इस ब्लाग में तलाशें

Friday, 30 September 2011

Is this the Justice?

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

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

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

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


Saturday, 24 September 2011

Resistance is crucial to the survival: Dr. Binayak Sen

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


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

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

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

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

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

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

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

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

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

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

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

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


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

The Supreme Court on Friday gave a split verdict on the Centre's plea seeking to recall its order on black money, with one judge holding that the application was maintainable and the other saying it was not. 
Acting on the petitions filed by the former Union Law Minister, Ram Jethmalani, and others, the court had ordered constitution of a special investigation team headed by the retired Supreme Court judge, B.P. Jeevan Reddy. On July 15, the Centre filed the application, which said: “The [July 4] order impinges upon the well settled principle that courts do not interfere with the Economic Policy, which is in the domain of the Executive and that it is not the function of the court to sit in judgment over matters of Economic Policy, which must necessarily be left to expert bodies. Courts do not supplant the views of experts with their own views. The order impinges upon the principle that in matters of utilities, tax and economic policy, legislation and regulation cases, the court exercises judicial self-restraint if not judicial deference to the acts of the Executive, since the Executive has obligations and responsibility both constitutionally and statutorily. The wide-ranging criticism of the state is uncalled for and unjustified.” 
The constitution of a special investigation team and the consequential directions could not be implemented, the Centre said. Following the retirement of Justice B. Sudershan Reddy, the matter was heard by a Bench of Justices Altamas Kabir and S.S. Nijjar (who was part of an earlier Bench). Now, Justice Kabir, in his order, held that the application was maintainable. Technicalities could not stand in the way, “particularly if the implementation of the July 4 order would result in injustice.” He said the Supreme Court had the inherent powers to correct the injustice. Hence, he directed that the matter be heard further. Justice Nijjar, however, said: “There is no question of mistaken facts being presented by anyone to the court. The application also fails to indicate any miscarriage of justice or injustice which would be caused to any particular class. The application, though described as an application for modification, is in substance more in the nature of an appeal. At best, it could be in substance an Application for Review. It certainly does not lie within the very narrow limits within which this court would entertain an application for modification.” Justice Nijjar said: “The Union of India has failed to make out a case to enable this court to treat the modification application as an application for review and proceed to hear the same in open court. The present application is wholly misconceived. It is, therefore, dismissed.” 
In view of the split verdict, the Bench directed that the matter be placed before Chief Justice of India S.H. Kapadia for being referred to a third judge.


Tuesday, 20 September 2011

Supreme Court judge Markandey Katju retires

Supreme Court judge Markandey Katju retired on Monday 19th September 2011 after a career that will be remembered not only for his bold judgments, which some found controversial, but also for his frank, strong views on a wide range of subjects.

“The corrupt should be hanged from the lamp post as that is the only way of getting rid of corruption in the country,” he once said, long before Anna Hazare demanded a death sentence for the corrupt. Other issues he had expressed views on included Mirza Ghalib the poet, Indo-Pak prisoners, honour killings, extra-judicial killings and corruption in the judiciary. At the farewell today, Chief Justice of India S H Kapadia said Justice Katju has lost neither the courage to speak the truth nor his concern for the common man.

When he was Chief Justice of the Madras High Court, Markandey Katju, while ruling on a constitutional question of the relationship between the judiciary, the legislature and the executive, had emphasised judicial restraint and the impropriety of the judiciary trying to infiltrate into the other two domains.


Monday, 19 September 2011

Corporates should be brought under proposed Lokpal

The Central Vigilance Commissioner has reopened the debate on the mandate of the proposed Lokpal by suggesting that corporates should be brought under the purview of the proposed anti-corruption bill to check graft effectively.

He also said that corruption in higher levels of bureaucracy, as also among political executives, should be dealt with by Lokpal, provided there was a proper demarcation of work to avoid overlapping of powers with the CVC.

"Lokpal should cover corruption in higher bureaucracy and among political executives. There may also be a provision, as in UK bribery law, where a bribe giver is punished. We are also not against bringing corporates under the purview of Lokpal,'' Central Vigilance Commissioner Pradeep Kumar told in an interview to PTI.

CVC's views are certain to lend weight to the campaign launched by a section to widen the proposed ombudsman's amibit by including corporates and NGOs. In their perception, corporates too had played a crucial role in abetting corruption, citing the 2G spectrum allocation scam to drive home the point.

The present scheme of things is such that the CVC has no power to check corruption in private firms. It can, however, refer cases of criminal conspiracy and corruption by government officials and private persons to CBI.

The Central Vigilance Commissioner's remarks, however, did not find favour with the business and corporate houses. Sajjan Jindal, Vice-Chairman of JSW Group maintained that too much of policing will kill entrepreneurship. "Business should be allowed to function in a liberated environment. Lokpal looks at corruption in public life. It should not cover business as it will stifle decision making,'' he said.

Ergo Chairman and business historian Gita Piramal said, "First of all, the bill is not an answer to corruption. In terms of corporates there are enough laws in the system, what we lack is the political will to enforce them. Corporate-centric Lokpal is counter-intuitive. You need to create a vibrant business atmosphere."

Maruti Suzuki Chairman RC Bhargava said, "Companies are not government institutions and function independently. Hence, the relevance of Lokpal bill for companies needs to be seen."

BDO Consulting Chairman Shailesh Haribhakti said, "corporates are under the scrutiny of the Corporate Affairs Ministry and regulators like Sebi. So long as there is a single authority abjudicating, it does not matter. Multiple agencies will certainly create confusion."

The head of a large public sector company, who did not wish to be named, echoed similar sentiments. "The move will restrict autonomy for public sector undertakings. I cannot take an independent decision if there are too many regulators. Already we are answerable to many agencies. What is the need to add another? It will be difficult to operate as business environment is also getting competitive,'' he said. The CVC also came out in favour of empowering the Lokpal to probe the role of ministers in cases of corruption. "Lokpal may investigate cases of corruption involving political executives (ministers). In case they are found involved in wrong doings then action against them should be taken as per the law,'' Kumar said.


