Anti-Naxal Salwa Judum faces axe over rights abuse :In Response To NHRC Report, SC Asks Chhattisgarh To Take Action

New Delhi: Salwa Judum, created by the Chhattisgarh government to counter the Naxal menace, may have to be scrapped as the National Human Rights Commission (NHRC) fact-finding report, submitted to the Supreme Court on Friday, accused it of grave human rights violations.

The NHRC report was highly critical of the Salwa Judum activists’ highhanded behaviour and human rights violations. It also made no bones about the severe excesses being inflicted by the Naxalites on the poor tribals, who appeared to be caught between the devil and the deep sea.

If the report is going to put the Raman Singh government in a spot, it also appears to be in agreement with the recent report of the Administrative Reforms Committee terming Naxal operations akin to terrorist activity. The BJP government in the state may have to think of an alternative to village defence groups (Salwa Judum) soon, for the apex court not only agreed with the NHRC findings but reiterated its disapproval of a state arming private persons to tackle Naxals.

The over 100-page report, which will soon be made public as directed by the court, said NHRC’s fact-finding team found prima facie evidence of human rights violations and excesses committed by the Salwa Judum activists. “The allegation is that the state is arming private persons. You can deploy as many police personnel or armed forces to tackle the menace. But, if private persons, so armed by the state government, kill other persons, then the state is also liable to be prosecuted as abettor of the murder,” said a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal after perusing the report.

Directing the registry to give copies of the report to state counsel K K Venugopal and additional solicitor general Gopal Subramaniam, who appeared for the Centre, as well as the petitioners, the Bench told the state government to take urgent remedial measures as suggested by the NHRC. When Venugopal said the state was going to elections possibly in November and that the state would require more time to implement the NHRC report, the Bench said, “If the state elections are round the corner, it is more important that you take urgent steps.”

The Bench was hearing a PIL filed by sociology professor Nandini Sundar, historian Ramachandra Guha and retired bureaucrat E A S Sarma.They have sought a series of directions — withdraw state support to Salwa Judum, probe their excesses, register FIRs relating to crimes committed by Judum activists and compensate and rehabilitate those who suffered at their hands.

Though it is a BJPruled state, the UPA government through Subramaniam had during an earlier hearing made a strong pitch for continuance of the Salwa Judum as a counter to the Naxals’ unchallenged run in the Bastar and Dantewada regions.

With thanks from the Times of India
Source:- The Times of India 20 Sep. 08 P. 12 Delhi
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India to serve as S Asia’s arbitration hub

New Delhi: India is all set to sign on Friday the all-important agreement with The Hague-based Permanent Court of Arbitration (PCA) for starting its regional facility in the country, that could create a credible alternative dispute redressal forum for South Asian countries.

Creation of a proper arbitration forum acceptable to the international community would create an investmentfriendly atmosphere as it would instil confidence in MNCs, which till now had some hesitation on this score in the absence of a proper alternative dispute redressal (ADR) forum.

Law minister H R Bhardwaj is in The Hague to sign the agreement with PCA on September 19, more than four years after the then PCA secretary-general, Tjaco T van den Hout, made a proposal for setting up of the regional facility of PCA in India. The Union Cabinet cleared the proposal on September 4.

The offer was made by PCA in recognition of the contributions of India to the cause of peaceful settlement of disputes in strict adherence to international law.

“Additionally, the offer seeks to give expression to the idea that parties in South Asia will be more willing to engage in arbitration or other mechanisms of ADR in an environment that is culturally and linguistically closer and, hence, more comfortable to them,” said senior advocate A K Ganguly, who was the singular force in driving home to the government the advantages of a regional facility of PCA in India. This means, if any large contract between Indian PSUs and MNCs goes into arbitration over a dispute, they do not have to rush to The Hague or London or to other western countries for international arbitration.

The regional facility of PCA, expected to be set up by the year-end, would suffice, Ganguly said. In addition, it would also make India the arbitration destination for disputes arising from South Asian countries, he added.

With Thanks from the Times of India
Source:- The Times of India 18 Sep. 08 P.17 New DelhiFor any query:- legalpoint@aol.in

RTI ‘grads’ at your service

24 Undergo Training On How To Use The Act Professionally

Mumbai: Democracy, as embodied in the average citizen’s Right to Information, is striding ahead confidently. A group of Mumbaikars from various fields, armed with a certificate course in RTI, is ready to cut the masters of red tape to size, to jolt the sultans of sloth and bring the rajas of babudom down to earth.

The 24 men and women who comprise this group have completed a certificate course from a south Mumbai college on how to use RTI professionally—they include businessmen, college professors, retired bankers and chartered accountants. All of them have now mastered the art of framing queries under the RTI Act to goad the civic authorities into action. With time, they hope to become advisors and consultants to the wider citizenry.

‘‘The act is no longer a mystery for us. We now know the process and how to use it,’’ said Priyavadan Nanavati (73), a chartered accountant. That, according to most participants in the course, has been their biggest gain. Activists like Shailesh Gandhi have taught them that they are not ‘‘beggars’’ or supplicants for information. They are applicants for their rights.

‘‘For 14 years, the road outside my factory in Vithalwadi was lying unrepaired. While doing the course I filed a simple RTI query asking the concerned department about the status of the road and within no time, the repair work started,’’ said Pradeep Raisinghani (39), a businessman. ‘‘We now know that getting the required information depends on framing the right questions,’’ said Pervez Homi Lentin (61), a retired professor of physics. Participants realized that vague and abstract questions could easily be turned down by government departments and they have learnt to hone their skills in framing queries which will elicit the best response.

‘‘For instance, we now know it’s better never to ask the BMC ‘when’ a particular piece of work will be completed. Rather, we demand information on the funds allocated for it, the officer utilising them and the progress reports submitted by him to his ward office,’’ said Leann Almeida, a law student. Similarly, while seeking information about a file reported as lost, these experts will ask which officer reported it as lost and whether a police complaint was lodged or not.

‘‘These small things ensure that the officers cannot shirk their responsibility,’’ Almeida added. Neelima Chandiramani, principal of the K C College of Law which conducted the course, said that in the long run she expected those who had done the course to play a larger role in society as specialists on RTI. ‘‘Pleas filed by those who did the course will never be vague or badly drafted. Moreover, most of them have been professionals in their own field and know how the system works. They will be able to advise others on how to go about their own queries,’’ Chandiramani added.

In preparing for real-life difficulties in getting information from government departments which often try to block it, two of the participants conducted role-play exercises in which they acted as an applicant seeking information and an information officer denying it, while a third participant played out the role of the appelate authority. They thus re-created situations such as those they would have to face when they filed appeals before an information commissioner. ‘‘Thanks to all this training we now know that we cannot be denied information on frivolous grounds,’’ said Khorshed Nayak, a retired bank officer. ‘‘A beginning has been made and I will use my knowledge to help others who are made to run from pillar to post because they don’t know how to corner the officials,’’ said Najimuddin Chunawala (59), a Dongri-based businessman.

With Thanks from the Times of India
Source:- The Times of India 18 Sep. 08 P.16 New Delhi

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Legal Tip in Danik Jagran

Long tenancy no protection from eviction

In the latest among a series of pro-landlord judgments, Supreme Court has ruled that long years of tenancy cannot be a shield against eviction from shops and houses when the owner’s need for using the premises is bona fide.

