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Tuesday, 30 August 2011

Will the Lokpal be tenth time lucky?

The Lokpal bill is into its ninth life but the eight previous governments that tried to deliver it failed to show similar cat-like survival skills.
For over four decades, the bill has repeatedly been introduced only to be forgotten and then resurrected again. But almost all the governments that tried to give it birth died prematurely themselves — some within months — and the two that completed their terms got waist-deep in problems and failed to return.
The Congress was the first to try. On May 1, 1968, then home minister Y.B. Chavan introduced the bill in the Lok Sabha and it was referred to a joint select committee that completed its work in a year. The House passed the bill on August 20, 1969.
But before the legislation could travel the few yards to the Rajya Sabha, the fourth Lok Sabha was dissolved following the Congress’s split into Congress () and Congress (R). Nothing was heard of the bill for the next two years and, despite its passage in the Lok Sabha, it lapsed.
On August 2, 1971, Ram Niwas Mirdha, junior personnel minister in the Indira Gandhi ministry, brought it back to the Lok Sabha. But within weeks, India had gone to war with Pakistan.
Thereafter, Indira’s term was dogged by problems, from food shortage and price rise to bandhs and corruption, culminating in the June 1975 court judgment against her election that led to the Emergency. So the Lokpal bill was the last thing on her mind. Her government lasted its term but lost the 1977 election.
The victorious Janata Party government took up the bill. Charan Singh, home minister in the Morarji Desai cabinet, placed it in the House on July 23, 1977. But the Janata Party’s innings ended in just over two years.
The fourth to introduce the bill — on August 25, 1985 — was Rajiv Gandhi’s law minister A.K. Sen. Rajiv’s decision to bring it within a year of securing a stupendous majority appeared to be in sync with his promise to root out corruption.
But the bill was again referred to a standing committee and forgotten as the Bofors cloud gathered steam and the Ram temple agitation got off the blocks. Rajiv never returned to power.
The V.P. Singh government, high on its pre-poll promise of bringing the corrupt to justice, introduced the bill in its first Parliament session. The government didn’t last even a year.
P.V. Narasimha Rao didn’t touch the bill for the five years he ruled but his successor H.D. Deve Gowda, Prime Minister of the United Front coalition, introduced it on September 10, 1996. By April next year, he was gone. The Front itself was ousted later in the year.
On July 23, 1998, Atal Bihari Vajpayee’s National Democratic Alliance resurrected what by then was already looking like a doomed legislation. It followed the familiar route to a standing committee and, before anything substantive could be done, Vajpayee had lost his majority in April 1999 — in less than a year and by a single vote.
Vajpayee returned but the bill had to wait until 2001, when deputy personnel minister Vasundhara Raje placed it in Parliament on July 9. The House panel that vetted it was headed by Pranab Mukherjee, who completed the job in record time.
However, the NDA government sat on the bill. Then, buoyed by its Assembly poll victories, it called a snap general election and lost.
UPA-I didn’t once think of the bill. Now UPA-II has revived it and suffered its gravest political crisis. When a revised draft comes up, perhaps in winter, will the Lokpal be tenth time lucky?


Monday, 29 August 2011

Can OCD a ground for divorce?

Meena  a welleducated woman, married to Raju an executive with a multinational company in 1997. The couple has an 11-year-old daughter. Meena looks like a healthy and happy person. But her husband and daughter have experiences otherwise. Raju has moved the family court seeking divorce from Meena saying she's suffering from obsessive compulsive disorder (OCD), a mental illness or a psychiatric disorder.

Raju, in his plea, has contended that in the initial years of marriage he noticed that Meena had a habit of doing certain things repetitively. "She will either keep washing her hands or repeatedly check if the main door is closed. I used to ignore it, but her behaviour became more obsessive after our daughter was born in 2000. Once she started going to school, Meena used to doubt if she really goes to school or not; she does her homework or not. She used to punish the child for petty reasons," states Raju.

But a family court has raised this pertinent question that can the OCD a ground for divorce. Last week, when Raju's petition came up for hearing, the judge posed some questions: "Is this illness incurable? Show how will it affect your matrimonial prospects?" The court also questioned if a person suffering from OCD can live a normal life. "What if her illness is cured after divorce is granted?" asked the judge.

