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

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

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

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

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

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

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

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

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

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

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

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

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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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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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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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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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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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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.

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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.

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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)

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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.

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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. 

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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.

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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.

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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."

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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.

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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.

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