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Tuesday, 11 September 2012

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

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

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

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

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

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

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

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

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

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

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

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

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Thursday, 22 March 2012

Indian maid gets relief from US Court

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

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

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

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

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

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Tuesday, 22 November 2011

Divorced woman can’t be evicted from home:SC

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

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

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

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

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

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

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

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Sunday, 13 November 2011

Jayarajan appealed conempt judgment before SC

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

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

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

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

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

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Friday, 11 November 2011

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

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

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

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

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

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

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

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

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

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

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Thursday, 10 November 2011

Mass protest against Jayarajan Judgment

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

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

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

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

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

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

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

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

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

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

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Wednesday, 9 November 2011

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

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

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

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

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

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

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

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