Raju's lawyer argued: "He waited for two years after finding out that she is suffering from OCD. She hasn't shown any improvement to treatment for over ten years now. Even the child is getting affected because of the mother's behaviour."

The plea, which was filed in 2001, said Meena's symptoms aggravated from 2000, after the birth of their daughter. She was treated in two hospitals and also one in the United Kingdom but hasn't shown any improvement. She is now staying with her parents in Kerala and is under treatment.

Meena's lawyer countered that his client is responding to treatment and the illness is curable. "Just because a mother is giving some minor punishment to the child, can she be called mentally ill? Or can it be a ground to seek divorce?" he asked.

A prominent women lawyer said: "The law generally says that some incurable disease can be a ground for divorce. But the case should be supported by medical reports which say that the disorder or the illness is incurable in nature. There are chances that certain illnesses which are incurable today can be cured tomorrow with the help of advanced medical facilities. The judgment in a case should be passed on the present status of the case and not on its future prospects."

A professor of psychiatry, National Institute of Mental Health and Neurosciences ( Nimhans), had this to say: "Diagnosis cannot answer all questions. A good proportion of these patients show much improvement and we say they are cured." He explained that in a similar proportion, response to treatment would be satisfactory thus enabling a person to perform most of the essential roles. "However a small proportion would be disabled even after considerable treatment and the disability of performing matrimonial duties can vary from case to case," he added.

A family court,while hearing the case last week, asked if obsessive compulsive disorder could be a ground for seeking divorce. "Is this illness incurable? Show how will it affect your matrimonial prospects? What if her illness is cured after divorce is granted?" asked the judge.


Friday, 26 August 2011

Convicts of Rajiv Gandhi assassination case would be hanged September 9th morning

Three accused sentenced to death by the Supreme Court in the Rajeev Gandhi assassination case. Authorities in Vellore Prison in Tamil Nadu have told the three accused, Murugan, Santhan and Perarivalan, that they would be hanged till they die on the morning of September 9. 

The process to hold their death sentences was set in motion on Friday with the Vellore Prison authorities receiving the communication from Rashtrapathi Bhavan that the President of India has rejected the clemency petition filed by Murugan, Santhan and Perarivalan, the three Liberation Tigers of Tamil Eelam (LTTE) activists. 

The three convicts are hoping against hope that they may get a reprieve from the hangman’s noose. A source close to them told that they would move the Madras High Court anytime from now challenging the President’s decision to decline clemency and hang them 11 years after they filed the clemency petition. They may approach chief minister Jayalalithaa with a plea to save them from the gallows.


Only actual damages to Air Crash sufferers

A Division Bench of the Kerala High Court, on Thursday, set aside a single judge's verdict holding that Air India Ltd. was bound to pay a minimum compensation of one lakh Special Drawing Rights (SDRs), equivalent to Rs.75 lakh, each to the legal heirs of those killed in the Mangalore air crash on May 22, 2010. (The SDRs are supplementary foreign exchange reserve assets defined and maintained by the International Monetary Fund.)

The Bench, comprising Justice C.N. Ramachandran Nair and Justice P.S. Gopinathan, while setting aside the judgment, observed that the third schedule to the Carriage by Air Act, 1972, incorporating the Montreal Convention, did not provide for any minimum compensation for death of, or injury to, an air passenger. The court, however, observed that the carrier was liable to pay the actual damages proved by the claimants in the case of death or injuries. The liability so payable could be determined through negotiated settlements or in a civil court of competent jurisdiction.

The Bench felt that the air carrier, as a matter of good will, should offer a reasonable minimum compensation if the actual damages payable in law were low, so that unnecessary litigation could be avoided. In fact, the air carrier could pay damages up to Rs.75 lakh to the claimants on proving negligence on the part of the carrier
The court said if no settlement was possible, the actual damages payable had to be claimed and proved by the injured or the legal heirs of the deceased in a civil court.

The single judge's verdict came on a writ petition filed by the parents of B. Mohammed Rafi, 24, of Kasaragod, who was killed in the air crash. They sought a compensation of a minimum of one lakh SDRs based on the Montreal Convention.  Allowing an appeal filed by Air India, the Division Bench observed that compensation had to be claimed by the kin of the air crash-victims based on sound provisions of the law of tort and determinants of compensation, such as age, income status, loss of dependants, and other relevant factors.

