. Then there's the fact that it would be impossible to ever improve the inner city if no one is ever allowed to be evicted. And then there's the immortal South African question (for us filthy capitalists, at any rate), do the rich have rights too?

The judges were strongly engaged in his. The advocate for the renters, Daniel Berger, had a torrid morning. At one point it seemed almost like the legal equivalent of WWF tag-teaming, as judges would line up to punch through questions. Zac Yacoob wanted to know whether a clause to terminate the contract was specified in the contract or not. Then he demanded whether the ground on which the landlord relies (i.e.to cancel the contract simply to put up the rent) was specified. Berger replied that “there can't simply be a termination clause, and thus I'm using the right to terminate the contract because there's a termination clause", when the real motivation is to put up the rent by 100%.

The ground for termination must be because I want to increase the rent by 100%, he argued. Oh really, said Yacoob, "why is the motive relevant, where does the legislature say that the motive is relevant?” And while Berger was still chewing on that, he followed up with the sucker punch, what if the "termination occurred purely without the landlord disclosing the ground"? Berger responded with "we say the landlord can be called upon to disclose his reasons.”

It was clear Berger's clients had a lot to do to convince the judges here. But the main issue was still to come. It was Judge Edwin Cameron, along with Deputy Chief Justice Dikgang Moseneke who kept returning to it. They are very worried about what they call the "social cost" of these problems, and who should pay for it. In other words, why, they asked repeatedly, should the landlord pay to keep these people in this accommodation? It is the landlord who would suffer if these people were allowed to remain in these properties, and paying these (lower than they otherwise would be) rents.

This is a sticky point, because at the moment, there is another case, relating to exactly this issue, which is still being adjudicated by the court. It has already heard argument in the case of Blue Moonlight Properties vs. the City of Joburg, which relates to who should pay to accommodate people in these situations. If you haven't already guessed, Blue Moonlight Properties thinks it should be the City of Joburg; the City of Joburg would like to demur on that particular responsibility. As a result, these two cases are really interlinked.

But the judges weren't finished yet. There's some explanation required here, but stay with us, because it relates directly to South Africa as a developing country.

The Inner City Resources Centre is acting as an Amicus Curie in the case, and made an argument pretty much relating to why the tenants should be allowed to stay on in the properties. Their lawyer, Heidi Barnes, mentioned the situation in Germany and Canada, where, she said, there is no way these people would be evicted, simply because of the disproportionate effect this would have. They would be homeless so a company could make more money. But, said Cameron, we are different to those countries. Is there not, he asked, a case to answer about the exercise of judicial function? In Germany and Canada, there is 101% housing stock, they are affluent countries; in a state with 100% housing stock, an eviction would be impermissible. But in a developing country, with a developmental economic model, might it not be important for social enterprises to generate low cost housing through capital accumulation through the rental market?

It seems to me, that at least one interpretation of what he is saying is that we want our people to be rich. To do that, we need to allow them to accumulate capital, and to do that, we need to allow them to have rental properties that they safely let out. And for all of that to work, we need to allow them to evict people, or in this case, terminate a lease agreement.

It seems that Cameron is pointing to the difference in approach between India and China. In India, because it's very difficult to evict people, the inner city slums of the 1950's are the inner city slums of today. In China, where rights don't matter quite so much, the inner city slums of the 1950's are now the gleaming shrines to their own type of capitalism.

It reminds me also of a previous judgment, relating to property rights that was rendered in the South Gauteng High Court by Judge Nigel Willis. Containing the immortal phrase that "if the Constitutional Court thinks all property is theft it should tell us so", it was a very angry critique of how important it is for a country's development that landlords have the right to evict.

This ruling is part of a series of cases relating to property rights, and the rights of landlords and tenants that are going through our courts. It's no accident that so many of them seem to come from the Joburg CBD – the nexus of urban immigration, poverty and inner city decay. So it's not just the ruling in this case that will matter. But the court could deliver a boost for the rights of landlords here. In doing so, it will mean hardship for the tenants. But it should also mean development in inner Joburg. And capital accumulation. In other words, it should allow some people to become less poor than they are now. It will generate wealth, rather than simply redistributing it. DM

Disclaimer: Grootes was once a landlord. It ended catastrophically. He is currently a renter. For now at any rate.

Sale of mortgaged property must be transparent : Bombay H.C.

