BP SHARMA Advocate

COGNIZANCE – A BIRD'S EYE VIEW

2012-02-29T18:55:00.001+05:30

COGNIZANCE – A BIRD'S EYE VIEW

by The Hon'ble Mr Justice R.Regupathi, Judge

High Court, Madras

Though the word 'cognizance' (rooting from Old French "conoisance", based on Latin "cognoscere") or the words 'taking cognizance' have not been deciphered and defined in the procedural law, the same derive definite connotation from plethora of precedents and gain perceptive explanation and incisive exegesis from judicial pronouncements. While plain and dictionary meaning thereof is 'taking note of', 'taking account of', 'to know about', 'to gain knowledge about', 'awareness about certain things' etc. - and in Tamil "(transliteration:- "gavanikkapada vendiya vishayam"... "gavanam"), in law, the common understanding of the term 'cognizance' is "taking judicial notice by a court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter 'judicially'. Thus, legal sense of taking judicial notice by a court of law or a Magistrate is altogether different from the view and idea a layman has for it; however, a broad and general comprehension is 'judicial notice by a court of law on a crime which, according to such court, has been committed against the complainant, to take further action if facts and circumstances so warrant' – in Tamil, (transliteration:- "Sattapadi nadavadikkai edukka thakka kutram thodarpana vazhakkai koapil eduppadhu kurithu aaraidhal").

In the language of the Hon'ble Apex Court employed in its earliest decision (Ref: R.R.Chari vs State of U.P. AIR 1951 SC 207), "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of offence".

Regarding the procedure involved in taking cognizance, to start with, there must be application of judicial mind to the materials, oral and documentary as well as other information submitted and apprised of. The litmus test of taking cognizance, whether it be relating to an offence on a complaint, or on a police report, or upon information of a person other than a police officer, is making a thorough assessment of the allegations by coming into grip with the facts presented and bringing into focus the law on the subject and applying the facts to the law and thereafter arriving at a conclusion by a process of reasoning and evidencing that all relevant facts have been taken note of and properly analysed in the light of the law applicable. An abridged and formulaic reproduction of facts to the exclusion of relevant aspects involved from the focus of mind would undoubtedly result in decision without application of mind, for, informed reasoning is the heart of the matter. While exercising discretion, with the intelligible differentia and by weighing the cause in judicial scales having regard to the facts and circumstances peculiar to each single case, courts must carefully decide and cautiously examine as to whether the complaint filed is an outcome of personal vendetta or outburst of animosity/enmity or originated from evil impact of fickle mind so as to wreak vengeance against the opponent, else, malicious prosecutions would be rampant putting at peril the valuable rights and liberties of citizens through courts themselves. Therefore, if a litigant or a citizen knocks at the doors of justice with a grievance, a Judicial Officer must apply judicial mind coupled with discretion and such exercise should not be arbitrary, capricious, whimsical, fanciful and casual, because just and right decisions cannot be taken by an ordinary individual but by a person with legal acumen, experience, knowledge and intelligence on the application of law with reference to the facts of a given case. There may be variety of grievances/cases and every grievance cannot be received as a matter of routine, and the Judicial Officer must be able to classify amongst the cases so as to decide whether a particular case is fit for taking cognizance or not. There are different judicial forums in the country viz., Debts Recovery Tribunal, Industrial Disputes Tribunal, Central Administrative Tribunal, Military Tribunal etc. and each forum can entertain only such cases which come under their exclusive purview and jurisdiction. Taking cognizance of a case which ought not to have been taken cognizance of would amount to encroaching into the jurisdiction of the other forum and would defeat the very purpose behind establishment of the forum concerned. An offence being acts of commission/omission made punishable under the law for the time being, cognizance can be taken only if the allegations and disputes attract the Penal Provisions in the enactment.

"Taking cognizance"of a case relating to an alleged offence is different from "cognizable case". A Police Officer can register an FIR only if a cognizable offence is made out and he cannot investigate into a non-cognizable offence without seeking permission from the court. Both the terms seem to sound similar but they stand for a meaning and context different from each other. Though the word 'cognizance' is not defined in the Code of Criminal Procedure (in short 'Code'), 'cognizable offence' is defined in Section 2 (c) of the Code, which reads as follows:-

"Congnizable offence means an offence for which, and 'cognizable case' means a case in which a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant ", and Section 2(l) defines 'non-cognizable offence' as follows:-

"Non-Cognizable offence means an offence for which and 'non cognizbale case' means a case in which a police officer has no authority to arrest without warrant."

Therefore, one must be clear about the application of the Code with reference to "taking cognizance" and distinction between "cognizable" and "non-cognizable" offences.

Once cognizance is taken, process may have to be issued against the person, who is alleged to have committed the offence and the procedure adumbrated must necessarily follow.

For better analysis of the scope of cognizance and the consequences arising therefrom, it is worthwhile to highlight the scheme of relevant provisions in the Code and the case laws touching the same.

Chapter XIV of the Code under the caption 'Conditions requisite for initiation of proceedings' employs the word 'cognizance' and the very first Section in the said Chapter viz., Section 190, outlines as to how cognizance of offences will be taken by a magistrate of an offence on a complaint, or on a police report or upon information of a person other than a police officer. Section 191 empowers the Chief Judicial Magistrate for transfer of a case taken on file suo motu by a Judicial Magistrate concerned since the Magistrate himself being a complainant, there may be scope for alleging prejudice or malice. By virtue of Section 192, a Chief Judicial Magistrate, who takes cognizance of an offence, by passing administrative order, transfer the case concerned to the file of any other Magistrate subordinate to him for inquiry or trial. Section 193 prohibits cognizance of any offence by a Court of Sessions stepping into the shoes of the court having original jurisdiction except in cases where power is conferred by the Statute while Section 194 empowers Sessions Courts for transfer of cases to the file of Additional and Assistant Sessions Judges. Section 195 deals with prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence; Section 196 pertains to offences against the State and for criminal conspiracy to commit the offence; and Sections 197, 198, 198-A and 199 relates to prosecution of Judges & public servants, prosecution for offences against marriage, offences under Section 498-A IPC and defamation respectively.

Chapter XV with the title 'Complaints to Magistrates' contain four Sections viz., 200 to 203 regarding examination of complainant, procedure by Magistrate not competent to take cognizance of the case, postponement of issue of process and dismissal of complaint. Sections 204 to 208 at Chapter XVI with the caption 'Commencement of proceedings before Magistrates' deal with the subsequent proceedings that would follow after cognizance is taken. It must be taken note of, in cases where police report is submitted for taking cognizance, the Magistrate may resort to one of the three options: (i) he may accept the report and take congnizance of the offence and issue process; (ii) he may disagree with the report and drop the proceedings or (iii) he may direct further investigation under subsection (3) of Section 156 and require the police to make a further report. In a case where the report on the other hand states that, in the opinion of the police, no offence appears to have been committed, again, the Magistrate has three opinions viz., (a) he may accept the report and drop the proceedings; (b) he may disagree with the report and by holding that there is sufficient ground for proceeding further, take cognizance of the case and issue process or (c)he may direct further investigation to be made by the police under subsection 3 of Section 156.

It is worthwhile to mention below certain case laws of the Hon'ble Apex Court wherein the scope and purview of the term 'cognizance' are vividly explained,

(i) AIR (38) 1951 Supreme Court 207 R.R. Chari vs The State of Uttar Pradesh

Before it can be said that any Magistrate has taken cognizance of any offence under Section 190 he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter ... Proceeding u/s 200 and thereafter sending it for inquiry & report u/s 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter but for taking action of some other kind, e.g. ordering investigation u/s 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

(ii) AIR 1959 Supreme Court 1118 (V 46 C 150) Narayandas Bhagwandas Madhavdas versus West Bengal

As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. It is only when a Magistrate applies his mind for the purpose of proceeding under S. 200 and subsequent sections of Ch. XVI of the Code of Criminal Procedure or under S. 204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.

(iii) AIR 1976 Supreme Court 1672 D. Lakshminarayana vs V. Narayana

What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate.

Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1) (a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.

The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202 (1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190 (1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the precognizance stage and avail of Section 156 (3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156 (1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.

(iv) AIR 1985 Supreme Court 1285 Bhagwant Singh vs Commissioner of Police and another

Magistrate deciding not to take cognizance of offence or drop proceedings against some persons mentioned in F.I.R. must give notice and hear first the informant.

In a case where the Magistrate to whom a report is forwarded under Sub-section (2) of Section 173 decided not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. However, either from the provisions of the Criminal Procedure Code or from the principles of natural justice, no obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report can be spelt out, unless such person is the informant who has lodged the F.I.R. But, even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report.

There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.

(v) (1993) 2 Supreme Court Cases 16 Kishun Sing and others vs State of Bihar

Sessions Court has jurisdiction, on committal of a case to it, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record – Hence on committal under Section 209, Sessions Judge justified in summoning, without recording evidence, the appellants not named in police report under Section 173 to stand trial along with those already named therein. Sessions Court having jurisdiction under Section 193, mere exercise of power under a wrong provision (Section 319) would not render its order invalid.

On committal, the restriction on the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. "The object of Section 190 is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. Cognizance is in regard to the offence, not the offender.

(vi) (1995) 1 Supreme Court Cases 684 State of W.B. and Another versus Mohd. Khalid and Another

Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. It has, thus, reference to the hearing and determination of the case in connection with an offence.

(vii) 1997 Supreme Court Cases (Cri) 415 Rashmji Kumar (Smt) versus Mahesh Kumar Bhada

It is fairly settled legal position that at the time of taking cognizance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173, as the case may be. It was held in State of Bihar vs Rajendra Agarwall (1996 (8) SCC 164) that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence, and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters.

(viii) 1998 (4) Crimes 543 Ponnal @ Kalaiyarasi versus Rajamanickam and 11 others

No doubt, it is true that the complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the learned Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 CrPC. All that he could do would be, to consider as to whether there is a prima facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage. This what exactly done by the learned Magistrate in the instant case.

(ix) AIR 2000 Supreme Court 754 G. Sagar Suri and another versus State of UP

A criminal complaint under Section 138 of the Negotiable Instruments Act was already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there would be no occasion for the complainant to prosecute the appellants accused under Ss. 406/420 IPC and in his doing so it would be clearly an abuse of the process of law and prosecution against the appellants for those offences would be liable to be quashed.

(x) (2006) 6 Supreme Court Cases 728 State of Karnataka and Another versus Pastor P. Raju

Several provisions in Chapter XIV of the Criminal Procedure Code use the word "cognizance". However, the word "cognizance" has not been defined in the Criminal Procedure Code. The dictionary meaning of the word "cognizance" is – "judicial hearing of a matter". Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out."

(xi) (2009) 1 MLJ (Crl) 352 P. Ashok Kumar versus Inspector of Police

In the present matters, it is ex facie apparent that, in spite of having weighed the nature of allegations in judicial scales and thereby knowing fully well that legally are not supposed to refer the civil disputes for police investigation or take cognizance by themselves, the Judicial Officers concerned, with ulterior motives and to oblige the demand of the Bankers, illegally imputed criminal flavour to civil disputes, which action is not only inappropriate, and as such legally untenable, but elicits their unwanted intention in aiding one party to intimidate the other party. The basic premise is, once a matter is found to be purely civil nature, the scope and extent of issues covering the same cannot take on a criminal character, for, both the civil and criminal disputes are mutually exclusive. Obviously, the reasons for these Bankers/Financial Institutions trespassing into the area of criminal law remedy is that civil law remedies are time consuming; further, by obtaining orders for police investigation, they can exert pressure upon the borrowers through police to a considerable extent by imbibing the fear of arrest or being subjected to ignominy at the hands of police and ultimately, with ease, they could collect the principle amount plus exorbitant rate of interest. In the complaints taken on file, such break-up figures of principal and interest are not mentioned.

Unfortunately, the Magistrates, who have been repeatedly advised and guided by the Hon'ble Apex Court to exercise great caution in that regard, have abruptly failed in adhering to such guidance, as a result of which, the immersion of civil disputes with criminal charges is immensely growing with each passing day as reflected in the statistics furnished before this Court. Day in and day out, hundreds of such complaints have been entertained by some of the Magistrates and cognizance is taken. Humanly, it is impossible if there is proper application of mind. Obviously, such cognizance is taken by the Magistrates on the mere request of the Bankers with an ulterior motive and in collusion and conspiracy with them.

To conclude, as remarked by the Supreme Court, there is no special charm or any magical formula in the expression 'taking cognizance' which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to take further judicial action.

JUDICIAL ACCOUNTABILITY AND DEMOCRACY

2012-02-13T13:25:00.002+05:30

The Contempt of Court Act 1971 punishes scandalizing of the court. The Supreme Court has held that the fundamental right of a citizen to free speech and expression has not abolished the offence of scandalizing the court.

However, of lately, this privilege of contempt orders is used by the court to suppress any voice which is raised against its functioning. Recent orders of contempt of courts highlight this issue. A strong criticism of judgments or a judge’s point of view is being regarded as contempt of court. Recent victim of these contempt orders are social activist Ms. Arundhati Roy and eminent lawyer of Supreme Court Prashant Bhushan. This is just an example of how the fundamental right of citizens and the power of democratic organ are misbalanced.

One of the basic elements of democracy is the accountability. The organs of democratic country are accountable to one another and this maintains a system of checks and balances. However, the system of checks and balances seems to be blurred by the separation of powers. The concept of “separation of power between the legislature, the executive and the judiciary” and “independence of judiciary”, a fundamental concept, have now been elevated to the level of the basic structure of the constitution and are the very heart of the constitutional scheme.

An independent judiciary is the sine qua non for a vibrant democratic system. The judiciary is the protector of the constitution and, as such, it may strike down executive, administrative and legislative act of the government. For Rule of Law to prevail, judicial independence is of prime necessity.

However, under the garb of judicial independence and from the weapon of contempt orders, the judiciary seems to be almost insulated from any kind of accountability and transparency. This has given rise to the presumption that judiciary is one of the most powerful organ having unbridled powers. These perceptions might be one of the reasons of the increasing cases of corruption in judiciary.

Unaccountability of judiciary has been posing a serious threat to the democracy and it leads to corruption. The only remedy, for any offence committed by a judge, is ‘Impeachment’. However, the impeachment process, as prescribed in the Constitution, has proved as unworkable. Therefore, the recent decision of the government to bring in the Judicial Standards and Accountability Bill provides us with some hope

We shall further see the need for this bill, under the light of increasing cases of corruption and the drawbacks of the bill and how can it be made more effective.

Corruption in Judiciary

Lord Acton once observed that "Power tends to corrupt, and absolute power corrupts absolutely.”

Judiciary in India is more powerful than any other organs. This is by virtue of its independence, non-accountability to anyone and almost impractical and unworkable mechanism for removal, which the Indian republic has witnessed in Justice Ramaswami impeachment motion.

However, when we claim ourselves to be a democratic republic nation, we do subject ourselves to accountability. The system of government, in India is based on separation of power, and by virtue of that, the organs of republic India is accountable to each other. However, the accountability of judiciary seems to be blurred by its concept of ‘Independence.’

Corruption has rotten the whole system of governance in India. No organ is spared from this menace, and judiciary is no exception to it. Some of the instances which disgraced the judiciary are:

JUSTICE K. VEERASWAMI:

The former judge of the Madras High Court was found guilty under the Prevention of Corruption Act, 1946, but fought his case in 1991 in the Supreme Court. The apex court in a later judgment held that a sanction from the CJI was necessary before a criminal case could be registered against a judge. This judgment was criticized as it contributed to the stiffness with regard to making a Judge liable for corruption.

JUSTICE V. RAMASWAMY:

Son-in-law of Veeraswami was a judge in the Supreme Court when the Speaker of the ninth Lok Sabha admitted an impeachment motion brought by 108 MPs against him for financial irregularities committed during his term as chief justice of the Punjab and Haryana High Court. The motion was, however, defeated as Congress MPs stayed away in 1993. This first ever, impeachment case provided us the instance of how impractical the impeachment proceedings are. Despite a high-power inquiry committee of three eminent judges having come to the conclusion that Ramaswami was guilty of several acts of gross misbehavior which warranted his removal, the judge was still entitled to discharge judicial functions from the highest court of the land.

JUSTICE A.M. BHATTACHARJEE:

The chief justice of the Bombay High Court was forced to resign in 1995 after it was found that he had received Rs.70 lac as book advance from a publishing firm known to have links with the underworld.

JUSTICE AJIT SENGUPTA:

The Calcutta High Court judge made it a routine to issue ex parte, ad interim stay orders on anticipatory bail pleas from smugglers having links with the Mumbai underworld. He was arrested in 1996 for F.E.R.A. violations after retirement.

JUSTICE AS ANAND:

As CJI, he was accused of using his position to get the subordinate judiciary to rule in favor of his wife and mother-in-law in a suit that had been barred by limitation for two decades. There was also a CBI probe after a dispute arose over his age in 2000. The investigation report was not made public.

Some of the recent cases, in which the judges are facing corruption charges are:

Justice Soumitra Sen of Calcutta High Court:

He was charged with the allegations of misappropriation of large sums of money, which he had received in his capacity as Receiver appointed by the High Court of Calcutta. He also misappropriated the facts relating to the investigation.

Justice P. Dinakaran of Sikkim High Court {former CJ Karnataka High Court}:

Misappropriation of assets.

Justice Nirmal Yadav of Uttrakhand High Court {former Judge Punjab and Haryana High Court}:

She was transferred there from the Punjab and Haryana High Court after evidence suggested that a 15-lakh bribe would have reached her had it not been for a giant misstep.

Hours before she was meant to retire, Justice Nirmal Yadav was accused formally of corruption, destruction of evidence, and fabrication of evidence.

Provident fund Scam:

One of the biggest Judicial Scam in the history. More than 15 Judges of Ghaziabad court and also few of them from High Court are charged with embezzlement of more than Rs 7 Crore.

These are only some of the reported cases of corruption in judiciary, many of them still goes unreported. The main reason for this is the sword of contempt, through which judiciary has got unbridled authority without any accountability towards it.

All these cases and increasing demand of transparency in all organs of government, led to the passage of Judicial Standards and Accountability Bill. Now, we shall discuss the need for such law in detail.

Need For Judicial Accountability Bill:

“Responsibility is the price of freedom.” A freedom or a right always comes with correlative responsibility or duty. Therefore when we argue or advocate for the independence of judiciary, we have to bear in mind that for their independence, they have to be accountable. But again the vital question remains as to whom they should be accountable?

The real need for this law might have felt in year 1991 itself, when the Supreme Court relaxed the investigation of corruption charges against a Judge {Veeraswami case}. It is the effect of this judgment that prevented the investigation and prosecution of many Judges against whom there was documentary evidence of corruption, fraud, misappropriation, etc. Further, the constitutional provisions regarding the impeachment of Judges, seems to be so inadequate and un practical, that till now not a single judge have been impeached, even after the sufficient evidence against them, in hand.

The growing cases of corruption and indiscipline among the judges seems alarming, in the absence of any workable provisions of any law. Therefore, this bill seeks to make the judges accountable to a certain extent for their acts and conduct in their official capacity. Although there do exists certain loopholes and flaws, which, if amended would make the bill more meaningful. The flaws of the bill are discussed later under this paper.