Air India said a total compensation of Rs.50 crore had been paid to the legal heirs of 62 persons killed in the cash and the six injured. The highest compensation of Rs.7.757 crore had been paid to the legal heirs of a cardiologist who was killed in the crash. The average compensation paid was Rs.80 lakh. Negotiations were on with the legal heirs of other victims. The airline said the petitioners had been paid Rs.20 lakh. During negotiations, they were offered a settlement of Rs.35 lakh. However, they refused to take the offer. As many as 158 people were killed when an Air India Express plane from Dubai plunged over a cliff into a wooded valley.


Thursday, 25 August 2011

Central Govt. prayd SC to recall it's Black Money Order

The central government Wednesday told the Supreme Court that its judgment and order on black money needed to be recalled as its implementation would have far reaching consequences on its functioning.
The apex court bench of Justice Altamas Kabir and Justice S.S. Nijjar was told that converting the high-level committee headed by the revenue secretary into a special investigating team (SIT) amounted to dislodging each and every authority set up under the law.
The HLC comprising the heads of different organisations or their representatives was set up by the government to monitor and co-ordinate investigation into parking of ill-gotten money by Indians in tax havens abroad.
Attorney General Goolam Vahanvati wondered how secretary-revenue, or deputy governor of the Reserve Bank of India would transform themselves into the role of investigators. The attorney general wondered how director of Research and Analysis Wing (RAW), India’s external intelligence agency, could be included in the SIT.
The attorney general said that ‘there were serious objections on converting the HLC into SIT. How the members of the HLC would become the investigators’.
The court was told that director, RAW, was a faceless entity and nobody knew who he was.
The government moved an application July 15 seeking the recall of the court’s July 4 order. But Wednesday it moved another application restricting its prayer to recall that portion of the July 4 order by which the apex court set up a SIT to probe money laundering.
The SIT was asked to undertake investigation, initiation of proceedings and prosecution.
The application said that in exercise of the jurisdiction under Article 32 of the constitution, the apex court could not pass orders ‘which have the affect of completely eliminating the role and the constitutional functions of the executive (government).’
Vahanvati wondered if the ‘SIT without the authority of law, where would it get its funds’.
The court was told that there were very serious issues about the scope of the reference of the SIT asking it to do everything and SIT can’t possibly do.
Vahanvati said that the way SIT has been made responsible to the apex court, it would denude the finance minister of his power to ask for any report from his officials.
Senior counsel Anil Divan, who commenced the arguments for petitioner and noted jurist Ram Jethmalani, would continue his arguments Thursday.
The apex court’s July 4 verdict came on the petition by Jethmalani seeking direction to take steps for bringing back ill-gotten money stashed away in tax havens by Indian citizens and the disclosure of the names of such account holders that were available with the government.


Wednesday, 24 August 2011

Kerala Police will accept on line RTI applications.

It's a good news for residents of Kerala. The Kerala Police have decided to accept queries based on Right to Information (RTI) Act online. With this facility, citizens can now submit their RTI applications through email without going to police stations.

In the present situation, the application form can be downloaded from the website and the query based on the RTI Act can be sent via email. The fees can be sent to the police official concerned through a money order. As of now, fees cannot be accepted online and the applicant will have to submit it through post or money order. The application form can be downloaded from the site in both English and Malayalam.

This move will help the public file RTI without any hassles. Apart from the fact that it is convenient, the applicant would not loose time visiting offices as well. Hopefully this move will encourage more people to make use of the Right To Information Act.


Tuesday, 23 August 2011

Children from broken homes get affection and care of both parents so indispensable to their balanced growth and upbringing

Merely because a child says he does not want to see his father's face is not a ground for denying a man fighting a divorce battle access to his son, the Bombay high court has ruled.

''It is no use for the child who has been brought before a judge or a counsellor to merely state that he would not want to meet his father or see his face,'' said Justice Roshan Dalvi. ''An oral case that the father was not attached to the children, was harassing them or spoiling their reputation would not suffice. The father must be made out to be so thoroughly despicable that no child could be expected to see his face,'' added the judge.

The judge's observations came in a case where one city resident, had moved the court following an unfavourable order against her for not complying with orders to allow her estranged husband to meet their minor son.