2011-10-24T07:56:00.000+05:30

The Bombay high court has set aside the order of the Mumbai Debt Recovery Appellate Tribunal in the sale of the Mysore unit of Jay Electric Wire Corporation, now closed, and asked the recovery officer to issue public advertisements inviting fresh bids. The earlier sale was challenged by the employees’ union, Central Bank of India and Standard Chartered Bank, who were secured creditors. According to them, the sale did not fetch fair market value and was vitiated by irregularities. Allowing their writ petitions, the court observed that “it is necessary that the sale process must be conducted with transparency and in accordance with law. In the present case, we find that the element of transparency was completely lacking. The grounds which weighed with the appellate tribunal are misconceived. Its conclusion that there was no material irregularity is specious.”

Plan reforms with consensus: Manmohan

2011-10-22T19:00:00.000+05:30

Recently Prime Minister Manmohan Singh indicated the government's plan to introduce labour reforms with “consensus.” This statement assumes significance as the labour unrest in Maruti Suzuki India Limited plants near Delhi had forced the management to declare two days shutdown. Dr. Singh, affirmed the government's commitment to do “everything possible to ensure good industry-labour relations.” He said:“Recently we have witnessed some incidents of industrial unrest. This is a matter of serious concern to me and I believe we need to address this issue with alacrity and sincerity. “Workers and management had a symbiotic relationship and both sides should work in a spirit of collaboration and cooperation, without losing sight of the overall national objective of progress.

“There is a view that the labour laws are sometimes felt to be too rigid and are a constraint on our growth impulses… There was also a contrary view that the labour legislation needed to protect the interests of workers, particularly in the unorganised and the contract labour sectors. Clearly, there were areas where there was a need to strike a balance between the needs of a growing economy and the interests of working people.”

The Prime Minister said the Center was aware that there were many areas of labour legislation that might require reform to encourage business and enterprise. “We will move ahead only in those areas where a broad consensus for reform is built and will ensure that the interests of our workers are fully protected in doing so.” He also highlighted the government's plans to increase skill development programmes and expand the workers' health insurance scheme such as the Rashtriya Swasthya Bima Yojana, which was already benefiting about 25 million labourers.

Labour and Employment Minister Mallikarjun Kharge said the objectives of maximum utilisation of resources, quantum increase in productivity and efficiency could not be achieved unless the managements, workers and trade unions came together and helped evolve an ethos and work culture. His Ministry had constituted a National Social Security Board for recommending formulation of Social Security Schemes.

Govt. Intends to extend all benefits to contract workers as permanent workers

2011-10-22T08:39:00.002+05:30

The Labour Ministry is making efforts to extend all benefits available to permanent workers to contract workers, keeping in mind the interests of all stakeholders. This was stated by the Union Labour and Employment Minister, Mr Mallikarjun Kharge, at the Standing Labour Committee meeting here on Monday.

Mr Kharge was responding to the demand of trade unions to amend the Contract Labour Act, 1970 to provide for automatic absorption of contract labour in the event of prohibition of employment of contract labour and opposition by employers' organisations.

On the issue of trade union ‘recognition', especially in the backdrop of the Maruti unrest, Mr Kharge said “the present system of verification (of trade unions) like secret ballot, check off, etc., needs to be closely examined further for evolving an improved system which is more transparent and brings out the proper representation.”

The Minister also hinted at the need to have a National Labour Code, as suggested by the Arjun Sengupta Committee, to lay down “a floor of substantive labour rights or standards such as minimum wages, maximum hours of work, minimum standards of safety and health at workplace and so on.”

The tripartite meeting was attended by representatives from Central ministries, State Labour Ministers, industry bodies, employers' organisations and trade unions.

Judges should not shy

2011-10-19T22:29:00.001+05:30

Judges should not shy away from constructive criticism of their actions and decisions as such review leads to the development of law, Chief Justice of India S.H. Kapadia has said.

Chief Justice Kapadia said this here Tuesday while releasing a book, "The Kesavananda Bharati case: The untold story of struggle for supremacy by the Supreme Court and Parliament", written by eminent jurist T.R. Andhyarujina.

"We judges are not afraid of constructive criticism of our actions and decisions by the bar," Chief Justice Kapadia said.

He regretted that senior counsel are too engaged in their professional pursuits to pay attention to the development of statutory and constitutional law.

He declined to be part of the discussion on the plea that judges should not get involved in debatable issues.

The book recounts the "tensions and conflicts in the Kesavananda Bharati case - not only between the rival sides but also among the judges, some of whom had preconceived views because of being judges in earlier cases and others by reason of their selection by the government."

The book reveals "the stratagems of the (then) Chief Justice S.M. Sikri on the date of the judgment on 24 April, 1973 by which he formulated a paper hurriedly prepared by him 'The Views of Majority'".