Say no to bribe

Members of the Pune wing of India Against Corruption (IAC) launched an anti-corruption campaign titled 'say no to bribe' at Ralegan Siddhi, in the presence of Anna Hazare on Sunday. The activists carried out a car and bike rally from Pune to Ralegan Siddhi. The activists will now approach various government offices and appeal to the officers and the public to avoid giving or taking bribes. Nearly 200 people participated in the rally, which started from Vimannagar at 9 am. The rally reached the village around 12.30 pm.

"We had an appointment with Hazare in the afternoon. So we scheduled the rally accordingly," Devjeet Saha, a coordinator of the rally said. The intention of the rally was to have Anna launch the campaign. People who participated in the rally took a pledge in front of Anna that they would not participate in any kind of corruption, he said. "Anna interacted with the people for nearly an hour. He shared his experiences of Tihar jail and the agitations in Delhi," said participant Deepak Bharadia. "It was truly an inspiring experience for the participants," he added. Bharadia said that the IAC members and other citizens will visit various government offices from Thursday. The first visit will be to the passport office on Senapati Bapat Road.

"People from the city have been supporting the anti-corruption campaign in large numbers. The support was massive during Anna's fast. So citizens want to keep the spirit of the fight against corruption alive," he said.


Wednesday, 14 September 2011

Sanjiv Rajendra Bhatt's letter to Narendra Modi

Sanjiv Rajendra Bhatt
Indian Police Service

Dear Shri. Modi,

I am glad you chose to write an open letter to the 'Six crore Gujaratis'. This has not only afforded me a window to your mind but has also given me an opportunity to write to you through the same medium.

My dear brother, it seems you have completely misconstrued the judgement and order passed by the Honourable Supreme Court of India in Criminal Appeal No. 1765 of 2011 arising out of S.L.P. (CRL.) No. 1088 of 2008 viz. Jakia Nasim Ahesan & Anr. Versus State of Gujarat & Ors. It is very likely that your chosen advisors have once again misled you and have in turn, made you mislead the 'Six crore Gujaratis' who look up to you as their elected leader.

Let me as a younger brother-Gujarati, help you decipher the Judgement and Order that has led to unequivocal gloating and jubilatory celebrations among some sections of the political spectrum. It has been stated in your letter that "One thing is apparent from the Supreme Court's judgment. The unhealthy environment created by the unfounded and false allegations made against me and Government of Gujarat, after 2002 riots, has come to an end". Let me clarify that even by a long shot, the order of the Honourable Supreme Court has nowhere, even remotely, suggested that the allegations contained in the complaint filed by Mrs. Jakia Jafri were unfounded or false. The truth is that the order of the Honourable Supreme Court is in fact, a very major leap in the direction of delivering justice to the hapless victims of the Gujarat pogrom. As you are well aware, Mrs. Jafri had approached the Honorable Gujarat High Court with a prayer for registering her complaint as an FIR. The said petition was disallowed by the Honourable High Court of Gujarat. Mrs. Jafri, therefore, approached the Honourable Supreme Court of India by way of a Special Leave Petition against the order of the High Court. The Honourable Supreme Court directed the SIT to look into her complaint and subsequently also directed the learned Amicus to examine the evidence collected by the SIT. At the end of this long and arduous exercise the Honourable Supreme Court has not only allowed the Appeal of Mrs. Jafri and directed the SIT to virtually treat the complaint of Mrs. Jafrri as an FIR, but has also directed the SIT to file a report under section 173(2) of the Cr.P.C. Let me clarify for your benefit and for the benefit of your Six crore brothers and sisters of Gujarat, that this report under section 173(2) of the Cr.P.C. is colloquially known as Charge-Sheet or Final Report. The honourable Supreme Court of India has also directed the SIT to place all the evidence collected by it, including the reports of the learned Amicus before the magistrate empowered to take cognizance. I am sure you will appreciate that in order to let the law of the land take its due course, this was the best option available to the Honourable Supreme Court as per the scheme of the Code of Criminal Procedure.

What the Honourable Supreme Court of India has given to Mrs. Jafri is much more than what she had originally prayed for. The order over which some of us are gloating in feigned glee, is in fact, a very cleverly worded order that takes the perpetrators and facilitators of the 2002 carnage a few leaps closer to their day of reckoning. The false bravado comes across as a very smart attempt to mislead the gullible people of Gujarat and instil a false sense of confidence in the political rank and file. Please be assured that we will see a very different picture as the actual import of the order starts settling in and takes judicial effect.

As one of the 'Six Crore Gujaratis', I feel deeply pained and cheated when the likes of you, consciously or inadvertently, mislead the people of Gujarat for ulterior motives. The theory propounded and practised to perfection by Paul Joseph Goebbels, one of Adolf Hitler's closest associate and Reich Minister of Propaganda in Nazi Germany, can definitely work with the majority of the populace for some time. But all of us know from historical experience that Goebbelsian Propaganda cannot fool all the people for all the time.

I fully endorse your realization that "Hate is never conquered by hate." Who would know this better than you, who has served this State for the last one decade; and I, who has served in the Indian Police Service for the last 23 years. I had the misfortune of serving with you during those days of 2002 when the dance of hatred was choreographed and perpetrated at different venues in Gujarat. Albeit this is not the appropriate forum for me to discuss and reveal the details of our respective roles, I am sure that both of us will be getting ample opportunities before appropriately empowered fora to disclose our knowledge about the dynamics of hatred in the realpolitik of Gujarat. I hope you and your cronies, within and without the Government, will not hate me more for this.

I cannot agree more with you when you say that "the credibility of those who have been spreading lies and defaming Gujarat has come to its lowest ebb. The people of this country will not trust such elements anymore". But my dear brother, you seem to have got it entirely wrong as to who are the ones spreading lies and defaming Gujarat. To my mind, Gujarat has gained infamy not because of the hapless victims who have tirelessly crusading for the cause of justice and truth, but because of the despicable actions of the people who sowed and cultivated hatred to reap political and electoral benefits. Please give it a thought. Introspection can prove to be very revealing at times.

