Sale of mortgaged property must be transparent : Bombay H.C.

The Bombay high court has set aside the order of the Mumbai Debt Recovery Appellate Tribunal in the sale of the Mysore unit of Jay Electric Wire Corporation, now closed, and asked the recovery officer to issue public advertisements inviting fresh bids. The earlier sale was challenged by the employees’ union, Central Bank of India and Standard Chartered Bank, who were secured creditors. According to them, the sale did not fetch fair market value and was vitiated by irregularities. Allowing their writ petitions, the court observed that “it is necessary that the sale process must be conducted with transparency and in accordance with law. In the present case, we find that the element of transparency was completely lacking. The grounds which weighed with the appellate tribunal are misconceived. Its conclusion that there was no material irregularity is specious.”

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Plan reforms with consensus: Manmohan

Recently Prime Minister Manmohan Singh indicated the government's plan to introduce labour reforms with “consensus.” This statement assumes significance as the labour unrest in Maruti Suzuki India Limited plants near Delhi had forced the management to declare two days shutdown. Dr. Singh, affirmed the government's commitment to do “everything possible to ensure good industry-labour relations.” He said:“Recently we have witnessed some incidents of industrial unrest. This is a matter of serious concern to me and I believe we need to address this issue with alacrity and sincerity. “Workers and management had a symbiotic relationship and both sides should work in a spirit of collaboration and cooperation, without losing sight of the overall national objective of progress.

“There is a view that the labour laws are sometimes felt to be too rigid and are a constraint on our growth impulses… There was also a contrary view that the labour legislation needed to protect the interests of workers, particularly in the unorganised and the contract labour sectors. Clearly, there were areas where there was a need to strike a balance between the needs of a growing economy and the interests of working people.”

The Prime Minister said the Center was aware that there were many areas of labour legislation that might require reform to encourage business and enterprise. “We will move ahead only in those areas where a broad consensus for reform is built and will ensure that the interests of our workers are fully protected in doing so.” He also highlighted the government's plans to increase skill development programmes and expand the workers' health insurance scheme such as the Rashtriya Swasthya Bima Yojana, which was already benefiting about 25 million labourers.

Labour and Employment Minister Mallikarjun Kharge said the objectives of maximum utilisation of resources, quantum increase in productivity and efficiency could not be achieved unless the managements, workers and trade unions came together and helped evolve an ethos and work culture. His Ministry had constituted a National Social Security Board for recommending formulation of Social Security Schemes.

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Govt. Intends to extend all benefits to contract workers as permanent workers

The Labour Ministry is making efforts to extend all benefits available to permanent workers to contract workers, keeping in mind the interests of all stakeholders. This was stated by the Union Labour and Employment Minister, Mr Mallikarjun Kharge, at the Standing Labour Committee meeting here on Monday.

Mr Kharge was responding to the demand of trade unions to amend the Contract Labour Act, 1970 to provide for automatic absorption of contract labour in the event of prohibition of employment of contract labour and opposition by employers' organisations.

On the issue of trade union ‘recognition', especially in the backdrop of the Maruti unrest, Mr Kharge said “the present system of verification (of trade unions) like secret ballot, check off, etc., needs to be closely examined further for evolving an improved system which is more transparent and brings out the proper representation.”

The Minister also hinted at the need to have a National Labour Code, as suggested by the Arjun Sengupta Committee, to lay down “a floor of substantive labour rights or standards such as minimum wages, maximum hours of work, minimum standards of safety and health at workplace and so on.”

The tripartite meeting was attended by representatives from Central ministries, State Labour Ministers, industry bodies, employers' organisations and trade unions.

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Judges should not shy

Judges should not shy away from constructive criticism of their actions and decisions as such review leads to the development of law, Chief Justice of India S.H. Kapadia has said.

Chief Justice Kapadia said this here Tuesday while releasing a book, "The Kesavananda Bharati case: The untold story of struggle for supremacy by the Supreme Court and Parliament", written by eminent jurist T.R. Andhyarujina.

"We judges are not afraid of constructive criticism of our actions and decisions by the bar," Chief Justice Kapadia said.

He regretted that senior counsel are too engaged in their professional pursuits to pay attention to the development of statutory and constitutional law.