"This paper was signed in Court by 9 judges, 4 other refusing to ascribe their signatures to it." This has come to be known as a majority decision in the Kesavananda Bharati case.

Andhyarujina said the book deals with the actual account of how the case developed and dealt with and the decision arrived in a "dubious manner".

His account of the case is based on his "recollections and notes maintained by him as a counsel in the case and on later interviews by him with some of the judges in the case".

The book was described by various speakers as a maiden attempt in Indian judicial history to see beyond the pronouncement of a judgment and how it was arrived at.

In the case, the Supreme Court held that parliament cannot tinker with the basic structure of the constitution.

It laid down 35 parameters to define the basic structure of the constitution that include rule of law, secularism and separation of powers between the three organs of the state -- legislature, executive and judiciary.

Farmula One: SC notice to UP Govt, Jaypee Group on tax exemption

2011-10-18T19:04:00.000+05:30

India's Formula One ambition has hit its first hurdle just two weeks ahead of the first Indian Grand Prix. The Supreme Court sought explanation from the Uttar Pradesh government for granting tax exemption to Jaypee group, the company organising Formula 1 event in Greater Noida.

A bench headed by Justice D K Jain also issued notice to Jaypee Group, organiser of the sporting event, and asked them to file their response by Friday on why the event was given exemption from entertainment tax.

The notices were issued by the apex court on the basis of a public interest litigation (PIL) which challenged the exemption of entertainment and luxury tax for organising the F1 event.

The court passed the order on a PIL challenging the state government decision to grant tax exemption to the event.

India's first Formula 1 event is scheduled to be held in Greater Noida, adjacent to the national capital, on October 30.

The Uttar Pradesh government and the Jaypee group have been asked to file their replies by Friday.

Book on Kesavananda Bharati case will be released on Tuesday

2011-10-17T10:00:00.000+05:30

A 13-judge Bench of the Supreme Court, the largest so far, decided the Kesavananda Bharati case after hearing arguments by eminent lawyers spread over 66 days. The judgment, delivered by a majority of 7:6 on April 24, 1973, held that Parliament could not alter the basic structure of the Constitution by an amendment.

Chief Justice of India S.H. Kapadia will release a book dealing with this case at a function here on October 18. The senior advocate and former Solicitor- General, T.R. Andhyarujina, has written the book, explaining the culmination of a struggle for supremacy over the power to amend the Constitution between Parliament and the government on the one hand, and the Supreme Court on the other.

Mr. Andhyarujina says: “This book is a gripping story of the conflict and tensions in the Kesavananda Bharati case and its aftermath, which has not been disclosed so far. It is based on the author's recollection and [the] detailed notes maintained by him as counsel in the case, and on later interviews by him with some of the judges in the case.”

The book reveals that prior to the hearing, the government attempted to influence the court by appointing judges who it expected would decide in its favour. It shows the preconceived views of some of the judges on Parliament's power to amend the Constitution, the internal conflicts and factions among the judges, and the charged atmosphere in the court till the delivery of their judgments.

In the words of Mr. Andhyarujina, the battle began when the Supreme Court, in the Golak Nath case in 1967, held that fundamental rights could not be amended by Parliament. Parliament and the government were not reconciled to the ‘view by majority' in the Kesavananda case and were determined to get it overruled. On the day of the judgment (April 24, 1973), the government superseded three senior-most judges, who had decided against the government and appointed Justice A.N. Ray as the next Chief Justice on the retirement of Chief Justice S.M. Sikri. In 1975, with the help of Mr. Ray, the government tried in vain to reverse the majority view in the Kesavananda case by another Bench of 13 judges.

However, during the emergency, the government nullified the Kesavananda case judgment by the 42nd amendment, but this was overruled in the Minerva Mills case in 1980, when Y.V. Chandrachud was the Chief Justice.

Mr. Andhyarujina says the purpose of the book, coming as it does after 38 years of the event, was “an interaction of constitutional law with the politics of the day; the story of the Kesavananda case requires to be widely known.” Though such an exercise is being done in the United States, it has not been done in respect of any leading case in India, hence his attempt.

Negotiable Instruments Act could be amended : Supreme Court

2011-10-17T01:00:00.000+05:30

The Supreme Court has suggested that the Negotiable Instruments Act, 1881, could be amended so that a convict in a cheque bounce case is made to pay a fine from which the complainant can be paid a compensation.

"One other solution is a further amendment to the act so that in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon, at a fixed rate of 9 percent per annum, followed by award of such sum as compensation from the fine amount," said the apex court bench of Justice R.V. Raveendran (since retired) and Justice R.M. Lodha in a recent judgment.