Transparency in the judicial organization and among the judges was very much demanded in the recent past. A need was felt that the judges should declare their assets. However, many judges of the higher judiciary have declared their asset voluntary, although, its reliability is still questionable.

Another point, to buttress the need of such law, is the response of Judiciary towards, Right to Information Act, 2005. This Act was enacted as a tool to effectively check corruption in our democratic system.

The other wings of our system, namely legislature, executive has been duly brought under the ambit of this act for all the purposes. Any information can be obtained from the departments of both of these organs. However, judiciary has kept itself aloof from RTI, for all the practical purposes.

Also, the Supreme Court has confirmed that decision of the of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. The former CJI even went to extent of saying that “any self respecting judge would not like the idea of any layman {third person} probing into the allegations against a judge and imposing punishment”. Therefore, keeping itself outside the purview of RTI undermines the confidence of the public in judiciary vis-a-vis the system of justice in the biggest democratic country.

Thus, it is clear that how the judiciary in our country is completely unaccountable to any other organ. It is covered under the layers of protection, and has also self insulated itself from the investigation into any criminal matter without the approval of CJI. This poses a threat to the democratic fabric of our country. In fact, in these conditions, the institution of justice cannot even be considered as democratic and therefore there is a need of a law which makes Judiciary accountable.

Before examining the provisions of the accountability bill, let us see some of the existing provisions of the Constitution and other law, which provides for several judicial processes.

Constitutional Provisions And Judges Inquiry Act:

From reading the preamble of the constitution, it becomes evident that “Justice is placed higher than the other principles of ‘Liberty’, ‘Equality’ and ‘Fraternity’.

The task to secure justice has been specially assigned to judiciary, and this may be the reason, as to why there have been so much of provisions in the constitution regarding the independence of judiciary. The members of Constituent Assembly were very much concerned with the question of independence of judiciary and, accordingly made several provisions to ensure this end. The Supreme Court has itself observed: “The constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy”. However, this independence has been misused by the judicial fraternity in number of circumstances as discussed above.

From the process of appointment, till the procedure for impeachment, almost all the provisions which was included in the constitution for better functioning of the judiciary, has been misused by the it.

Constitutional Provisions Regarding Appointment:

It is evident from the bare provisions that our constitutional makers did not wanted the appointment of judiciary exclusively in the hands of executive. Although it was clear that there should be effective involvement of the chief justices in the appointment of judges, but it was not clear as to who will have the last word in appointment. This created a lot of confusion when the regular course of appointment, {i.e:the senior most judge would become the chief justice} was broken. It led to First Judge case of S.P. Gupta V. Union of India, in which it was held that CJ did not have the last word in the appointment. However, this was overruled in the Second Judges case, Supreme Court Advocates on Records Association V. Union of India. In this case, it was held that the opinion of the Chief Justice of India, as a consultee would have to be final opinion which must prevail in the appointment of a judge. The opinion of the CJI is to be formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion. Thus through this judgment the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.

This process of appointment is now settled. However, it is criticized as being arbitrary, adhoc and non-transparent. “A judiciary which has total control over its own composition would have a conformist outlook. Collegiums which decides the matter in secrecy lacks transparency and is likely to be considered a cabal. Prejudice and favor of one or other member of the collegiums for an incumbent cannot be ruled out”.

Recently, this appointment procedure again raised a strong criticism, when Justice Dinakaran name has been recommended, along with four others by the Supreme Court collegiums for elevation as judges of the Supreme Court.

Provisions Regarding Impeachment:

The question of removal of a Judge before the age of retirement is an important one as it has a significant bearing on the independence of judiciary. The Constitution provides that High Court and Supreme Court judges cannot be removed except by impeachment. That process requires signatures of 100 MPs of the House of People or 50 MPs of the Council of States for its initiation. If a motion containing charges of serious misconduct with the requisite signatures is submitted, and admitted by the Speaker of the House of People or the Chairperson of the Council of States, an Inquiry Committee of 3 judges is constituted to hold a trial of the judge.

Only if he is found guilty, the motion is placed before each House of Parliament where it has to be passed by a 2/3 majority of each House.

Art 124(5) also provides that parliament may pass any law and lay down detailed procedure according to which the address of Impeachment may be presented and the charge of misconduct or incapacity, against the Judge, may be investigated and proved. Accordingly, the Parliament enacted The Judges (Inquiry) Act, 1968. This Act was a legislative attempt to hold the judges accountable for their acts of omissions and commissions. An attempt was made to amend this act by way of Judges (Inquiry) Bill 2006. However this Bill has now lapsed and the Judicial Accountability Bill 2010 seeks to replace the Act.

The first ever impeachment proceeding under this law was that of Justice V. Ramaswami. Despite the motion for removal being passed unanimously by the members who voted, it failed to impeach, as the members of ruling party abstained themselves from voting.

This experience has shown that it is practically impossible to remove a Judge through impeachment even if one is somehow able to get documentary evidence of serious misconduct. The failure of motion raised certain grave question about the integrity of the judiciary and the administration of justice.

Currently, the impeachment proceeding is going on against Justice Soumitra Sen of the Calcutta High Court. The case of Justice Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court) is under investigation.

Significant Provisions And Authorities

Under The Proposed Act:

The background and the need for the accountability bill have already been explained. There are some new provisions in the act which seek to address the prevailing situation of infirmity. The bill, if enacted will repeal the Judges’ Inquiry Act, 1958 or will have overriding effect on it.

The proposed accountability bill includes certain new and demanded provisions for maintaining discipline and transparency in the judicial organization. These are:

Mandatory disclosure of assets and liabilities of not only judges, but also of their spouse, children and other near relatives.

Certain activities of judges are prohibited and restrained keeping in view the code of conduct required to be maintained by them. Some of them are:

A prohibition is been placed on keeping close association with a member of bar who practices in the same court.

Family Members, who are also the member of the bar, cannot use the judge’s residence for professional work.

A Judge also cannot hear or decide a matter in which his family or relatives are involved.

Also, a Judge cannot enter into public debate on any matter which he likely to decide.

The abovementioned provisions are only few illustrations of new changes been proposed to made into the judicial ambit.

A significant change will also be made in the process of removal of judges. The existing provisions for impeachment have been proved as unworkable and insufficient to remove a judge or punish him for his misdeeds. Let us now examine the existing provision and the proposed changes.

Under the existing law of Judges (Inquiry) Act, the complaint has to be filed by a Member of Parliament. The new bill provides that the complaint can be filed by any person. The complaint can be made to the Speaker of Lok Sabha or to the Chairman of Rajya Sabha. In addition to this, under the new bill the complaint can also be made to the Oversight Committee set up under the Act.

Authorities Under The Act:

The Bill recommends a complete new set of arrangement for complaint mechanism and procedures after that. However, this has been much controversial as regards to judicial independence.

The Bill establishes three authorities, or we can say three steps for looking into the alleged complaints. These are:

The National Judicial Oversight Committee;

The Complaints Scrutiny Panel; and

Investigation committee.

Let us now examine these authorities:

National Judicial Oversight Committee: It will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges, and also the power to impose minor measures.

Scrutiny Panel: Will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints. Persons making frivolous or vexatious complaints can be penalized by rigorous imprisonment of up to five years and fine of up to five lakh rupees.

Investigation Committee: Will be set up by Oversight Committee to enquire into complaints. The investigation committee will be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.

Defective Composition:

As we examine, the composition and the powers of each committee, we will find that it consists mainly of the members from judicial fraternity itself. This may again prove as an encumbrance in dealing with complaints effectively.

It is always that judiciary is never acceptable of any third person for any of the matter within its framework. The defense of judicial independence is always there with it. Even in the oversight committee, there is mention of only one “eminent person” and Attorney General. This “eminent” person may or may not be a judicial person. Even though she/he is not a judicial person, his opinion may not be of much weight age, as the majority decision of the committee will always be considered.

One of the biggest defaults in the composition of the committee is that, it consists mainly of the sitting judges of high court or Supreme Court. This leads us to the general believe that the opinion of the judge might be influenced by any political or extra judicial considerations. Moreover, we are already facing a crisis of lack of judges in the courts and because of this large no. of pending cases are also there. In these scenarios, appointment of any judge for this function is not feasible, as the function of investigation can be carried out even by administrative personnel also.

Another point of defect in the composition is that of the inclusion of a Attorney General. Attorney General represents the government in courts. It is possible that previously Attorney General might have appeared before a judge against whom allegations have been made. This will surely amount to conflict of interest.

One of the commendable things is that the scrutiny committee has to set up in each of the high court and also Supreme Court. However, the composition of this committee is even more dangerous. This committee shall consist of a sitting judge of that high court or Supreme Court. This judge’s opinion is bound to be influenced, when he is deciding the case against one of his colleagues.

Clearly, this composition violates the basic norms of equality and natural justice. For example, a thief cannot investigate into charges of another thief; similarly a judge should not decide or investigate into a case of another judge.

The composition of members of investigation committee is not mentioned in the bill. This again gives the independence and flexibility to include any person in the committee. No doubt, that this membership will also be politicized.

Loopholes in Draft:

The Accountability Bill seems to be a savior, in those situations where other existing provisions to check the judicial menace, have failed.

However, a close examination of the provisions of the Bill will reveal that the bill itself is not complete and it contains certain loopholes, which may be misused. The process for enquiry and investigation is weak.

One of the biggest flaws in the Bill is the constitution of the committees under the act. The fellow judge who compromises of the investigating members might be influenced by some extraneous considerations. The power of investigation in the hands of fellow judges amounts to the conflict of interest. The judges are also over burdened with their task of adjudicating and this may seem to further overburdening him.

The accountability bill is also alleged to compromise with the independence of Judiciary, so much so that it allows any person to complain against judges. No doubt that this allegation has been made by members of judiciary itself.

The present process of impeachment requires the consent of more than 200 parliamentarians. This process ensures democratic aspect of impeachment. However, under the present bill, impeachment process can theoretically be done by one office or say one man only. This is not at all fair, democratically and also for judicial independence.

One of the most controversial provisions is the definition of the term “misbehavior”. Section 2(j) gives the definition of the term It reads as:

Misbehavior means:

Conduct which brings dishonor or disrepute to judiciary; or

Willful abuse of judicial office; or

Willful and/or persistent failure to perform duties of the judge; or

Corruption or lack of integrity which includes delivering judgments for collateral or extraneous reasons, making demand for considerations in cash or kind for giving judgment or any other action on the part of the judge which has the effect of subverting the administration of justice; or

Committing an offence involving moral turpitude; or

Failure to furnish the declaration of assets and liabilities in accordance to the provisions of this act; or

Willfully giving false declaration of assets and liabilities under this act; or

Willful suppression of any material fact, whether such fact relates to a period before assumption of office, which would have bearing on his integrity ; or

Willful breach of judicial standards.

Although the definition seems to be exhaustive and includes almost all the aspect of the judicial misbehavior. However, by defining, the term misbehavior, it loses its flexibility. It means that although other acts or conduct by a judge, which may ultimately be regarded as corruption, if not included in this definition, will not be liable under this act.

Former CJ of Madras and Delhi High Court Justice Ajit Prakash Shah said that, “By laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, in the sense that even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive to the extent that Definition is exhaustive (since it uses the word “means”), it is incapable of catching within its fold any “misbehavior” that might not be covered by this provision.”

The procedure for appointment of judges, was one of the matter which was criticized all over, for being an “in-house procedure” .The bill makes no effort to amend the existing provision of appointment of judges.

This bill does not really make the judges accountability to the public at large as it exempts the procedure of investigation and other documents from the purview of RTI. Clause 43 of the bill clearly exempts the operation of RTI, relating to all the documents, records and proceedings related to complaints, preliminary investigation and inquiry.

Therefore this bill maintains the status quo with regard to any information being made public. This provision really hampers the credibility of the bill, as it is being excluded from the Transparency law of India.

Therefore, considering these issues may be concluded that the bill is just an attempt to bring judicial accountability, through an enactment. Apart from few provisions, the bill fails to address the issue of corruption and accountability.

Prashant Bhushan, an eminent lawyer of the Supreme Court, described the Bill as a “cosmetic exercise designed to fool the people into believing that some kind of exercise was conducted by the Government to clean up corruption in the judiciary.”

Conclusion:

Lord Woolf, the Chief Justice of England and Wales, in a article, said that, “independence of the judiciary is not the property of the judiciary, but a commodity to be held by the judiciary in trust for the public.”

The utmost importance is given to the judiciary in comparison with other organs of the republic. This is because of the reason that, the judiciary is established as the protector of Constitution, dispenser of justice and it also acts as a watch dog to other organs. But, in the changing times, the judiciary has lost its confidence and integrity among the public. The accountability bill, although suffers from certain drawbacks, it first time attempts to introduce judicial accountability, through the legislation.

However in the judiciary, the function may be both administrative and judicial. For example; appointment of the judges and staff in the registry, files in the court and their journey till its final disposal are all administrative. So the transparency in these processes does not call for interference in the judiciary and these may be open to public scrutiny. It is only the process of hearing and decision making a completely judicial. Therefore, for administrative and similar functions, the judiciary should not claim a complete immunity from RTI.

The question which remained unanswered is that to whom the judiciary should be accountable. Holding accountable is one thing, which is not difficult to achieve, but in this case the question is, "to whom?"

Accountability should always be towards the authority to which we are answerable. At the end, I’m critical of the Committee being setup under the Bill. Because of the composition of this Committee, the judiciary is only answerable to their fellow judges. In this context, the previous provisions regarding impeachment, which is provided in Art 124(5) seems much more complete.

To avoid any prejudice, there should be an independent body, to investigate into any allegation against the judge. This independent body should also be entrusted with all the powers and functions as necessary for any investigation.

Further, Impeachment process should be made more democratic and practical. It should involve votes from all organs of republic.

If the loopholes mentioned above are filled in, then this bill would be one of the historical legislation. Till then, we can only hope that the spirit enshrined in this bill should to taken to its true sense by all the organs of republic.

Cases Referred:

EMS Namboodiripad vs Nambiar {1970} 2 SCC 325

State of Bihar vs Bal Mukund Shah AIR 2000 SC 1296

AC Thalwal vs High Court of HP (2000) 7 SCC 1, 9

AIR 1982 SC 149

Author may be reached at: shalin@legalserviceindia.com

अदालत: VAT मामले में RCom की याचिका खारिज

2011-12-05T10:28:00.000+05:30

अदालत: VAT मामले में RCom की याचिका खारिज

Doctrine of Precedent

2011-12-04T10:56:00.000+05:30

Doctrine of Precedent

Transfer of Property Witout Ownership

2011-12-04T10:55:00.000+05:30

Transfer of Property Witout Ownership

Manu Sharma v. State (NCT of Delhi)

2011-12-04T10:52:00.000+05:30

Manu Sharma v. State (NCT of Delhi)

Limited Operation of the Principles of Natural Justice in Execution Proceedings in the Code of Civil Procedure, 1908

2011-12-04T10:47:00.000+05:30

Limited Operation of the Principles of Natural Justice in Execution Proceedings in the Code of Civil Procedure, 1908

Appeals under Civil Procedure Code

2011-12-04T10:45:00.000+05:30

Appeals under Civil Procedure Code

Punjab & Haryana High Court Judgements & Laws: Rejection of plaint--Plaint cannot rejected on ground that ad-valorem court fee on market value of suit property was not paid

2011-10-15T18:01:00.000+05:30

Punjab & Haryana High Court Judgements & Laws: Rejection of plaint--Plaint cannot rejected on ground that ad-valorem court fee on market value of suit property was not paid

Punjab & Haryana High Court Judgements & Laws: Indian Penal Code, 1860, S.419, 420, 468 , 471--Cheating

2011-10-15T17:56:00.000+05:30

Punjab & Haryana High Court Judgements & Laws: Indian Penal Code, 1860, S.419, 420, 468 , 471--Cheating

Punjab & Haryana High Court Judgements & Laws: BREAKING NEWS - - East Punjab Urban Rent Restriction Act, 1949 - - Limitation Act not applicable to proceedings under Section 13 B r/w Section 18-A(2)- - for condoning the delay in filing an application for leave to contest the eviction petition.

2011-10-15T17:55:00.000+05:30

Punjab & Haryana High Court Judgements & Laws: BREAKING NEWS - - East Punjab Urban Rent Restriction Act, 1949 - - Limitation Act not applicable to proceedings under Section 13 B r/w Section 18-A(2)- - for condoning the delay in filing an application for leave to contest the eviction petition.

Punjab & Haryana High Court Judgements & Laws: Registration Act, 1908, S.17 (1) (b)--Requires that where the Conveyance Deed has been prepared, such deed should be registered within a period of 4 months after its execution

2011-10-15T17:53:00.000+05:30

Punjab & Haryana High Court Judgements & Laws: Registration Act, 1908, S.17 (1) (b)--Requires that where the Conveyance Deed has been prepared, such deed should be registered within a period of 4 months after its execution

Month-Wise Judgements of Delhi High Court

2011-03-09T18:02:00.000+05:30

Month-Wise Judgements of Delhi High Court

Centre changed personal laws of only Hindus: SC [click source]

2011-02-09T14:48:00.002+05:30

Dhananjay Mahapatra, TNN, Feb 9, 2011, 02.30 am IST

NEW DELHI: The Supreme Court has again pulled up the government for its failure to overhaul personal laws of the minority communities, saying that it was a reflection on their secular credentials.

The Court also said on Tuesday that Government's attempts to reform personal laws don't go beyond Hindus who have been more tolerant of such initiatives.

"The Hindu community has been tolerant to these statutory interventions. But there appears a lack of secular commitment as it has not happened for other religions."

Justices Dalveer Bhandari and AK Ganguly made the observation while hearing petitions filed by the National Commission for Women and its Delhi chapter. The petitioners have sought formulation of a uniform marriageable age and complained that different stipulations in as many statutes had created confusion.

Additional solicitor general Indira Jaising explained the differences in age limits provided in statutes, saying that these were meant to achieve diverse social objectives. "Hence, there could not be a uniform age. Though the Government feels that girls above 16 years should be said to have attained the age of consent to sexual relation and hence could marry, the formal age of marriage would stay at 18 years," argued the ASG.

When asked by the Bench and NCW counsel Aparna Bhat about the glaring discrepancies between different laws and how Government plans to reconcile them, Jaising said: "Hindu laws is one of the finest laws, a saying that has to be taken with a pinch of salt. It provides for all oppression and also the escape route. The problem with the Hindu law is that legislators have tried to chip away little by little but there is no overhauling of it."

Jaising argued that though there can be no uniform marriage age, other laws including the Hindu Marriage Act, needed amendments to make them conform to the age of marriage provided under the Prohibition of Child Marriage Act, 2006.

She said under the 2006 law, marriages in which the girls are below 16 years are void and those in which they are between 16-18 years are voidable.

In the last two decades, the Supreme Court had stressed time and again the importance of enacting a Uniform Civil Code (UCC) as advised by the Constitution.

Between the Shah Bano judgment in 1985, Sarla Mudgal judgment (1995) and John Vallamatom verdict in 2003, the court had thrice stressed the need for enacting a UCC, saying it would help forge national integration and remove dissimilarities.

Provision for UCC is incorporated in Article 44 under the Directive Principles chapter of the Constitution, which says, "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

The Directive Principles, despite being termed by the Constitution itself as 'fundamental in the governance of the country' and that 'it shall be the duty of the state to apply these principles in making laws', are not enforceable in a court of law.