The judgment, handed down by a Bench comprising Justices C K Thakker and L S Panta, is expected to empower landlords in driving home their bona fide needs before the rent control authorities to dislodge tenants who have been citing long years of tenancy and absence of alternative.

‘‘It is no doubt true that the tenancy (in this case) was created about 50 years back but that should not be a ground for depriving the landlord for doing business if the requirement of the landlord is bona fide and reasonable,’’ it said. The court also held that to resist eviction, a tenant had to show that he made sincere attempts to find alternative accommodation.

It could be that a tenant might have to pay a higher rent if he shifted to a new shop, but ‘‘that would not preclude the landlord from getting possession of the shop once he had proved genuine need of the property’’, the Bench said. The judgment comes on the heels of two significant verdicts given early this year by the apex court. The first ruling came in February and gave a landlord the right to evict a tenant if the latter had sublet the rented premises without owner’s consent.

The second one, in April, struck down a 50-year-old restraint clause in the Delhi Rent Act and gave landlords the right to evict tenants holding on to shops and business establishments in prime commercial areas while paying a pittance as rent. In addition to these rulings, in December last year, SC had put two onerous conditions on tenants if they wished to continue in the premises — they must behave well with the landlord and take reasonable care of the premises.

This current case came from Dehradun and saw the tenant citing all possible grounds to continue running a shop from the rented premises. The landlord, Shamshad Ahmed, had sought eviction on the ground that he was retiring from government service and wanted to open a readymade garment store in the premises with the help of his wife and daughter.

The tenant said he had been running a grocery store from the premises for nearly 50 years and eviction would mean unimaginable hardship on him.

POWER TO LANDLORD

If landlord shows he genuinely needs premises, tenant must vacate Then, it doesn’t matter if the tenant has been there for long Tenant, to stay on, will have to show he can’t get alternative acco

With thanks from the Times of India
Source:- The Times of India 17-Sep-2008 Delhi P.18

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DOS & DON’TS:Code of conduct for lower court judges

Mumbai: District court judges and other subordinate judicial officers may have to watch what they do when high court judges and the Chief Justice of a high court come a-visiting.

Prompted by the embarrassing multi-crore provident fund scam that broke out in a UP court, the Chief Justice of India (CJI) sent out a 12-point ‘model code of conduct for subordinate judicial officers in connection with visits of Chief Justice and judges of the high court,’ with a request that all high courts adopt and enforce it.

The Bombay high court, in its full-house judges’ meeting recently adopted the unprecedented disciplinary code as it is.

As a result, among a dozen ‘donts’ no judicial officer shall now ‘‘receive, seeoff or visit a visiting Chief Justice or high court judges during court hours.’’ Significantly, the CJI has had to spell out that ‘no judicial officer or court servant will offer or provide any gift or hospitality to a HC judge or CJ.’ Also ‘No district court judge or magistrate will arrange any private trip, including excursions or visits to religious places for visiting HC judges or a CJ, nor will they arrange for any hotel,food or transport for such visiting HC judges, their staff or security personnel.’’

Just last week the UP police identified 34 sitting judges, including an SC judge, as among those allegedly involved in the embezzlement of provident funds of class IV employees of Ghaziabad court.

This development, just last week led Solicitor General Goolam Vahanvati and senior advocate Anil Dewan to cite falling standards and question the desirability of continuing the immunity judges enjoy from prosecution. A three judge SC bench hearing a plea on the issue observed that “the rot has set in” and that it was time to stem it wondering, however, whether the existing mechanism could still be effective.
With thanks from the Times of India
Source:- The Times of India 17-Sep-2008 Delhi P.17

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For promotion, merit matters more than seniority: SC

New Delhi: Pitching strongly in favour of the meritorious, the Supreme Court has ruled that for promotional posts to be filled on “merit alone” basis, seniority of an aspirant is of no avail as the number of years of service loses its weight completely in the face of merit.

This means, if two government servants holding the same post — one junior and the other senior — aspiring for promotion through the “merit only” channel to the next rank having one vacancy, then the junior could be promoted if he is found more meritorious than the senior.

The ruling came in a case pertaining to the Uttar Pradesh Power Corporation Ltd (UPPCL) which was accused by one Ayodhya Prasad Mishra that though he secured more marks in the examination conducted by the departmental promotion committee and placed in the Executive Engineer-I category, he was not promoted to the post of Superintending Engineer, which went to a senior despite the latter having secured less marks and placed in the Executive Engineer-II category.

Dismissing UPPCL’s appeal against an Allahabad High Court order, a Bench comprising Justices C K Thakker and L S Panta said: “There is no doubt in our mind that if any executive engineer who has been placed in category-I and is available for the promotional post of superintending engineer, no executive engineer who is included in category-II can be considered for such promotion even if the latter is senior.”

Justice Thakker said it was well settled that Article 14 of the Constitution, which guaranteed right to equality, prohibited a person or a class of persons from being singled out from others similarly situated or circumstanced for discrimination.

With thanks from the Times of India
Source:- The Times of India 17-Sep-2008 Delhi P.11
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Vacant OBC seats will go to general category: SC

Can’t Reduce Cut-Off For OBCs Further, Court Tells Centre

New Delhi: The Centre had chosen to ignore this important direction from a constitution bench of the Supreme Court — revert all vacant 27% OBC quota seats in central educational institutions, including IITs and IIMs, to the general category.

It can no longer do so. For, the same five-judge constitution bench of Chief Justice K G Balakrishnan and Justices Arijit Pasayat, C K Thakker, R V Raveendran and Dalveer Bhandari on Monday asked the Centre: ‘‘Where is the confusion in this direction? It was crystal clear that the vacant OBC quota seats would go to the general category.’’

On August 2, this newspaper carried a Times View saying that reserved seats going vacant should be thrown open to general category students.

The Bench on Monday also reiterated its earlier order that the Centre, which appeared to be in a hurry to fill all the OBC seats, could not dilute merit by reducing the cut-off marks for backward class students much lower than that prescribed for the general category.

‘‘If the cut-off for general category is 50% marks in the entrance examination, you cannot admit OBC candidates who have secured just 25% marks. You cannot dilute merit altogether. That is why three of the five judges on the constitution bench had favoured a cut-off for OBC candidates — either 5% (two judges) or 10% (one judge) less than that of general candidates,’’ the Bench said.

The Bench asked solicitor general G E Vahanvati to take instruction from the Centre on these two issues raised by an application seeking direction to the government for proper implementation of the OBC quota judgment.

Vahanvati said he would get back to the court in two weeks on these issues with a status report on the vacancy position and the stand on cut-off marks for OBC candidates. Appearing for the applicant, senior advocate K K Venugopal said there were 432 seats from the 27% OBC quota lying vacant in various IITs and IIMs and accused the Centre of not reverting them to the general category. ‘‘It is a national waste if these seats in prestigious institutions are allowed to remain vacant,’’ he said.

In its April 10 judgment upholding 27% OBC quota excluding the creamy layer, the bench had taken care not to dilute educational excellence for which India has made a mark in the world. Justice Pasayat, writing for himself and Justice Thakker, had said: ‘‘The central government shall examine the desirability of fixing cut-off marks in respect of the candidates belonging to OBCs.’’