He declined to be part of the discussion on the plea that judges should not get involved in debatable issues.

The book recounts the "tensions and conflicts in the Kesavananda Bharati case - not only between the rival sides but also among the judges, some of whom had preconceived views because of being judges in earlier cases and others by reason of their selection by the government."

The book reveals "the stratagems of the (then) Chief Justice S.M. Sikri on the date of the judgment on 24 April, 1973 by which he formulated a paper hurriedly prepared by him 'The Views of Majority'".



"This paper was signed in Court by 9 judges, 4 other refusing to ascribe their signatures to it." This has come to be known as a majority decision in the Kesavananda Bharati case.

Andhyarujina said the book deals with the actual account of how the case developed and dealt with and the decision arrived in a "dubious manner".

His account of the case is based on his "recollections and notes maintained by him as a counsel in the case and on later interviews by him with some of the judges in the case".

The book was described by various speakers as a maiden attempt in Indian judicial history to see beyond the pronouncement of a judgment and how it was arrived at.

In the case, the Supreme Court held that parliament cannot tinker with the basic structure of the constitution.

It laid down 35 parameters to define the basic structure of the constitution that include rule of law, secularism and separation of powers between the three organs of the state -- legislature, executive and judiciary.

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Farmula One: SC notice to UP Govt, Jaypee Group on tax exemption

India's Formula One ambition has hit its first hurdle just two weeks ahead of the first Indian Grand Prix. The Supreme Court sought explanation from the Uttar Pradesh government for granting tax exemption to Jaypee group, the company organising Formula 1 event in Greater Noida.

A bench headed by Justice D K Jain also issued notice to Jaypee Group, organiser of the sporting event, and asked them to file their response by Friday on why the event was given exemption from entertainment tax.

The notices were issued by the apex court on the basis of a public interest litigation (PIL) which challenged the exemption of entertainment and luxury tax for organising the F1 event.

The court passed the order on a PIL challenging the state government decision to grant tax exemption to the event.

India's first Formula 1 event is scheduled to be held in Greater Noida, adjacent to the national capital, on October 30.

The Uttar Pradesh government and the Jaypee group have been asked to file their replies by Friday.

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Book on Kesavananda Bharati case will be released on Tuesday

A 13-judge Bench of the Supreme Court, the largest so far, decided the Kesavananda Bharati case after hearing arguments by eminent lawyers spread over 66 days. The judgment, delivered by a majority of 7:6 on April 24, 1973, held that Parliament could not alter the basic structure of the Constitution by an amendment.

Chief Justice of India S.H. Kapadia will release a book dealing with this case at a function here on October 18. The senior advocate and former Solicitor- General, T.R. Andhyarujina, has written the book, explaining the culmination of a struggle for supremacy over the power to amend the Constitution between Parliament and the government on the one hand, and the Supreme Court on the other.

Mr. Andhyarujina says: “This book is a gripping story of the conflict and tensions in the Kesavananda Bharati case and its aftermath, which has not been disclosed so far. It is based on the author's recollection and [the] detailed notes maintained by him as counsel in the case, and on later interviews by him with some of the judges in the case.”

The book reveals that prior to the hearing, the government attempted to influence the court by appointing judges who it expected would decide in its favour. It shows the preconceived views of some of the judges on Parliament's power to amend the Constitution, the internal conflicts and factions among the judges, and the charged atmosphere in the court till the delivery of their judgments.

In the words of Mr. Andhyarujina, the battle began when the Supreme Court, in the Golak Nath case in 1967, held that fundamental rights could not be amended by Parliament. Parliament and the government were not reconciled to the ‘view by majority' in the Kesavananda case and were determined to get it overruled. On the day of the judgment (April 24, 1973), the government superseded three senior-most judges, who had decided against the government and appointed Justice A.N. Ray as the next Chief Justice on the retirement of Chief Justice S.M. Sikri. In 1975, with the help of Mr. Ray, the government tried in vain to reverse the majority view in the Kesavananda case by another Bench of 13 judges.

However, during the emergency, the government nullified the Kesavananda case judgment by the 42nd amendment, but this was overruled in the Minerva Mills case in 1980, when Y.V. Chandrachud was the Chief Justice.