I am deeply touched by your concern and efforts to "further strengthen Gujarat's environment of peace, unity and harmony." Thanks to you and your kinsmen, Gujarat has been free from any large scale eruption of communal violence since 2002. The reasons for this may not be very obvious to our fellow 'Six Crore Gujaratis". This is my 24th year in the IPS. I was allotted to the Gujarat cadre during a time when the State was passing through the throes of widespread and sporadic communal violence. Having been baptised by fire, I have been since trying to understand and deal with the likes of you, who deal in the divisive politics of hatred. It is my well founded observation that the polity of Gujarat has now crossed the stage where communal violence can accrue electoral benefits to any political party, as the process of communal polarisation is very nearly complete in Gujarat. The experiments in the divisive politics of hatred have been very successful in the Gujarat Laboratory. You and your likes, in the political arena, have been largely successful in creating divides in the hearts and minds of the "Six Crore Gujaratis". The need to resort to any further communal violence in Gujarat is already passe.

In a constitutional democracy like ours, it is incumbent upon the State to act in Good faith at all times and under all circumstances. Over the last nine and a half years many friends have fallen prey to the misleading campaign that the Gujarat Carnage of 2002 was a spontaneous reaction to the condemnable action at Godhra on the fateful morning of 27 February 2002. The Newtonian Law was never abused more. You had resorted to your knowledge and understanding of Newtonian physics in March 2002 and had sought to apply it to polity and governance at the peak of the Gujarat Carnage of 2002. But what you might have deliberately missed then, and what many of us seem to be inadvertently missing now; is the universally accepted principle of governance which mandates that in a constitutional democracy, an avowedly secular State cannot be allowed to be partisan. It was the bounden duty of the State to have anticipated and controlled the possible Newtonian reaction, if any; not orchestrate and facilitate systematic targeting of innocent individuals! Be that as it may, as an expression of solidarity with your stated objective of spreading Sadbhavana in the land of the Mahatma, I resolve to join you in your Sadbhavana Mission. What better way to do this than helping the truth to come out and let the spirit of justice and goodwill prevail. As all of us understand, there can be no Sadbhavna or Goodwill without truth and justice. I hereby reaffirm my resolve to contribute my might towards the restoration of Sadbhavana in the administration and polity of Gujarat.

But let me warn you that genuine heartfelt goodwill is something we cannot demand, buy or extort...we can only strive to deserve it. And it is not going to be an easy task. The land of the Mahatma is slowly but surely coming out of its hypnotic state.

As the most powerful person in Gujarat you may think that you do not need to feel accountable to the perceptions of all sections of the community. But believe me, history has proved time and again, that power without genuine goodwill is a path fraught with dangers...it is also a path of no return.

Samabhava is a condition precedent for Sadbhava. Governance by equity and goodwill should not only be the first article of your faith but should also be the last article of your creed.

The truth is more frequently than not, a little bitter and not very easy to swallow. I hope that you will take this letter in the true spirit in which it is written and you or your agents will not indulge in direct or indirect acts of retribution as is your wont.

In the words of Martin Luther King Jr. - Injustice anywhere is a threat to justice everywhere. The spirit of the hapless victims who have been struggling for justice in Gujarat may occasionally flag but it will not be supressed by any amount of false Goebbelsian propaganda. The struggle for justice is never easy anywhere in the world...it calls for everlasting patience and unfailing perseverance at all times. The spirit of the crusaders for truth and justice in Gujarat is epitomised in this poem by Bhuchung Sonam, an alumnus of M.S. University, Baroda.

I have principle and no power
You have power and no principle
You being you
And I being I
Compromise is out of the question
So let the battle begin...

I have truth and no force
You have force and no truth
You being you
And I being I
Compromise is out of the question
So let the battle begin...

You may club my skull
I will fight
You may crush my bones
I will fight
You may bury me alive
I will fight
With truth running through me
I will fight
With every ounce of my strength
I will fight
With my last dying breath
I will fight...
I will fight till the
Castle that you built with your lies
Comes tumbling down
Till the devil you worshipped with your lies
Kneels down before my angel of truth.

May the kind God give you the requisite strength to be equitable and benevolent towards one and all!
Satyamev Jayate!
With best wishes.
Yours sincerely,
(Sanjiv Bhatt)


Compensation ordered for damaged cargo to UK

The National Consumer Commission last week dismissed the appeals of Zim Israel Navigation Co and Are Bee Star Maine Agencies Ltd against the order of the UT Chandigarh consumer commission which asked them to pay compensation for loss suffered by an exporter. Ramco International consigned a cargo of garden tools to England. The goods reached Sheffield in a mutilated condition. Therefore the consignee rejected the goods. Fresh package had to be sent to the buyer. This led to the consumer dispute. The national commission upheld the judgment of the union territory’s commission.


Delhi HC injunction in trade mark violation by transporters

The Delhi High Court last week passed an injunction in a trade mark dispute between Drs Logistics Ltd and Dr Dilip Roadlines and restrained the latter from using the trade mark ‘Agarwal Packers and Movers’. The trade mark of Logistics was allegedly misused in several ways, leading to the application for injunction. The high court noted that Dilip Roadlines did not own the trade mark in question which stood registered in the name of Logistics. There was no dispute that Dilip Roadlines was using the disputed trade mark in advertisements and quotations. Since it is neither the proprietor nor the registered user of the trade mark, it has absolutely no right to use it and any such use would amount to infringement of the trade mark. Therefore, till the main suit is finally decided, the court passed the injunction order.