Speaking for the bench Justice Raveendran said: "This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the act, which is to increase the credibility of the instrument."

"This is, however, a matter for the Law Commission of India to consider," the judgment said.

The judges said that the act "strongly leant towards grant of reimbursement of the loss by way of compensation".

"The courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9 percent per annum as the reasonable quantum of loss) and direct payment of such amount as compensation".

The apex court said that the compensation by way of restitution on account of dishonour of the cheque should be "practical and realistic".

"Uniformity and consistency in deciding similar cases by different courts not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice," the judgment said.

"In same type of cheque dishonour cases, after convicting the accused, if some courts grant compensation and if some other courts do not grant compensation, the inconsistency, though perfectly acceptable in the eye of law, will give rise to certain amount of uncertainty in the minds of litigants about the functioning of courts," the judgment said.

Citizens will not be able to arrange or regulate their affairs in a proper manner, as they will not know whether they should simultaneously file a civil suit or not.

The problem is aggravated since in spite of provisions for concluding such cases within six months from the date of the filing of the complaint, these seldom reach finality before three-four years, the judgment said.

These cases give rise to complications where civil suits have not been filed within three years on account of the pendency of the criminal cases.

"While it is not the duty of criminal courts to ensure that successful complainants get the cheque amount also, it is their duty to have uniformity and consistency, with other courts dealing with similar cases," the judgment underlined.

The court said this while dismissing an appeal challenging the Kerala High Court's verdict that the trial court verdict of imposing fine and awarding compensation could not co-exist.

Hindu woman entitled to equal property rights: SC

2011-10-16T06:30:00.000+05:30

The Supreme Court ruled that the female inheritors would have succession rights and the same liabilities fastened on the property along with the male members.

A Hindu woman or girl will have equal property rights along with other male relatives for any partition made in intestate succession after September 2005, the Supreme Court has ruled.

A bench of justices R. M. Lodha and Jagdish Singh Khehar in a judgment said that under the Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along with other male siblings, which was not available to them prior to the amendment.

The apex court said the female inheritors would not only have the succession rights but also the same liabilities fastened on the property along with the male members.

“The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9 September 2005. The legislature has now conferred substantive right in favor of the daughters.

“According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal,” Justice Lodha, writing the judgment, said.

The term coparcener refers to the equal inheritance right of a person in a property.

The apex court passed the ruling while upholding the appeal filed by Ganduri Koteshwaramma, daughter of late Chakiri Venkata Swamy, challenging the Andhra Pradesh High Court’s decision not to recognize equal property rights of women along with their male siblings.

HC directs striking Maruti workers to vacate premises

2011-10-15T15:27:00.001+05:30

The Punjab and Haryana high court on Thursday directed that there would be no sit-in strike within 100 meters of the premises of Maruti Suzuki's factory at Manesar. Justice Surya Kant of high court issued further directions that striking workers on dharna (sit-in protest) in the factory be taken out.

He also directed that the loyal workers be allowed to join their duties and those on strike should not be allowed to stop them.

The court's directions came on a petition filed by Maruti Suzuki, seeking the declaration of ongoing strike by its workers as illegal. Thursday was the seventh day of the strike.

Justice Kant further directed that Gurgaon police commissioner will decide the place of dharna, and ensure that it is peaceful. The court also asked the police authorities to see that the workers who wish to join dharna are not stopped, and police will enforce their right of work.

Easier bail for evaders of customs, excise duty

2011-10-10T01:22:00.000+05:30

The Supreme Court has ruled that offenses under the Customs Act and the Central Excise Act are non-cognisable and bailable. In non-cognisable offenses, the police have no authority to arrest a person without warrant. The central government argued in the case of Choith Harchandani vs Union of India, that the offenders under these two laws were not entitled to bail, quoting the Criminal Procedure Code. The court rejected the government’s arguments and allowed the appeals of the alleged offenders about arrest and bail. There were several appeals from high courts in excise and customs cases. All the offenders under these two laws were ordered to be released.

Justice Katju appointed Chairman Press Council

2011-10-09T18:42:00.000+05:30

In exercise of the powers conferred by the sub-section (2) of section 5 of the Press Council Act, 1978 (37 of 1978), the Central Government today notified the nomination of Justice Markandey Katju, retired judge of the Supreme Court of India as the Chairman of the Press Council of India.

Justice Markandey Katju was born on Sept. 20, 1946. His background is noteworthy because of his family’s achievements in the fields of Law and Politics. His father late Justice S.N. Katju, was a former judge of the Allahabad High Court and his grandfather Dr. Kailash Nath Katju was one of India’s leading lawyers and participated in the country’s freedom movement. Dr. K.N. Katju was the Chief Minister of Madhya Pradesh, the Governor of West Bengal and Orissa, as well as the Union Law, Home and Defence Minister.