जुडिशरी में करप्शन से निपटेगा नया बिल [click source]

2011-02-09T14:38:00.001+05:30

12 Nov 2009, 0416 hrs IST, पीटीआई

नई दिल्ली ।। केंद्र सरकार हायर जुडिशरी में भ्रष्टाचार की शिकायतों से निपटने और जजों की जवाबदेही तय करने के लिए संसद के शीतकालीन सत्र में एक विधेयक लाने की सोच रही है। कानून मंत्री एम. वीरप्पा मोइली ने कहा कि द जजेज स्टैंडर्ड्स ऐंड अकाउंटेबिलिटी बिल के दायरे में संपूर्ण न्यायपालिका आएगी।

जजों को भी मिलेगा संरक्षण : मोइली के मुताबिक, यह एकतरफा मामला नहीं रहेगा। इस विधेयक के तहत जजों को भी संरक्षण मिलेगा, जिससे कि इसका बेजा इस्तेमाल न हो सके। मोइली कहते हैं कि जुडिशरी को नेताओं के साथ एक पायदान पर नहीं रखा जा सकता, क्योंकि जजों के बारे में अगर कुछ कहा जाता है तो वे नेताओं की तरह प्रेस कॉन्फ्रेंस नहीं कर सकते हैं।

फिलहाल महाभियोग का ही प्रावधान : प्रस्तावित विधेयक को मंजूरी मिली तो यह जजेज इन्क्वॉयरी ऐक्ट-1968 की जगह लेगा। इस ऐक्ट में सिर्फ जजों पर महाभियोग चलाने संबंधी मामला आता है। इसे बदलकर प्रस्तावित विधेयक इसकी जगह लेगा। गौरतलब है कि इस समय हायर जुडिशरी में जजों के खिलाफ दुर्व्यवहार की शिकायतें बढ़ रही हैं और ऐसी धारणा है कि सुनवाई सिस्टम प्रभावी नहीं है। इसे देखते हुए प्रस्तावित विधेयक काफी प्रासंगिक है।

ब्रिटेन, फ्रांस और अमेरिका से सबक : विधेयक का मसौदा ब्रिटेन, फ्रांस और अमेरिका समेत पूरी दुनिया से लिए गए सबक पर विचार के बाद तैयार किया गया है। मोइली कहते हैं कि इस बिल में सभी मसले पूरी तरह स्पष्ट रहेंगे। इसमें जजों की नियुक्ति से पहले और नियुक्ति के बाद से जुड़े सभी मुद्दों को शामिल किया जाएगा। इस विधेयक का स्वरूप काफी व्यापक होगा। इसमें जजेज (डेक्लरेशन ऑफ असेट्स ऐंड लायबिलिटीज) विधेयक-2009 के कुछ प्रावधान भी होंगे, जिसे विपक्षी दलों के कड़े विरोध के कारण राज्यसभा में पेश नहीं किया जा सका था। इस विधेयक में प्रावधान था कि हायर जुडिशरी के सदस्य अपनी परिसंपत्तियों की घोषणा करेंगे, लेकिन इसे सार्वजनिक नहीं किया जाएगा। इस पर विवाद पैदा हो गया था।

मंत्रालयों से ली जाएगी राय : कानून मंत्री ने हालांकि इस समग्र विधेयक की खासियत पर और खुलासा करने से इनकार कर दिया पर यह कहा कि इस बहुचर्चित विधेयक को कैबिनेट में रखने से पहले इसे विभिन्न मंत्रालयों के सामने पेश किया जाएगा। उन्होंने इस प्रस्तावित विधेयक को संसद की स्थायी समिति के समक्ष भेजने की संभावना से इनकार नहीं किया।

The role of Books of Accounts - section 397 - Companies Act - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:32:00.000+05:30

The role of Books of Accounts - section 397 - Companies Act - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Company Law Settlement Scheme & Easy Exit Scheme, 2010 - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:26:00.000+05:30

Company Law Settlement Scheme & Easy Exit Scheme, 2010 - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Law of Arbitration - section 397/398 of Companies Act? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:25:00.000+05:30

Law of Arbitration - section 397/398 of Companies Act? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Removal of Directors and the litigation? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:24:00.000+05:30

Removal of Directors and the litigation? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Important caselaws on Company law - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:23:00.000+05:30

Important caselaws on Company law - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Minority Shareholders In A Company – the protection? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:21:00.001+05:30

Minority Shareholders In A Company – the protection? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Petition under Section 397/398 – Importance of Prayer? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:21:00.000+05:30

Petition under Section 397/398 – Importance of Prayer? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

How to look at the issue of 'membership' under section 399? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:18:00.001+05:30

How to look at the issue of 'membership' under section 399? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Ascertaining 'Oppression' under section 397 of Companies Act - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:18:00.000+05:30

Ascertaining 'Oppression' under section 397 of Companies Act - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Winding up of companies - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:17:00.000+05:30

Winding up of companies - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

A to Z of Limited Liability Partnership - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:16:00.000+05:30

A to Z of Limited Liability Partnership - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Construing 'consent' under section 399 of Companies Act? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:14:00.000+05:30

Construing 'consent' under section 399 of Companies Act? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Directors’ responsibility, disputes and remedies? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:13:00.000+05:30

Directors’ responsibility, disputes and remedies? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Books of Account – allegations of mismanagement? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

2011-02-09T14:11:00.000+05:30

Books of Account – allegations of mismanagement? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

Graft case : HC quashes ex-judge's plea [click source]

2010-12-25T15:16:00.000+05:30

TNN, Dec 11, 2010, 06.30am IST

NEW DELHI : The attempt of a former Lower Court Judge to get charges of corruption against him quashed fell flat on Friday when the Delhi High Court dismissed his plea. The former Judge is accused of accepting Rs 2,000 as bribe for according favour to a businessman.

Refusing to quash the charges framed against him by a Special CBI Court, Justice Ajit Bharioke said, ''A judicial officer holds a sacred office and it is his duty to uphold and enforce the law. ''

The Court, however, allowed the plea of the former Judge that the trial against him be concluded fast. '' The Trial Court is requested to dispose of the matter at an early date, preferably within six months from the communication of this order,'' it said.

In his petition, former Special Metropolitan Magistrate Gulab Tulsiani had sought quashing of charges against him by the Lower Court in 2005 under various provisions of the Prevention of Corruption Act for allegedly demanding and accepting Rs 2,000 gratification . The Judge had allegedly taken the bribe from Ajesh Mittal, owner of M/s Mittal Paints and Chemical Ltd, for favouring him in a traffic rule violation case.

Everyone knows which judge is corrupt: SC [click source]

2010-12-25T15:09:00.000+05:30

TIMES NEWS NETWORK & AGENCIES

Dec 10, 2010, 11.47am IST

NEW DELHI : Maintaining its 'there is something rotten in Allahabad HC' remark, the Supreme Court has virtually declined any relief to Allahabad High Court. The HC had asked for clarification for this comment of the Supreme Court.

At the same time, a Bench of Justices Markandey Katju and Gyan Sudha Mishra, while dismissing the Allahabad High Court's application for expunging the remarks, clarified that there were "excellent and good Judges too" in the Court.

Rejecting the arguments of Senior Counsel PP Rao that even a clarification that some are excellent and good Judges would still cause suspicion on the integrity of the Judges, the Bench remarked, "It is not just time to react but also to introspect."

Reacting to the persistent plea of Rao that the clarification would not be sufficient, Justice Katju angrily retorted, "Do not tell all those things. I and my family have more than 100 years of association with the Allahabad High Court. People know who is corrupt and who is honest. So do not tell me all this."

Justice Katju further observed, "Tomorrow, if Markandey Katju starts taking bribe, then the entire country will know about it. So do not tell me as to who is honest and who is corrupt."

Rao submitted that the earlier observations had tarnished the image of the entire High Court judiciary and the rustic would not be able to distinguish between a honest and a corrupt judge.

"Do not tell me all those things about the rustic. They are much more enlightened. Do not think people of India are fools," the Bench observed while dismissing the application.

The Allahabad High Court had taken strong exception to the apex court's remarks that "something was rotten" and there was "rampant uncle judge syndrome" in the Higher Court.

In an application moved through its registry, the High Court had sought expunction of the remarks on the ground that they "have made difficult" for the judges to function and tarnished the reputation of the entire judiciary in Uttar Pradesh.

"The remarks are unfortunate and uncalled for and has brought down the image of the Allahabad High Court Judges in the eyes of the general public. The observations have made it difficult for the Judges to function," the application had stated.

It had submitted that Judges of the High Court are appointed only after clearance from the Supreme Court Collegium and as such, there was no scope to question their integrity.

On November 26, in a strong indictment of Allahabad High Court, the Apex Court had said, "There is something rotten" there and raised serious questions about integrity of several of its Judges.

"Something is rotten in the State of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court," a Bench of Justices Markandey Katju and Gyan Sudha Mishra had said, adding the High Court "really needs some house cleaning".

The Apex Court Bench had also asked the Chief Justice of the High Court to take some strong measures, including recommending "transfers of the incorrigibles".

It had made the remarks in a 12-page order while making the insinuation that several Judges of the High Court suffer from 'uncle judge' syndrome, which refers to judges passing favourable orders for parties represented by lawyers known to them.

The Bench's remarks came while scrapping a Single-Judge Bench order of the Allahabad High Court which had asked a Bahraich-based Waqf Board to temporarily allot a portion of its land in May-June this year to the proprietors of a circus for its show during an annual fair.

Referring to the rampant 'uncle judge' syndrome allegedly plaguing the High Court, the Apex Court Bench had said, "Some Judges have their kith and kin practising in the same Court."

Allahabad HC moves SC against 'rotten' remark [click source]

2010-12-25T14:48:00.000+05:30

Nagendar Sharma, Hindustan Times

Email Author

New Delhi, December 08, 2010

First Published: 23:36 IST (8/12/2010)

Last Updated: 01:17 IST (9/12/2010)

The Allahabad High Court on Wednesday filed a review petition in the Supreme Court demanding that the unprecedented critical remarks made against it by the country's top court last month be expunged. A Division Bench of the Supreme Court comprising Justices Markandey Katju and Gyan Sudha Misra, had on November 26 slammed the Allahabad High Court, saying "something is rotten" there.

A day later, angry High Court Judges in a Full Court Meeting had passed a Resolution authorising their Chief Justice to move the Supreme Court seeking removal of the adverse remarks, reported first by Hindustan Times.

In the review petition, the High Court has said the remarks made by the Supreme Court are "general in nature", and there was no reason for the Apex Court to have made such remarks, while deciding a particular case.

Further, the High Court has stated that in case the Honourable Judges of the Supreme Court had any objection to the appointment of any High Court Judge, then they could have raised the matter in "the grievance forum" which is available to them.

The Allahabad High Court, the largest in the country, has also stated that "it was completely unnecessary on the part of Hon'ble Judges to have commented on the appointment of Judges in the High Court."

It has also pointed out that "the general comments made about the entire High Court are not acceptable since these have caused a damage to the image of the judiciary and should be expunged from the November 26 judgement."

The issue has divided the High Court with the Judges and the Lawyers taking opposite stands. The Apex Lawyers Body, the High Court Bar Association has welcomed the Supreme Court verdict and asked the Chief Justice to take steps to implement it.

In a strong indictment of the High Court, the Supreme Court had stated: "Some Judges have their kith and kin practising in the same court, and within a few years of starting practice, the sons or relations of the Judge become multi-millionaires and have huge bank balances."

It had further stated: "We are sorry to say a lot of complaints are coming against certain Judges of Allahabad High Court relating to their integrity."

Chargesheeted candidates should be debarred: CEC [click source]

2010-12-25T14:33:00.001+05:30

HT Correspondent, Hindustan Times

Email Author

New Delhi, December 10, 2010

First Published: 01:16 IST (10/12/2010)

Last Updated: 02:36 IST (10/12/2010)

Chief election commissioner SY Quraishi on Thursday said the individuals chargesheeted by courts in criminal offences which carry a punishment of five years or more should not be allowed to contest elections. “It is time to accept the election commission's proposal to disqualify any person accused of an offence punishable by imprisonment for five years or more, from contesting elections even when trial is pending, provided charges have been framed against him by a competent court,” he said.

He said the Law Commission had recommended that at least those against whom charges have been framed by court of law should be debarred from contesting.

Today we have 2,57,928 people in prisons who are undertrials. They have not been convicted. Quraishi said efforts are on to frame rules to enable NRIs to vote but gave no assurance on its implementation in assembly polls due next year.

Moily said the government proposes to bring a comprehensive bill on electoral reforms in the next five months

Arrest should be the last option, says SC [click source]

2010-12-08T19:16:00.000+05:30

Press Trust Of India

New Delhi, December 05, 2010

The Supreme Court has ruled that arrest should be the last option used by police as unnecessary incarceration of a person violates the fundamental right to personal liberty. "The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case," the Apex Court said in a judgement.

"Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case," the Court said.

A Bench of Justices Dalveer Bhandari and KS Radhakrishnan also said that anticipatory bail granted to a person should continue till the conclusion of the trial and no conditions should be imposed for the accused to surrender for obtaining a regular bail.

"A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage," they said.

"The proper course of action ought to be that after evaluating the averments and accusation available on the record, if the court is inclined to grant anticipatory bail, then an interim bail be granted and notice be issued to the public prosecutor," Justice Bhandari said.

The Bench said the tendency of Courts to grant anticipatory bail with conditions like asking the person to surrender before a court for regular bail was contrary to the statute and ruling set by a Constitution Bench.

"The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused," the Apex Court said.

"The bail granted by the Court should ordinarily be continued till the trial of the case. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and judgement of the Constitution Bench in Sibbia’s case," the Bench said.

The Apex Court made the remarks while granting anticipatory bail to Siddharam Satlingappa Mhetre, a Congress leader allegedly involved in the killing of a BJP worker on September 26, 2009, in Maharashtra.

Mhetre had moved the Apex Court after the Bombay High Court dismissed his anticipatory bail plea.

DIN: New number must to file returns [click source]

2010-12-08T19:08:00.000+05:30

AGENCIES, Nov 29, 2010, 07.23am IST

NEW DELHI : Taxpayers will now have to procure a 'new number' for filing returns and making any communication with the Income Tax department. The unique Document identification number (DIN), on the lines of numbers like PAN and TAN, will be quoted on "every" income tax-related communication, including returns to be filed next year for the financial year 2010-11. According to the new guidelines brought out by the Central Board of Direct Taxes (CBDT), the DIN will be mandatory "in respect of every notice, order, letter or any correspondence" with the department, by the taxpayers.

"The DIN will be generated by the I-T department and will be useful, essentially, for error-free filing of tax returns, claiming refunds and other communication with the department by the assesses," a senior Finance Ministry official said.

The 'Aykar Sampark Kendras' will hand out the DIN from this month, the official said. Assesses will not be put to any trouble, as the numbers will be generated and allotted by the department itself.

I-T officials will also be allotted the numbers in order to streamline the process, the official said, adding, the number has to be produced thereon for every activity with the department. Taxpayers and tax collectors are currently required to quote Permanent Account Number (PAN) and Tax Deduction and Collection Account Number (TAN) among others when returns are filed with the department.

SC to decide if criteria for judges' appointment be made public [click source]

2010-12-08T19:04:00.001+05:30

PTI, Nov 26, 2010, 12.08 pm IST

NEW DELHI : A Constitution Bench of the Supreme Court would examine whether a citizen is entitled to know the criteria adopted for appointment and transfer of judges of high courts and the apex court.

A Bench of Justices B Sudershan Reddy and SS Nijjar in a judgement on Friday decided to refer the issue to a Constitution Bench in view of the complexity involved as the Supreme Court itself had opposed any such disclosure on the ground that it would impinge on the independence of the judiciary.

Earlier, challenging various orders of the Delhi High Court and the Central Information Commission (CIC) asking the Apex Court to reveal information held by the Chief Justice of India, Attorney General GE Vahanvati, appearing for the Supreme Court, had contended that all information held by the CJI cannot be made public.

He had pleaded that these were very important issues and they should be decided by a Constitution Bench of the Court.

The Court was hearing an appeal filed by the Supreme Court Registry challenging the directions of the CIC to disclose information on Judges' appointments to the Apex Court in cases involving superseding of seniors.

The CIC, in a series of orders, has held that office of the CJI comes within the purview of the RTI Act and information held by the chief justice should be revealed.

The Registry had assailed the CIC's order contending that the material (information) held by the CJI was kept under fiduciary relationship and should be exempted from being made public under Section 8(1)e of the transparency law.

Deviating from the normal practice which was adopted by it in an earlier case on the assets declaration issue, the Apex Court this time has sidelined the Delhi High Court where appeals against the CIC's order were filed, by moving a petition before itself.

The same legal issue on whether the CJI's office comes within the ambit of RTI or not is pending before a full Bench of the Delhi High Court after a Single Judge had rejected the Apex Court's plea that all the information with the CJI cannot be revealed under the RTI Act.

High Court to challenge SC [click source]

2010-12-08T18:56:00.000+05:30

Nagendar Sharma , Hindustan Times

Email Author

Allahabad, December 03, 2010

First Published : 01:20 IST (3/12/2010)

Last Updated : 02:16 IST (3/12/2010)

The Allahabad High Court has decided to move the Supreme Court demanding the strongly critical observations made about its functioning by the Supreme Court last week be expunged. The decision was taken at a Full Court meeting, attended by a majority of the Judges of the court and its Lucknow Bench, HT has learnt.

"Many Judges are angry at the tone and tenor of the SC’s observations. A resolution has been passed authorising the High Court Chief Justice to approach the SC for removal of the adverse observations,” said a highly placed source.

On November 26, while hearing an appeal against a stay order passed by the Allahabad High Court, a Bench of SC Judges Gyan Sudha Mishra and Markandey Katju had said : “Something is rotten in the Allahabad high court…Some judges have their kith and kin practising in the same court, and within a few years of starting practice, the sons or relations of the judge become multi-millionaires and have huge bank balances.”

“We are sorry to say a lot of complaints are coming against certain Judges of Allahabad High Court relating to their integrity,” the Bench added.

Allahabad HC Registrar General has been sent to Delhi to explore the possibility of either filing a curative petition or a review petition in the SC.

Lawyers’ organisations representing 3,000 lawyers appear to be backing the High Court Judges at the moment, though a section of the lawyers privately agree with what the Supreme Court said. The High Court Bar Association has also indicated its willingness to move the Supreme Court seeking removal of the remarks.

“There may be isolated cases of corrupt Judges, but the SC was certainly not correct in indicting the entire High Court,” said Bar Association Secretary, Pranesh Dutt Tripathi. “We will authorise our president to take appropriate steps.”

Former Chairman of the Bar Council of India, VC Mishra, had a different view. “There is no denying the problem of ‘uncle judges’ and corruption in the judiciary exists. But I feel it could’ve been pointed out in more acceptable language,” he said.

Angry SC slams ‘rotten’ Allahabad High Court [click source]

2010-12-08T18:40:00.004+05:30

Satya Prakash, Hindustan Times

Email Author

New Delhi, November 27, 2010

First Published : 00:05 IST (27/11/2010)

Last Updated : 00:22 IST (27/11/2010)

“There is something rotten in the Allahabad High Court.” These words uttered by a Supreme Court Bench on Friday are an unprecedented and stinging indictment of India’s largest High Court and expose one of the Country’s worst kept secrets — corruption in the judiciary. What was once a whisper in judicial corridors is now public. “There are some ‘incorrigible’ Judges in the Allahabad High Court (Lucknow Bench included) who pass orders on ‘extraneous considerations’,” the Apex Court said.