Giving an illustration, he had said: ‘‘It can be indicated that five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general category students. This will ensure that quality and merit do not suffer.’’ Justice Pasayat had also faulted the concept of carrying forward to the next academic year the quota seats which remained unfilled. He said: ‘‘If any seats remain vacant after adopting such norms, they shall be filled up by candidates from general categories.’’

Justice Bhandari had said a rational reservation system benefited the entire nation where citizens should have access to quality education. ‘‘There should be no case in which the gap of cut-off marks between OBC and general category students is too large. To preclude such a situation, cut-off marks for OBCs should be set no lower than 10 marks below the general category,’’ he said.
With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.14
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PF scam: SC seeks Centre’s response on CBI probe

New Delhi: In no mood to show leniency to the ‘black sheep’ in judiciary, the Supreme Court on Monday sought the Centre’s response to a recent UP government recommendation for a CBI probe into the infamous Rs 23-crore illegal PF withdrawal scam, allegedly involving 34 judges from all three tiers of courts.

This question assumes significance as the UP police, despite revealing that it had strong evidence on the alleged involvement of 34 judges — one in Supreme Court, 8 in Allahabad High Court, one each in Uttarakhand and Calcutta HCs and 23 lower court judges — had cited ground level difficulty in continuing with the probe with a suggestion that it should be given to CBI. Pursuant to this disclosure in SC on September 9, the Mayawati government had sent a request to the Centre recommending handing over of the probe to the CBI.

A Bench comprising Justices Arijit Pasayat and M K Sharma, before hearing the Japanese surrogate baby Manji’s plea for travel documents to go back to Japan, asked solicitor general G E Vahanvati whether the Centre was willing to order a CBI probe into the PF scam as per the UP government’s request. “If the CBI is willing to do it, then we can hear the petitions and dispose them of as early as possible,” the Bench said. The petitioners — Ghaziabad Bar Association and Transparency International — had sought a CBI probe into the scam, which the local police had been probing with the Allahabad HC monitoring it. “Take instructions from Centre and let us know. Then we will post petitions for an early hearing,” Bench said.
With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.16
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Govt staffers can take up to 3 yrs’ child care leave :DOUBLE CHEER

Govt staffers can take up to 3 yrs’ child care leave

Allowed 6 Months Off For 2 Kids, 2 More Years Till They Turn 18

New Delhi: This is one rule that could turn women in India Inc green with envy. The Centre has not only increased maternity leave for its employees to six months but has also cleared paid leave for two years to take care of children.

The order, effective from September 1, increases maternity leave of women employees from 135 days to a cool 180 days for each of their two children. From now on, women employees can take paid leave up to two years (730 days) during their career for “taking care” of their two children without affecting their seniority. Even if a woman has only one child, she can take the two-year leave. Termed “child care leave”, this will be besides the maternity break they are entitled to. The new rules came into force on September 1.

Adding to the bonanza, a woman employee can avail of child care leave in any combination till her two children are 18 years of age. In line with the Sixth Pay Commission proposals, the new leave regime for women means that during their stint with the government, they can avail paid leave of as much as three years, provided they do it only for two children.

The child care leave can be taken for any of reason, including “rearing” or “to look after any of their needs like examination, sickness etc”. Women in the private sector are often hard-pressed for such leave beyond the maternity break (rarely beyond 90 days), besides the regular quota of earned, casual and medical leave.

“The new rule has come as a godsend. I can now devote time to my son when he needs it the most. The best part is I can take this leave till he is 18,” said a directorlevel IAS officer. Contrast it with what a senior corporate executive said: “I attended office up to two days before my child was born. I had to save as much of my 90-day maternity leave so that I could devote time to my child later. The entire period is over now and I am back to work. I now leave my baby at my mother’s house and come to office.”

The government has notified that child care leave can also be availed in continuation of the sixmonth maternity break. It means that a woman employee deciding to have only one child can continue on paid leave for two-and-a-half years at a stretch.

Of course, she has the option of saving some of it for exigencies and, above all, she continues to enjoy her share of the regular leaves. The new regime will definitely make government jobs much more attractive not only for women but also for men as the couple would be assured that at least the mother would be with the child when needed. Semi-government establishments — like PSUs, banks, insurance companies — should be expected to adopt the new women-friendly system sooner or later.
With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.9
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‘Witness protection’ made it open-and-shut case':GETTING TO TRUTH

Bhandara: The Khairlanji Dalit massacre case is perhaps the first instance in India’s judicial history of witnesses being assured protection by the state while testifying against the accused. The origin of the move could be in the manner in which the Dalit family of Bhaiyyalal Bhotmange was killed for deposing against some of the accused in another case. The CBI proposed to the Maharashtra government to provide the two key witnesses, Mukesh Pusam and Suresh Khandate, a house each in Khairlanji village, jobs in the state government and agriculture land. The witnesses rejected the proposal and asked for Rs 10 lakh each which, according to sources, was accepted by the government.

As part of rehabilitation, the social justice department had also offered Bhotmange a residential plot measuring 1,250 sq ft and 3.10 acres of land worth Rs 3 lakh, both in Khairlanji village, and a job as a watchman in the department, also in Bhandara district.

As per official records, Bhotmange accepted the two cheques but there was no response from him on the other offers. The plot for a house, agricultural land and a job was offered to him in December 2006. But the government’s offer to rehabilitate witnesses was construed to be an allurement by the defence lawyers.

During the hearing, defence lawyers produced documents before the special court of judge S S Das, claiming that the prosecution ‘‘tried to bribe’’ the witnesses, raising doubts over the credibility of the important prosecution witnesses.

Defence lawyer Neeraj Khandewale submitted documents including CBI’s proposal to rehabilitate witness Suresh Khandate and Mukesh Pusam, addressed to special social welfare officer; Suresh Khandate’s application to social welfare officer demanding his rehabilitation; social welfare officer’s letter to the collector regarding CBI ‘proposal’ to rehabilitate Khandate apart from a move to grant Rs 10 lakh in lieu of job, agricultural land and house to Pusam and Khandate.

Khandewale told TOI earlier this year that he had all the information on rehabilitation. ‘‘While some papers, particularly correspondence between CBI director and chief secretary was withheld, it was proposed to give the witnesses a house, job and agriculture land in village Khairlanji,’’ Khandewale had said.

Khandewale took strong objection to the rehabilitation plan, terming it ‘‘as a new kind of corruption and blatantly illegal’’. He claimed there was no such provision to win over the witnesses prescribed in Indian law.
With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.9
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8 held guilty of Khairlanji killings

Trial Court Dismisses Caste-Hatred Angle, Acquits Three Of 11 Accused

Bhandara: A fast-track trial court here on Monday convicted eight of the 11 accused of killing four Dalits in Khairlanji village of Bhandara district in Maharashtra while acquitting three.

A mob of about 50 villagers — mostly tribals and other backward castes — had attacked the house of Bhaiyyalal Bhotmange, a Dalit farmer, on September 29, 2006, and killed his wife Surekha and three children, an incident that triggered violent Dalit protests in different parts of Maharashtra.

The quantum of punishment will be announced on September 24. Bhotmange, the sole survivor of the massacre, expressed unhappiness over the fact that three of the accused were acquitted and the court found no case of caste hatred. ‘‘Now, the eight convicted persons should be hanged. No mercy must be shown to them,’’ he said, reacting to the verdict.