Tuesday, 13 September 2011

Ransom for executive deductible expense of company

A division bench of the Madhya Pradesh high court has ruled that ransom paid to a dacoit to release a kidnapped director of a company is “general expense” and is deductible in income tax assessment. In this case, CIT vs Tobacco Products Ltd, a director was kidnapped in Sagar who had gone there to buy tendu leaves. The police was unable to give help. So the company paid Rs 5.5 lakh to get him back. In the income tax returns, the company, manufacturer of bidis, showed this as general expense. It was rejected by the authorities. After travelling several ladder of tribunals, the question was referred to the high court. It ruled in favour of the company stating that it was allowable deduction under Section 37(1) of the Income-tax Act. The authorities argued that payment of any amount which is prohibited by law is not business expenditure. The high court rejected this contention and stated that the director was on business tour and was staying in government guest house from where he was kidnapped. No fault could be found in the claim of the company for deducting the ransom money.


Employers flouting labour laws through subterfuges

Employers are resorting to subterfuges to defeat labour laws these days, the Supreme Court has lamented. In this case, Bhilwara Dugdh Utpadak Sahakari vs Vinod Kumar, the employer showed that the employees were those of his contractor. Criticising this practice which is adopted in the name of globalization and liberalization, the court remarked: “Labour statutes were meant to protect the employees because it was realised that the employers and the employees are not on an equal bargaining position. Hence, protection of employees was required so that they may not be exploited. However, this new technique of subterfuge has been adopted by some employers in recent years in order to deny the rights of the workmen under various labour statutes by showing that the concerned workmen are not their employees but are those of a contractor, or that they are merely daily wage or short-term or casual employees when in fact they are doing the work of regular employees.”


Monday, 12 September 2011

Repacking gas attracts excise duty

Buying gas in bulk from market and repacking them in smaller cylinders after tests and giving different grades to it to be sold in open market would attract excise duty, the Supreme Court stated while dismissing the appeal of the manufacturer in the case, Air Liquide North India Ltd vs Commissioner. The company supplied helium gas to customers according to the specifications of its customers. It bought gas by its generic name and after tests and analysis sold them to different customers based on their specific requirements at a profit margin. The process was not revealed by the company as it claimed that it was its “trade secret”. The court held that the process of tests and categorization gave the gas different marketability and amounted to manufacture, attracting duty.


Pay excise duty on laminated particle board : SC

The Supreme Court last week ruled that manufacturers of laminated particle board will be liable to pay a higher excise duty as after processing, the product becomes a distinct marketable commodity different from the original one. The panels, after lamination, become water resistant, scratch resistant and look attractive due to printed design paper. 


Friday, 9 September 2011

No separate action from centre for Compulsory registration of marriages

The process for compulsory registration of marriages in the wake of the Supreme Court order of 2006 is being worked out by State Governments and Union Territories and hence, no separate action by the Central Government is considered necessary, Salman Khurshid, Union Minister of Law & Justice has said.

The Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denomination should be made compulsorily registrable in their respective States where such marriages are solemnized.

The minister in written reply to a question in the Rajya Sabha this week said that “it is not correct to say that the process of registration of marriages is cumbersome. The process for compulsory registration of marriage is worked out by respective State Governments and the Union Territory Administrations by making suitable legislation/ rules or by amending existing legislation/ rules on the basis of the situation obtained in their respective territories to make the process simple and easier. Hence, no separate action by the Central Government is considered necessary.”


Offence committed by an Indian in a foreign country can be tried by a court in India

An offence committed by an Indian in a foreign country can be tried by a court in India, the Supreme Court has held.

A three-judge Bench of J. Altamas Kabir, J. Cyriac Joseph and J. S.S. Nijjar said “the provisions of Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof.”

The Bench, however said that offences committed by an Indian citizen in a foreign country would be amenable to provisions of IPC subject to the limitation imposed under Section 188 Cr.PC, viz seeking the prior consent of the Central government.

In the present case, the appellant Thota Venkateswarlu was married to Parvatha Reddy Suneetha in November 2005 as per Hindu traditions and customs in Ongole in Andhra Pradesh. At the time of marriage Rs. 12 lakh in cash, 45 sovereigns of gold and Rs. 50,000 as ‘Adapaduchu katnam' was alleged to have been given to the husband, mother-in-law, and other relatives of the husband.

According to Suneetha, her husband left for Botswana in January 2006 and she later joined him. While in Botswana, she was allegedly severely ill-treated and various demands were made including a demand for additional dowry of Rs. 5 lakh. Unable to withstand the torture she sent a complaint to the Superintendent of Police, Ongole for dowry offences under IPC as well offences under the Dowry Prohibition Act.

The magistrate, to whom the complaint was forwarded took cognisance and issued summons to the husband and others, who were questioned on their arrival to India. While the Andhra Pradesh High Court quashed proceedings against the appellant's mother and two others, it dismissed his plea. The present appeal by Venkateswaralu is directed against this order.

The appellant's wife argued that part of the offence relating to dowry was committed in Indian soil and part of the offence was committed abroad. Hence the offence could be tried in Indian courts. However, the appellant argued that he could not be tried without the previous sanction from the Central government.

J. Kabir pointed out that it was clear that the case relating to the alleged dowry offences were committed outside India. But since part of the offence was committed in India, the court here could try the appellant and the High Court was correct in rejecting his plea to quash the proceedings. The Bench while asking the trial court to take up the case said, the trial would not proceed without the sanction of the Central government as envisaged in Section 188 Cr.P.C.


Thursday, 8 September 2011

CBI may reinvestigate the Haren Pandya Murder Case

The Central Bureau of Investigation (CBI) will reinvestigate the Haren Pandya Murder Case, if so desired by the Supreme Court.

The CBI got the green signal from the home minister to move a special leave petition in the Supreme Court of India to challenge last month's Gujarat High Court judgment which acquitted 12 accused of the murder charge.

Stung by the HC's castigation of CBI for its sloppy investigation, CBI chief A P Singh met Chidambaram on Monday to discuss further course of action. Sources said Singh gave a detailed half-hour presentation in the presence of a legal expert where he admitted to loopholes in the investigation resulting in gross miscarriage of justice.