“Something is rotten in the state of Denmark, said Shakespeare in Hamlet, and it can similarly be said something is rotten in the Allahabad High Court,” the SC said, asking High Court Chief Justice FI Rebello to take strong steps to stem the rot.

Referring to the problem of ‘uncle judges’, it said: “Some Judges have their kith and kin practising in the same court. And within a few years of starting practice, these sons and relations of Judges become multi-millionaires with huge bank balances, luxurious cars, huge houses and luxurious lives.”

This observation was made by a Bench comprising Justices Markandey Katju and Gyan Sudha Mishra on a judgment passed by a Single Judge of the High Court that has been challenged in Supreme Court. It relates to the allotment of a piece of land in Bahraich town of Uttar Pradesh on lease to a circus company to hold shows during a local fair.

Even at face value, the judgment is questionable as Bahraich, barely 80 km north of Lucknow, falls in the jurisdiction of the Lucknow Bench and not the Allahabad Bench. Yet, the Judge who passed the order is from the Allahabad Bench and did so despite the Lucknow Bench having already dismissed the petition twice in May 2010.

“These orders were clearly passed on extraneous considerations," Supreme Court Bench observed.

“We are sorry to say but a lot of complaints are coming against certain judges of the Allahabad High Court relating to their integrity,” it added.

“The Allahabad High Court really needs some cleaning (both Allahabad and Lucknow Benches) and we request the Honourable Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including transfer of the incorrigibles,” it said.

High Court Judges passing questionable orders have serious implications because many of them go on to become Supreme Court Judges.

However, the Supreme Court clarified that not lawyers practising in the High Court are bad.

“We do not mean to say all lawyers who have close relations as Judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account.

“However, others are shamelessly taking advantage of this relationship.”

चुनाव लड़ने से पूर्व खाता खोलें [click source]

2010-11-23T17:07:00.000+05:30

चुनाव लड़ने के इच्छुक उम्मीदवारों को अब चुनाव मैदान में उतरने से पूर्व अपने चुनावी खर्च का लेखा-जोखा रखने के लिए बैंक में अलग से एक खाता खोलना होगा।

विधि एवं न्याय मंत्री एम वीरप्पा मोइली ने लोकसभा में बताया कि चुनाव आयोग ने नए दिशा निर्देश जारी किए हैं जिनके तहत चुनाव लड़ने वाले सभी उम्मीदवारों को विशेष रूप से चुनाव खर्च का हिसाब-किताब रखने के लिए एक अलग खाता खोलना होगा।

उन्होंने बताया कि चुनाव आयोग ने बिहार विधानसभा के लिए हो रहे चुनाव तथा बांका लोकसभा उपचुनाव तथा उत्तर प्रदेश के विधानसभा उपचुनाव के दौरान चुनावी खर्चो पर निगरानी रखने के उद्देश्य से इस प्रकार के दिशा निर्देश जारी किए हैं।

मोइली ने बताया कि उम्मीदवारों को नामांकन पत्र दाखिल करने के समय ही संबंधित निर्वाचन अधिकारी को इस खाते का ब्यौरा देना होगा तथा छोटे मोटे खचरे को छोड़कर उसे सभी खर्च का भुगतान क्रास एकाउंट पेयी चेक के जरिए करना होगा।

उन्होंने बताया कि इस खाते की निगरानी प्रत्येक निर्वाचन क्षेत्र में लेखा समिति निगरानी रजिस्टर के जरिए करेगी। (भाषा)

PF scam : SC no to transfer of case to Delhi [click source]

2010-11-23T17:04:00.000+05:30

Bhadra Sinha, Hindustan Times

Email Author

New Delhi, November 19, 2010

First Published : 13:07 IST (19/11/2010)

Last Updated : 00:23 IST (20/11/2010)

The Supreme Court on Friday decided against the transfer of the provident fund (PF) scam involving sitting Allahabad High Court Judges from Ghaziabad to Delhi. A Special Bench headed by Justice DK Jain said: "We do not find any merit in the CBI plea seeking transfer of the case from Ghaziabad to Delhi. The transfer of the case would undermine the credibility and independence of judiciary."

The CBI had sought shifting of the trial from Ghaziabad to Delhi arguing that the case was "first of its kind" that had "shaken the foundation of the judiciary." The agency also expressed its apprehension on the possibility of the accused judges interfering with the administration of justice and influencing witnesses.

The Court said it was difficult for it to believe that the Ghaziabad Court, which is hearing the case, would be biased and not be impartial due to the involvement of former colleagues of the Judge presiding over the Court. The Central Bureau of Investigation's (CBI) apprehension "misplaced", the Bench held.

The Supreme Court, however, permitted the High Court Chief Justice to create an Additional Special Court to hear the matter. At present there are only two Special CBI Courts in Uttar Pradesh — Lucknow and Ghaziabad.

According to the directive of the Supreme Court, the State Chief Justice can now designate a Court in any other district to hold the trial of the case.

"The paramount consideration is to meet the ends of justice, which should not only be done but it should also seen to have been done," Attorney General GE Vahanvati told the court on behalf of the CBI.

The CBI chargesheet had named six retired District Judges, out of whom three, Ravindra Kumar Mishra, Ajay Kumar Singh and Radhey Shyam Chaubey, were elevated to the Allahabad High Court.

There are 70 accused in the case and the scam involves fraudulent withdrawal of money from the PF accounts of class III and IV employees of Ghaziabad District Court in which names of Judges, including one from the Apex Court, had surfaced as beneficiaries from the withdrawn money.

Lokayukta has no power to summon IAS officers: HC [click source]

2010-11-23T16:53:00.000+05:30

HT Correspondent, Hindustan Times

Email Author

New Delhi, November 23, 2010

First Published : 00:05 IST (23/11/2010)

Last Updated : 00:07 IST (23/11/2010)

In a major relief to IAS officers, the Delhi High Court on Monday ruled that anti-corruption watchdog Lokayukta cannot summon officers or initiate proceedings against them. Delhi Lokayukta Justice Manmohan Sarin was snubbed for seeking permission to defend himself before the High Court regarding his decision to summon three IAS officers - RK Saxena, Ravinder Balwani and Chetan B Sanghi. The officers are facing complaints of certain irregularities during their tenure as heads of state corporations.

Hearing the plea, Justice S Muralidhar criticised him and quashed Justice Sarin's order to summon them.

Defending Sanghi, Delhi Government counsel Najmi Waziri said they had no problems in producing records before the Delhi Lokayukta, but he "has no powers to summon the IAS officers".

SK Dubey, counsel for Saxena, said, "According to Section 17 of the Lokayukta Act and Upalokayukta Act 1995, a Lokayukta has no authority or jurisdiction to inquire into allegations against any member of the Judicial Services or of the Civil Services of the Union or a member of all India Services or Civil Services of a State." Countering the Lokayukta's stand that IAS officers can be summoned once they are appointed as heads of public institutions, Dubey argued that out of the 64 odd posts of the heads of public institutions in Delhi, IAS officers are posted as the chief of the private sector undertakings in almost 34 posts.

"The IAS officers are posted there on deputation. However, that does not mean that they cease to be an IAS officer," he told the Court.

Justice Muralidhar criticised the Lokayukta's "extraordinary" plea for making him a party in the case in the High Court.

Justice Muralidhar was of the view that "so many orders passed every day by judicial officers are challenged day in and day out and reviewed in the Higher Courts. But judicial officers who have passed the orders never appear in the Court to support their orders".

"No authority can expect that its decisions would not be vulnerable to challenge. Fallibility is inherent to decision-making at any level," Justice Muralidhar said while dismissing justice Sarin's plea.

SC adds murder charge to dowry cases [click source]

2010-11-23T16:37:00.000+05:30

Satya Prakash, Hindustan Times

Email Author

New Delhi, November 22, 2010

First Published : 20:41 IST (22/11/2010)

Last Updated : 02:56 IST (23/11/2010)

The Supreme Court on Monday virtually amended the anti-dowry law by making it mandatory for Trial Courts across the Country to add murder charge against accused persons in all dowry death cases. “We…direct all Trial Courts in India to ordinarily add Section 302 (murder) to the charge of Section 304B so that death sentence can be imposed in such heinous and barbaric crimes against women,” the Court said.

It directed that the copy of the order be sent to Registrar Generals and Registrars of all High Courts for further circulation to all Trial Courts.

Under the existing provision, dowry death is registered under Section 304B IPC entailing a maximum punishment of life imprisonment (minimum seven years). After this order, a person convicted of dowry death would get either life imprisonment or capital punishment.

Strangely, the order came from a Bench headed by Justice Markandey Katju, who had been emphasising that Courts should only interpret the law and not supposed to legislate.

Even in the recent verdict on maintenance for women in live-in relationships under the Domestic Violence Act, Justice Katju had said the legislature did not intend to extend the benefit of maintenance to women in all such relations.

“No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act but then it is not for this Court to legislate or amend the law,” it had said.

The order making the anti-dowry law harsher came in a case wherein accused Rajbir alias Raju had been convicted under Section 304B of IPC for killing his pregnant wife Sunita for dowry barely six months after their marriage. The Punjab and Haryana High Court had reduced his sentence to 10-year rigorous imprisonment. His mother was given two-year rigorous imprisonment.

Describing the case as “barbaric and brutal murder”, the Bench said: “We fail to see why the High Court has reduced the sentence of Petitioner No. 1 Rajbir.” It issued notices to the convict and Haryana asking why life sentence should not be restored.

Angry SC-Govt exchange over choice of CVC [click source]

2010-11-23T16:24:00.002+05:30

Bhadra Sinha, Hindustan Times

Email Author

New Delhi, November 22, 2010

First Published : 12:17 IST (22/11/2010)

Last Updated : 08:11 IST (23/11/2010)

A fresh confrontation appeared to be brewing on Monday between the UPA Government and the Supreme Court over the appointment of the Central Vigilance Commissioner PJ Thomas.

Thomas took over as the CVC in August this year. The court questioned the suitability of Thomas for the post considering he still had a criminal case lodged against him, while the Accountant General, appearing on behalf of the government insisted that 'impeccable credentials' were not a prerequisite for selection to any position, and many judges would fail the test if similar yardstick was used to measure them.

The Court was hearing a PIL on the suitability of Thomas functioning as the CVC when he still had a criminal case lodged against him. The case was lodged in 2000 when he was a Senior Official in Kerala.

It was HT that first revealed, using information obtained through an RTI application, that a case against Thomas relating to the import of palmolein when he was food secretary had never been quashed.

"Wouldn’t it be embarrassing for the CVC to function if people question his power to investigate a complaint as he is himself an accused in a criminal case?" a Bench headed by Chief Justice SH Kapadia asked.

"If it (impeccable integrity) becomes a criterion, all judical appointments would become subject to it. Similarly it would become a criterion for every constitutional appointment," retorted GE Vahanvati, Attorney General. The Court’s main concern was how the CVC State Wing would probe the case honestly with Thomas being the CVC. The State Vigilance Department is the prosecuting agency in the palmolein case.

Vahanvati was told to reply to the queries in two weeks.

Vahanvati submitted before the Court that all the procedures required to appoint a CVC were followed in Thomas’s case. According to him the senior bureaucrat was rated as an outstanding officer when he was promoted from State to Centre.

Before Thomas was appointed as CVC on September 7, this year, he was secretary in the Telecom Ministry. The petitioners have alleged his role in the 2G spectrum scam too. Thomas’s appointment was despite the Leader of Opposition in Lok Sabha objecting to it.

"The Prime Minister and the Home Minister recommended Thomas’s name despite the fact that Leader of the Opposition objected to it. So, the Leader of Opposition was forced to record her dissent. Hence, her presence was rendered meaningless in the appointment,” the petition alleges.

Disruption of Parliament causes Rs 61 crores loss in 8 days [click source]

2010-11-23T16:12:00.000+05:30

Srinand Jha, Hindustan Times

Email Author

New Delhi, November 23, 2010

First Published : 00:44 IST (23/11/2010)

Last Updated : 10:31 IST (23/11/2010)

Disruption of Parliament proceedings over the last eight days has caused a loss of Rs 61.20 crore to the public exchequer. Statistics released by the PRS Legislative Research indicates that Lok Sabha members put in just 5.3 productive hours of the scheduled time of 48 hours during the first eight related stories days of the ongoing winter session.

For the same period, the attendance record of Rajya Sabha members is even worse — MPs of the upper house put in 0.9 productive hours of the scheduled time of 40 hours.

Statistics reveal that trends of forcing premature adjournments of parliament have been making a quadruple jump.

Against 30.4 hours lost on account of adjournments in the first eight days of this year’s budget session, 41 hours were lost in the two houses in the monsoon session. Figures climbed to a whopping 81 hours of lost work for the same period in the winter session, the data indicates. Disruptions over the 2G spectrum scam have come in at rather an appropriate time for the MPs. Several members have been busy in this season of marriages. DMK leader MK Alagiri married off his son lately, while BJP chief Nitin Gadkari’s son’s marriage is on December 3.

Bihar MPs Lalu Prasad and Sharad Yadav have been preoccupied with electioneering in the state, while Trinamool Congress chief Mamata Banerjee has been kept busy with foundation stone laying programs for railway projects in West Bengal.

Congress MP Milind Deora was recently spotted at a music show in Delhi

CRL MC No 280 of 2010 [click source]

2010-11-23T15:51:00.004+05:30

Case under Section 138 NIA [Dehli High Court]

10. In Ishar Alloy Steel Ltd. Vs. Jayaswals NECO Ltd. reported in 2001 criminal Law Journal 1250, Supreme Court held as under:- “Thus, "the bank‟ referred to in Clause (a) to the proviso to Section 138 of the Act means the drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee in whose favor the cheque is issued.”

11. In V.S.Thakur vs. State and Anr. reported in Manu/DE/3317/2009 this court held as under:-

“The ratio of the above referred judgment of the Hon'ble Supreme Court is that a cheque
is deemed to have been presented to the banker of the drawer irrespective of the fact whether it is deposited by the payee in his own bank. The banker of the payee, after receiving the cheque from him, is required to present it to the banker of the drawer and therefore, if the cheque issued from a bank in Dehrudun is deposited in Delhi, the bank in which it is deposited in Delhi, cannot be said that the cheque issued by the petitioner was presented in Delhi, despite the fact that the bank in which the respondent No.2 had an account was in Delhi, the cheque shall be deemed to have been presented only to the bank at Dehradun on which it was drawn. Therefore, deposit of cheque in Delhi would not confer jurisdiction of Delhi court to try this complaint.” (Emphasis supplied)

12. In ICICI Bank Ltd. Vs.Subhash Chand Bansal & Ors. reported in 160 (2009) Delhi Law Times 379 this court held that the court in whose territorial jurisdiction drawee bank is situated would have territorial jurisdiction to entertain the complaint in question.

13. K. Bhaskaran‟s case (supra) is of no help to the petitioner as in the said case the “place of presentation” of the cheque has not been defined. In the context of Section 138 of the Act, the place of presentation of cheque would be the place where bank of drawer is situated.

14. In view of the above, I do not find any material illegality, irregularity or impropriety in the impugned order.

15. Dismissed.

No conviction for mere demand of dowry: Supreme Court [click source]

2010-10-10T11:02:00.002+05:30

PTI, Aug 5, 2010, 07.06 pm IST

NEW DELHI : The Supreme Court has ruled that a person cannot be convicted for merely demanding dowry unless the demand is followed by mental or physical torture resulting in the death of the victim.

A Bench of Justices RM Lodha and AK Patnaik said in a judgement that the prosecution has to establish convincing evidence that the accused had subjected the victim to torture soon before her death in connection with the demand.

"The evidence of Prosecution Witness-2, PW-4 and PW-5 shows that Jagdish and Gordhani played a role in the demand of dowry for a scooter or Rs 25,000 for Amar Singh but demand of dowry by itself is not an offence under Section 498A or Section 304B IPC."

"What is punishable under Section 498A or Section 304B of IPC is the act of cruelty or harassment by the husband or the relative of the husband against the woman," the Bench said.

The Bench passed the judgement while upholding the acquittal of Gordhani, mother-in-law and Jagdish, brother-in-law, in a dowry death case of newly-married woman Santosh in Rajasthan's Alwar District in March, 8, 1993. It however, upheld the conviction of the husband Amar Singh.

The Sessions Court had convicted all the three for dowry death (Section 304B) and under Section 498A (harassment of married woman by husband/relatives).

The Rajasthan High Court had on an appeal from the accused quashed the conviction of Jagdish and Gordhari while sustaining the life sentence imposed on Amar Singh.

While the State Government had appealed against the acquittals, Amar Singh challenged his conviction.

Live-in relationship, pre-marital sex not an offence : SC [click source]

2010-10-10T10:54:00.000+05:30

PTI, Mar 23, 2010, 08.21pm IST

NEW DELHI : In an observation that will cheer votaries of pre-marital sex and live-in-partners, the Supreme Court on Tuesday opined that a man and woman living together without marriage cannot be construed as an offence.

"When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence," a Three Judge Bench of Chief Justice KG Balakrishnan, Deepak Verma and BS Chauhan observed.

The Court said even Lord Krishna and Radha lived together according to mythology.

The Apex Court said there was no law which prohibits live-in relationship or pre-marital sex.

The Apex Court made the observation while reserving its judgement on a Special Leave Petiton filed by noted south Indian actress Khusboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-maritial sex in interviews to various magazines in 2005.

The Judges grilled the counsel for some of the complainants in the case and repeatedly stressed that the perceived immoral activities cannot be branded as offence.

The argument of the counsel was that her comments allegedly endorsing pre-marital sex would adversely affect the minds of young people leading to decay in moral values and country's ethos.

"Please tell us what is the offence and under which section. Living together is a right to life," the Apex Court said apparently referring to Article 21 which granted right to life and liberty as a Fundamental Right.

The Apex Court further said the views expressed by Khusboo were personal.

"How does it concern you? We are not bothered. At the most it is a personal view. How is it an offence? Under which provision of the law?" the Bench asked the counsel.

The Apex Court further asked the complainants to produce evidence to show if any girls eloped from their homes after the said interview.

"How many homes have been affected can you tell us," the Bench asked while enquiring whether the complainants had daughters. When the response was in the negative, they shot back, "Then, how are you adversely affected?"

Khusboo had approached the Apex Court after the Madrash High Court in 2008 dismissed her plea for quashing the criminal cases filed against her throughout Tamil Nadu.

Punish officials who sit on files of legal matters : SC [click source]

2010-10-10T10:40:00.001+05:30

Indo-Asian News Service

New Delhi, October 05, 2010

First Published : 22:19 IST (5/10/2010)

Last Updated : 22:22 IST (5/10/2010)

The Supreme Court has said that it was high time that the "malpractice" and the "racket" of officials sleeping over the files of cases that have gone against the State comes to an end and such officials are punished. "We feel that the beneficiary (the non-state actor) of a judgment may be hand in glove with the officials in the government department who deal with the files, and the files are suppressed for a long period," said an Apex Court Bench of Justice Markandey Katju and Justice TS Thakur in an order.