After practicising law in the Allahabad High Court, Justice Markandey Katju was appointed Judge of the Allahabad High Court in 1991, as its acting Chief Justice in Aug. 2004, as the Chief Justice of Madras High Court in Nov. 2004. He became the Chief Justice of Delhi High Court in Oct. 2005. He was appointed as the Judge of the Supreme Court of India in April 2006 and he retired on Sept. 19’ 2011.

Justice Markandey Katju has written several books which include publications such as ‘Law in the Scientific Era’, ‘Interpretation of Taxing Statutes’, ‘Mimansa Rules of Interpretation’, ‘Domestic Enquiry’.

Views of former CJI MN Venkatachaliah and JS Verma called on Lokpal

2011-10-07T00:22:00.001+05:30

The parliamentary panel examining the Lokpal Bill has sought the views of former Chief Justices of India MN Venkatachaliah and JS Verma on setting up an anti-corruption ombudsman.

Venkatachaliah and Verma have been invited for recording their views on the Lokpal before the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice at its meeting to be held in the next 8-10 days.

Venkatachaliah was the Chief Justice of India between 1993-94 and also headed the National Commission to review the working of the Constitution.

He has reportedly said that any Lokpal set-up has its own limitations and would survive only if it takes into account the need to strengthen every other institution of constitutional safeguards.

Verma headed the first commission on the assassination of former prime minister Rajiv Gandhi and is known for several significant judgments including the ones in the infamous Hawala case and Ayodhya land dispute in which he ruled that acquiring the property of a mosque did not constitute an abridgement of a Muslim's right to freedom of religious belief and practice.

Verma is also known for his judgment in which he stated that Hindutva depicted 'a way of life which cannot be assumed to mean and be equated per se with narrow fundamentalist Hindu religious bigotry'.

He is known to have favoured keeping the higher judiciary and the prime minister out of the purview of the proposed Lokpal Bill.

Verma had also favoured a "separate mechanism" to make high court and Supreme Court judges accountable for misconduct.

CBI challenges Salem order

2011-10-05T08:39:00.002+05:30

The Portuguese High Court’s decision to revoke underworld don Abu Salem’s extradition to India is being viewed as downright illegal by the legal wing of the CBI, which has contested the decision at the Supreme Court in Lisbon.

In its appeal in the Portuguese Supreme Court, the CB has contended that there was no violation of rules during Salem’s trial in different cases in India.

Officials here said that there was no question of sending back such a hard-core terror mastermind back to Portugal when legal process was still on against him in India in as many as nine cases.

Maharashtra Chief Minister Prithviraj Chavan said that he would take up the issue of cancellation of Salem’s extradition with the Ministry of External Affairs (MEA). Salem is one of the main accused in the 1993 Mumbai serial blasts case.

The High Court in Lisbon had last month revoked the extradition citing breach of undertaking given by India to the Portuguese authorities. Salem had filed a petition in the Portuguese High Court alleging violation of Rule of Speciality under which he was handed over in 2005 to the Indian authorities for trial in various cases pending here.

The CBI, through Ministry of External Affairs, filed the plea in the Portuguese Supreme Court arguing that it was a matter of interpretation of Rule of Speciality by the Supreme Court of India, which is binding on all subordinate courts in the country. On the other hand, the High Court of Lisbon has interpreted the Rule of Speciality differently, official sources said.

India has said slapping of additional charges on Salem is very much within the ambit of Section 21(b) of Extradition Act, 1962, which states that additional charges could be imposed on an accused if they were of lesser offence under which the person had been extradited.

In its affidavit submitted with the Portuguese Supreme Court, New Delhi has assured that fresh charges levelled against Salem, a key accused in the 1993 Mumbai blasts case, attracted less jail term than the offences for which he had been extradited, the sources said.

There is no mention of death penalty in the affidavit in the review petition in that country’s Supreme Court as India is bound by an ‘executive assurance’ to Portugal that Salem would not be given death penalty or charged with any section of law which entailed jail term of more than 25 years.

Abu Salem had challenged the framing of charges for the lesser offences in the Supreme Court here alleging that there has been violation of Rule of Speciality. The apex court in its judgment on September 10, 2010 rejected the petition filed by Salem.

The SC considered the Rule of Speciality as available in the laws of the US, the UK and Portugal and the Indian Extradition Act, and held that there has been no violation of Rule, since the additional charges framed against Abu Salem are made out from the same facts, which were considered for his extradition and provide lesser sentence as compared to the sentence provided for the offences for which his extradition was granted.