The court was informed that she avoided getting her son to the family court complex twice a month on Saturdays when her husband was allowed to meet their son for an hour. The judge said that if a mother-in total breach of court orders-was allowed to argue that though she cajoled her son, he resisted attempts to meet his father, ''the orders of the court would be a complete mockery''.

''No order of access could be worked out upon the mere say of a custodial parent,'' said Justice Dalvi. The court has now given one last chance to her to comply with the court orders. She was ordered to meet a child counsellor at Muskaan, TISS, along with her husband and decide a venue where the father can meet his son on the first and third Saturday of every month. The court warned her that failure to bring her son on even a single day would result in her defence being struck off.

The judge also emphasized the importance of child counselling in custody battles, saying the aim was that ''children from broken homes get affection and care of both parents so indispensable to their balanced growth and upbringing''.


Horoscope is admissible but a weak evidence: SC

NEW DELHI: Horoscope is an admissible piece of evidence to prove a person's date of birth though it has low reliability, the Supreme Court has held.

A bench of justices Mukundakam Sharma and Anil R Dave passing the judgement, however, said the burden of proving the authenticity of such horoscope would lie "heavily" on the person relying on it.

"We reiterate the proposition of law laid down by this court in the earlier decisions that horoscope is a very weak piece of material to prove age of a person and that heavy onus lies on a person who wants to press it into service to prove its authenticity," the bench said.

The court passed the judgement on a petition filed by Registrar General of the Madras High Court against M Manickam, a lower court judge, who has been litigating since 1993 for change in his date of birth from November 24, 1950 to March 19, 1947.

He had made his first application before the Registrar General in November 1993 contending that due to the wrong entry of his date of birth in the service records, he would retire from his service 3 years, 8 months and 5 days before his actual date of superannuation.

The apex court said that since horoscope is a primary document on which reliance is placed, "therefore, the same is required to be looked into very carefully and minutely so as to ascertain the genuineness of the claim."

The bench rejected Manickam's plea for change in his date of birth noting that even though Manickam claimed the horoscopes were made by his father at the time of their birth between 1939 and '53, but an address and its pin code printed on the pad showed the note pad was manufactured only after 1972 when the system of pin code was introduced.

"We are of a firm opinion that respondent (Manickam) has failed to discharge his onus in proving the authenticity of the horoscope on which reliance is placed," it said.


Monday, 22 August 2011

Government has no power to suspend screening of a film cleared by the Central Board of Film Certification

The Supreme Court of India held that the government had no power to suspend screening of a film that had been cleared by the Central Board of Film Certification. The CBFC, or censor board, is an empowered regulatory body constituted to view, rate, and censor objectionable portions of a film prior to its release. In coming down heavily on the Uttar Pradesh government order suspending the screening of the Hindi film Aarakshan, which deals with issues of caste and reservation, the Supreme Court of India has struck another blow for freedom of expression and against the tendency of the state to resort to censorship at the first sign of political protest.

To seek to ban or suspend the screening of a film certified by the censor board under the procedure established by law (in this case, the Cinematograph Act 1952) goes against the fundamental right of freedom of speech and expression guaranteed by the Constitution and is a threat to democratic dissent and artistic creativity. Hearteningly, the court found no merit in the contention that screening the film would cause a breach of peace and law and order. Besides pointing to the fact that the film had been released without difficulty in other parts of the country, the judges referred to the landmark Supreme Court judgment in the 1989 Ore oru gramathile case and ruled that it was for the state to maintain law and order and that “it shall maintain law and order effectively and meaningfully.” No democratic society can allow unreasonable restrictions on the freedom of expression under cover of maintaining public order.

As for the merits of the contention that a high-level committee appointed by the Uttar Pradesh government had recommended suspension of the film on the ground that it dealt with the sensitive issue of reservation, the Supreme Court was categorical that public discussion on such social issues was necessary in a vibrant democracy, and that informed decisions could be taken on the basis of such discussion and dissent. On the other hand, shutting out discussion on sensitive social issues, far from aiding public order, would have the effect of deepening social divides and breeding public unrest. Political stability and public order, it is clear, cannot be bought at the cost of freedom of expression and right to dissent. Successive Supreme Court rulings on the issue, which draw force from Article 19(1)(a) of the Constitution, should deter governments from going down this road again under pressure from organised groups or special interests or for any other reason. The Hindu hopes that Aarakshan will be the last film to face a ban in India.