Mr. Andhyarujina says the purpose of the book, coming as it does after 38 years of the event, was “an interaction of constitutional law with the politics of the day; the story of the Kesavananda case requires to be widely known.” Though such an exercise is being done in the United States, it has not been done in respect of any leading case in India, hence his attempt.

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Negotiable Instruments Act could be amended : Supreme Court

The Supreme Court has suggested that the Negotiable Instruments Act, 1881, could be amended so that a convict in a cheque bounce case is made to pay a fine from which the complainant can be paid a compensation.

"One other solution is a further amendment to the act so that in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon, at a fixed rate of 9 percent per annum, followed by award of such sum as compensation from the fine amount," said the apex court bench of Justice R.V. Raveendran (since retired) and Justice R.M. Lodha in a recent judgment.

Speaking for the bench Justice Raveendran said: "This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chapter XVII of the act, which is to increase the credibility of the instrument."

"This is, however, a matter for the Law Commission of India to consider," the judgment said.

The judges said that the act "strongly leant towards grant of reimbursement of the loss by way of compensation".

"The courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9 percent per annum as the reasonable quantum of loss) and direct payment of such amount as compensation".

The apex court said that the compensation by way of restitution on account of dishonour of the cheque should be "practical and realistic".

"Uniformity and consistency in deciding similar cases by different courts not only increase the credibility of cheque as a negotiable instrument, but also the credibility of courts of justice," the judgment said.

"In same type of cheque dishonour cases, after convicting the accused, if some courts grant compensation and if some other courts do not grant compensation, the inconsistency, though perfectly acceptable in the eye of law, will give rise to certain amount of uncertainty in the minds of litigants about the functioning of courts," the judgment said.

Citizens will not be able to arrange or regulate their affairs in a proper manner, as they will not know whether they should simultaneously file a civil suit or not.

The problem is aggravated since in spite of provisions for concluding such cases within six months from the date of the filing of the complaint, these seldom reach finality before three-four years, the judgment said.

These cases give rise to complications where civil suits have not been filed within three years on account of the pendency of the criminal cases.

"While it is not the duty of criminal courts to ensure that successful complainants get the cheque amount also, it is their duty to have uniformity and consistency, with other courts dealing with similar cases," the judgment underlined.

The court said this while dismissing an appeal challenging the Kerala High Court's verdict that the trial court verdict of imposing fine and awarding compensation could not co-exist.

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Hindu woman entitled to equal property rights: SC

The Supreme Court ruled that the female inheritors would have succession rights and the same liabilities fastened on the property along with the male members.

A Hindu woman or girl will have equal property rights along with other male relatives for any partition made in intestate succession after September 2005, the Supreme Court has ruled.

A bench of justices R. M. Lodha and Jagdish Singh Khehar in a judgment said that under the Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along with other male siblings, which was not available to them prior to the amendment.

The apex court said the female inheritors would not only have the succession rights but also the same liabilities fastened on the property along with the male members.

“The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9 September 2005. The legislature has now conferred substantive right in favor of the daughters.

“According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal,” Justice Lodha, writing the judgment, said.

The term coparcener refers to the equal inheritance right of a person in a property.

The apex court passed the ruling while upholding the appeal filed by Ganduri Koteshwaramma, daughter of late Chakiri Venkata Swamy, challenging the Andhra Pradesh High Court’s decision not to recognize equal property rights of women along with their male siblings.

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HC directs striking Maruti workers to vacate premises

The Punjab and Haryana high court on Thursday directed that there would be no sit-in strike within 100 meters of the premises of Maruti Suzuki's factory at Manesar. Justice Surya Kant of high court issued further directions that striking workers on dharna (sit-in protest) in the factory be taken out.

He also directed that the loyal workers be allowed to join their duties and those on strike should not be allowed to stop them.

The court's directions came on a petition filed by Maruti Suzuki, seeking the declaration of ongoing strike by its workers as illegal. Thursday was the seventh day of the strike.

Justice Kant further directed that Gurgaon police commissioner will decide the place of dharna, and ensure that it is peaceful. The court also asked the police authorities to see that the workers who wish to join dharna are not stopped, and police will enforce their right of work.