On September 29, 2006, Bhotmange’s wife Surekha, teenage daughter Priyanka, sons Sudhir and Roshan were lynched by a frenzied mob at Khairlanji. Bhotmange escaped the attack as he ran away from the spot to seek help leaving his four family members, among them his blind son, Sudhir, to face the wrath of the villagers.

Ending a 16-month trial in the case, additional ad-hoc district and sessions judge S S Das significantly dismissed the caste-hatred angle, saying there was no evidence to that effect. Hence, none of the accused could be charged under the Prevention of Atrocities on Scheduled Caste and Tribes Act (1989).

Of the 11 accused, the eight — Gopal Binjewar, Sakru Binjewar, Shatrughan Dhande, Vishwanath Dhande, Ramu Dhande, Jagdish Mandlekar, Prabhakar Mandlekar and Shishupal Dhande — were pronounced guilty of murder, unlawful assembly and rioting as well destruction of evidence. The three acquitted are Mahipal Dhande, Dharmapal Dhande and Purshottam Titarmare.

The 11 accused stood in a corner of the court as the judge addressed them directly explaining the implications of his verdict. He read only the operational summary of the 150-page judgment and announced that the quantum of the sentence would be pronounced only after hearing the prosecution and defence arguments on the sentence.

September 20 has been fixed for arguments and the sentencing will be announced on September 24. Considering the sensitive nature of the case, there was heavy security in the court. Entry was restricted and only people with passes were permitted inside.

Judge Das rejected the defence argument that the Dalit Bhotmanges were attacked because they lived with self-respect and that the higher-caste villagers hated them. He also ruled out any conspiracy. The motive for the killing, the judge observed, was a feeling of revenge that the villagers harboured against Surekha and Priyanka who deposed against some of them in an earlier assault case against Siddharth Gajbhiye, the police patil of nearby Dhusala village. Significantly, the judge said there was evidence of molestation of Surekha and Priyanka. Their naked bodies were fished out of the canal but there was nothing to prove that the accused had removed their clothes before ferrying their bodes in a bullock cart and thrown them into the canal. Thus, even the charge under IPC 354 (molestation) could not be proved.
With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.9
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HC reinstates AIIMS doc out on fellowship

New Delhi: A senior resident doctor of AIIMS, unceremoniously shunted out from the institute because he overstayed abroad for his fellowship studies at the request of his foreign supervisor, has been re-instated by Delhi High Court.

Slamming the premier institute for the shoddy way it treated its own doctor, Justice S N Aggarwal recently ordered that Aman Dua be taken back into the medical institute’s rolls and stayed its decision to terminate his services. ‘‘You must treat them fairly. They are doctors,’’ HC reminded the counsel appearing for AIIMS.

Dua, who went to Brisbane, Australia, for a fellowship on bone transplant was shocked when he was slapped with termination orders on his return, because his plea for extension of fellowship period for another 45 days was declined by his superiors. However, instead of intimating him immediately in Brisbane that his request was being turned down, the AIIMS administration chose to post a letter to Dua’s parental home in Ludhiana, which was empty as his parents were away. Interestingly, it was Dua’s supervisor in Brisbane who appreciated his work and asked him to stay back for another 45 days. ‘‘The action of the institute in sending a show cause notice to the petitioner at Ludhiana and at his old address in Delhi while being fully aware that he is in Australia is totally unreasonable, unfair and arbitrary,’’ Dua’s advocate argued before HC, pointing out it wasn’t the doctor who tried to prolong his stay, but his Australian supervisor who was reluctant to release him midway.

‘‘AIIMS was intimated by the Fellowship Supervisor that he can’t release Dua from his duties, requesting AIIMS to extend his duration of stay as Dua was making valuable contribution in clinical research,’’ Dua further clarified before HC through his lawyer, wondering why AIIMS didn’t communicate their decision immediately to him in Australia.
With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.7
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No SC stay on HC order debarring Anand, Khan

New Delhi: For Senior advocates R K Anand and I U Khan, facing the ignominy of being barred from practising in the Delhi High Court (HC) after being held guilty of contempt of court for trying to influence a BMW case witness, this stinging observation from Supreme Court (SC) on Monday did not augur well.

Hearing advocate K K Jha ‘Kamal’, who is challenging a Jharkhand HC order debarring him from practising before it for his repeated contemptuous remarks, a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam said, ‘‘Every court has a right to debar any advocate from practising before it if he repeatedly indulges in contemptuous activity. If we do not have such power, then we can be abused by any lawyer.’’

When Jha argued that the Bar Council of India (BCI) was the sole regulator for lawyers and was the authority for cancelling the licence for practice, the Bench said, ‘‘The court cannot cancel your licence, but it can debar you from practising before it. You can go to other courts to practise.’’

When the lawyer persisted that the BCI was seized of the matter and the HC order restraining him from practising there was akin to punishment before determining the guilt, the Bench said, ‘‘If you misbehave, the HC has the right to debar you from practising. If anything happens in the court, the latter should not be powerless pending the inquiry by the BCI. The BCI gives you only a licence to practice provided you show proper behaviour and etiquette in the court.’’

In the court adjacent to the CJI’s, a Bench comprising Justices B N Agrawal and G S Singhvi heard the petitions filed by senior advocates Anand and Khan challenging the Delhi HC order debarring them from practising for four months in the HC and sending a recommendation to the full court for stripping them of the ‘senior advocate’ status. Senior advocate R S Sodhi, who before his retirement as a judge in the Delhi HC had heard Anand in several important cases, appeared for him and sought a stay on the ‘wrong’ order of the HC debarring his client from practising. He said there was a precedent in SC judgment that restrained any court from recommending stripping of a lawyer of his ‘senior advocate’ tag.

The Bench, which also heard Khan’s counsel, senior advocate P P Rao, was unimpressed and refused to grant interim relief when it was cited that in a ‘‘similar’’ contempt case against lawyer Rajeev Talwar, who was handed down an identical sentence by the HC, the sentence was stayed by the apex court.

With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.6
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SC threatens sealing resumption

Court Irked Over Lack Of Infrastructure, Also Slams DDA On MPD

New Delhi: To the discomfiture of the Sheila Dikshit government gearing up for Assembly polls, the Supreme Court on Monday threatened to order resumption of the sealing drive in regularized colonies being angered by the alleged breach of its earlier orders banning regularization without providing for all basic providing basic infrastructure.

It also took to task the DDA for effecting as many as 37 modifications to the Master Plan-2021 within a span of one and a half years, virtually regularizing all illegal constructions and violations of the building bylaws and declaring residential areas as commercial zones.

What annoyed a Bench comprising justices Arijit Pasayat, C K Thakker and L S Panta was, more than 1,400 unauthorized colonies were given legal status under the garb of ‘‘provisional regularisation’’. In its February 14, 2006 order, the court had said: ‘‘In case the state/authorities are not in a position to make available services whereof it is admitted that there are severe limitations, there shall be no regularization of unauthorised colonies. In other words, regularisation should be made only if it is possible for the respondents to make available the services.’’

Adding to the woes of the urban development ministry was the precise identification of woeful infrastructure in Delhi by amicus curiae Ranjit Kumar, who read out a government affidavit narrating the problems of water, electricity, sewage, solid-waste disposal, public transport and parking lot in the Capital. The Bench asked ASG Amarendra Saran and P P Malhotra to file an affidavit stating why the authorities did not seek modification of the February 14, 2006 order prior to embarking on the exercise of regularising the unauthorised colonies.