Sunday, 21 August 2011

Jaitley's speech at in impeachment of Justice Sen in Rajya Sabha

This is a sad but historic moment in the Indian democracy. We have assembled to decide the fate of a man who decided the fate of others. This political house is here to perform a judicial function. We have heard a detailed presentation in the defence of the judge sought to be impeached.

The power of removal/impeachment of a judge of the Supreme Court or the High Court is a power which is to be used in the rarest of the rare cases. We invoke this jurisdiction to remove a man and save the dignity of the office, which is paramount.

The invocation of the power is both punitive and deterrent. The removal of a Supreme Court judge under Article 124 (4), and a High Court judge under Article 217 (1) (B) after following the procedures prescribed in the Judges Inquiry Act, can only be for proven misbehaviour or incapacity.

In this case, the jurisdiction is being invoked on the ground of 'proven misbehaviour'.

While participating in the debate on Article 124, in the Constituent Assembly, Gopalaswamy Aiyangar had expressed a hope that the procedures would never be used during his life time.

His prophecy proved to be true. But now times are changing. We chose the best system for India, a system of Parliamentary democracy with separation of powers and independence of judiciary.

Judiciary performs a divine function where ordinary humans decide the fate of others. When this divine function of deciding the fate of others is bestowed in a Judge, we expect him to perform it with the highest standards of scholarship and utmost impartiality.

He must be detached from all collateral persuasions. The premise of the utmost impartiality, free from aberrations under which the institution of judiciary was created, is no longer available. There are compromises, in terms of quality, in terms of independence and collateral influences.

Thus, there is a need to be vigilant about the judiciary.

Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations.

They must neither be summarily tried nor be thrown to the wolves. A judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth.

In this case, when the Judge under inquiry says that his offence must be proved 'to the hilt' or 'proved beyond reasonable doubt', he relies on technicalities rather than substance. A Judge is like Caesar's wife. He must be beyond suspicion.

Caesar divorced his wife merely on the basis of suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be beyond suspicion. Is Justice Soumitra Sen guilty of 'proven misconduct?

On 10.01.1983 a civil suit was filed by the Steel Authority of India seeking money decree against various defendants. The dispute was in relation to certain goods. On 30April 30, 1984, the Calcutta High Court appointed Shri Soumitra Sen, advocate, as a Receiver to take charge of goods, sell the goods and make an inventory of the goods.

He was directed to file half yearly returns with the court, in relation to handling of the goods. Nothing significant happened till January 20,1993, whereupon the Calcutta High Court directed the Receiver to sell the goods, open a separate bank account, and keep the proceeds free from lien or encumbrance.

The Receiver opened to bank accounts. He eventually sold the entire goods for a value of Rs. 33,22,800. Of this amount he deposited Rs 4,68,000 in the Allahabad Bank and the balance in the ANZ Grindlays Bank.

He did not even once file the return of accounts with the court for how much money he collected, and how much money he had spent. He was entitled to collect a five per cent fee on this amount, which he did.

Of the money deposited in the Allahabad Bank, he usurped them for an unlawful purpose. Instead of holding the money for the benefit of the SAIL, he has issued a number of cheques in favour of private individuals: Subroto Mukherjee, Biresh Prasad Choudhary, Somnath Ray, K L Yadav, and one Jayguru Enterprises.

He also withdrew money against several self-cheques. He further drew out payments against his VISA credit card and made payment to a bookselling company M/s S C Sarkar & Sons.

He has till date not explained why he usurped this money.

He was also appointed Special Officer for disbursement of workers dues in the case of one Calcutta Fans Ltd, which had gone into liquidation. He was given Rs 70 lakh for distribution amongst the workmen. Of this Rs 70 lakh, he withdrew a sum of Rs 25 lakh and deposited it with one company called Lynx India Ltd.

When he had to pay the money to the workmen, he was obviously short of payment. He, therefore, withdrew an amount of Rs 22 lakh from the Receivership account of SAIL, and deposited it in his Special Officer account in relation to Calcutta Fans case.

All this while, he did not render any account to the court. These monies continued to be misappropriated by him, and this misappropriation continued for a reasonable period of time.

On March 7, 2002, the Receiver Soumitra Sen was asked to submit the accounts by the Advocate of SAIL. He did not respond to the same. On February 27, 2003, the SAIL advocate moved to the Calcutta High Court for rendition of accounts.

