Law, Lawyers, Judiciary - Printable Version

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Law, Lawyers, Judiciary - Guest - 05-13-2005

Govt rejects Phukan Comm report
QUOTEThe Government on Friday rejected the report of the Phukan Commission, which probed the Tehelka exposÃ© into fictitious defence deals, on the ground that it was "incomplete".

The Commission, headed by Justice SN Phukan, has "given its report only on two of the terms of reference instead of four made to it. The report is not complete. Therefore, the Government has rejected it," an official spokesperson said.

What a waste of money and height of corruption by Indian Government?
Why Banerji useless report received special treatment by GOI?

Congress trying to subvert Commission of Inquiry: FernandesQUOTEFernandes also released copies of the conclusions in respect of 15 transactions which said, "No illegality or irregularity has been committed by George Fernandes, as Defence Minister in relation to the said 15 past transactions".

Law, Lawyers, Judiciary - Guest - 06-04-2005

QUOTEThis is justice 
The Pioneer Edit Desk
In a country where the wheels of justice move at an exceedingly slow pace, the speed at which the two who had raped a German tourist in the outskirts of Jodhpur town, have been arrested and sentenced, will remain a shining example. The crime occurred on May 11. An auto rickshaw driver who had actually raped her, and his assistant, who was stopped while trying to do so by villagers who had rushed to the spot on hearing her shrieks, were both sentenced to life imprisonment on June 1.
Â
Much of the credit for such swift action should go to the Division Bench of the Rajasthan High Court at Jodhpur which took suo motu cognisance of the crime on the basis of media reports, and directed the Government on May 13 to investigate the case "as expeditiously as possible" and to complete the trial within one month. It also directed the authorities in Jodhpur to ensure the victim's security, and the Government of Rajasthan to bear all expenses of her stay in Jodhpur.

With the Division Bench taking the initiative, the police who traced out the culprits, who had fled the scene on the arrival of the villagers, rose to the occasion, as did the local trial court, which handed down the sentences in less than 21 days after the occurrence of the crime. The swiftness with which the sentences were announced and their justified severity is bound to have a salutary deterrent effect. Of particular significance is the fact that the auto rickshaw driver's assistant too was given life imprisonment. Though he could not actually rape the victim, the fact that he had assisted the driver in doing so and had tried to do so himself before the villagers arrived, made it clear that it was a pure accident that his crime was of lesser severity, which in turn made him an unlikely candidate for leniency.

If the Jodhpur rape case will be remembered for the remarkable speed at which justice was delivered, the criminal proceedings over the rape of another German tourist in Varanasi four years ago will remembered for the commendable tenacity with which the police went about its job. It not only arrested the two culprits but kept on trying to persuade the victim, who had left the country without testifying against them, to muster courage and return to give evidence. When she finally relented after nearly two years, it provided her with an air ticket, arranged for her visa, brought her from Delhi to Varanasi and arranged for her stay at the State Guest House under heavy guard. The culprits, who had earlier been released on bail, are now in prison again.

In the case of a foreign tourist, the enormity of rape as a crime is compounded by the severe damage it does to the country's image abroad. The way the Jodhpur and Varanasi cases have been dealt with, therefore, deserves special commendation. One fervently wishes that India's criminal justice system also delivered equally effectively in all cases of crime. Meanwhile, it remains a matter of shame that the man who raped a Swiss diplomat in Delhi some time ago, continues to be at large.

Law, Lawyers, Judiciary - Guest - 06-23-2005

Cabinet approves bill to protect women from domestic violenceQUOTEMen will have to think twice before getting into a spat with their spouses and other close women relatives.

A comprehensive bill approved by the Union Cabinet on Thursday defines "domestic violence" in detail which will include actual abuse or the threat of abuse that is physical, sexual, verbal, emotional or economic.

Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition of the Protection of Women from Domestic Violence Bill, 2005.

The Bill, which fills a void in the existing legal framework, seeks to provide effective protection and remedy to women against domestic violence, Defence Minister Pranab Mukherjee said after the cabinet meeting here, adding that the Criminal Procedure Code did not adequately protect the women who are meted out such treatment <img src='style_emoticons/<#EMO_DIR#>/thumbsdownsmileyanim.gif' border='0' style='vertical-align:middle' alt='thumbsdownsmileyanim.gif' />
Worst law, one sided law, 95% abused by educated woman of India. Law should give equal rights not privlidge to one based on sex.

This law will break Hindu marriage.

Law, Lawyers, Judiciary - ramana - 07-20-2005

Op-Ed in Telegraph, 20 July 2005

QUOTEWITHOUT DOING FULL JUSTICEÂ
The recent amendment to the Criminal Procedure Code can neither enforce the rule of law nor reform the criminal justice system, says Tarunabh Khaitan 

Misrule of lawÂ
Very recently, in Oxford, the prime minister extolled the benign consequences of the British rule over India â one of them being the ârule of lawâ. Like most political slogans, the content of the rule of law is rarely understood and frequently ignored. The Code of Criminal Procedure (Amendment) Act, 2005, analysed on the basis of the rule of law, embodies a missed opportunity and a lack of vision.

In legal and political theory, the rule of law is a political ideal that demands that the government and its officials shall be ruled by law and be subject to it. The ideal is often expressed in the phrase, âgovernment by law and not by menâ, and has its roots in Englandâs transition from absolute monarchy to parliamentary governance. The actions of government officials, ministers, judges, bureaucrats and police officers must be governed by a duly enacted general law, and should not be guided by personal whims and fancies. The rule of law protects the citizen from arbitrary government.