On the 37 amendments to MPD-2021, the Bench asked DDA whether it had invited objections to the proposed changes to the master plan and whether it had held public hearings on these issues before effecting the modifications. ‘‘It appears that the changes were made for political reasons,’’ the Bench said.

When the DDA counsel replied that all procedures were duly followed, the court asked the authority to file an affidavit detailing the need for the changes, the objections that were received and the manner in which they were disposed of. Kumar accused the government for not carrying out the sealing drive against those unauthorised structures which did not enjoy benefit of the relief.

With the Thanks from the Time of India
Source:- The Times of India 16 Sep. 2008 P.6
For any query:- legalpoint@aol.in

Supreme Court judge stuck in lift during blackout

Chennai: It was the turn of the country’s top judges on Sunday to bear the brunt of Tamil Nadu’s power woes. Four judges, including one from the Supreme Court, got trapped inside an elevator in the Madras High Court premises during a blackout.

Justice Arijit Pasayat of the Supreme Court accompanied by his wife Subala Pasayat, Chief Justice of the Madras High Court, Justice A K Ganguly, Andhra Pradesh High Court Chief Justice A R Dave and another judge from that court, Justice T Meena Kumari, were coming down after attending a function when the lift got stuck. Their lift stopped on the first floor of the new library building in the court complex and they were forced to spend more than 10 minutes inside.

Alarmed court and police authorities scampered for help. A police officer brought a fan and switched it on to ensure that fresh air could enter the lift through a slit created with the help of an iron object. Officials said it was Justice Pasayat’s wife who suffered the most. ‘She was sweating profusely, we were worried,’’ said an official.

Eventually, a team managed to manually lift the elevator to the second floor with the help of ropes and force open the elevator door. All the dignitaries stepped out of the lift visibly upset and harrowed.
Source:- The Times of India 15 September 2008 Delhi P.18
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Who should appoint judges to rid judiciary of black sheep?

What Chief Justice of US Supreme Court John Marshall said two centuries ago applies to the present situation that the Indian judiciary finds itself in. He had said: “Power of judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.” Indian judiciary, by and large, enjoyed the “trust, confidence and faith of the common man” for decades. Today, it finds itself mired in accusations. Scams pointing to venality of judges are chipping away the judiciary’s carefully crafted and painstakingly preserved image that once evoked blind public faith in its integrity, impartiality and independence.

In such times, it was natural for a concerned PM not to beat around the bush. In the presence of Chief Justice of India K G Balakrishnan at a recent book release function, he drove home the point that “the time has come for introspection to ensure that judicial appointments at all levels live up to the exacting standards.” The CJI is seen as taking some drastic measures to rid the judiciary of black sheep — recommending impeachment of a High Court judge and allowing CBI to examine two more HC judges. These are at best remedial measures warranted by the situation to assure the public not to lose faith.

To address the ‘black sheep’ problem and stop their breeding, the time has come to test the efficacy of the existing mechanism for appointment of judges to the HCs and the Supreme Court. For, it is a matter of pride and respect of an institution in which a billion people repose faith. If one wants to fault the 1993 apex court judgment in SCORA Vs UOI [1993 (4) SCC 441] conferring primacy on the judges collegium headed by CJI to appoint judges to the HCs and the SC, then he can cite examples of Shamit Mukherjee, Soumitra Sen and many others.

Majority of these tainted judges resigned when the collegium headed by the CJI threatened to recommend their impeachment after the in-house inquiry process found them guilty. Prior to 1993, when the executive had the major say in judges’ appointment, judges did resign. Who can forget the resignation of Justice H R Khanna immediately after being superseded by a junior judge for the post of CJI. He was being punished by the executive for refusing to be pliant and penning the lone dissenting judgment, invalidating the brutal Emergency powers.

Justice Khanna was not the only victim of the executive. Many competent, bold and upright judges were superseded with impunity. Most swallowed the bitter pill and continued, unlike Justice Khanna. And, Justice V Ramaswamy, who was the first to face impeachment proceedings in Parliament, was also appointed at a time when the executive had the final say in judges’ appointment. If the present ‘judicial primacy’ appointment system produced some tainted judges, then we did see ‘executive primacy’ system making some pliant judges occupy and muddy the high constitutional offices.

What the PM said for judiciary — ‘ensuring that appointments live upto the exacting standards’ — holds good for executive and legislature too. Keeping faith in the PM, would it be prudent to revert to the pre-1993 system of judges’ appointment? The MPs are chosen directly by the people, but not the ministers. They are chosen by the PM. But, given the nature of present politics, it becomes his compulsion to accommodate even the tainted in his council of ministers.
Source:- The Times of India 15 September 2008 Delhi P.18
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‘Impeachment of judge only on proven misbehaviour’

Why is the process of impeachment of a judge the subject of debate now?

Chief Justice of India (CJI) K G Balakrishnan recommended the removal of Calcutta High Court judge Soumitra Sen to the government at the beginning of August. The judge is accused of having been involved in financial misappropriation before he was appointed as a judge. This recommendation has revived the debate over the cumbersome process for impeachment as laid down in the Constitution.

What is the process for impeachment?

Article 124(4) of the Constitution provides for the removal of a judge only on the ground of proved misbehaviour or incapacity. Under the Constitution, impeachment is the only way of removing a high court or Supreme Court judge. The procedure is laid out in the Judges Inquiry Act, 1968. According to the Act, a complaint against a judge has to be made through a resolution by 100 Lok Sabha MPs or 50 Rajya Sabha MPs. These MPs have to go through the complaint and if they are satisfied they can submit a memoramdum to the Lok Sabha Speaker or the Rajya Sabha chairman. The Speaker or chairman, after acquiring the sense of the House, has to constitute a three-member inquiry committee comprising two judges of the Supreme Court and a jury to examine the complaint and to determine if a case is established prima facie. It can also get the complaint investigated through different agencies and make recommendations. These recommendations have to be debated in both Houses of Parliament in the same session. If only one House considers the matter and it remains pending in the other House in that session, the resolution will fall through. It will then have to be brought in afresh in the next session. Thus, the resolution has to be passed by two-third majority in both Houses in the same session. Only then can the resolution be sent to the President who will then order removal of the judge.

Why is it said to be almost impossible to impeach a judge?

It is difficult to get a large number of MPs to sign the impeachment motion unless there is absolute documentary evidence of the judge’s guilt, which in most cases is not possible unless some investigative agency has investigated the charges and collected the evidence. Since impeachment requires two-thirds majority in Parliament, mustering the numbers necessary for impeachment has become virtually impossible. The problem of judicial accountability has been complicated further by the Supreme Court’s judgement in the Veeraswami case, in which it declared that no judge of the high court or Supreme Court could even be subject to investigation in any criminal offence of corruption or otherwise, unless one obtains prior written consent of the CJI. Since this judgement, no sitting judge has been subject to even investigation despite several complaints of corruption in the judiciary. The police cannot approach the CJI for permission to investigate unless they have clinching evidence and this they cannot collect unless they investigate, leading to a catch-22 situation.

What is the history of impeachment in India?