On December 3,2003, Advocate/Receiver Soumitra Sen was elevated as Judge of Calcutta High Court. The single Judge of the High Court repeatedly issued notices to the Receiver to render accounts.

He never cared to reply to the notices. Finally, on April 10, 2006 the single Judge of Calcutta High Court passed serious strictures against him and directed him to pay a sum of Rs. 52, 46, 454/- to the SAIL.

This was in addition to Rs 5 lakh he had already paid. He started paying the amount from June 27,2006 onwards and for the first time, after paying Rs 40 lakh in installments , he moved an application on September 14, 2006 seeking extension of time to pay the balance.

He did not dispute the judgment of the single judge. After paying the balance amount, he moved the single judge for deletion of the remarks against him. The single judge declined his request.

Meanwhile, newspapers in Calcutta published several articles on how Justice Soumitra Sen had continued to keep the misappropriated amounts, even after his elevation as a Judge. The Chief Justice of Calcutta High Court wrote to the Chief Justice of India, that this prima facie amounted to misconduct and Justice Sen should be proceeded against.

On September 20, 2007 he was asked to explain his conduct by the Chief Justice of India. Anticipating an in-house inquiry against himself, he requested for time from the Chief Justice of India, and on the same day argued his case before the Division Bench of the High Court in a proceeding that is prima facie collusive.

All the advocates present in the court including the advocate for the SAIL, and the buyer of the goods agreed with Justice Soumitra Sen's advocate that strictures passed against him should be removed. The division bench accordingly removed the comments against him.

The Chief Justice of India appointed an in-house inquiry committee of three Judges i.e. Justice A P Shah (then Chief Justice of Madras High Court), Justice A K Patnaik (Chief Justice of Madhya Pradesh High Court) and Justice R M Lodha (a Judge of the Rajasthan High Court) to examine the conduct of Justice Soumitra Sen.

He appeared before the Inquiry Committee and put up his defence. His defence before the single judge, or before the division bench and the in-house Inquiry Committee was that he had, in good faith, deposited the amounts collected by him in the SAIL case as Receiver with Lynx India Ltd and that money got lost because of the liquidation of that company.

Both the single judge and the in-house inquiry committee came to the finding that he had put up a false defence and that no amount of money was deposited with M/s Lynx India Ltd. He deliberately created a smokescreen, since it was the money in the Calcutta Fans case, which had actually been deposited in that company.

The in-house inquiry committee held him to be guilty. He declined the request of Chief Justice of India to resign. Fifty Eight Members of Parliament moved a motion for his removal. An inquiry committee was constituted by the Chairman, Rajya Sabha to examine the case of Justice Soumitra Sen.

He appeared before the committee but claimed a right to silence. He put up a defence of the monies received by him as a receiver being lost on account of liquidation of Lynx India Ltd. This committee also came to the conclusion that Justice Sen is guilty of 'proven misconduct'.

Justice Sen is guilty of a continued 'proven misbehavior' from his days as a lawyer when he was appointed as a Receiver; and this continued well in to his tenure as a Judge of the Calcutta High Court. He never rendered the accounts as directed by the courts both as a lawyer and as Judge.

He created encumbrances, by withdrawing monies, which were in his custody as a Receiver of the court. He transferred these monies unauthorisedly to persons not authorised to receive them. He withdrew the monies himself. He transferred the money to another account, which he maintained as a special officer in Calcutta Fans case.

Even after his elevation as judge in 2003, he continued the misappropriation of monies. His case squarely falling under Section 403 of the IPC of temporary misappropriation of monies is a criminal offence. In any case, he continued to retain these monies till 2006.

He only returned the monies under the coercive order of the court and not otherwise.

During his tenure as judge, he put a false defence before the single judge, the Division Bench, the in-house inquiry committee and the impeachment inquiry that he had invested these monies in a company which went into liquidation.

The liquidated company had nothing to do with these monies. The Division Bench judgment is a judgment with consent of all parties. It does not lay down the law. It is a judgment in personam, which is binding only on the parties, and not a judgment in rem, which binds the rest of the world. It does not, in any way, restrain the jurisdiction of this House under Article 217 from examining a case of 'proven misconduct'.

Justice Soumitra Sen's conduct as a litigant was unfortunate. He led no evidence. He hardly cross-examined witnesses. He claimed the right of silence. He then misrepresented and put up a false defence.