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Easier bail for evaders of customs, excise duty

The Supreme Court has ruled that offenses under the Customs Act and the Central Excise Act are non-cognisable and bailable. In non-cognisable offenses, the police have no authority to arrest a person without warrant. The central government argued in the case of Choith Harchandani vs Union of India, that the offenders under these two laws were not entitled to bail, quoting the Criminal Procedure Code. The court rejected the government’s arguments and allowed the appeals of the alleged offenders about arrest and bail. There were several appeals from high courts in excise and customs cases. All the offenders under these two laws were ordered to be released.

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Justice Katju appointed Chairman Press Council

In exercise of the powers conferred by the sub-section (2) of section 5 of the Press Council Act, 1978 (37 of 1978), the Central Government today notified the nomination of Justice Markandey Katju, retired judge of the Supreme Court of India as the Chairman of the Press Council of India.

Justice Markandey Katju was born on Sept. 20, 1946. His background is noteworthy because of his family’s achievements in the fields of Law and Politics. His father late Justice S.N. Katju, was a former judge of the Allahabad High Court and his grandfather Dr. Kailash Nath Katju was one of India’s leading lawyers and participated in the country’s freedom movement. Dr. K.N. Katju was the Chief Minister of Madhya Pradesh, the Governor of West Bengal and Orissa, as well as the Union Law, Home and Defence Minister.

After practicising law in the Allahabad High Court, Justice Markandey Katju was appointed Judge of the Allahabad High Court in 1991, as its acting Chief Justice in Aug. 2004, as the Chief Justice of Madras High Court in Nov. 2004. He became the Chief Justice of Delhi High Court in Oct. 2005. He was appointed as the Judge of the Supreme Court of India in April 2006 and he retired on Sept. 19’ 2011.

Justice Markandey Katju has written several books which include publications such as ‘Law in the Scientific Era’, ‘Interpretation of Taxing Statutes’, ‘Mimansa Rules of Interpretation’, ‘Domestic Enquiry’.

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Views of former CJI MN Venkatachaliah and JS Verma called on Lokpal

The parliamentary panel examining the Lokpal Bill has sought the views of former Chief Justices of India MN Venkatachaliah and JS Verma on setting up an anti-corruption ombudsman.

Venkatachaliah and Verma have been invited for recording their views on the Lokpal before the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice at its meeting to be held in the next 8-10 days.

Venkatachaliah was the Chief Justice of India between 1993-94 and also headed the National Commission to review the working of the Constitution.

He has reportedly said that any Lokpal set-up has its own limitations and would survive only if it takes into account the need to strengthen every other institution of constitutional safeguards.

Verma headed the first commission on the assassination of former prime minister Rajiv Gandhi and is known for several significant judgments including the ones in the infamous Hawala case and Ayodhya land dispute in which he ruled that acquiring the property of a mosque did not constitute an abridgement of a Muslim's right to freedom of religious belief and practice.

Verma is also known for his judgment in which he stated that Hindutva depicted 'a way of life which cannot be assumed to mean and be equated per se with narrow fundamentalist Hindu religious bigotry'.

He is known to have favoured keeping the higher judiciary and the prime minister out of the purview of the proposed Lokpal Bill.

Verma had also favoured a "separate mechanism" to make high court and Supreme Court judges accountable for misconduct.

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CBI challenges Salem order

The Portuguese High Court’s decision to revoke underworld don Abu Salem’s extradition to India is being viewed as downright illegal by the legal wing of the CBI, which has contested the decision at the Supreme Court in Lisbon.

In its appeal in the Portuguese Supreme Court, the CB has contended that there was no violation of rules during Salem’s trial in different cases in India.

Officials here said that there was no question of sending back such a hard-core terror mastermind back to Portugal when legal process was still on against him in India in as many as nine cases.

Maharashtra Chief Minister Prithviraj Chavan said that he would take up the issue of cancellation of Salem’s extradition with the Ministry of External Affairs (MEA). Salem is one of the main accused in the 1993 Mumbai serial blasts case.

The High Court in Lisbon had last month revoked the extradition citing breach of undertaking given by India to the Portuguese authorities. Salem had filed a petition in the Portuguese High Court alleging violation of Rule of Speciality under which he was handed over in 2005 to the Indian authorities for trial in various cases pending here.