The Court said that a delay in filing appeals in the High Courts or the Supreme Court becomes a technical ground for the dismissal of the petition by the State.

"Huge amount of public money or public property may be involved and the Government will be the loser in such cases on technical point of limitation (time limit for filing an appeal)," the Court said in its order delivered Friday.

"This racket has been going on for a long time not only before the Supreme Court but also before High Courts," the Court said.

"Now the time has come that this racket should come to an end and the officials responsible for this be given severe punishment," the Court said.

The Court said: "It is high time that this mal-practice be severely rooted out and an effectual mechanism be adopted all over the country so that such delays do not occur in future."

While asking Solicitor General Gopal Subramaniam to assist the Court as amicus curiae, the Court directed the issuance of notice to Chief Secretaries of all States and Union Territories.

In the instant case, the Jharkhand Government took 501 days in filing appeal before the State High Court in a case. Thereafter, the Government took more than a year's time in filing the appeal in the Apex Court challenging the impugned verdict of the High Court.

The Court has asked the State's Chief Secretary to file an affidavit explaining what action has been taken against the officials responsible for the delay.

The Court said in case no action has been taken then the Chief Secretary should explain the reason for it.

'Judiciary is yet to prove mettle' [click source]

2010-10-10T10:31:00.000+05:30

Nagendar Sharma, Hindustan Times

Email Author

New Delhi, October 07, 2010

First Published : 00:08 IST (7/10/2010)

Last Updated : 00:10 IST (7/10/2010)

The judiciary is yet to prove its mettle and show a proactive approach in deciding cases of communal riots, which followed the Babri Masjid demolition, according to the judge who probed the 1992 Mumbai riots. Former Supreme Court Judge, Justice BN Srikrishna, who headed the inquiry panel which probed the riots that claimed over 900 lives and shook Mumbai, has said only Paul the Octopus could predict whether his recommendations would ever be implemented.

Asked about the role of the judiciary in deciding almost two decade old post-Babri Masjid demolition riots cases, Justice Srikrishna told HT in an e-mail response: "My view is that the judiciary has bitten off more than it can chew and it must concentrate on its true role envisaged by the Constitution, viz that of 'judging'."

The Judge who submitted his report just five years after being assigned the job in 1993, said: "However, if the judiciary decided to be proactive, this was an occasion (riots cases) where it could have shown its mettle."

In response to a question on whether the families of riots victims would ever get justice, Justice Srikrishna replied: "Your guess is as good as mine..."

He said state governments were not bound by law to implement the recommendations of inquiry panels. "The report is supposed inform the mind of the government of the true facts pertaining to the matter of definite public importance."

Justice Srikrishna said if the non-implementation amounted to betrayal of trust for the victims' families was a "matter of public perception."

Asked about the relevance of inquiry panels, he replied: "The only role left perhaps is that of dissipating pent up public anger and acting as a safety valve for letting off steam. That too is sometimes necessary."

In a clear sign of frustration over his probe report gathering dust, on whether his recommendations would ever be implemented Justice Srikrishna said: "Only Paul, the clairvoyant Octopus, can probably answer this question."

But he refused to comment on the Allahabad High Court verdict on the Ayodhya issue.

On being branded anti-Hindu by some parties after his report was placed in the Maharashtra assembly in 1998, Justice Srikrishna responded: "Such charges or praise (if there is some on occasions) are so much water off the duck's back, as far as I am concerned."

Who will judge the judges? [click source]

2010-10-10T10:20:00.000+05:30

Ravi Kiran Jain, Senior Advocate

Sep 27, 2010

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.” -Lord Acton

“Power corrupts, absolute power corrupts absolutely”, a very old saying appears to have been put aside by the Supreme Court while deciding the case of SC Advocates on Record and thereafter deciding Presidential Reference No. 1 of 1998 (AIR 1994 SC 268 and 1999 SC Page 1), popularly known as Second Judges case and Third Judges case respectively. The judgment in the Second Judges case was welcomed because it overruled SP Gupta case popularly known as First Judges case. The fallout of SP Gupta was that the opinions of the Chief Justice of India (CJI) and Chief Justices of the High Courts were totally ignored in matters of appointment and transfer of Judges as power had slipped in the hands of the corrupt executive to the exclusion of the judiciary and for a period of about 12 years the Judges were appointed by the corrupt executive. The judgment in First Judges case was given on December 30, 1981, in Second Judges case the judgment was given on October 6, 1993 and in Third Judges case it was given on October 28, 1998. In First Judges case the 7-Judge Bench by a majority held that the primacy in matters of appointment and transfer of judges is that of the executive and not of the judiciary. The SP Gupta case went to the extent of holding that consultation by the President of India with the CJI in the case of Supreme Court, and CJI and Chief Justices of the High Courts in case of appointment of a High Court Judge, is only formal.

A 9-Judge Bench was constituted in pursuance of an order dated October 26, 1990 passed in Subhash Sharma vs. Union of India (AIR 1991 SC 128). The papers of the SC Advocate on Record Association vs Union of India were directed to be placed before learned Chief Justice of India to examine the two questions referred therein namely- the position of the CJI with respect to primacy, and justiciability of fixation of judge’s strength. The Bench in Subhash Sharma’s case which referred the said two questions was of the opinion, that the correctness of the majority view in SP Gupta vs Union of India (AIR 1982 SC 149) required reconsideration by Larger Bench. It was in this backdrop that the judgment in Second Judges case was welcomed. In the Second Judges case the Supreme Court held that the opinion of the CJI, for the purposes of Articles 124(2) and 217(1), so given, has primacy in the matter of all appointments: and no appointment can be made by the President under the provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the CJI formed in the manner indicated. The “manner indicated” was that the opinion given by the CJI in consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court, and the CJI is also expected to ascertain the views of a Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court. Similarly in matters relating to the appointment in the High Courts, the CJI is expected to take into account the views of the colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. This view of the Supreme Court in Second Judges case rested on the concept of independence of judiciary being the basic feature of the Constitution.

It may be seen here that Articles 124 and 217 of the Constitution which are relevant regarding the manner of appointment of Supreme Court and High Court Judges is silent about the primacy or supremacy either of the executive or of the judiciary. The ruling of the majority judgment in SC Advocates on Record Association vs Union of India was clear and required no clarification in as much as it was clearly held therein that the opinion of the CJI in the process of consultation in the matter of selection and appointment of Judges to the Supreme Court and the High Court’s as well as transfer of Judges from one High Court to another High Court is entitled to have the right of primacy, and is binding upon the President of India. However, in purported exercise of his power under Article 143 to refer to the Supreme Court for its opinion questions of law or fact “which have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain such opinion”, the President of India made a reference to the Supreme Court in answer to which Third Judges case was decided by a Constitution Bench. A bare perusal of the Presidential Reference which has been quoted in Third Judges case clearly goes to show that it was more of a clarification or an interpretation of the Second Judges case than some “questions of law or fact” of such public importance that it required a reference to the Supreme Court. The Presidential Reference starts by saying “WHEREAS the Supreme Court of India has laid down principles and prescribed procedural norms in regards to the appointment of Judges… in the case of SC Advocates on Record Association vs Union of India” and then the Presidential Reference proceeds to say:-“AND WHEREAS doubts have arisen about the interpretation of law laid down by the Supreme Court… Now, Therefore, in exercise of the powers…I K.R. Narayanan …. whereby refer the following questions to the Supreme Court of India namely:

(1) Whether the expression “consultation with CJI in Article 217 (1) and 222 (1) requires consultation with a plurality of Judges in the formation of the opinion of the CJI or does the sole opinion of the CJI constitute consultation within the meaning of said Articles".

And then similar questions about the interpretation of the judgment in Second Judges case from Q No. 2 to 9 were formulated. The Supreme Court in Third Judges case, after having quoted the Presidential Reference in extenso proceeded to give answer to the questions by quoting some parts of the Second Judges case and a perusal of the whole judgment in the Presidential Reference goes to show that it was nothing but an exercise of interpreting/clarifying the majority view in the Second Judges case. It appears that the Presidential Reference was wholly misconceived in as much as no Presidential Reference can be made just to interpret some earlier judgment of the Supreme Court. This reference should have been returned by the Supreme Court without answering it and holding that it was misconceived. In paragraph 9 of the Third Judges case it was observed:-“we record at the outset the statements of the Attorney General that:

1. The Union of India is not seeking a review or reconsideration in the Second Judges case.

2. That the Union of India shall accept and treat as binding the answers of this Court to the questions setout in the REFERENCE".

Through this judgment the manner of appointment of Judges through the Collegium system was introduced. It may be seen here that in the Second Judges case there was nothing at all to introduce a Collegium system. Although a bare reading of the relevant provisions of the Constitution of India goes to show that the Collegium system was not in accordance with the constitutional scheme but it was generally welcomed. To begin with, the system seemed to work well. In early 1999, a large number of Judges were appointed in various High Courts and it appeared that all those appointments were made on the basis of objectively viewing the merit by the Collegiums of Supreme Court and various High Courts. The appointments were to the satisfaction of all concerned. However, soon after its working for a brief period it started appearing and an impression was gaining ground that the Collegium system has derailed from its basic objective of choosing Judges on the basis of merit. On the other hand there have been pertinent complaints that the merit had taken a backseat while considering or choosing a lawyer for judgeship and this has been causing anger as well as frustration amongst those who stood deprived of the judgeship despite being eligible on the ground of merit. Of late the majority of the members of the Bar have become more vocal than they were in the past about the inadequacies in the appointment of judges. The Collegium of the Supreme Court and the High Courts started laying their hands upon the kith and kin of the senior advocates for choosing Judges which created conflicting vested interest in the Bar which prevented a united agitation against the arbitrary manner in which the judges were being appointed.

The judgment in the Third Judges case is clearly against the constitutional provisions. Laying down that there has to be a Collegium system for the appointment and transfer of Judges amounts to amending the Constitution of India. But all that was welcomed when the judgment came in as much as it was expected that the Collegium system would work objectively.

Why the Collegium system has derailed from its basic objective of choosing Judges on the basis of merit so soon after it having worked well for a brief period? The reason appears to be that the Judges appointed in various High Courts during the period the executive had the supremacy to appoint them (i.e. between 30.12.1981 and 6.10.1993) became Senior Judges in the Supreme Court and started becoming members of the Collegium of the Supreme Court and the Collegium of the various High Courts, so much so that when Justice VN Khare was the CJI the whole of the Supreme Court was packed with the Judges who were appointed in post SP Gupta and pre SC Advocates on Record case who had a different mindset being chosen during the period of the supremacy of the executive.

The Supreme Court assumed “absolute power” in matters of appointment and transfer of Judges of the superior courts has become absolutely clear now when we see in a recent judgment given by the Supreme Court in Mahesh Chandra Gupta vs Union of India (JT 2009(9) SC 199), a 2-Judge Bench has demonstrated that it had assumed such absolute power by virtue of the judgments in Second Judges case and Third Judges case. What particular meaning should be given to the words “Corrupt” or “Corruption” when we talk of judicial corruption is difficult to say. Whatever be the meaning, at the cost of repetition, it is submitted that the Supreme Court put aside the famous saying “Power corrupts, absolute power corrupts absolutely” while giving judgments in Second Judges case and Third Judges case. The Second Judges case and Third Judges case were welcomed when they were given, but then with the passage of time and the manner in which the Collegiums of the Supreme Court and the High Courts had been using its power, a realization was coming and controversy was increasingly becoming a matter of debate, and a demand of a judicial commission to replace the Collegium system was becoming popular. But now after the judgment in Mahesh Chandra Gupta’s case in which the Supreme Court has demonstrated the assumption of absolute power (which corrupts absolutely) the debate is becoming one sided. The judgment in Mahesh Chandra Gupta’s case was given in the following backdrop.

His appointment was made to the post of Additional Judge of High Court on 18th August, 2008 by the President of India under her warrant. He was a total stranger to Allahabad High Court. He never practiced as an advocate. He was only enrolled as an advocate on 13.7.1975, and thereafter he remained in service at various places between 1975 to 1997, a period during which he ceased to practice and then became member of Income Tax Appellate Tribunal. His appointment was challenged by a practicing advocate of Allahabad High Court Mahesh Chandra Gupta by filing a writ of quo-warranto. The Division Bench comprising of Justice Harkauli and Justice Vikramnath heard the matter at length and at the stage of probing to see a prima facie case, the Bench passed an order, directing the High Court to produce before the Bench a report of Three Judges Committee on the recommendations of which the Collegium of the High Court recommended the name of Dr. Satish Chandra to the Supreme Court Collegium, only to be perused by the Court on 25 September, 2008, making it clear that if the High Court proposed to claim privilege or raise any objection to the production of the report, it would be open to the High Court to do so by moving an application and if such an application was made on or before 25 September, 2008 it would not be necessary for the High Court to produce the said report unless the said objections were disposed off. The Allahabad High Court was a party in the Writ Petition. In an SLP filed by the High Court against this order, shockingly, the Supreme Court issued notice and stayed further proceedings in the High Court. The Bench was headed by CJI. One would be shockingly surprised to know that the notice was issued in SLP in such an innocuous interim order just for production of the report of a committee and that too for the perusal only of the Court, making it clear that if the High Court had any objection or wanted to claim privilege it could do so, and in that eventuality the report would not be necessary to be produced. Was it a case in which by any stretch of imagination the Supreme Court could issue notice? The notice was issued by a Bench presided over by the CJI, but then it was transferred to a Bench comprising of Justice SH Kapadia and Justice Aftab Alam. After the notice was issued in the SLP, the High Court filed a Transfer Petition in the Supreme Court under Article 139A of the Constitution to transfer the original Writ Petition filed by Mahesh Chandra Gupta form High Court to Supreme Court. It was all the more a shocking surprise that the Supreme Court allowed the transfer petition, withdrew the Writ Petition from High Court to itself. Both, the Transfer Petition and the SLP were connected but against all cannons of law the SLP was put aside and the counsel of Mahesh Chandra Gupta was asked to argue the transferred Writ Petition. The counsel submitted that the Supreme Court had no power to transfer the petition of Mahesh Chandra Gupta under Article 139A of the Constitution. The Judges did not agree and proceeded to hear the transferred Petition on merit. Article 139A provides that: “Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself”.

No other case involving the same or substantially the same question of law as involved in Mahesh Chandra Gupta’s Writ Petition was pending either in the Supreme Court or in any other High Court, and therefore the necessary condition to exercise the power did not exist. The Supreme Court by its judgment dated July 6, 2009, has dismissed the Writ Petition of Mahesh Chandra Gupta and upheld the appointment of Dr. Justice Satish Chandra as Additional Judge of Allahabad High Court.

Three manifest errors of law were committed by the Supreme Court in initiating proceedings to bring the Writ Petition from the High Court for being decided by itself and preventing the Division Bench of the High Court, to decide the Writ Petition which passed an innocuous order to produce report of three judge committee. The first is that it entertained SLP against the innocuous order of the High Court, the second is that it transferred the original Petition from the High Court to itself against the Constitutional provision, and the third is that it put aside the SLP and dismissing it as having become infructuous after the judgment in the original transferred petition.

Justice should not only be done but should also appear to have been done. A manifest in justice has not only been done but has demonstrably appears to have been done with impunity by the manner in which the appointment of Dr. Satish Chandra has been upheld by the Supreme Court. The name of Dr. Satish Chandra was recommended by the Collegium of the Supreme Court headed by CJI. Besides the aforesaid three manifest errors of law leading to injustice, a grave judicial impropriety was committed that the initiation of the proceedings in the Supreme Court took place at the hands of a Bench presided by CJI, but when it was criticized, the CJI recused himself from the Bench and then transferred it to the Bench presided over by a senior Judge of the Supreme Court, who is also next CJI.

While hearing the transferred petition the Judges of the Supreme Court were shown the Three Judge Committee Report. It was perused by them. But it was not shown to the counsel of the petitioner. It was not a fair procedure. After the judgment has been delivered by the Supreme Court it has become a matter of common knowledge in Allahabad High Court that the Three Judge Committee Report made adverse remarks against Dr. Satish Chandra. It was observed in the Report that he had a bad reputation as a judicial member of the Income Tax Appellate Tribunal.

In paragraph 35 of the judgment, the Supreme Court has observed: “….the information contained in the Report of the Sub-committee was also brought to the notice of the Supreme Court Collegium, though through a different route". What was that ‘different route’ has not been disclosed in the judgment neither it was told to the counsel of the parties when the matter was being argued. This observation in the judgment has been made obviously to justify the recommendation of the Supreme Court Collegium. This fact that the Report of the Sub-committee was brought to the notice of Supreme Court Collegium came to light only through the judgment. There was nothing in record of the Writ Petition to show that the report of the sub-committee was brought to the notice of the Supreme Court.

The Writ Petition filed by Mahesh Chandra Gupta was a writ of Quo Warranto with a prayer for issuance of Quo Warranto directing Dr. Satish Chandra as a Judge of Allahabad High Court to show the authority of his office and justify the constitutionality of his appointment as Judge of Allahabad High Court. The Allahabad High Court was only a formal party. No relief was claimed against the High Court. The Division Bench of the High Court from whose board the Supreme Court transferred the petition to itself, had not yet issued a notice to Dr. Satish Chandra, when the High Court went in SLP against the order dated 10.9.2008 directing Allahabad High Court to produce the Report of the Sub-committee of Three Judges. How could the High Court be agreed against such an order? The Division Bench of the Supreme Court has decided the case as if the Writ Petition of Mahesh Chandra Gupta was directed against the Collegium of the Supreme Court. It was not so.

Coming to the merits of the judgment after having held that Dr. Satish Chandra was enrolled as an advocate on July 13, 1975 and thereafter never practiced, the Supreme Court held that the requisite constitutional requirement is not actual practice as an advocate and what is required is that in order to be eligible a person should have a right to practice and remains enrolled as an advocate with such a right of practice although he may not have actually practiced. In paragraph 23 of the judgment it has been held that “actual practice cannot be read into the qualification provision, namely, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as 'an advocate of the High Court'. The substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on 'right to practice' and not actual practice".

In the concluding part of the judgment the Supreme Court observed: “Before concluding, we may state that 'continuity of an Institution' is an important Constitutional principle in the Institutional decision-making process which needs to be insulated from opinionated views based on misinformation. At the end of the day 'trust' in the decision-making process is an important element in the process of appointment of judges to the Supreme Court and the High Court, which, as stated above, is the function of an integrated participatory consultative process". The Judges who decided this case are living in ivory towers. The credibility of the Supreme Court as institution has further been eroded by this judgment. The judgment is being severely criticized by the members of the Bar in the corridors of the High Court. It is also being criticized by almost all the judges here at Allahabad. A total stranger claiming himself to be an advocate of this High Court has been foisted upon the people here.

The rationale of Mahesh Chandra Gupta boils down to this: A citizen cannot challenge the appointment of Judge on any ground whatsoever even if he has a bad reputation or even if he has obtained recommendation of collegium by practicing fraud. The Judges of High Courts should not have the courage to exercise their power under Article 226 of the Constitution to entertain a writ of Quo Warranto against a Judge of High Court and if they do so the same would be treated by the Collegium of Supreme Court to be a Writ Petition against them. For eligibility mere enrolment as an advocate is enough, actual practice at the Bar is not required. ‘Suitability’ cannot be questioned because it is in the exclusive domain of the My Lords of the Supreme Court. The citizen has to trust the institutional infallibility of the Supreme Court.