No judge has ever been impeached. The only exception was the case of justice V Ramaswami who faced impeachment in 1991, an attempt that failed due to the absence of a political consensus. A large number of Congress MPs abstained from voting, thus defeating the impeachment motion. The MP who had moved the impeachment motion against Justice Ramaswamy is the current speaker, Somnath Chatterjee.

How are errant judges disciplined in the absence of the option of impeachment? The Supreme Court has transferred judges for errant behaviour from one high court to another to discipline them, though the wisdom of this method of foisting a tainted judge on the litigants of another high court has come in for much criticism. In 1997, the Supreme Court passed two resolutions establishing in-house procedures for examining any complaints against a judge. By these resolutions, the CJI and two colleagues are to examine the charges against a judge and if found guilty have to proceed against him through a process other than impeachment.
Source:- The Times of India 15 September 2008 Delhi P.18
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Reply equally contemptuous — apex court notice to two women

New Delhi: Taking a serious view of their derogatory remarks against Chief Justice of India K.G. Balakrishnan, the Supreme Court has issued a fresh notice to two women associated with the Mumbai-based Boss School, asking why contempt charges should not be framed against them.
On August 29, a Bench headed by the Chief Justice issued contempt notice to Leila David and Annette Kotian, who argued in person, for casting aspersions on judges of the Bombay High Court. The court asked them to withdraw the allegations made in their petitions seeking the arrest of 10 judges for not rendering justice to them. However, when both refused to do so, the contempt notice was issued asking them to reply by September 10.
On Wednesday, the matter was posted before a Bench consisting of Justices Arijit Pasayat and H.S. Bedi. Both women appeared with their replies. Justice Pasayat pointed out that their reply was more contemptuous than their petition. But they maintained that they had not committed any contempt and that the August 29 notice was illegal and void.
In a brief order, the Bench said: “We have considered the reply, which is equally contemptuous and we feel that action needs to be taken against them for contempt of this court and charges will be framed against them.”
Justice Pasayat told the women that they had not only made allegations against the Chief Justice but the documents, annexed in their reply, also contained cartoons in which he was compared with terrorist Osama bin Laden and the former Iraqi dictator Saddam Hussein.
Justice Pasayat observed: “You have threatened the CJI that if the situation is not resolved the CJI will find himself in hot waters. You have drawn cartoons of the CJI and compared him with Laden and Saddam. Comparing the CJI with Laden and Saddam does not take away your fallacious allegations.”
Further hearing is listed for November 18.
With Thanks from the The Hindu 11 September 2008 Thursday
Source:- http://www.hindu.com/2008/09/11/stories/2008091160921300.htm
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SC trashes obscenity charge on Husain

New Delhi, Sept. 8: The Supreme Court today refused to allow prosecution of M.F. Husain on obscenity charges, saying his paintings were “art” and citing how erotic sculptures abounded at Hindu temples.
The apex court threw out an appeal against a May 8 Delhi High Court order that had quashed criminal proceedings against Husain while deploring the “new puritanism” in India.
“There are so many such subjects, photographs and publications. Will you file cases against all of them?” Chief Justice K.G. Balakrishnan wondered. “What about temple structures?”
He added: “It (Husain’s work) is art. If you don’t want to see it, don’t see it. There are so many such art forms in temple structures.”
The court rejected the argument of the Maharashtra-based complainant that Husain should be summoned before the court with his paintings and asked to explain their meaning.
Husain, 93, has been living in self-imposed exile in Dubai and London for the past two years while a series of cases have been filed against him in India for his nude paintings of Hindu goddesses and Bharat Mata.
On May 8 this year, Delhi High Court had dismissed three criminal complaints against Husain, filed in Bhopal, Indore and Rajkot. Justice Sanjay Kishan Kaul had said the allegation that Husain’s paintings were obscene were baseless.
“A painter has his own perspective of looking at things and it cannot be the basis of initiating criminal proceedings against him,” Justice Kaul had observed.
“In India, a new puritanism is being carried out in the name of cultural purity and a host of ignorant people are vandalising art and pushing us towards a pre-renaissance era…. A painter at 90 deserves to be sitting in his home and painting his canvas.”
The three complainants had moved courts in their home states claiming Husain’s nude Bharat Mata had offended Hindu religious sensibilities.
The apex court had clubbed these complaints together on a plea by Husain, who said he was too old and ill to travel to fight the cases, and sent them to the high court in September last year.
Several other cases accusing the painter of hurting religious sentiments and promoting enmity between religious groups have also been quashed.
With Thanks from the The Telegraph Tuesday , September 9 , 2008
Source:- http://www.telegraphindia.com/1080909/jsp/nation/story_9807563.jsp
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Ansal brothers sent to serve 2-yrs imprisonment

New Delhi (PTI) Real estate barons Sushil and Gopal Ansal were on Thursday sent to jail by a Delhi court where they surrendered in compliance with a Supreme Court order cancelling their bail in the case of Uphaar fire tragedy, which claimed 59 lives.
While Sushil had remained behind the bars for around 40 days in 1997 when the mishap took place, his younger brother will go to jail for the first time.
Pensive looking Ansal brothers, who were directed by the apex court to "serve out the remaining period of the two-year sentence" given by the trial court, entered the courtroom of Additional Sessions Judge (ASJ) I K Kochhar around 3.15 pm and were taken into custody by CBI personnel on the conclusion of procedural formalities.
The Supreme Court had yesterday said that the Delhi High Court was "not justified" in granting them bail in the facts and circumstance of the present case, especially in view of their conduct when they were on bail.
A bench of Justices B N Agrawal and G S Singhvi had taken strong exception to the allegations that Ansal brothers attempted to destroy evidence, saying "tampering with judicial records is a crime worse than murder or dacoity".
The ASJ, after perusing the apex court order, called up the names of convicts including the Uphaar hall managers -- Nirmal Singh Chopra and Ajit Choudhary, who were sentenced to seven years jail term.
Ansal brothers, who remained out on bail during the trial in the 11-year-old case, were sentenced to two years jail term on November 23, last year, after being convicted under a milder penal section 304A (causing death by rash and negligent acts) of the IPC.
Flanked by their lawyers, the convicted brothers moved several applications in the court seeking access to medicines, spectacles and medical assistance inside Tihar jail which was opposed by CBI counsel Y K Saxena on the ground that only Jail Superintendent could decide such issues.
"Don't get into all this. I am ordering to the Jail Superintendent to look into these according to the Jail manual," the judge said.
Ansals, however, got some relief when the judge accepted their request to order the lensmen present outside the courtroom to be sent out of the Patiala House Court complex.
"I want media out of this court", the judge said, asking Delhi Police personnel to push away the journalists.
Sushil, wearing a white shirt and grey trousers, came alongwith his lawyers, almost five minutes after his younger brother Gopal, who was also sporting a similar shirt and brown trousers, entered in the courtroom to surrender.
Members of the Association of Victims of Uphaar Tragedy (AVUT), on whose appeal the apex court had cancelled the bail, were present in the courtroom since morning for attending the day's proceedings.
Neelam Krishnamurthy, who lost both her son and daughter in the tragedy and has been relentlessly pursuing the case for over a decade, expressed satisfaction at the outcome of the events that finally resulted in the arrest of Ansal brothers.
"It is very satisfying to see Ansals going behind the bar. I was not satisfied when they were convicted and still remained outside," Krishnamurthy, who was with her husband Shekhar and other members of Association, said.
AVUT's lawyer Sultan Singh said now the Ansals will know the pain of living in jail away from their kith and kins.
"Ansals will now realise the trauma of the victims' kin who have been living without their loved ones," he said.
With Thanks from the The Hindu 11 September 2008 Thursday
Source:- http://www.hindu.com/thehindu/holnus/000200809111841.htm
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'जब वी मेट' के डाइरेक्टर के खिलाफ अरेस्ट वॉरंट’ Arrest warrant against the director of Jub We Met