The discussed veered around to the view that the agency should not shy away from re-investigation, if directed by the Supreme Court. This is a demand which has already been raised by the victim's family members. Interestingly, the Brahma Samaj in Gujarat has also jumped into the fray and has demanded that a fresh probe be ordered. Leaders of the Brahmin community are scheduled to state a protest at Law Garden on Wednesday evening, at the same spot where Pandya was shot dead on the morning of March 26, 2003. The community is also expected to intervene in the case, when the CBI approaches the SC, and had already lined up a senior lawyer for the purpose.

Meanwhile, three senior Congress leaders of Gujarat - Shankarsinh Vaghela, Shaktisinh Gohil and Arjun Modhvadia - also met Chidambaram in New Delhi on Tuesday and represented the feelings of family members and the community. They added that even the Gujarat government had suggested on the day of HC judgment that CBI should go to the apex court.

While Chidambaram promised to expedite the matter, a highly-placed CBI source said there were sufficient grounds for re-investigation as fresh leads had been obtained about the Pandya killers during subsequent investigations of fake encounters in Gujarat.


Wednesday, 7 September 2011

Judge Population Ratio in India

The Law Commission in its 120th Report recommended that the strength of judges per one million population may be increased from 10.5 to 50 judges per million population. Giving this information in written reply to a question in the Rajya Sabha, Shri Salman Khurshid, Minister of Law & Justice, said that the judge strength of the High Courts is reviewed every three years. The data received from the High Courts for the triennial review of the judge strength of the High Courts are analyzed in accordance with the guidelines fixed for the increase of the strength which is based on number of cases filed and disposed.

Shri Khurshid further informed the House that with regard to subordinate judiciary, the Supreme Court, in its judgment of 21st March, 2002, in All India Judges’ Association & Ors Vs. Union of India & Ors, directed the States that an increase in the Judge strength from the existing 10.5 or 13 per 10 lakh people to 50 judges per 10 lakh people should be effected and implemented within a period of five years. The Central Government filed a modification petition in the Supreme Court praying that the increase in judge strength in the Union Territories for which Central Government is administratively responsible be allowed based on workload and pendency of cases.


11 killed, more than 65 injured in Delhi HC bomb blast

At least 11 killed and more than 65 injured in a bomb blast near first security checkpoint in Delhi High Court premises where people were queuing for passes. The area was crowded with lawyers and witnesses because Wednesday is the day when most public-interest litigation is heard at the high court.

Prime Minister Manmohan Singh called it a "cowardly act of a terrorist nature".An email claim by the extremist group Harkat-ul Jihad Islami (Huji) that it planted the bomb.

"It would be very premature to make any comment on the mail at this stage, but yes, that mail has to be looked at seriously, because Huji is a very prominent terrorist group," SC Sinha, D. G. National Investigation Agency, told. The email reportedly demands that a man sentenced to death for involvement in an attack on Delhi's parliament ten years ago should not be hanged.

The US state department says Huji is a terrorist organisation with links to al-Qaeda. The group has been accused of carrying out attacks in India, Pakistan and Bangladesh. The leader of Huji, Ilyas Kashmiri, was reportedly killed in a US drone strike in north-western Pakistan in June.

In June, a bomb exploded in a car outside the same Delhi court complex. There were no casualties on that occasion. In July, 26 people died in three explosions in the country's financial capital, Mumbai (Bombay).


CBI tampering with evidence

The Supreme Court was told by an accused in the 2G case Tuesday that the Central Bureau of Investigation was tampering with evidence by asking the telecom regulator to revisit its opinion that the precise value of the spectrum, if it had been auctioned, could not be arrived at.

Senior counsel Ram Jethmalani told an apex court bench of Justice G.S. Singhvi and Justice H.L. Dattu that "CBI intended correspondence so that Telecom Regulatory Authority of India should change its opinion amounts to tampering with evidence - a habit his client are totally free of".

Jethmalani was arguing on the bail plea of Unitech's Sanjay Chandra. The court was hearing a plea by Chandra and Vinod Goenka of Swan Telecom challenging the Delhi High Court's May 23 verdict rejecting their bail applications.

As Jethmalani told the court that "if CBI don't want to rely on a piece of evidence as it does not suit them, it is entirely up to them. But the disclosure of that evidence must be made", Additional Solicitor General Harin Raval gave the copy of TRAI's opinion to the court and the petitioner's counsel.

Senior counsel told the court that normally the apex court did not interfere with the high court's findings in bail matters, but if "there is grave, blatant and atrocious miscarriage of justice and raises important question of law" then the apex court may interfere with it.

The court was told that Chandra had cooperated and made himself available to the investigating agency as and when it asked him to. The court was told that in one instance when Chandra was abroad and was required by the investigating agency, he cut short his visit and came back to India.

Describing the high court judgment as "wonderful", Jethmalani said that the fact that his client was not arrested by the investigating agency was held against him (in the high court) as his being "very influential".

Referring to certain media reports, the court said: "Irrespective of the dignity of any person in the society, leave aside those who are accused in the case, they are assassinated in the society."


Tuesday, 6 September 2011

Health activists mark question on Justice Bhandari

Justice Markandeya Katju of the Supreme Court had withdrawn from hearing a patent dispute vitally concerning pharmaceutical majors. Justice Dalveer Bhandari, the head of the bench that has since been dealing with the case, is now under attack, this time from health activists. Though he did not himself give any reason for it, Katju's recusal in 2009 from the appeal filed by Novartis was then widely attributed to an article written by him in a legal journal conceding, much to the embarrassment of multinational companies, that "many of the medical drugs available in the market are too costly for the poor people in India" and that "ways and means should therefore be thought out for making these drugs available to the masses at affordable prices".

In what seems virtually a reversal of the situation, the health activists demanded on Monday, on the eve of the next hearing of the case, that the government should seek Justice Bhandari's recusal as he had participated in at least two international conferences for judges organized by the US-based Intellectual Property Owners Association (IPOA), whose members include Novartis, among a host of pharmaceutical and IT giants.