In retrospect in ADM Jabalpur the message was clear - trust the executive for it can do no wrong. In Mahesh Chandra Gupta the message is clear and unequivocal - trust the institution for it can do no wrong. In Antulay the Supreme Court rose to its majestic heights by admitting that it had been wrong, the plea of institutional infallibility was available even then. In Mahesh Chandra Gupta the process has been reversed.

Power corrupts and absolute power corrupts absolutely, nay it is the fear of losing power. The fear syndrome has struck. It is time to write obit of the Rule of Law and Judicial Review - the signature tune of the Constitution. Also time to bury them in archives of history or, let us say, preserve them for academics or intellectual exercises.

Justice Alam replaces Sirpurkar in Dinakaran probe panel [click source]

2010-10-10T09:21:00.000+05:30

Bar & Bench News Network

Sep 28, 2010

The Dinakaran probe panel has got itself a new head after Justice VS Sirpurkar recused himself following pressure from the Forum of Judicial Accountability. The 3-Member Panel will now be headed by Supreme Court Judge, Justice Aftab Alam (pictured).

Questions had been raised regarding the neutrality of Justice Sirpurkar after it was pointed out that he had sat on Division Benches with Justice Dinakaran at the Madras High Court. It was also discovered that there was also a social and personal relationship between the two judges.

After Justice Sirpurkar’s recusal, Rajya Sabha Chairman Hamid Ansari has reconstituted the panel. The other members of the panel are Chief Justice of the Karnataka High Court, JS Khehar and Senior Advocate, PP Rao.

The reconstitution of the panel notwithstanding, one wonders at the amount of time that the panel is taking to complete its investigation and formulate charges against the tainted judge. The panel which was constituted under the Judges (Inquiry) Act, 1968 in May of this year is yet to complete its investigation.

Ever since its inception the panel has been plagued with problems. Questions regarding the neutrality of its members, to changes among the members of the panels, along with doubts regarding the powers of the panel have delayed the investigations time and again.

Chargesheet against ex-CLB Chairman in bribe case [click source]

2010-10-10T09:17:00.000+05:30

HT Correspondent, Hindustan Times

Email Author

New Delhi, October 06, 2010

First Published : 00:06 IST (6/10/2010)

Last Updated : 00:08 IST (6/10/2010)

The CBI has filed a Charge Sheet against former Member-cum-Acting Chairman of the Company Law Board, R. Vasudevan, and five others, for allegedly demanding and accepting a bribe of R7 lakh last November to deliver an order favourable to one of the two feuding factions of a media house. An anti-corruption unit of the CBI had on November 23 last year arrested Vasudevan ‘red handed’ accepting the bribe from Banthia, a Company Secretary with Amar Ujala, at his residence in HUDCO Colony, Safdarjung Extension. “The total deal was of R10 lakh, out of which R7 lakh was meant for Vasudevan while Banthia pocketed R3 lakh that was later recovered from his room at a hotel in Delhi,” said a CBI official.

CBI’s charge sheet submitted in a designated court on Monday also name five other accused: Banthia, lawyer Ankur Chawla, Chawla’s alleged aide Vikas Shukla, the media house’s MD Atul Maheshwari and chartered accountant Harshvardhan Lodha. The six were charged under sections related to criminal conspiracy and Prevention of Corruption Act, 1988, (Sections 13(2) read with 13(1)(d). CBI’s FIR had mentioned three persons including Vasudevan, Banthia and Chawla.

Chawla, Lodha and Shukla had allegedly played a role in concluding the deal with Vasudevan through Banthia.

“Chawla had helped Lodha meet Banthia, a friend of Vasudevan, and had also played a role in arranging for the R10 lakh to be delivered to Vasudevan for passing the order in favour of one faction of the media house’s management. Lodha was representing Maheshwari’s faction,” he added.

Apart from the recovery of the bribe sum of R10 lakh as bribe, the CBI had also seized R48 lakh from Vasudevan’s residence.

Activist Judges can thwart corrupt cops: High Court [click source]

2010-10-10T09:10:00.000+05:30

Harish V Nair, Hindustan Times

Email Author

New Delhi, October 06, 2010

First Published : 01:33 IST (6/10/2010)

Last Updated : 01:36 IST (6/10/2010)

The Delhi High Court on Tuesday said that the menace of cops colluding with accused in many criminal cases and in lodging of FIRs, can be effectively thwarted if a Judge goes beyond the evidences submitted before him and thinks like a lay person. The Court said that it is the Judge’s “constitutional duty” to bring it to the notice of the Department and ask for appropriate action including FIR registration.

Justice SN Dhingra ruled: “If a Judge learns about commission of a crime, either inside the Court or he learns about commission of crime by the investigating officer/SHO, during the course of trial, there is no reason why he cannot inform about this crime having been committed by one of the police officers, to his superiors and ask that action should be taken in accordance with law.”

“The HC considers that a judicial officer apart from being a Judge is also a human being and citizen of this country. While discharging functions, a Judge cannot remain aloof and oblivious to his functions as a citizen. He cannot just adjudicate the matter and rest with it when he finds that a police officer involved in the investigation of the case had deliberately tried to save the accused persons,” Dhingra said.

According to the High Court, “An FIR can be registered at the instance of any person, who has the information of commission of crime.”

Justice Dhingra’s remarks came while dismissing a petition filed by Inspector Gurmeet Singh seeking quashing of criminal proceedings ordered against him by the trial judge for refusing to lodge FIR in a Gokulpuri gang rape case in 2005. Singh was the SHO of the police station at the time of the incident.

The Sessions Judge’s order against the cop came after he tried and convicted all the accused in the gang rape case.

अयोध्या विवाद पर हाईकोर्ट का फैसला : किसने क्या कहा? [click source]

2010-10-01T15:11:00.001+05:30

नई दिल्ली, गुरूवार, 30 सितंबर 2010 ( 23:35 IST )

अयोध्या विवाद पर आए बहुप्रतीक्षित फैसले पर संबंधित पक्षों ने मिलीजुली प्रतिक्रियाएँ जाहिर की हैं। हालाँकि सभी ने लोगों से संयम बरतने की अपील की है।

विहिप के अंतरराष्ट्रीय अध्यक्ष अशोक सिंघल ने इलाहाबाद में कहा कि फैसला पूरे हिंदू समुदाय के लिए हर्षोल्लास का है। यह हिंदुओं तथा मुस्लिमों को एक साथ आने और एक मजबूत राष्ट्र के निर्माण के लिए हाथ मिलाने का ऐतिहासिक अवसर है।

शिवसेना अध्यक्ष बाल ठाकरे ने कहा कि दशकों पुराने इस विवाद का पटाक्षेप होना चाहिए। उन्होंने कहा कि अयोध्या मुद्दा दशकों से लंबित था। अब उम्मीद कर सकते हैं कि आज का फैसला इस विवाद को समाप्त करेगा।

मध्यप्रदेश कांग्रेस अध्यक्ष सुरेश पचौरी ने अपनी प्रतिक्रिया में कहा कि कांग्रेस पार्टी अपनी परंपराओं के अनुरुप इस फैसले को विनम्रता से स्वीकार करती है। पचौरी ने प्रदेश की जनता के नाम जारी अपनी अपील में भी कहा कि वे धैर्य और संयम बरतते हुए शांति कायम रखने में सहयोग करें।

विहिप के प्रवीण तोगड़िया ने कहा कि अदालत ने सुन्नी वक्फ बोर्ड के दावे को खारिज कर दिया है कि विवादित स्थल को मस्जिद घोषित किया जाए। मुझे नहीं लगता कि इस पर कुछ और कहने की जरूरत है।

जमात-ए-इस्लामी के सचिव एम. फारूख ने इस फैसले पर प्रतिक्रिया व्यक्त करते हुए कहा कि हम उच्च न्यायालय के फैसले का सम्मान करते हैं, लेकिन उच्च न्यायालय का यह फैसला अंतिम नहीं है।

अदालत के फैसले के बाद माकपा ने कहा कि अयोध्या मालिकाना हक मुकदमे में फैसले को पूरी तरह पढ़े जाने की आवश्यकता है और फैसले की प्रकृति को लेकर सवाल हो सकते हैं। पार्टी ने कहा कि हमारी संवैधानिक धर्मनिरपेक्ष लोकतांत्रिक व्यवस्था में उच्चतम न्यायालय में जाने समेत न्यायिक प्रक्रिया मुद्दों के समाधान का एकमात्र तरीका होना चाहिए।

भाजपा मुख्यालय में पार्टी प्रवक्ता प्रकाश जावड़ेकर ने अदालत के फैसले का स्वागत करते हुए इसे सकारात्मक घटना करार दिया। हिन्दुत्व के कट्टर पैरोकार के रूप में जाने जाने वाले गुजरात के मुख्यमंत्री नरेन्द्र मोदी ने कहा कि इस निर्णय से अयोध्या में भव्य राम मंदिर के निर्माण का मार्ग प्रशस्त हो गया है, लेकिन इसी के साथ मोदी ने कहा कि इस मामले में अति उत्साहित होने की जरूरत नहीं है।

देश के उद्योग जगत ने अयोध्या फैसले के मद्देनजर समाज के हर वर्ग से अमन और शांति बनाए रखने की अपील की है। वाणिज्य एवं उद्योग मंडल फिक्की ने समाज के सभी वर्गों और सभी धर्मों के अनुयायियों से अपील की है कि अयोध्या पर न्यायालय के निर्णय को देखते हुए वे शांति बनाए रखें।

एक अन्य उद्योग मंडल एसोचैम ने अयोध्या पर न्यायालय के निर्णय को सभी की जीत बताया और उम्मीद जताई है कि कोई भी शांति व्यवस्था भंग करने का काम नहीं करेगा। फिक्की अध्यक्ष राजन भारती मित्तल ने कहा कि देश में शांति व्यवस्था भंग होने से आर्थिक वृद्धि, गरीबी उन्मूलन, समाज के हर वर्ग को साथ लेकर आगे बढ़ने तथा वैश्वीकरण की प्रकिया सभी प्रयासों को गहरा धक्का पहुँचेगा।

दूरदर्शन पर प्रसारित लोकप्रिय धारावाहिक रामायण में राम की भूमिका निभाने वाले अरुण गोविल का मानना है कि राम जन्मभूमि-बाबरी मस्जिद मामले में अंतिम फैसले की प्रतीक्षा की जानी चाहिए और सभी दलों को उसका पालन करना चाहिए।

अयोध्या में विवादित स्थल के स्वामित्व मुकदमे के एक पक्षकार अखिल भारत हिन्दू महासभा ने कहा है कि वह राम जन्मभूमि को तीन हिस्सों में बाँटने के फैसले को उच्चतम न्यायालय में चुनौती देगी। महासभा के प्रदेश अध्यक्ष कमलेश तिवारी ने कहा कि हमने राम जन्मभूमि स्थल को तीन हिस्सों में बाँटने के फैसले को उच्चतम न्यायालय में चुनौती देने का फैसला किया है।

अहमदिया मुस्लिम समुदाय ने अयोध्या मामले में इलाहाबाद उच्च न्यायालय के फैसले पर संतोष व्यक्त करते हुए सभी धर्मों के लोगों से सांप्रदायिक सौहार्द बनाए रखने की अपील की है। समुदाय के वरिष्ठ नेता और प्रवक्ता मोहम्मद असीम खान ने कहा कि अगर मुस्लिमों को कोई आपत्ति है तो वे उच्चतम न्यायालय का दरवाजा खटखटा सकते हैं।

फैसले के बारे में साहित्यकारों ने कहा कि यह बेहद संतुलित और न्यायसंगत रहा। साहित्य अकादमी के उपाध्यक्ष एसएस नूर ने कहा कि मेरा ख्याल है कि अदालत का फैसला बेहद संतुलित रहा और यह किसी के खिलाफ नहीं रहा है।

ललित कला अकादमी के अध्यक्ष और वरिष्ठ कवि अशोक बाजपेयी ने कहा कि यह सम्यक दृष्टि से लिया गया फैसला है। मगर यह विचित्र है कि राम जन्मभूमि जैसे मिथक के बारे में अदालत फैसला कैसे कर सकती है।

‘हंस’ के संपादक और वरिष्ठ साहित्यकार राजेंद्र यादव ने कहा कि अयोध्या का फैसला सुनने में अच्छा लग रहा है। मगर थोड़ा दिग्भ्रम की स्थिति की बनी हुई है और बिना पूरा फैसला जाने किसी भी प्रकार की टिप्पणी करना सही नहीं है। हालाँकि उन्होंने कहा कि हिन्दुओं को सुन्नी वक्फ बोर्ड की शिकायत को जरूर सुनना चाहिए कि आखिर वे हिन्दुओं से क्या चाहते हैं।

असगर वजाहत ने कहा कि मैं व्यक्तिगत रूप से इस फैसले से संतुष्ट हूं। मेरा मानना है कि यह बेहद संतुलित, तर्कसंगत और न्यायसंगत है। मुझे व्यक्तिगत रूप से लगता है कि किसी के साथ कोई अन्याय नहीं हुआ।

साहित्यकार नरेंद्र सहगल ने फैसले को उचित बताते हुए कहा कि सभी वर्गों को इसे स्वीकार करना चाहिए। अदालत ने भी आज राम जन्मभूमि को मान्यता देकर हिन्दूओं की सदियों पुरानी आस्था पर मोहर लगा दी है।

उत्तरप्रदेश के पूर्व मुख्यमंत्री कल्याणसिंह ने भी विवादित स्थल के मुकदमे में उच्च न्यायालय के फैसले का स्वागत करते हुए कहा कि यह करोड़ों हिन्दुओं की आस्था और विश्वास की जीत है। मैं अदालत के फैसले का स्वागत करता हूँ।

मिल्ली काउंसिल के सचिव मंजूर आलम ने कहा कि मुस्लिम पर्सनल लॉ बोर्ड और बाबरी मस्जिद कमेटी अदालत के फैसले का विश्लेषण करके आगे की रणनीति तय करेगी। उन्होंने कहा कि यह न तो खुशी का मौका है और न ही मातम का।

बजरंग दल के नेता और भाजपा के राष्ट्रीय उपाध्यक्ष विनय कटियार ने उच्च न्यायालय के फैसले का स्वागत करते हुए कहा कि अदालत ने हमारे इस दावे पर मुहर लगा दी है कि विवादित स्थल राम जन्मभूमि है।

तमिलनाडु के मुख्यमंत्री एम. करुणानिधि ने कहा कि अयोध्या में राम मंदिर बाबरी मस्जिद मामले में स्वामित्व विवाद पर इलाहाबाद उच्च न्यायालय का निर्णय दोनों पक्षों को संतुष्ट करने वाला है और यह शांति के हित में है।

इस मुकदमे के एक पक्षकार हाशिम अंसारी ने उच्च न्यायालय के फैसले का स्वागत करते हुए कहा कि उन्हें अयोध्या में राम मंदिर बनाए जाने पर कोई आपत्ति नहीं है। उन्होंने कहा कि विवादित स्थल पर सुन्नी सेंट्रल वक्फ बोर्ड को मिली जमीन पर मस्जिद का निर्माण कराया जाएगा।

रामजन्मभूमि न्यास के अध्यक्ष महन्त नृत्य गोपाल दास ने अदालत के फैसले का स्वागत किया है मगर यह भी कहा है कि वह यह नहीं समझ पा रहे हैं कि सुन्नी वक्फ बोर्ड को भी विवादित स्थल में हिस्सेदार क्यों माना गया है।

आल इंडिया मुस्लिम पर्सनल ला बोर्ड के सदस्य मौलाना खालिद रशीद फिरंगी महली ने कहा कि फैसले का सकारात्मक पक्ष यह है कि विवादित जमीन का एक हिस्सा मुसलमानों को भी देने की बात कही गई है। (वेबदुनिया/एजेंसियाँ)

न्यायाधीश अग्रवाल के फैसले में 274 पुस्तकों का उल्लेख [click source]

2010-10-01T14:57:00.001+05:30

नई दिल्ली, शुक्रवार, 1 अक्टूबर 2010 ( 09:13 IST )

इलाहाबाद उच्च न्यायालय की लखनऊ पीठ के न्यायाधीश सुधीर अग्रवाल ने अयोध्या मामले का फैसला देने में वैदिक युग की ऋचाओं से लेकर हाल के न्यायिक फैसलों और इतिहास के सभी युगों की पुस्तकों का उद्धरण दिया है।

न्यायमूर्ति एसयू खान के साथ अलग फैसला देने वाले न्यायमूर्ति ने अपना फैसला 21 खंडों और 5238 पृष्ठों में सुनाया है और इसमें उन्होंने 274 पुस्तकों और 798 फैसलों का हवाला दिया है।

जिन पुस्तकों का उन्होंने संपर्क किया वे प्राचीन, मध्यकालीन और आधुनिक इतिहास से जुड़ी हुई हैं। उन्होंने अपने फैसले में उच्चतम न्यायालय, विभिन्न उच्च न्यायालयों और प्रिवी काउंसिल के निर्णयों का हवाला दिया है।

उन्होंने अपने फैसले में तुगलक काल में भारत की यात्रा पर आने वाले इब्न बतूता समेत मुस्लिम यात्रियों द्वारा लिखी पुस्तकों, आस्ट्रेलियाई इतिहासकार एएल बाशम की पुस्तक, गीता समेत हिंदू और मुस्लिम धर्मग्रंथों का हवाला दिया है। (भाषा)

ढाँचा इस्लामी सिद्धांतों के खिलाफ : न्यायमूर्ति शर्मा [click source]

2010-10-01T14:53:00.000+05:30

लखनऊ, गुरूवार, 30 सितंबर 2010 ( 23:35 IST )

अयोध्या में विवादित स्थल को भगवान राम की जन्मस्थली करार देते हुए न्यायमूर्ति धरमवीर शर्मा ने कहा कि बाबर द्वारा निर्मित ढाँचा इस्लाम के सिद्धांतों के खिलाफ था और इसलिए उसे मस्जिद नहीं माना जा सकता।

अयोध्या मालिकाना हक मुकदमे में अपने फैसले में न्यायमूर्ति शर्मा ने कहा कि विवादित ढाँचे का निर्माण बाबर ने कराया था। साल निश्चित नहीं है, लेकिन इसका निर्माण इस्लाम के सिद्धांतों के खिलाफ कराया गया था। इसलिए इसे मस्जिद नहीं माना जा सकता।

उन्होंने कहा कि पुराने ढाँचे के स्थल पर उसे गिराने के बाद विवादित ढाँचे का निर्माण किया गया। भारतीय पुरातत्व सर्वेक्षण विभाग ने साबित किया है कि यह विशाल हिंदू धार्मिक ढाँचा था। न्यायमूर्ति शर्मा ने कहा कि विवादित ढाँचे के मध्य गुंबद के नीचे भगवान राम की प्रतिमाएँ 22-23 दिसंबर 1949 की रात को रखी गई थीं।

न्यायमूर्ति शर्मा ने कहा कि यह स्थापित है कि मुकदमे में शामिल संपत्ति रामचंद्रजी की जन्मभूमि है और हिंदुओं को चरण, सीता रसोई और अन्य प्रतिमाओं तथा पूजा की अन्य वस्तुओं की पूजा करने का अधिकार था।