He has been held guilty, both by the in-house committee appointed by the Chief Justice of India, and also by the committee appointed by the Chairman, Rajya Sabha. He is conclusively guilty of an offence.

A case of 'proven misconduct' is made out against him. A Judge has to lead by example. A Judge cannot rely on technicalities and try to escape the rigours of law. Litigants cannot be Judged by a Judge, who himself is stigmatised. The defence of Justice Sen has thus to be rejected.


Saturday, 20 August 2011

Centre on path to ammend Sec 498A of IPC

Following hundreds of applications from men peeved over the alleged misuse of Section 498A of Indian Penal Code (IPC) meant to protect women, the judicial cell of Union home ministry has issued an advisory to state governments “to take effective measures for prevention of misuse of the legal provision” and also referred the matter to the Law Commission “to study the usage of the provision to suggest amendment, if any”.
Section 498A of the IPC provides protection to married women against harassment from their husbands and in-laws. Under the provision, police can arrest any member of a woman’s in-laws’ family against whom she makes an allegation of harassment. The Section reads, “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

The Union home ministry has conveyed the development in a letter to Ahmedabad-based men’s rights activist Dashrath Devda, who has been fighting for an amendment in Section 498A of the IPC.

Devda heads Akhil Bhartiya Patni Atyachar Virodhi Sangh (All India Federation Against Atrocities by Wives), an organisation based in Ahmedabad. He had unsuccessfully staged a hunger strike in Delhi against the alleged pro-women laws, including Section 498A of the IPC. To press his demand, he had also filed a public interest litigation in the HC, which dismissed the plea and fined him while calling his petition frivolous. Subsequently, Devda submitted a memorandum in this regard to the authorities in Delhi. As a reply, he has now received the letter from the judicial cell of the Union home ministry. The letter reads, “An advisory has been issued to be state governments by this Ministry to take effective measures for prevention of misuse of Section 498A of the IPC. The matter has also been referred to Law Commission of India to study the usage of Section 498A of IPC and suggest amendments, if any, to the provision.”
Sources in the Union home ministry said they receive a number of applications with reference to the alleged misuse of section 498A of IPC. On the basis of 200-250 such applications, they had referred the matter to the Law Commission in 2009, they said, adding that in 2010, the ministry again referred the matter to the Law Commission for a comprehensive study of the grievances and to suggest amendment, if any. Subsequently, the Law Commission had demanded related data from the state governments.


Supreme Court overturns ban on film Aarakshan

NEW DELHI — India's Supreme Court on Friday overturned a state government ban on the release of a new Bollywood film Aarakshan treating the controversial issue of caste quotas in government jobs. Two judges at the Supreme Court in New Delhi said the screening of "Aarakshan" (Reservation) in Uttar Pradesh state should be allowed after its release was banned for two months on law and order grounds.The drama, starring Amitabh Bachchan, Saif Ali Khan and Deepika Padukone, has provoked widespread protests and demands for cuts from politicians and interest groups representing low-caste Hindus and other minorities.
Last week three states, including Uttar Pradesh, said they would not allow it to be shown because of what they said were derogatory references to Dalits, the community previously known as "untouchables" and the quota policy. The film's director, Prakash Jha, challenged the ruling in Uttar Pradesh, which is run by the low-caste politician Mayawati.
"I'm happy the hearing is in our favour," he said in an emailed statement after the ruling, adding that the case was "an important battle" for freedom of expression.
In their ruling, the judges said that Uttar Pradesh state administration had over-reached itself by banning the film before its release and that only the censor board could practise "pre-censorship". Directing them to lift the ban, they added: "A debate on such social issues is essential in a vibrant democracy. The state cannot take a view unless the film is shown in the state."
Two other states that banned the film for similar reasons, Punjab and Andhra Pradesh, have now allowed its release, although with the dialogues they objected to cut.
The caste reservation system is enshrined in India's constitution and designed to give equal opportunities to marginalised groups that are officially known as "scheduled castes, scheduled tribes and other backward classes".
The affirmative action, though, is controversial and subject to frequent legal challenges as the number of places available to disadvantaged groups varies from state to state and sometimes exceeds the legal maximum of 50 percent.
Opponents also say it does not reward merit.
Jha denies that the film takes a stance for or against the issue.


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