The stated purpose of those conferences attended by Justice Bhandari in 2009 in Washington and this year in Brussels was to help "intellectual property (IP) law attorneys and other interested parties" get an opportunity to interact with judges from around the world. In the 2009 conference, Justice Bhandari presented a paper arguing that pharmaceutical MNCs should "educate people regarding the importance of the protection of IP rights" and they should "make all efforts to ensure that all countries are persuaded to enact proper laws".

Alleging that "several statements in the paper could be held to be in conflict with the intent and letter of the Indian Patent Act", health activists wrote to three ministers stating that the government should take up the matter of recusal with Hon'ble Justice Bhandari "to avoid any room for questions to be raised once the judgment is given in light of the already expressed opinions on IP".

The letter however added that given the manner in which those conferences were "disguised as educational events, it is highly likely that judges attending these meetings are unaware that these are not neutral venues offering balanced views and discussions on IP". The activists also clarified that "this is not a matter of transparency as Hon'ble Justice Bhandari's Supreme Court web page and the Supreme Court Annual Reports do note his participation at these conferences. Nor are we in any way suggesting that this is a matter of corruption."

The signatories to the letter are Amit Sengupta (Delhi Science Forum), B Ekbal (former vice chancellor of Kerala University), M R Santhosh (Centre for Trade and Development), Prabir Purkayastha (Knowledge Commons) and lawyer K M Gopakumar.


Sunday, 4 September 2011

Asked action for questionable probe in murder case

Additional sessions judge N K Kaushik has asked Delhi Police commissioner to take action against R R Khatana, for conducting a questionable probe into a murder leading to the acquittal of all three accused. The judge said that inspector had tried to "raise unnecessary dust just to cause utter confusion and hide the truth". Noting that there was a string of lapses in the probe conducted by Khatana in the murder of west Delhi resident Hitender Singh, the court said, "It appears the inspector made it a point, in a calculated manner, may be in collusion with the accused, to ensure the failure of the prosecution's case during investigation itself."

While acquitting the murder accused in the case - Darshan Dabas, Navin Deshwal and Manish Lakra - the court held the inspector responsible for weakening the case and referred the matter to the police commissioner. "A copy of the judgment be sent to the police commissioner to take appropriate action against the delinquent investigating officer (Khatana) for not collecting cogent and requisite evidence in the matter, as per law, to get the offenders of such heinous offence punished," the judge said while also seeking a compliance report of its order from police.

The case dates back to November 10, 2008, when Nazafgarh resident Singh was found dead in his car parked near a banquet hall. Lying in a pool of blood, the man had sustained several bullet injuries. The police had also found the window-pane of the car's front door shattered and the driver's seat soaked in blood. A live cartridge and a shell were also found in the car besides a broken baseball bat stained with blood.

The prosecution had listed 47 witnesses to bolster its case but the public prosecutor later dropped several of them, saying their deposition was irrelevant. During the trial all witnesses including the parents, brothers and the wife of the deceased had turned hostile.


Saturday, 3 September 2011

I Didn’t violate any service rule: Kejriwal

Anna Hazare’s key aide Arvind Kejriwal yesterday questioned the income tax notice served on him for payment of Rs 9 lakh as outstanding dues pertaining to the period while he was in government service, terming it a clear case of political vendetta against those involved in the Jan Lokpal campaign.

“In my opinion, there is no role of the Income Tax Department…they are doing it under political pressure,” he said, responding to the August 5 IT notice served on him.

Government sources, however, maintained that the notice had been served long back and the Anna group was only raking it up now to gain public sympathy and score brownie points.

Kejriwal said he remained in the government service from 1995 to 2006 and took study leave between November 2000 and October 2002. He said he rejoined and took a leave without pay from 2004 before resigning in February 2006 to devote full time to his NGO Parivartan.

The activist rejected the view that he had violated government service and bond rules or that he owed money to the government. He said if at all he owed money, the government could take it from his outstanding General Provident Fund dues. “I have been repeatedly writing to them to adjust it against my GPF amount, which is believed to be a few lakhs. However, this has not been done so far,” he said.

He said the government was interpreting the bond in a wrong way to suit itself. “No employee can work without taking a single break. I have not violated the bond condition. The government should return the GPF amount. I would donate the entire amount for the movement against corruption,” he added.

Supporting Kejriwal, Prashant Bhushan said the notice showed “the government has not yet taken any lesson. It is still using its dirty tricks department to target the group”.


Guwahati HC ordered to pay unemployment allowance

The Guwahati High Court, Imphal Bench in a ruling by Justice T Vaiphei has upheld an earlier decree of the Imphal East MGNREGS Deputy Ombudsman for releasing unemployment allowance to 13 Job Card holders of Ucheckon Nongchup Gram Panchayat, who had applied for unemployment allowance.

According to a Human Rights Law Network (HRLN) statement, the Guwahati High Court, Imphal Bench in its ruling on August 30 directed to comply with the award issued by the Deputy Ombudsman, within two months and to release the unemployment allowance to be paid to the 13 Job Card holders.

With the passing of the said judgment and order, the MGNREGS authority in Manipur is compelled to pay the unemployment allowance for their failure to give employment to the job card holders, said the HRLN statement while pointing out that prior to passing of the said judgment and order, getting unemployment allowance in Manipur was a distant dream despite the fact that unemployment allowance is a guaranteed right under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 .

The said Writ Petition is one of the exceptional cases in Manipur in approaching the Court for non payment of unemployment allowance by the Job Card holders under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 .

Under the National Rural Employment Guarantee Scheme, Manipur, which has been framed by the Government of Manipur under Section 4 of the MGNREGA, every job card holder is entitled to get unemployment allowance as and when the authority concerned failed to provide employment within 15 days from the date of submission of application for work by the Job Card Holder, HRLN explained.