Abu Salem was detained on the basis of an Interpol Red Corner Notice in Lisbon on September 18, 2002 and thereafter a request for his extradition was made by India in nine cases which were pending against him. After long-drawn legal battle, Abu Salem was extradited to India in November, 2005. Salem was charged with stringent MCOCA for allegedly making extortion calls to Delhi-based businessman Ashok Gupta in 2002 demanding Rs 5 crore as protection money.

The Portuguese High Court had contended that in view of the new charges, the authorisation granted for his extradition has been terminated as it violated the Principle of Speciality.

The underworld don is facing trial in nine cases which included the Mumbai serial blasts, two cases of forgery of passports in Lucknow, three cases of extortion in Delhi and two murder cases in Mumbai which included murder of Ajit Dewani, secretary of Bollywood actress Manisha Koirala.

Abu Salem was an active member of criminal conspiracy, hatched by Dawood Ibrahim Kaskar (designated Global Terrorist), Tiger Memon, Mohammad Dossa and others, to commit various terrorist acts including bomb blasts.

Abu Salem actively participated in transporting and distribution of sophisticated arms and ammunitions which were smuggled into the country in the beginning of 1993. The bomb blasts took place on March 12, 1993..

Following the blasts, Salem left India after obtaining a passport in an assumed name from the Lucknow Passport Office, and joined Anees Ibrahim Kaskar and others at Dubai.

10th Annual Report of National Commission on Safai Karmcharies

2011-10-01T08:55:00.001+05:30

The National Commission for Safai Karamcharies has called for taking action and remedial measures for ensuring social justice, empowerment, rehabilitation and dignity to the people of downtrodden community specially Safai Karamcharies, working at Government and Local Self Government level, Corporate and Private level in rural and urban areas.The Commission in its Annual Report for 2010-11 has recommended this. The report was presented to the Union Minister of Social Justice & Empowerment Shri Mukul Wasnik, in his office by the Chairman of the Commission Smt. Kamla Gurjar. This is the 10th annual report of this Commission.

The report is aimed at making the Government cognizant of the ground realities so that an effective action plan for mitigating the plight of Safai Karamcharies/manual scavengers is taken up on top priority at national level. The Commission is hopeful that the recommendations put forth, would receive their due consideration and suitable actions would be initiated so that the Safai Karamcharies/manual scavengers are treated equally within the society.

The Commission in its vision has expressed zero tolerance for dry latrines insisting on strong determination to complete elimination of manual scavenging and strict monitoring and implementation of the mandatory provision under the act. It has also desire to have a permanent status with adequate executive/quosi judicial powers as being given to the other National level Commissions viz. National Commission for Scheduled Castes, National Commission for Scheduled Tribes and National Commission for Backward Classes, thus enabling it to discharge its responsibilities and duties efficiently in an effective and respectable manner.

Is this the Justice?

2011-09-30T08:42:00.000+05:30

Vachathi verdict has demonstrated that the poor in India cannot hope for early relief, particularly when hit by the law enforcers. And with all those convicted most certainly readying appeals to the high court, the last word in this ugly case is still miles away. “The Vachathi verdict is raw proof that justice in India takes several years to reach the poor and downtrodden”, said advocate Bhavani Mohan, pointing out that 54 of the accused persons had died during the pendency of the case.

“It seems that the law will take its own cool time when it comes to a poor adivasi community. The mental agony and trauma underwent by the victims cannot be described. And these victims can never be comforted”, the rights lawyer said. Mr Mohan added that the 20- year- long wait was equal to a life term punishment that the victims were subjected to, while the culprits went about free.

The Vachatchi verdict would be “the first ever judgment on mass rapes by police officers prior to and after Indian independence.” NCW member Ms. Charu Wali Khanna said she was shocked to hear about the time span of the case. “This 20 year old case shows that women always remain sufferers. These tribal women fought for two decades in the district court. Definitely the accused persons will now resort to an appeal and the case may go on further. This case demonstrates the abuse by the officials on helpless women,” she said.

On an optimistic note, PUCL state secretary S.Balamurugan said the verdict 'is a historical event' demonstrating the courage of the underprivileged and their hopes on judiciary and democracy. “The victims were tired, yet would not give up the fight against injustice. These tribal women put up such a brave fight using democratic tools,” he said.