न्यायाधीश ने कहा कि यह भी सिद्ध है कि हिन्दू उस विवादित स्थल को राम जन्मभूमि मानकर वहाँ अनादिकाल से पूजा करते आ रहे हैं और उनके लिए वह स्थल भी पूजनीय एवं तीर्थ के समान है। शर्मा ने कहा कि यह भी स्थापित है कि विवादित ढाँचे को मस्जिद नहीं माना जा सकता क्योंकि यह इस्लाम के सिद्धांतों के खिलाफ अस्तित्व में आया। (भाषा)

संवेदना के बारूद से भरी सुरंगें : न्यायमूर्ति खान [click source]

2010-10-01T14:48:00.000+05:30

लखनऊ, गुरूवार, 30 सितंबर 2010 ( 23:20 IST )

अयोध्या के सदियों पुराने विवादित स्थल स्वामित्व वाद पर फैसला सुनाने वाली पीठ में शामिल न्यायाधीश न्यायमूर्ति सिबगत उल्ला खान ने फैसले के प्राक्कथन में विवादित भू-भाग को संवेदनाओं के बारूद से युक्त सुरंगों से भरी जमीन करार देते हुए कहा कि कहने को तो यह भूमि का छोटा-सा टुकड़ा है, लेकिन यहाँ कदम रखने से पहले फरिश्ते भी सौ बार सोचेंगे।

न्यायमूर्ति खान ने कहा कि वह जमीन संवेदनाओं के बारूद से बनी अनगिनत सुरंगों से भरी है, जिन्हें हमें अपने साथी न्यायमूर्तियों के साथ मिलकर साफ करना है। उन्होंने लिखा कि कुछ बेहद सचेत और बुद्धिमान लोगों ने हमें सलाह दी कि हम यह खतरा न उठाएँ, जल्दबाजी करने का ऐसा जोखिम नहीं उठाना चाहिए कि संवेदनाओं के विस्फोट में हमारे चीथड़े उड़ जाएँ।

बहरहाल, हमें तो जोखिम लेना ही था क्योंकि कहते हैं कि कोई जोखिम उठाने का साहस न दिखा पाना ही जीवन में सबसे बड़ा जोखिम है और खासकर तब जबकि वह आँख से आँख मिलाकर रूबरू हो।

अपने 285 पृष्ठों के निर्णय से पहले लिखे प्राक्कथन में न्यायमूर्ति खान ने लिखा कि कोई भी न्यायाधीश स्वयं यह निर्णय करने की स्थिति में नहीं होता कि वह न्याय करने के प्रयास में सफल हुआ है अथवा नहीं।

उन्होंने कहा कि कभी ऐसा भी होता है कि फरिश्तों को इन्सान के आगे झुकना पड़ता है और कभी-कभी व्यक्ति को इस सम्मान को न्यायसंगत साबित करना पड़ता है। हम कुछ वैसे ही मुकाम पर हैं, जहाँ मालूम नहीं कि हम कामयाब हुए हैं या नाकाम। कोई भी व्यक्ति अपने कृत्यों पर न्यायाधीश की भूमिका नहीं निभा सकता।

न्यायमूर्ति खान ने अपने प्राक्कथन को इन शब्दों के साथ समाप्त किया है कि ... और यह मेरा वह निर्णय है जिसके लिए पूरा देश साँसें थामकर इंतजार कर रहा है।

मंदिर को ध्वस्त नहीं किया : न्यायमूर्ति खान ने अपने फैसले में कहा कि विवादित स्थल पर मस्जिद का निर्माण करने के लिए किसी मंदिर को ध्वस्त नहीं किया गया था। उन्होंने कहा कि मस्जिद का निर्माण मंदिर के भग्नावशेषों पर बाबर के आदेश पर किया गया था। मंदिर के भग्नावशेष राज्य में काफी लंबे समय से ऐसे ही पड़े थे।

अपने अवलोकन में न्यायाधीश ने कहा कि मस्जिद के निर्माण से काफी समय पहले हिंदुओं का मानना था कि विवादित क्षेत्र के बेहद थोड़े से हिस्से में भगवान राम की जन्मस्थली थी। हालाँकि यह मान्यता विवादित स्थल पर बड़े क्षेत्र के भीतर किसी विशिष्ट लघु क्षेत्र से जुड़ी हुई नहीं है।

उन्होंने कहा कि 1855 से काफी पहले राम चबूतरा और सीता रसोई अस्तित्व में आ गई थी और हिंदू प्रतिमाओं की पूजा कर रहे थे। यह काफी अद्भुत और बिलकुल बेमिसाल स्थिति थी कि मस्जिद की चहारदीवारी और परिसर के भीतर वहाँ हिंदू धार्मिक स्थल थे, जहाँ पूजा की जा रही थी तो दूसरी ओर मस्जिद में मुस्लिम नमाज अदा कर रहे थे।

न्यायमूर्ति खान ने कहा कि दोनों पक्ष इस बात को साबित करने में विफल रहे हैं कि उनके मालिकाना हक की शुरुआत कब से हुई और इसलिए साक्ष्य अधिनियम की धारा 110 के अनुसार दोनों पक्षों को संयुक्त कब्जे के आधार पर संयुक्त मालिक ठहराया जाता है।

न्यायमूर्ति खान ने कहा कि वर्ष 1949 से कुछ दशक पहले हिंदुओं ने मस्जिद के मध्य गुंबद के नीचे के स्थल (जहाँ फिलहाल अस्थायी मंदिर है) को भगवान राम का सटीक जन्मस्थल मानना शुरू कर दिया। पहली बार 23 दिसंबर 1949 के तड़के मध्य गुंबद के नीचे प्रतिमा रखी गईं।

अपने आदेश में न्यायाधीश ने कहा कि सभी तीनों पक्षों हिंदुओं, मुस्लिमों और निर्मोही अखाड़ा को विवादित परिसर का संयुक्त मालिक घोषित किया जाता है और पूजा के लिए इस्तेमाल करने और प्रबंधन करने के लिए प्रत्येक का एक बटा तीन-एक बटा तीन हिस्सा होगा।

हालाँकि उन्होंने साफ कर दिया कि अंतिम निर्णय में मध्य गुंबद के नीचे वाला हिस्सा, जहाँ फिलहाल प्रतिमा रखी हुई है उसे हिंदुओं को आवंटित कर दिया जाएगा। न्यायाधीश ने निर्देश दिया कि निर्मोही अखाड़े को राम चबूतरा और सीता रसोई वाला हिस्सा आवंटित किया जाएगा।

उन्होंने स्पष्ट किया कि अगर भूमि का आवंटन करने के दौरान थोड़ा बहुत मामूली समायोजन किया जाता है तो प्रभावित पक्ष को केंद्र सरकार द्वारा पास में अधिग्रहीत की गई भूमि में से कुछ हिस्सा देकर इसकी भरपाई की जानी चाहिए। (भाषा)

कुल 8189 पृष्ठों का अयोध्या फैसला [click source]

2010-10-01T14:41:00.001+05:30

लखनऊ, शुक्रवार, 1 अक्टूबर 2010 ( 00:46 IST )

राम जन्मभूमि बाबरी मस्जिद मामले में उच्च न्यायालय ने जो अंतिम फैसला सुनाया है वह 8189 पृष्ठों में है।

तीन न्यायाधीशों एसयू खान, सुधीर अग्रवाल और धरमवीर शर्मा ने अयोध्या में विवादित भूमि के स्वामित्व से जुड़े 60 साल पुराने मामले में अलग-अलग फैसले सुनाए हैं।

न्यायमूर्ति अग्रवाल ने सबसे लंबा फैसला सुनाया है, जो 21 खंडों में और 5238 पृष्ठों में है। न्यायमूर्ति शर्मा का फैसला 2666 पृष्ठों का है, वहीं न्यायमूर्ति खान का फैसला अपेक्षाकृत छोटा है और यह 285 पृष्ठों में है। (भाषा)

'Hire upright, honest judges to change corrupt judiciary image' [click source]

2010-09-28T10:29:00.000+05:30

Dhananjay Mahapatra, TNN, Sep 23, 2010, 04.06am IST

NEW DELHI: Concerned at the dipping image of the judicial system due to growing incidents of corruption, the Supreme Court has said all round efforts were needed urgently to recruit upright and honest persons as judicial officers to effect an image makeover for the judiciary.

"Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of the litigants but also to sustain the culture of integrity, virtue and ethics among judges," said a Bench comprising Justices Mukundakam Sharma and Anil R Dave.

Writing for the Bench, Justice Sharma said: "Public perception of judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct."

The Bench gave vent to its feeling while upholding the dismissal of a Jammu & Kashmir District Judge. It said the officer was in the probation period and that the high court was right in not confirming his services after scrutinising his track record. Not taking this incident as an isolated one, the bench reflected upon the solemn duty cast on the HCs to consider and appreciate the service of a judicial officer before confirming him in service so as to weed out the deadwood and corrupt from the judiciary.

Ayodhya Verdict: Retiring Judge Can be Retained: Experts [click source]

2010-09-28T10:01:00.001+05:30

New Delhi Sep 23, 2010

Legal experts today said there are options within the legal framework to retain one of the retiring judges in the Three-Judge Bench of the Allahabad High Court to deliver the verdict on the Ayodhya title suit.

They said if the Supreme Court interim stay stands beyond September 28, there is a constitutional provision to retain the Judge, DV Sharma who retires this month-end by appointing him as an adhoc Judge till he signs the judgement.

Former Law Minister Shanti Bhushan and noted constitutional expert PP Rao said such a occasion will not arise as there are all likelihood that the Chief Justice of India will appoint a Three-Judge Bench to hear the matter on Tuesday and two days will be there for the High Court to deliver its verdict before one of the Judges retires.

"The situation which has arisen today due to difference of opinion between the two judges will not arise when a larger bench will hear the issue," they said adding that if in any chance there is a delay, Government can retain the retiring Judge by appointing him adhoc Judge.

Rao said another option is that the Judge, who is retiring during the pendency of the matter can sign the judgement and place before the Chief Justice of the High Court in a sealed envelope, which could be opened if the Apex Court gives a go ahead to the High Court to pronounce the verdict.

However, senior advocate KK Venugopal, who had appeared in the Apex Court on the Ayodhya dispute in 1992 when Kalyan Singh was the Chief Minister, said such a situation would not arise.

He said he was hopeful that the verdict will come before the retirement of the Judge.

"There are all likelihood that the CJI will constitute a Three-Member Bench to avoid the situation like today when there was a split of opinion between the two judges. The Three Judges will decide the issue on Tuesday giving sufficient time to the High Court to deliver the verdict before the retirement of one of its Judges," Venugopal said.

Relief to woman booked in dowry prohibition case [clik source]

2010-09-28T09:53:00.000+05:30

Abhinav Garg, TNN, Apr 11, 2010, 05.19am IST

NEW DELHI: At a time when there is a new trend of courts booking the woman and her kin for giving dowry, the Delhi High Court has stayed one such FIR lodged against a woman and decided to examine the law in this regard.

Justice Vipin Sanghi recently stayed an FIR registered on the orders of a magistrate against one Payal and her family for allegedly giving dowry in her marriage. Payal had been pursuing a dowry harassment case against her husband in the Court.

However, taking a strict view of her admitting in the FIR that she and her parents gave a substantial dowry amount to the husband's family, Additional Chief Metropolitan Magistrate Sanjay Bansal had slapped dowry prohibition sections against Payal and her family too.

This prompted her to approach HC for relief, through her lawyers Vijay Aggarwal and Rakesh Makhija. They argued before HC that a court can't book a victim of dowry harassment under the Dowry Prohibition Act as this is explicitly barred in the Act itself. Seeking relief, the lawyers further claimed the lower court went beyond the law to slap another FIR against the girl and her family.

Pointing to Section 7 (3) of Dowry Prohibition Act the advocates for Payal argued before HC that a girl's statement she had been forced to give dowry can't be held against her or her family to book her under the act as here the woman is the victim.

Payal got married in Nov 2006 and according to the FIR two years later the husband dropped Payal with their few months old son at her parental home. Though he had promised to take them back to his house he never appeared, that led Payal to lodge a complaint with the Crime Against Woman Cell. Later, efforts at mediation having failed, a case under the the Domestic Violence Act was also lodged against the husband.

But to Payal's utter shock, the lower court said being an educated woman she should have shown a better judgment than to agree to give dowry and invoked sections of the Dowry Prohibition Act against her. The HC is expected to specify the law once it delivers a judgment on her petition.

SC: Prove cruelty in dowry death cases [click source]

2010-09-28T09:45:00.001+05:30

New Delhi, May 19, 2010 PTI

The Supreme Court has held that husband or other family members can be convicted for dowry death only if it is proved that the wife was subjected to cruelty or harassment in pursuit of the demand and not on mere presumption.

The Apex Court said Section 304-B (dowry death) can be invoked against the accused only if there is material evidence to support the allegation and not on mere presumption that the victim died within seven years of marriage.

Under Section 304-B read with Section 113-B of the Indian Evidence Act, a husband and his family members can be prosecuted for causing dowry death of the woman if the same occurs within seven years of the marriage.

“In order to hold an accused guilty of an offence under Section 304-B of the IPC, it has to be shown that apart from the fact that the woman died on account of burns or bodily injury, otherwise than under normal circumstances within seven years of marriage, it also has to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.

“Only then would such death be called dowry death and such husband or relative shall be deemed to have caused the death of the woman concerned,” a Bench of Justices Altamas Kabir and HL Gokhale said in a judgement.

The Apex Court passed the judgment while acquitting Durga Prasad and one of his relatives sentenced to seven years imprisonment in a case of harassment and dowry death in Madhya Pradesh.

A Sessions Court had sentenced the accused for harassing Kripa Bai for dowry resulting in her committing suicide.

Nyaya Yodha: Justice Warrior: Thrown out spouse can get divorce based on desertion under Hindu marriage act

2010-09-28T09:37:00.000+05:30

Nyaya Yodha: Justice Warrior: Thrown out spouse can get divorce based on desertion under Hindu marriage act

Nyaya Yodha: Justice Warrior: Restore Civil Rights to Domestic Violence Laws!

2010-09-28T08:55:00.000+05:30

Nyaya Yodha: Justice Warrior: Restore Civil Rights to Domestic Violence Laws!

Give grain to poor... that's an order: SC to Pawar [click source]

2010-09-23T10:53:00.000+05:30

Dhananjay Mahapatra, TNN, Sep 1, 2010, 12.33am IST

Pawar faces heat over foodgrains rot

NEW DELHI: The Centre found itself scurrying for cover on food for the poor once again, with Supreme Court on Tuesday expressing anguish at the government's casual attitude to reports of millions of tonnes of foodgrain rotting in the open when the needy were bereft of two square meals a day.

The Court bluntly asked the Manmohan Singh Government what was a better choice -- to waste foodgrain or give it free of cost to the poor and hungry?

Slamming Agriculture Minister Sharad Pawar's remark that it was impossible to implement the Supreme Court's "suggestion" to give away excess foodgrain to the poor, the Bench of Justices Dalveer Bhandari and Deepak Verma said it was an order. On ministry officials taking defence that the "suggestion" was not part of the August 12 order, the Bench said: "The officials will do well to check the order. It was very much part of it."

Amidst a debate over foodgrain being soaked in the rainy season after lying in the open for more than a year, the Bench found the Centre's dithering stand a little too much to stomach given the "huge magnitude of the problem". It said the food and agriculture ministry was not serious about resolving the cruel contradiction of overflowing granaries and widespread hunger.

The SC's remarks found an echo in the Lok Sabha where a spirited debate saw the Opposition clamouring that the Government come out with a statement on how it intended to give food to the poor. A reluctant Pawar had to be persuaded by Congress managers to offer a response. While saying the Government would "honour" the SC and High Courts, he added he would give a response only after studying the court's proceedings.

The SC also recalled a recent remark of Pawar that sugar prices may continue to rise before falling in the near future. The Bench said, "This is an open invitation for hoarding. You are creating artificial scarcity."

In the face of carefully compiled statistics by NGO 'People's Union for Civil Liberties' and presented by senior advocate Colin Gonsalves, the Bench had little doubt that there was some truth in Court Commissioner NC Saxena's report alleging lakhs of tonnes of foodgrain going waste.

When additional Solicitor General Mohan Parasaran tried to answer these by saying the problem had arisen due to record procurement of foodgrain in the last three years, the Bench asked him -- if your refrigerator has capacity to store 10 bricks of icecream, will you buy 100 bricks and allow 90 to melt?

"Procure as much as you can store properly without wasting it," the Bench said and asked the ASG to take instructions from the highest level, that is the Minister himself, rather than depending on bureaucrats.

"We will keep aside affidavits and come back with some radical suggestions," said the ASG and bought six days' time from the Bench to respond. The Bench fixed the matter for hearing on Monday.

The Centre has to really work hard to find cogent answers by then to a flurry of questions from SC:

* Is it not time to carry out a fresh survey to find out the exact number of poorest of the poor (Antyodaya Anna Yojana card holder) families as well as below poverty line families. Why not do it during the ongoing census?

* Why has the government not implemented August 19, 2005 order expanding the AAY parameters to include landless labourers, marginal farmers, village artisans, slum dwellers etc to be given 35kg of foodgrain (rice at Rs 3/kg and wheat at Rs 2/kg)

* How much time will it take to computerize the movement of grain from the godowns to retail shops?

* When will it implement the suggestion of Sonia Gandhi-headed National Advisory Council to give foodgrain at AAY rate to all people residing in 150 districts identified as poorest

* Why not abolish above poverty line (APL) category of ration card holders? If not, then why not limit the APL category to those families with income of Rs 2 lakh or less per annum? Food cannot be given to APL families at the cost of the poor and hungry

* How long will it take to create adequate storage facility at district and panchayat level?

* Bogus card holders should be punished the way Orissa did by advertising and asking the 2.5 lakh such card holders to surrender them or face criminal cases. "We have to develop a culture of zero tolerance towards corruption otherwise poor will be deprived of their entitlement"

* Why are FCI administered prices for sub-standard grain much more than better quality grain available in the market?

* Could NREGA scheme be a combination of money and foodgrain -- Rs 50 in cash and foodgrain worth Rs 50 for a day's work?

Legalise betting, say Indian lawyers [click source]

2010-09-23T10:42:00.000+05:30

Reuters

New Delhi, September 03, 2010

First Published: 00:19 IST(3/9/2010)

Last Updated: 02:55 IST(3/9/2010)

The Pakistan spot-fixing scandal has once again shone the spotlight on illegal betting in the sub-continent and reopened the debate on the legalisation of gambling in India. Since the Australian duo of Shane Warne and Mark Waugh admitted in 1998 to passing information to an Indian bookmaker during a 1994 tournament, cricket has seldom had a financial scandal without an Indian connection.

"The Indians bet on the weather, crops and even smaller and trivial things. Cricket is a religion here and India is the financial hub. So it's hardly a surprise that an India-Pakistan ODI draws bets worth $20 million," Mehra told Reuters.

"The only thing is that here betting is not legal which is why there is little government control over the industry."

Legal gambling in India is confined to horse-racing while casinos are allowed only in a couple of states.

CRIMINAL ACTIVITY

Illegal syndicates are thriving, however, and Indian media estimates put the amount bet on last year's Indian Premier League (IPL) at $427 million.