With regard to the present case, it is informed that in November 2010, 13 Job Card holders of Uchekon Nongchup Gram Panchayat submitted their application for work under NREGS, Manipur to the authority of Uchekon Nongchup Gram Panchayat.

However, the said Job Card Holders were not provided employment within the stipulated period of time and as such they reportedly approached the Panchayat Secretary of the Gram Panchayat concerned on December 24, 2010 by submitting separate applications seeking unemployment allowances for failure to provide them employment.

Since then the 13 individuals have been waiting for unemployment allowance but the same was not released.

Subsequently, on January 15, 2011 the said Job Card holders submitted individual complaints to the Deputy Ombudsman, MGNREGS, Imphal East District for taking necessary action so as to enable them get their unemployment allowances.

Consequently, on February 14, the Deputy Ombudsman disposed of their complaints by a common Award thereby directing the Programme Officer concerned to pay the unemployment allowances to the said 13 Job Card holders.

However, the authority concerned failed to provide the unemployment allowances to them inspite of decree of the Deputy Ombudsman resulting in the 13 individuals approaching the Guwahati High court to deliver justice.

The Respondents listed in the Writ Petition include the State of Manipur through the Commissioner, (Rural Development and Panchayati Raj) to the Government of Manipur; the District Programme Co-ordinator, Imphal East District, Manipur; the Programme Officer, Imphal East II CD Block; and the Union of India through the Secretary, Ministry of Rural Development, Government of India, New Delhi (Proforma Respondent) .

The said Writ Petition was filed at the active initiative of Human Rights Law Network (Manipur), the statement issued by its director Meihoubam Rakesh added.


Thursday, 1 September 2011

Justice Soumitra Sen, facing impeachment, resigns

Justice Soumitra Sen of the Calcutta high court resigned on Thursday, five days before his impeachment motion was to taken up in the Lok Sabha. The Rajya Sabha had on August 18 overwhelmingly approved the impeachment motion against Justice Sen. Justice Sen was held guilty of misappropriating Rs. 33.23 lakh in a 1983 case. 

Here is the full text of his resignation ...

The Hon'ble Speaker

Lok Sabha
Parliament House
New Delhi

Respected Madam,

With a very heavy heart and a deep sense of anguish I am writing this letter to you.
I was elevated as a Judge of Calcutta high court on 3rd December 2003.
Till such time I carried on with my judicial functions no one either from the Bar or from the Civil Society has raised any complaint regarding my integrity honesty and competence.
There is no complaint against me even today regarding my conduct as a Judge while discharging my judicial functions or my conduct as a judge outside the Court.
I am not guilty of any form of corruption, there is no allegation against me that I am guilty of passing any order or judgment for extraneous consideration or that I have abused my power in any way so that my family or relatives or acquaintances have amassed wealth, but sadly I am still facing a motion for impeachment.
In every case that has come so far before the Parliament for impeachment there were serious allegations of misbehaviour as a judge as contemplated under Article 124(4) read with 217 of the Constitution of India.
However my case is unique and perhaps this for the first time and hopefully the last that my conduct as a junior Advocate nearly 19 years ago is being looked into for proceeding with the Motion for impeachment despite a judgment passed by the Hon'ble Division Bench of the Hon'ble Calcutta high court clearing me of all charges.
It seems that in the wake of a tsunami like wave that has arisen in this Country, I am being swept away by such a wave. In the anxiety to take definitive action against corruption even a Judgment passed by a competent Division Bench is being completely brushed aside with the remark that the Hon'ble Judges of the Division Bench have favoured me. Parliamentary Rules barring discussion in a motion regarding abstract questions of Law which also involves such discussions in this matter has been given a go bye. Further, Parliamentary Rules also prohibits moving of a motion in relation to matter which is subjudice, in this case the main application and the suit are still pending before the Calcutta High Court. The liberty given to me by the learned single Judge by an order dated 31st July 2007 is still available to me. Even then the Motion is being proceeded with.
Respected Madam, it is needless to mention that a Judgment remains a Judgment, until it is set aside by a Higher Judicial forum. Fair criticism of a Judgment is permissible but correctness and/or incorrectness thereof cannot be questioned by any one other than before a higher judicial forum.
Respected Madam, you are perhaps aware of the Charges against me. The first charge clearly indicates that it is outside the scope and purview of Article 124(4) read with 217 of the Constitution of India, as the investigation into the said charge would necessarily be in respect of an Advocate Receiver and not a Judge in office. The Calcutta High Court is a Court of Record under Article 215 of the Constitution of India, having plenary power to punish for offences committed to it. It is needless to mention that an Advocate Receiver appointed by the Court is an office of Court and not a public servant.
Therefore only the Court appointing the Receiver has the power to either punish or exonerate its own officers. In this case my conduct as a Receiver for committing the alleged offences have been duly examined by a Division Bench, which has found me not guilty as charged. Even then impeachment proceeding has been initiated against me.
A Judge is also a citizen of this Great Nation and my fundamental right guaranteed under Article 14 of the Constitution of India cannot be denied.
The fundamental right guaranteed under the Constitution of India can only be suspended in a state of emergency under Article 352 of the Constitution of India. In the instant case it has been argued in support of the Motion before the Rajya Sabha that in case of larger public interest there is no binding force of Judicial Order.
Respected Madam, I do not come from a family of Judges or politicians. I was born and brought up in Assam and came all the way to Calcutta to try my luck. By the grace of God and the hard work I put in as a Lawyer my name was suggested for being appointed as a Judge by the senior Judges of the Calcutta High court who have seen me appearing before them day after day and arguing matters with honesty integrity and competence.
I had a fairly lucrative practice which I gave up not to amass wealth by resorting to corruption but to serve the august institution being the judiciary and consequently the Nation. I have tried to serve in accordance with oath of office to the best of my ability. Therefore it hurts, when charges are leveled against me as a Judge.
My action as an Advocate has not caused prejudice to any one, who is really interested in the matter. I may have made mistakes as a junior advocate 19 years from now but then who is above making mistakes, no human being is infallible, but to accuse me of dishonest intention as a judge or otherwise I firmly repudiate and that is why in spite of being offered V.R.S (Voluntary Retirement Scheme) in lieu of resignation was not accepted by me. If I really had dishonest intention I would have taken the easy route of either resigning or accepting VRS instead of facing the ignominy of being the first Judge of Independent India to be Impeached.
It is my conviction, which I shall carry till my end, that I am not guilty as charged. Facts can be presented in either way but when there is serious lack of evidence which I have repeatedly pointed out; a High Court Judge cannot be impeached merely on the basis of presumption of guilt based upon certain error of judgment committed as a junior Advocate more than a decade prior to his elevation. It seems my conduct as a Judge in carrying out my judicial functions and out side the court as a judge has become inconsequential.
In the present mood of the Country, where the Civil Society has raised their voice against serious issues of corruptions regarding scams involving hundreds and thousands of crores, my lone voice that I am not guilty as charged cannot be heard. I wonder, whether my issue is the real issue of corruption and abuse of power by people in high places or I am being made a sacrificial lamb in the alter of justice as a showcase to tell the Nation that at least something has been done to clean the Institution from corruption.
Respected Madam, certain allegations have been leveled against me in my absence before the Rajya Sabha that I have mislead the House. I did not get any chance to rebut such allegations. Considering the fact similar procedure has been adopted before the Lok Sabha that I will not get any chance of rebuttal, I would like to bring to your kind attention certain facts which will prove beyond doubt that I have not mislead the House. The correct facts are set out in an enclosure to this letter.
Honestly and humbly I apprehend that as Hon'ble Members of Rajya Sabha of different parties have already expressed their views and I feel that it may not be reasonable for me to take the time of this August House for my defense, and also in view of the fact that I am being allotted a fixed time which I respectfully submit is inadequate, for properly making my submission before the Hon'ble House and also in view of the fact that I shall have no chance of rebuttal in respect of the submission that will be made by Hon'ble members in my absence in House, it may not be proper for me to take the time of the House further as it appears to be a foregone conclusion. This apprehension has turned into a conviction by reason of the fact that some members in spite of expressing reservations to vote in favour of the Motion but nonetheless have voted as they were morally bound to support the Motion as they have signed it, and as such I have decided humbly to submit my resignation to the Hon'ble Rastrapatiji for her kind consideration and acceptance.