Resistance is crucial to the survival: Dr. Binayak Sen

2011-09-24T16:06:00.001+05:30

The New York Academy of Sciences' Committee on Human Rights of Scientists conferred upon Binayak Sen the 2011 Heinz R. Pagels Human Rights Award. He was not allowed to travel out of India and therefore this speech was read on his behalf.

NEW YORK ACADEMY OF SCIENCES
HEINZ PAGELS AWARD, 2011
ACCEPTANCE SPEECH BY DR. BINAYAK SEN

At the outset, I would like to thank the New York Academy of Sciences for conferring on me the prestigious Heinz R. Pagels Award for Human Rights. I wish it were possible for me to be with you in person on this occasion. Besides my gratitude for this great honour, I also have a personal reason to celebrate a connection with the Academy. My father was a pharmacologist whose research was on melanocyte stimulating hormone. He worked in the Medical Corps of the Indian Army and taught for some time at the Armed Forces Medical College in Pune, India. He was offered membership in the Academy, but had to decline because, as an officer of the Indian Army, he was not permitted to accept membership in a foreign organization. So this Award is, in some ways, a celebration of an older connection.

Of course, I never had the privilege of crossing paths with Professor Pagels. I am not a physicist, but if you will pardon me the audacity of seeking parallels between his work and mine, I might focus on his dedication to increase popular understanding of the importance and complexity of physics and of science in general. As a paediatrician and public health physician, I have tried to enhance the public’s understanding of the ways in which poverty and injustice undermine efforts to promote health and peace, which we ourselves take for granted as our own fundamental human rights.

Another parallel between us might be that we both married well. My own work would not have been possible without the patience and support of my wife Professor Ilina Sen, an eminent feminist scholar and peace activist in her own right, who herself is an admirer of Professor Elaine Pagels‘ work on the perception of women in society.

The support of my professional colleagues, and of the academic community across the world, has been invaluable in securing my freedom. The Committee on Human Rights of the National Academy of Sciences, National Academy of Engineering, and Institute of Medicine, which serves also as the Secretariat for the International Human Rights Network of Academies and Scholarly Societies, arranged to pay me a visit while I was still in jail. Professor Robert Curl (Nobel Laureate in Chemistry), Professor Arjuna Aluwihare (President of the Sri Lankan Academy of Sciences), and Ms. Carol Corillon, actually travelled to India and visited me in jail. This was a cherished occasion, although only Professor Curl was allowed to actually speak to me. The letters and postcards my scientist colleagues wrote to me while I was in jail are also treasured memories. I know also that 48 Nobel Laureates across the world appealed for my release, including Professor Torsten Wiesel whom I have to especially thank for nominating me for today’s Award. Then as now, I was personally dumbfounded and humbled by this groundswell of support, which I can only attribute to shared recognition of our common cause of human rights.

One of the many intellectuals who graciously spoke out on my behalf is our exemplar, Professor Noam Chomsky. Chomsky tells us that intellectuals have an obligation to speak truth to power. Throughout history, members of the community of scholars have attempted to publicly speak the truth, and faced state action as a result. The example of Galileo springs most readily to mind, and the poet Osip Mandelstam with his indictment of ‘the Kremlin mountain man,’ is also part of our collective consciousness. Likewise, it is appropriate to mentionthe examples of Andrei Sakharov and of Liu Xiaobo, who even today continues to languish in jail.

My fellow awardee today, Professor Jack Minker, has a distinguished record of working for the rights of fellow scientists in difficult situations. Professor Minker, my congratulations to you on this well‐deserved recognition of your own contributions to human rights.

I have lived and worked for three decades in the region of India called Chhattisgarh. The Chhattisgarh chapter of the People’s Union for Civil Liberties (PUCL), of which I was the General Secretary in 2005, organized and led an investigation into the phenomenon known as the Salwa Judum. Our state government insistently described it as a spontaneous peoples’ uprising in response to Maoist violence in their communities. To the contrary, we discovered that the Salwa Judum was a state‐sponsored and state‐funded vigilante force that had forcibly displaced the Adivasis, or indigenous residents, of more than 600 villages, and herded them into refugee camps by the roadside. Thousands of people had fled these excesses and crossed the state borders into the neighboring state of Andhra Pradesh, where they struggled to survive and eke out a livelihood.

Our report was entitled ‘When the State Makes War on its Own People’. Professor Nandini Sundar, a member of our original investigating group, and others went on to challenge the entire process of Salwa Judum in the Supreme Court of India. In a landmark judgment of the Supreme Court, delivered on July 5 of this year, the Salwa Judum and its operations were held to be unconstitutional. The Court ordered the immediate disarming and disbandment of the so‐called Special Police Officers, and subjected the state government to severe strictures. But meanwhile, in the course of these events, about 500 extra‐judicial murders have taken place, many women have been raped, and uncounted cases of arson have been inflicted on some of the poorest people in India.