A Delhi Trial Court Judge on Tuesday said gambling on cricket should be legalised to prevent the spoils being spent on criminal activity and to generate revenue for the government.

Former India Cricket Chief Inderjit Bindra has long been a supporter of legalisation for similar reasons and to help the fight against match-fixing.

"If betting is legalised, it will be in the interest of the government as not only will it eliminate match-fixing but also earn states revenue in crores (tens of millions)," Bindra, now an adviser at the International Cricket Council (ICC), said two years ago. "My personal view is that if you want anything to be regulated, it has to be legalised."

The cost to the image of cricket from the involvement of Indian bookmakers in the manipulation of results has been huge.

LEGALISED BETTING INDUSTRY

Columnist Ashok Malik, who comments on politics and the business of sport, does not subscribe to the view that legalising betting would end the problem.

"People should not confuse illegal betting with spot-fixing. Spot-fixing is as much a possibility even in a legalised betting industry," he said.

"It's not legality, the problem starts when bookies try to get prior knowledge of events and are ready to share their profit with the cricketers to fix incidents."

"Having a legalised betting industry is not the solution. It's like owning a hotel fulfilling all the legal criteria and then running a prostitution racket there." Malik does, however, believe that gambling on the nation's favourite sport should be legalised.

"When lotteries and gambling on horse racing is legal, it is ridiculous not to legalise cricket betting." Mehra believes the Indian government should set up a commission to regulate the industry. "Legalising betting is important, for this is no secret that everyonewants to bet on cricket," he said.

In 'public interest', CJI to transfer 20 High Court Judges [click source]

2010-09-23T10:36:00.001+05:30

Satya Prakash and Nagendar Sharma

Hindustan Times Email Author

New Delhi, September 11, 2010

First Published: 00:43 IST(11/9/2010)

Last Updated: 02:22 IST(11/9/2010)

In an unusual move, the Supreme Court Collegium — the panel of Five Senior-most Judges headed by Chief Justice of India (CJI) that decides judicial appointments — has initiated the process for transferring more than 20 High Court Judges across the Country in "public interest". Once implemented, it will be the largest transfer of High Court Judges in one go since 1993, when 50 Judges were transferred during the tenure of then CJI MN Venkatachaliah, following complaints against them.

The present CJI, SH Kapadia, has written to the individual Judges the Collegium wants to transfer, as well as to the Chief Justices of the High Courts concerned in this regard, HT has reliably learnt.

The letters addressed to the Judges asked where they would prefer to be shifted, while the ones sent to Chief Justices wanted to know if they had any objections to the transfers.

The CJI's office, however, refused to comment on the matter, saying "We don't talk to the media."

In his letters to the Judges, Kapadia does not specify reasons for the proposed transfer but significantly uses the expression "public interest" while suggesting their relocation.

The step is being viewed as a message aimed at checking deviant behaviour among Judges and improving the image of the judiciary that has taken a beating in recent times, following allegations of corruption and misconduct against some Judges.

According to information available with HT, the proposed transfers includes three Judges each from High Courts of Allahabad, Punjab & Haryana and Rajasthan, two each from Delhi, Andhra Pradesh and Tamil Nadu and names of some Judges from Orissa and Assam HCs.

"It appears to be a good move," said former CJI JS Verma.

However, lawyers' bodies of some States have questioned the move saying if Judges were being transferred merely on the basis of complaints against them (which have not been investigated) some upright Judges were also likely to be affected.

दिल्ली हाई कोर्ट के जज ने इस्तीफा दिया [click source]

2010-09-23T10:16:00.000+05:30

1 Sep 2009, 1227 hrs IST, भाषा

नई दिल्ली ।। दिल्ली हाई कोर्ट के वर्तमान जज नीरज किशन कौल ने निजी कारणों का हवाला देते हुए अपने पद से इस्तीफा दे दिया है। कौल (46) ने 15 अप्रैल को दिल्ली हाई कोर्ट के अतिरिक्त न्यायाधीश के रूप में पद की शपथ ली थी।

कौल ने कहा कि उन्होंने अपने इस्तीफे का पत्र सोमवार को राष्ट्रपति को भेज दिया। 24 जुलाई को उन्होंने अपना इस्तीफा सुप्रीम कोर्ट के चीफ जस्टिस के. जी. बालकृष्णन को भेजा था। उन्होंने कहा, 'मुझे लगा कि मेरे लिए निजी प्रैक्टिस अच्छी है।' उन्होंने स्पष्ट किया कि इसके पीछे कोई अन्य कारण नहीं है।

कौल ने कहा, 'मुझे वकालत का पेशा अच्छा लगता है और मैं कभी खुद को किसी संवैधानिक पद पर देखना नहीं चाहता था।' उन्होंने कहा कि वह हाई कोर्ट और सुप्रीम कोर्ट में फिर से वकालत करेंगे।

कौल ने कहा, 'मुझे अतिरिक्त जज के रूप में नियुक्त किया गया था और मेरी इस नियुक्ति की पुष्टि नहीं की गई थी। इसलिए मैं सुप्रीम कोर्ट के साथ-साथ हाई कोर्ट में भी वकालत कर सकता हूं।'

पिछले दो दशकों में हाई कोर्ट के किसी वर्तमान जज की ओर से इस्तीफा देने का यह दूसरा मामला है। इससे पहले बेंच में प्रोन्नत किये जाने के एक वर्ष के भीतर 1991 में जस्टिस एम. एल. वर्मा ने अपने पद से इस्तीफा दे दिया था।

Vodafone verdict: future tense? [click source]

2010-09-23T10:06:00.006+05:30

Satya Prakash, Legal Editor

Hindustan Times Email Author

New Delhi, September 09, 2010

First Published: 23:18 IST(9/9/2010)

Last Updated: 23:20 IST(9/9/2010)

The Bombay High Court's landmark verdict holding Vodafone International liable to pay Rs 12,000 crore in tax and penalty on their $11 billion (about Rs 50,000 crore) takeover of Hutchison Telecom has serious implications for such takeovers in future. The verdict is important for more than one reason. First, it holds a foreign company liable to pay tax in India for takeover of another foreign entity owning an Indian subsidiary, even if the deal is made outside the territorial jurisdiction of India. It clears the air on this vexed issue.

Secondly, after the Supreme Court upheld the validity of the double taxation avoidance treaty between India and Mauritius, many companies had been taking the Mauritius route for investment in India to avoid capital gains tax on transactions, which are otherwise taxable by Indian revenue authorities.

The verdict would discourage foreign direct investment (FDI) through tax havens, as companies would now be more cautious in their approach, said Supreme Court advocate Gaurav Bhatia.

"India would continue to be an attractive investment destination because of its market size and the opportunities it offers to foreign firms," he said.

Thirdly, it has huge revenue implications.

Central Board of Direct Taxes acting chairman Sudhir Chandra on Thursday said the board is investigating more Vodafone-like deals.

"There are already some cases under investigation."

With India emerging as one of the preferred investment destinations and Vodafone-type takeovers expected to go up in numbers, tax authorities can expect more revenue from such transactions after winning this "test case".

Through its group firm Vodafone International Holdings, Vodafone bought Hutchison Telecommunications India Ltd's (HTIL) stake in Hutchison Essar in 2007 but did not deduct tax at source as required under provisions of the Income Tax Act.

Vodafone had contended that the transaction could not be taxed, as both the seller and buyer were foreign companies and the deal too was made outside India.

Agreeing with the Income Tax Department's arguments, the High Court held that the transaction in question had "sufficient territorial nexus to India". Vodafone was at fault in not deducting tax at source, it added. Interestingly, the court used various documents signed between the two companies to establish the territorial nexus.

Out of the Rs 12,000 crore due from Vodafone, only Rs 8,000 crore is towards tax liability and the rest is penalty. The court has given liberty to Vodafone to plead before the IT Department to waive the penalty off on the ground that the company "genuinely" believed it had no liability to deduct tax at source.

But the final word on this contentious issue is yet to come, as Vodafone is bound to challenge the Bombay HC verdict in the Supreme Court. But till such time, the High Court verdict is the law of the land.

Former Chief Commissioner of Income Tax and Supreme Court advocate Shivakant Jha said: "It is an accurate interpretation of law on this point and settles the controversy on good grounds. This would check instances of foreign companies attempting to circumvent provisions of law to evade tax in India."

Corruption costs India $125 bn [click source]

2010-09-23T09:42:00.000+05:30

Press Trust Of India

Washington, September 14, 2010

First Published: 11:01 IST(14/9/2010)

Last Updated: 11:13 IST(14/9/2010)

Even as India continued to register one of the highest growth rates post-independence, rampant corruption resulted in an estimated illicit out flow of a whooping $ 125 billion between 2000 and 2008; a research and advocacy organisation has said. The figures of USD 125 billion illicit outflow of money from India are part of a report to be released by the Washington-based Global Financial Integrity later this year.

"Much of the funds flowing out are generated at home within India and then sent illegally abroad. So the growth of corruption and India's underground economy contributes significantly to illicit financial flows from the country," said Karly Curcio, a junior economist at the Global Financial Integrity in a blog posted on its website.

"India's economic boom continues with an average growth rate of over eight per cent between 2004 and 2009 by GFI calculations," it said.

"As the money flows, however, the poor continue to stay poor. Corruption is rampant in India as it is in almost all developing countries. Both corrupt political and corporate officers manage to siphon off funds - intended to aid the people of India - off to political and private sector elite. Recent efforts in India to challenge this corrupt affront on humanity have been met with severe violence," the blog said.

As India develops economically and builds better infrastructure, one would think that all Indian citizens would see an increased standard of living and that the income inequality levels would fall, he noted.

"However, the gini coefficient, which measures income inequality, has actually increased over the time period measured, 2000-2005, from 0.32 to 0.37 on a scale of 0 to 1, with 1 being the highest income inequality," the author said.

"We see in India - as in other currently developing countries - that as the economy grows, so do illicit flows. This positive correlation exhibits the increased incentives to conduct illicit flows, mostly because more money is flowing within the system to steal away and constant greed is tapping into that pool," Curcio said.

Noting that India Ranks 84 out of 180 countries in Transparency International's 2009 Corruption Perceptions Index, the author said as corruption continues to plague both the country and its ability to develop free and fair institutions to monitor and charge corrupt officials, the majority of India's economic growth will never make it to the people of India who desperately need it the most.

My conscience is clear, says High Court Judge facing impeachment [click source]

2010-09-23T09:34:00.000+05:30

Nagendar Sharma

Hindustan Times Email Author

New Delhi, September 14, 2010

Soumitra Sen may be first judge to be impeached

Controversial Calcutta High Court Judge, Soumitra Sen, who faces impeachment (removal) proceedings, said on Monday he had no intention of quitting and would defend himself in Parliament if he had to. “I have committed no wrong. My conscience is clear. On the basis of mere speculation and motivated related stories

leaks I can’t be forced to decide,” Justice Sen told HT from Kolkata.

The panel probing the judge’s conduct submitted its report to Rajya Sabha Chairman Hamid Ansari on Friday, reportedly recommending his impeachment. A High Court Judge can only be impeached if — after a probe panel finds him guilty — a motion to that effect is passed by Parliament. The Judge has the right to participate in the discussion on the motion.

Justice Sen hinted he was the victim of a political conspiracy.

“From what appeared in the media, the timing of the notice against me, and the names of those who signed it appear to be suspicious,” he said.

On other matters, Justice Sen directed HT to his lawyer, Subhash Bhattacharya. Bhattacharya questioned the role of K.G. Balakrishnan, Chief Justice of India when the probe panel was set up.

“Justice Balakrishnan set up the judges’ committees to probe allegations against Justice Sen and Justice Nirmal Yadav of the Punjab & Haryana High Court during his tenure. Why did he recommend only one of them be impeached? Why was his stand different on Justice Yadav?” he asked.

Bhattacharya also said Justice Balakrishnan should have distanced himself from the matter once he had recommended the impeachment.

“He recommended the impeachment in August 2008 in a letter to the Prime Minister, and later suggested names of judges for the probe panel,” Bhatacharya said. “Justice Balakrishnan should not have given the names, since he had already judged the matter.”

SC revives scam, puts ‘Spectrum Raja’ on notice [click source]

2010-09-23T09:25:00.000+05:30

Bhadra Sinha and Manoj Gairola

Hindustan Times Email Author

New Delhi, September 14, 2010

First Published: 01:47 IST(14/9/2010)

Last Updated: 19:58 IST(14/9/2010)

The Supreme Court moved on Monday to pry open an alleged R70,000-crore scandal involving the underpricing of 2G spectrum for mobile telecom services, asking Communi-cations Minister A. Raja, Centre and CBI to respond to a petition that said the CBI was going slow with its investigations. The related stories

SC spells trouble for Spectrum Raja

Centre for Public Interest Litigation’s (CPIL) lawyer Prashant Bhushan asked the Court to direct the CBI to produce the records of the case that involves the alleged irregularities in selling wireless spectrum used for mobile services to telecom operators at throwaway prices on a first-come, first-served basis.

Allegations of a scam were brought up especially after the auction of the 3G spectrum and related services brought in R1 lakh crore. The opposition had stalled Parliament several times seeking Raja’s dismissal.

The CPIL challenged a May 25 Delhi HC judgment dismissing its plea for the court to monitor the investigation. An SC Bench direct the respondents to act within 10 days.

During the hearing, Bhushan read out letters exchanged between the CBI and Income-tax Department regarding taped conversations between chairman of PR firm Vaishnavi, Niira Radia, Raja and DoT officials. He said telephone call records showed how middlemen regularly interacted with officials and influenced policy-decisions and grant of licences.

After going through the letters, the Court expressed surprise to read: “Radia might have had some role to play.”

“If they have heard the conversation, why do they say might have had. Why is there so much of uncertainty?” the Bench asked.

The Court also took exception to CBI’s FIR registered against “unknown persons.” It noted: “Why is CBI so uncertain? Doesn’t the CBI know the officials involved?”

In January 2008, the Depart-ment of Telecommunications (DoT) had awarded 122 Univer-sal Access Service (UAS) licences for 2G spectrum on a first-come-first-served (FCFS) basis at the rate of R1,658.57 crore per pan-India UAS licence.

The price was determined in a 2001 auction and its value grew manifold later. But the Centre got only R9,014 crore as licence fees from these 122 licences in a sale well below market prices.

Meira okays prosecution of MP [click source]

2010-09-23T09:19:00.000+05:30

Hindustan Times

New Delhi, September 14, 2010

First Published: 00:29 IST(14/9/2010)

Last Updated: 00:31 IST(14/9/2010)

In a move with far reaching implications, Lok Sabha Speaker Meira Kumar has sanctioned the prosecution of Congress MP Raja Ram Pal under the Prevention of Corruption Act 1988. Pal, who represents Akbarpur, was a BSP member and among the 10 Lok Sabha MPs caught in the cash-for-query scam that rocked Parliament five years back.

As Pal is the only one among the 10 MPs to be reelected in 2009, the presiding officer’s permission was needed to prosecute him in the criminal case relating to the scam.

The Delhi Police had filed an application with the Lok Sabha Secretariat in in July 2009.

Kumar’s nod is expected to help cleanse Parliament and enable the law to take its own course. But it would also come as an embarrassment to the Congress which had inducted Pal after hewas expelled from BSP following the scandal.

But giving her permission on September 9 for Pal’s prosecution, the Speaker sought the opinion of the Attorney General, the Ethics Committee and experts. The main issue discussed was if the presiding officer was the competent authority to okay prosecution of an MP of 15th Lok Sabha with regard to an offense committed by him as a member of the 14th Lok Sabha.

रिश्तेदार नहीं है पति की गर्लफ्रेंड [click source]

2010-09-23T09:15:00.000+05:30

नई दिल्ली, गुरूवार, 16 सितंबर 2010( 12:18 IST )

दर्ज नहीं हो सकता 498ए के तहत

उच्चतम न्यायालय ने व्यवस्था दी है कि किसी शादीशुदा पुरुष के साथ लिव इन रिलेशन रखने वाली महिला के खिलाफ भारतीय दंड संहिता की धारा 498ए के तहत मुकदमा नहीं चलाया जा सकता।

न्यायालय ने व्यवस्था दी कि सगे संबंधियों का दर्जा खून के रिश्ते या शादी या गोद लेने के कारण बने रिश्तेदारों को ही दिया जा सकता है और यदि पुरुष और महिला की शादी नहीं हुई है तो दोनों को एक-दूसरे के रिश्तेदार की श्रेणी में नहीं रखा जा सकता।

न्यायमूर्ति अलतमस कबीर और न्यायमूर्ति एके पटनायक की खंडपीठ ने अपीलकर्ता सुनीता झा के खिलाफ 498ए के तहत दर्ज मुकदमा निरस्त करते हुए कहा कि ऐसी महिलाओं के खिलाफ हिन्दू विवाह अधिनियम 1955 के प्रावधानों के तहत मुकदमा चलाया जा सकता है।

झारखंड के दुमका निवासी मुकुंदचंद्र पंडित की पत्नी आशा रानी पाल ने अपने पति के साथ लिव इन रिलेशन में रह रही सुनीता झा के खिलाफ 498ए के तहत मुकदमा दर्ज कराया था।

न्यायालय ने अपने 11 पृष्ठ के फैसले में कहा कि बगैर शादी किए एक विवाहित पुरुष के साथ रह रही किसी महिला को पति के सगे-संबंधियों का दर्जा नहीं दिया जा सकता, जबकि 498ए सगे संबंधियों द्वारा किए गए उत्पीड़न से जुड़ी धारा है।

न्यायालय ने व्यवस्था दी कि सगे संबंधियों का दर्जा खून के रिश्ते या शादी या गोद लेने के कारण बने रिश्तेदारों को ही दिया जा सकता है और यदि पुरुष और महिला की शादी नहीं हुई है तो दोनों को एक-दूसरे के रिश्तेदार की श्रेणी में नहीं रखा जा सकता। (वार्ता)

Supreme Court fiat on Judges' pension [click source]

2010-08-25T12:40:00.001+05:30

NEW DELHI : The Supreme Court today said that the judicial officers of subordinate courts will be entitled for pensionary benefits after rendering a minimum service of 20 years instead of prevailing 33 years.

A Special Bench headed by Chief Justice SH Kapadia accepted the recommendations of Apex Court-appointed committee which reduced the minimum service required for entitlement of pension from 33 years to 20.

The Bench, hearing the matters relating to judicial infrastructure, approved the suggestions of the Padmanabhan committee recommending the payment of 50 per cent of the last drawn salary of Judges to be given as pension.

Justice E Padmanabhan, a former Judge of the Madras High Court, had submitted the report to the Supreme Court proposing an average three-fold hike in existing salaries that was recommended by the first National Judicial Pay Commission (NJPC) in 1999.

The Bench, also comprising Justices Aftab Alam and KS Radhakrishan, gave a green signal for raising the ceiling of gratuity to the retired judges which was enhanced from Rs 3.5 lakh to Rs 10 lakh.

The Apex Court had in May directed State Governments to give salary to Judges as per recommendations of the committee.

All India Judges Association (AIJA) had approached the Apex Court seeking implementation of the recommendations of the committee contending that there has been a wide disparity between the salary of judicial officers and other Government employees.

The Second Judicial Pay Commission was appointed following a Supreme Court order on an application filed by the AIJA.