रतलामः शाहिद कपूर और करीना कपूर की फिल्म ' जब वी मेट ' के निर्देशक और लेखक इम्तियाज़ अली के खिलाफ मध्यप्रदेश के रतलाम की एक कोर्ट ने गिरफ्तारी वॉरंट जारी किया है। अली और फिल्म निर्माता कंपनी अष्टविनायक सिने विज़न प्रा.लि. के खिलाफ दायर एक याचिका पर नोटिस लेते हुए चीफ जुडिशल मैजिस्ट्रेट ने यह कार्रवाई की। योगेश शर्मा ने फिल्म में रतलाम शहर को वेश्यावृति के अड्डे के रूप में पेश करने पर आपत्ति जताते हुए मुकदमा किया था। मुकदमे में अली के अलावा ऐक्टर शाहिद कपूर और ऐक्ट्रिस करीना कपूर को भी अभियुक्त बनाया गया था। शुरुआती सबूत दर्ज कराने के बाद जज ने शाहिद और करीना कपूर को मामले से बाहर करते हुए फिल्म निर्माता और निर्देशक के खिलाफ मानहानि का आपराधिक मामला दर्ज कर लिया था। इस मामले में दोनों को कोर्ट में हाज़िर होने के आदेश दिए गए थे। गुरुवार को फिल्म निर्माता कंपनी की ओर से उनकी प्रतिनिधि दामिनी रसाल ने कोर्ट में उपस्थित होकर पांच हज़ार रुपये की ज़मानत पेश की। फिल्म के डाइरेक्टर इम्तियाज़ अली कोर्ट में हाज़िर नहीं हुए। इस पर न्यायाधीश एम. के. जैन ने कड़ा रवैया अपनाते हुए इम्तियाज़ अली के खिलाफ गिरफ्तारी वॉरंट जारी कर दिया। मामले की अगली सुनवाई 11 नवंबर को होगी। गिरफ्तारी वॉरंट मुंबई पुलिस कमिश्नर के ज़रिए से तामील करवाया जाएगा।
With Thanks from from नवभारत टाइम्स Source:- 4 Sep 2008 नवभारत टाइम्स http://navbharattimes.indiatimes.com/articleshow/3445599.cms

Immunity from Criminal Liability on the ground of drunkenness

Deepak Miglani Adv.

Drunkenness is a species of madness for which the man is to blame. The law pronounces that the obscuration and divestment of that judgement and human feeling which in a sober state would have prevented the accused from offending, shall not when produced by his voluntary act, screen him from punishment although he may by no longer capable of self-restraint. Qui pecat ebrius luat sobrius: let him who sins when drunk be punished when sober. If a man chooses to get drunk, it is its own voluntary act; it is very different from madness which is not caused by any act of the person. Now, so far as intoxicated persons are concerned, Section 85 and 86 are relevant. Section 86 lays down that nothing is an offence which is done by a persons who, owing to intoxication, is incapable of knowing the nature of the act, or that what he is doing is wrong or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will. It will, therefore, be been that for an offence committed is consequence of voluntary drunkenness, there is not excuse in law. If it were otherwise any murderer would first get himself thoroughly intoxicated, have enough sense to commit the murder, and plead intoxication as complete defence. Thus drunkenness is either voluntary or involuntary . The latter can excused under certain circumstances, but the former is no excuse. Section 85 declares that voluntary intoxication is no excuse for the commission of a crime. But if he gets intoxicated through fraud or stratagem of others, and thereby becomes incapable of understanding the nature and quality of the act, he must be excused. Likewise, if a person, by mistake takes some wrong medicine and gets intoxicated and then commits an offence surely he cannot be held liable. Similarly, if fraud is practised on him whereby he is made to take an intoxicant, and then he commits an offence , he cannot be held liable. Such cases are not cases of voluntary drunkenness. Test of Drunkenness- The test to apply in cases of drunkenness is whether by reason of drunkenness, the accused was incapable of forming an intention of committing the offence. For any query:- legalbuddy@gmail.com

Keep a tab on your bank account: CONSUMER RIGHTS

Pushpa Girimaji

The Tribune 7 September 2008 Spectrum

Banks are supposed to keep your money safe. But there are instances where banks fail in this duty. I am not talking of small banks or cooperative banks that go into liquidation, but of large, reliable, public sector banks that fail to prevent fraud, resulting in illegal withdrawal of money from the accounts of depositors.
Last October, for example, the police in Gurgaon had registered a case against the DLF branch of Indian Overseas Bank, following a complaint that Rs 20 lakh had been fraudulently withdrawn from the savings account of a woman customer. News reports quoting the police had said that one person had been arrested in connection with the case and investigations were on.
If one were to look at such complaints lodged with the police as well as consumer courts and the banking Ombudsmen, these cases usually fall into two categories: (a) those where money is withdrawn from the accounts of depositors by criminal elements in connivance with the employees of the bank; and (b) where the staff may not be involved at all but are careless or negligent enough to allow withdrawal of money from an account on the basis of a forged signature.
In both types of cases, the bank has to take responsibility for its action or inaction and make good the loss to the consumer. The apex court has said as much. In the case of N.Venkanna vs Andhra Bank, for example, it made it clear that banks had a duty to meticulously cross-check the signature on a cheque or a withdrawal slip. It also clarified that banks cannot escape liability by claiming that they did not have an ultraviolet ray lamp for the purpose.
Another important point that it made was that banks cannot escape liability by making out a case of contributory negligence on the part of the consumer. In this case, Rs 34,000 had been withdrawn from Venkanna’s account by someone using a forged signature on a withdrawal slip. Holding the bank guilty of negligence, the apex court had ordered a refund of the amount along with 6 per cent interest.
The rights of the affected persons in such cases got strengthened further in the case of Shankar Bhatt vs Punjab and Sind Bank, where the apex court said those who worked in banks ought to have a reasonable degree of intelligence and skill required of a person in that post. Failure to exhibit that skill constituted negligence and banks had to pay for the consequences of such negligence.
In this case, a 72-year-old senior citizen’s entire savings of Rs 15 lakh had been transferred to someone else’s account in the bank, using a forged signature on a letter, which the bank claimed was written by the depositor. The court ordered the bank to pay back the money with 12 per cent interest and also pay a compensation of Rs 50,000.
But in order to pin the responsibility on the bank and get back the money, consumers have to take some important initial steps. First and foremost, one must lodge a written complaint with the bank and get an acknowledgement for it. The depositor also needs to get hold of the cheques used by the forger. If the bank needs it for its investigations, then a photocopy must be obtained. It is also important to lodge a police complaint immediately and get a copy of that, too. In most cases of fraudulent withdrawal, the bank is not willing to accept its mistake and refund the money to the depositor, along with interest and compensation for any suffering caused.
Even when forgery is proved, they try to make out a case of “contributory negligence” against the consumer. That’s where courts come into the picture. Clients can also file their complaints before the banking Ombudsman. In fact, if you look at the cases handled by the banking Ombudsmen around the country, you will find many pertaining to such unauthorised withdrawal of money from depositors’ accounts.
In one particular case, for example, an employee of TCS had complained that the bank (the report does not mention the name of the bank) where he had his salary account had issued a cheque book to someone without his knowledge and passed cheques that were not drawn by him, resulting in withdrawal of a total amount of Rs 9,77,000 from his account. This had happened when he was out of the country on work. The Ombudsman had confirmed that there was fraudulent withdrawal of money by forging the signature of the complainant. So keep a check on your account, and if there is any discrepancy anywhere, be sure to complain and set it right.
For any query:- legalpoint@aol.in