India is home to a sixth of mankind. At a time when the advanced nations of the world are caught in an economic freeze, India has an annual GDP growth of over 8%. But we also have the largest concentration of chronically undernourished people in the world. As a paediatrician, I must draw your attention to some alarming statistics. Around 23% of our newborns are born with low birth weight, 47% of our children below the age of five are undernourished by weight‐for‐age criteria, and 37 % of our adults have a body mass index (BMI) of less than 18.5, signifying chronic undernutrition. These data indicate a state of stable famine, in which major subsets of the population are actually living under famine conditions. These sections of the population have thus far been able to survive because of their access to common property resources, such as the public forest lands on which the indigenous Adivasi people have lived for generations. Unfortunately for the Adivasis of Chhattisgarh, the earth below their fertile and biodiverse ancestral forests is also rich in minerals. Therefore, today, these sections of the populations are, as a matter of state policy, seeing their rights and access to common property resources expropriated and handed over to corporate interests for industrial mining and manufacturing.

Resistance to this process is crucial to the survival of these communities. Sadly, instead of seeking long‐term solutions to issues of entitlements and community rights, the state’s response has been to interpret dissent and criticism as “Sedition,” as defined by a jurisprudence that harks back to the days when India was a British colony. I myself, and thousands of others whose voices remain unheard, have been victims of this phenomenon. The People’s Union for Civil Liberties, which I still have the honour to represent, is now engaged in an all‐ India, nationwide campaign to repeal the Sedition clauses from our law books, and is in the process of collecting a million signatures to be presented to the Indian Parliament during its upcoming winter session.

Why do I share here the experiences of faraway Chhattisgarh and the indigenous people of my country? Because international solidarity, in the recognition of rights and entitlements, is invaluable and crucial. The inequality and polarization of the kind I have just described represent a worldwide phenomenon which we must oppose collectively on a worldwide platform. I believe that democracy, justice, and equity are fundamental rights of every citizen of the world. In the words of Dr. Martin Luther King Jr., “Injustice anywhere is a threat to justice everywhere. "

And as Heinz Pagels himself said, in a different context, "you never learn anything unless you are willing to take a risk and tolerate a little randomness in your life."

SC's split verdict on Centre's plea to recall black money order

2011-09-24T08:33:00.000+05:30

The Supreme Court on Friday gave a split verdict on the Centre's plea seeking to recall its order on black money, with one judge holding that the application was maintainable and the other saying it was not.

Acting on the petitions filed by the former Union Law Minister, Ram Jethmalani, and others, the court had ordered constitution of a special investigation team headed by the retired Supreme Court judge, B.P. Jeevan Reddy. On July 15, the Centre filed the application, which said: “The [July 4] order impinges upon the well settled principle that courts do not interfere with the Economic Policy, which is in the domain of the Executive and that it is not the function of the court to sit in judgment over matters of Economic Policy, which must necessarily be left to expert bodies. Courts do not supplant the views of experts with their own views. The order impinges upon the principle that in matters of utilities, tax and economic policy, legislation and regulation cases, the court exercises judicial self-restraint if not judicial deference to the acts of the Executive, since the Executive has obligations and responsibility both constitutionally and statutorily. The wide-ranging criticism of the state is uncalled for and unjustified.”

The constitution of a special investigation team and the consequential directions could not be implemented, the Centre said. Following the retirement of Justice B. Sudershan Reddy, the matter was heard by a Bench of Justices Altamas Kabir and S.S. Nijjar (who was part of an earlier Bench). Now, Justice Kabir, in his order, held that the application was maintainable. Technicalities could not stand in the way, “particularly if the implementation of the July 4 order would result in injustice.” He said the Supreme Court had the inherent powers to correct the injustice. Hence, he directed that the matter be heard further. Justice Nijjar, however, said: “There is no question of mistaken facts being presented by anyone to the court. The application also fails to indicate any miscarriage of justice or injustice which would be caused to any particular class. The application, though described as an application for modification, is in substance more in the nature of an appeal. At best, it could be in substance an Application for Review. It certainly does not lie within the very narrow limits within which this court would entertain an application for modification.” Justice Nijjar said: “The Union of India has failed to make out a case to enable this court to treat the modification application as an application for review and proceed to hear the same in open court. The present application is wholly misconceived. It is, therefore, dismissed.”

In view of the split verdict, the Bench directed that the matter be placed before Chief Justice of India S.H. Kapadia for being referred to a third judge.