The CBI, through Ministry of External Affairs, filed the plea in the Portuguese Supreme Court arguing that it was a matter of interpretation of Rule of Speciality by the Supreme Court of India, which is binding on all subordinate courts in the country. On the other hand, the High Court of Lisbon has interpreted the Rule of Speciality differently, official sources said.

India has said slapping of additional charges on Salem is very much within the ambit of Section 21(b) of Extradition Act, 1962, which states that additional charges could be imposed on an accused if they were of lesser offence under which the person had been extradited.

In its affidavit submitted with the Portuguese Supreme Court, New Delhi has assured that fresh charges levelled against Salem, a key accused in the 1993 Mumbai blasts case, attracted less jail term than the offences for which he had been extradited, the sources said.

There is no mention of death penalty in the affidavit in the review petition in that country’s Supreme Court as India is bound by an ‘executive assurance’ to Portugal that Salem would not be given death penalty or charged with any section of law which entailed jail term of more than 25 years.

Abu Salem had challenged the framing of charges for the lesser offences in the Supreme Court here alleging that there has been violation of Rule of Speciality. The apex court in its judgment on September 10, 2010 rejected the petition filed by Salem.

The SC considered the Rule of Speciality as available in the laws of the US, the UK and Portugal and the Indian Extradition Act, and held that there has been no violation of Rule, since the additional charges framed against Abu Salem are made out from the same facts, which were considered for his extradition and provide lesser sentence as compared to the sentence provided for the offences for which his extradition was granted.

Abu Salem was detained on the basis of an Interpol Red Corner Notice in Lisbon on September 18, 2002 and thereafter a request for his extradition was made by India in nine cases which were pending against him. After long-drawn legal battle, Abu Salem was extradited to India in November, 2005. Salem was charged with stringent MCOCA for allegedly making extortion calls to Delhi-based businessman Ashok Gupta in 2002 demanding Rs 5 crore as protection money.

The Portuguese High Court had contended that in view of the new charges, the authorisation granted for his extradition has been terminated as it violated the Principle of Speciality.

The underworld don is facing trial in nine cases which included the Mumbai serial blasts, two cases of forgery of passports in Lucknow, three cases of extortion in Delhi and two murder cases in Mumbai which included murder of Ajit Dewani, secretary of Bollywood actress Manisha Koirala.

Abu Salem was an active member of criminal conspiracy, hatched by Dawood Ibrahim Kaskar (designated Global Terrorist), Tiger Memon, Mohammad Dossa and others, to commit various terrorist acts including bomb blasts.

Abu Salem actively participated in transporting and distribution of sophisticated arms and ammunitions which were smuggled into the country in the beginning of 1993. The bomb blasts took place on March 12, 1993..

Following the blasts, Salem left India after obtaining a passport in an assumed name from the Lucknow Passport Office, and joined Anees Ibrahim Kaskar and others at Dubai.

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10th Annual Report of National Commission on Safai Karmcharies

The National Commission for Safai Karamcharies has called for taking action and remedial measures for ensuring social justice, empowerment, rehabilitation and dignity to the people of downtrodden community specially Safai Karamcharies, working at Government and Local Self Government level, Corporate and Private level in rural and urban areas.The Commission in its Annual Report for 2010-11 has recommended this. The report was presented to the Union Minister of Social Justice & Empowerment Shri Mukul Wasnik, in his office by the Chairman of the Commission Smt. Kamla Gurjar. This is the 10th annual report of this Commission.

The report is aimed at making the Government cognizant of the ground realities so that an effective action plan for mitigating the plight of Safai Karamcharies/manual scavengers is taken up on top priority at national level. The Commission is hopeful that the recommendations put forth, would receive their due consideration and suitable actions would be initiated so that the Safai Karamcharies/manual scavengers are treated equally within the society.

The Commission in its vision has expressed zero tolerance for dry latrines insisting on strong determination to complete elimination of manual scavenging and strict monitoring and implementation of the mandatory provision under the act. It has also desire to have a permanent status with adequate executive/quosi judicial powers as being given to the other National level Commissions viz. National Commission for Scheduled Castes, National Commission for Scheduled Tribes and National Commission for Backward Classes, thus enabling it to discharge its responsibilities and duties efficiently in an effective and respectable manner.

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