Maya govt to repeal crime control bill

5 Sep 2008 The Times of India

LUCKNOW: Almost three days after the Union home minister for state Shri Prakash Jaiswal ruled out possibilities of giving a nod to Uttar Pradesh Control of Organised Crime Bill (UPCOCB), chief minister Mayawati took a decision to repeal the controversial bill on Thursday.

After having been passed by the state Assembly on February 13, 2008, the bill has been awaiting presidential assent.

"We have been able to curb crimes without the special act. Therefore it is hardly required," Mayawati declared at a press conference on Thursday. She, however, demanded to know that "how a law, which is considered perfectly valid in Maharashtra, could be trashed as draconian and useless in UP?"

"This only shows duplicity in the Congress party’s character," the CM said, adding that MCOCA must also be scrapped going by the same logic.

"Maharashtra, which has been ruled mostly by the Congress governments all along, has not been able to eliminate crime despite MCOCA," she said.

Targeting the lawlessness during Mulayamraj, the CM said that she had inherited a troubled legacy. "Loot, murder, decoity, kidnapping were order of the day during that time and criminal elements enjoyed protection by police and administration. The prevailing lawlessness and corruption during the SP rule, she said, posed a tough challenge and to bring the situation under the control "we decided to formulate UPCOCB", she explained

However the Congress, which had supported a similar legislation in Maharashtra all along, protested when such a decision was taken, the CM said. The party, she said, needed to do some introspection and learn to follow what they preach. The duplicity shown by the Congress party over this particular issue, Mayawati said, was deplorable and needed to be condemned. The UPCOCB had been awaiting assent from the president for past six months after having been passed by the assembly. Questioned by the media about the delay, Jaiswal had said that the Centre was not in favour of giving unbridled power to state and its police. "We have said no to Gujarat and will say the same to UP," he had declared.

With thanks from The Times of India
Source:- http://timesofindia.indiatimes.com/Lucknow/Maya_govt_to_repeal_crime_control_bill/articleshow/3446436.cms

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Govt to review anti-dowry law

For long, voices raised against the anti-dowry act were dismissed as those belonging to men desperately trying to retain their dominance over women. But now, an increasing number of women complaining against misuse of the act has forced the women and child development (WCD) ministry to initiate a review of the controversial legislation. Said WCD joint secretary Kiran Chadha, ‘‘We will be meeting a panel of lawyers and legal experts to review the law. We have been receiving so many complaints against the two laws — section 498A (harassment for dowry) and the domestic violence act.’’ The meeting is likely to be held on September 17. The Indian Penal Code’s section 498A had long been seen by women activists as one of the foremost legal weapons for a woman shunned by her in-laws and her parents. The government’s turnaround comes after an increasing number of complaints came from women themselves — mothersin-law and sisters-in-law who ironically have fallen victim to misuse of the two laws. The statistics are telling. Raksha, an NGO working on marital harmony and child welfare, has analyzed figures by the National Crime Records Bureau to deduce that 1.2 lakh women have been falsely implicated under 498A. ‘‘Every 21 minutes, an innocent woman is being arrested. While the number of arrests under 498A is increasing every year, what is not being considered is that the conviction rate in these cases is barely 2%,’’ Raksha spokesperson Anupama Singh said. Now, the official view has perhaps finally reflected a change in attitude towards a woman complainant.

WOMEN VICTIMIZED?

1.2 lakh women have been falsely implicated under the antidowry section, 498A, according to figures collated by NGO Raksha Every 21 minutes, an innocent woman is being arrested under 498A, the NGO states Study of 3,000 cases showed girls who misused anti-dowry law were mostly graduates living in both metros and small towns

NGO wants dowry offence to be made bailable

New Delhi: An increasing number of women complaining against misuse of the anti-dowry act has forced the women and child development (WCD) ministry to initiate a review of the controversial legislation. One of the most vocal NGOs, Mothers and Sisters Initiative (MASI), has submitted a charter of demands to the ministry that includes suggestions for a ‘‘modified 498A’’. MASI has suggested that in the section which says ‘‘husband or relative of husband of a woman subjecting her to cruelty,’’ the clause ‘‘relative of husband’’ be dropped. The NGO has also recommended that the law be made bailable and non-cognizable, and that its misuse be penalized. Singh says that misuse of the two laws isn’t restricted to the metros. ‘‘We have studied over 3,000 cases and found that girls who have misused the law are mostly graduates, not necessarily living in a metro city. They can be from small towns and have access to advice from lawyers. This is multi-crore industry that has even enveloped NRIs,’’ Singh said. The ministry has been at the receiving end of criticism for some time now. Earlier this year, it had organized a workshop to discuss issues related to women’s legislation that soon turned into a slanging match. In August, the ministry launched an aggressive media campaign on several issues including domestic violence. When queried on the occasion if the campaign was a defensive move following criticism of the law, WCD minister Renuka Choudhary said, ‘‘We are not being defensive. We are being pro-active. I have taken the bull by the horns.’’

With Thanks from The Times of India
Source :- The Times of India 4-09-2008 P.1 New Delhi

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After five-year wait, govt finally approves Companies Bill

New Delhi August 30, 2008 Business Standard

The government today approved the introduction of a new single, comprehensive law to govern the Indian corporate sector. The Bill is expected to be tabled in Parliament during the upcoming October session.
Among other things, the Companies Bill 2008 proposes to tighten the rules governing share sales by firms to their owners, to bar issuance of shares at a discount to owners, does away with shares that have differential voting rights and scraps the requirement of minimum paid-up capital.
The Bill proposes the requirement to appoint independent directors, where applicable, at a minimum of 33 per cent of the total number of directors. “However, any ruling by regulators like the Securities and Exchange Board of India will override the provisions of the Companies Bill,” Corporate Affairs Minister Prem Chand Gupta told reporters.
Clause 49 of Sebi’s listing agreement states that 50 per cent of the Board has to comprise independent directors if it is headed by an executive chairman and 33 per cent for a non-executive chairman. The Bill also mandates that every company needs to have at least one director resident in India.
The Bill recognises insider trading by company directors or key managerial personnel as an offence with criminal liability, while also identifying the company as a separate entity in cases where monetary penalties are imposed on executives. It does away with restrictions on the number of subsidiaries that a company can have, envisages a single forum for mergers and approvals, a separate framework for enabling fair valuations and recognition of both accounting and auditing standards.

Source:-http://www.business-standard.com/india/storypage.php?autono=332975