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Tuesday, 22 November 2011

Divorced woman can’t be evicted from home:SC

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

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

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

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

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

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

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

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Sunday, 13 November 2011

Jayarajan appealed conempt judgment before SC

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

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

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

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

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

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Friday, 11 November 2011

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

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

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

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

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

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

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

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

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

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

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Thursday, 10 November 2011

Mass protest against Jayarajan Judgment

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

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

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

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

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

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

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

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

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

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

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Wednesday, 9 November 2011

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

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

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

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

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

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

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

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Friday, 4 November 2011

It should allow some people to become less poor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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