Thanking you
Yours Sincerely
Soumitra Sen


Non Lawyers can represent befor consumer courts following rules to be made:SC

The Supreme Court has ruled that non-lawyers can represent, appear and argue cases filed under the Consumer Protection Act before consumer district forums and commissions. Following the ruling, the National Consumer Commission may consider drafting rules that may accredit non-advocates to practise as representatives before a forum.

The SC passed the directive while dismissing an eight-year-old appeal filed by the Bar Council of India against a 2002 Bombay high court judgment that permitted agents to represent consumers. The SC bench of Justice Dalveer Bhandari, Justice R Mukundakam Sharma and Justice Anil Dave on Monday, however, said special guidelines were needed and accordingly, it directed the National Consumer Commission to "frame comprehensive rules within three months" to regulate the eligibility, ethics and conduct of non-legal representatives. Agents can be friends or relatives but they cannot accept any remuneration and must display competence.

Before concluding that the HC judgment required no interference, the apex court considered American, English and Australian laws that permitted similar non-legal representation in certain areas before quasi-judicial bodies or subordinate courts.

In India, rules framed in 1986 under the Consumer Protection Act permit authorized agents to represent parties. The SC noted that the National Commission has rightly placed "reasonable restrictions" on such rights to rule out misuse of liberty by any person or organization for "ulterior motive" or "to make a profession out of it".

But with even lawyers against it, the issue of "authorized agents" remained undecided for over a decade. In 2000, in a complaint against two tour operators in Mumbai for alleged deficiency in service at the South Mumbai District Consumer Forum, the operators demanded that non-advocates should not be allowed to represent consumers. The forum agreed and held that the authorized representative had no right to plead as he was not enrolled as an advocate. But earlier in 1997, the consumer forum held that authorized agents did have a right to act, appear and argue consumers' case.

The matter went to the state consumer commission that stayed the hearing of matters in which authorized agents appeared before the Consumer Forum.

The commission's order was challenged in the HC that held that litigants before consumer forums "cannot be compelled to engage advocates" as they were quasi-judicial bodies. The consumer law is meant to be a swift and inexpensive remedy for consumers at the receiving end of poor service, unfair trade practice or faulty goods.

The HC held that the consumers' right to authorize a non-lawyer to represent, appear and argue on their behalf in the district forums and state commission was "not inconsistent" with the Advocates Act that regulated legal practice by lawyers. It held that the agents did not practise law. Several other laws like the IT Act also permit non-advocates to represent the parties.

The SC agreed with the HC but said as in other countries, there must be guidelines. It held, "For smooth, consistent, uniform functioning of the National Commission, the State Commissions and the District Forums, we deem it appropriate to direct the National Commission to frame comprehensive rules for appearances of agents, representatives, registered organizations and/or non-advocates appearing before National and State Commissions and the District Forums governing their qualifications, conduct and ethical behaviour."

The SC has suggested certain points that the National Consumer Commission may consider while framing rules:

1. An agent appearing on an individual case basis:

a. Must have a pre-existng relationship with the complainant (eg, as a relative, neighbour, business associate or friend)
b. Must not receive any form of direct or indirect remuneration for appearing before the forum and file a written declaration to that effect
c. Must demonstrate competency

2. Accredition may be through written examination on law; academic and professional background, criminal record

3. Fees: The forum may decide on fee amount if an agent seeks to receive any; but he cannot ask for more than 20% of damages sought by a consumer.


Blogger templates

  © Blogger template Newspaper III by Ourblogtemplates.com 2008

Back to TOP