The criminal justice system, comprising, chiefly, the police, the prosecution and the judiciary, is the arm of the state closest to the citizen. This proximity empowers it to violate the rule of law, frequently and brutally. Every time a police officer wrongly arrests or tortures a citizen with impunity, every time a rich or powerful person escapes punishment for a crime by bribing the prosecution, and every time a minister interferes in the criminal justice machinery to secure partisan goals, the ideal is compromised.

An independent and easily accessible judiciary which fearlessly tries people, irrespective of power, wealth, status or political affiliation is a sine qua non for the rule of law. The rule of law also demands an independent police organization and an independent prosecution service, which are free from political interference in their day-to-day functioning while being accountable for their actions. In this respect, the design of public institutions should be informed by the rule of law.

The current amendment draws partly on the report, especially those provisions that deal with the prosecution and police powers. One of the most significant reforms in this regard is the provision for a âdirectorate of prosecutionâ to oversee the prosecution services in a state. As an attempt to organize the prosecutorial service more efficiently, this is a welcome step. However, the amendment fails to grant effective autonomy and functional independence to the directorate, keeping it vulnerable to political interference.

In requiring the concurrence of the chief justice of the high court in the appointment of the director of prosecution and the deputies, the amendment provides an important but inadequate check against partisan appointments. There is no security of tenure for the directors either.

The amendment further provides that the directorate shall function under the administrative control of the home department of the state. It is significant to note that the Malimath committee recommended that the directorate should function under the guidance of the advocate-general, an independent constitutional authority, rather than the home department. It is another matter that the constitutional offices of the advocate-general and the attorney-general have also allowed political dictation in practice. Surely, a democratically-elected government should have the power to set broad policy objectives for the prosecution machinery. But in the current system, which provides no functional and organizational independence to the prosecution, the government directly interferes in decisions regarding individual prosecutions as well. The decision not to prosecute an individual should be a technical judgment arrived at by considering the gravity of the offence, the availability of resources, prosecutorial goals and the soundness of evidence. With governments making such decisions, the criteria invariably becomes the political weight of the accused or the political cost of a trial.

The amendment leaves untouched the notorious Section 197 of the CrPC, which requires prior sanction of the government for the prosecution of public servants. This provision makes a mockery of the ideal of the rule of law. It should not surprise us that it takes forever to even file charges in cases involving anyone politically important.

The manner in which the powers of the police have been dealt with is even worse. Despite the crying need to reform the police machinery and ensure that it adheres to the rule of law â underscored by the role of the police in the Gujarat violence in 2002 â the amendment only tinkers with certain powers of the police. When a structural overhaul is needed, it has made half-hearted attempts at functional transparency.

The amendment proposes to impose a duty on the police to inform the arrestee of his right to nominate a relative or friend who shall be informed about the arrest. It also provides for mandatory judicial inquiry into custodial death and rape. The arrestee now has a right to receive a copy of the medical report regarding allegations of torture. Most of these changes are presentational. Unless structural reforms happen, the police will continue to brutalize, rape and kill. The Indian Police Act, which continues to govern the police organization, was enacted by a colonial regime in 1861 to maintain the repressive foreign authority. It is time the police-citizen relationship is redefined.

The primary need is to ensure organizational insulation of the police force from the political machinery. Again, the democratic government must control the broad policing policy, but should not meddle with the daily functioning of the police force. Successive governments have regularly used their power to transfer or deny promotion to police officers as a means of making the police serve partisan objective. The prime ministerâs recent suggestion of a secure tenure for senior police officers is therefore welcome.

Organizational independence must be coupled with stringent accountability measures. The main problem is that the police station is the most invisible of places, making it difficult to control behaviour. The English Police and Criminal Evidence Act, 1984 instituted the office of the custody officer within the police station, whose main function is to oversee police behaviour. The involvement of NGOs and the civil society through measures like visitation rights and access to detainees should be institutionalized. An independent police commission with administrative control over policing and doubling up as a complaint authority may be a step towards a solution.

The amendment does have some positive provisions, including special features for women arrestees and rape victims. However, it lacks a coherent organizational principle to reform two crucial criminal justice institutions. A vision to subject the police and the prosecution to the law of the land and not to arbitrary dictates of ministers is necessary.
tarunabh@gmail.com


Will add my comments later.

Law, Lawyers, Judiciary - Guest - 08-22-2005

QUOTEBill to curb domestic violence introduced 
Pioneer News Service/ New Delhi
Acknowledging that women need legal rights to be shielded against violence in their own homes, the government introduced the Protection of Women from Domestic Violence Bill, 2005 in Lok Sabha on Monday.

In a marked deviation from other women-oriented legislation, the proposed Act focuses on protecting rights of women in her matrimonial or shared household, unlike the laws that emphasise punishment in offences like dowry. It is for the first time that domestic violence has been defined by the law. Even sisters, widows, mothers, single women living with the abuser would be entitled to legal protection.

Under the civil law, women can appeal for a magisterial order restraining the abuser from harassing her. More often than not, women refrain from lodging a complaint for fear of being thrown out of her matrimonial home or having her children taken away from her. The proposed Act provides for the rights of women to secure housing.

It provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. She also gets temporary custody of her children, who are often used as an instrument of blackmail by the abuser to prevent a woman from lodging a complaint. Such relief is not provided under criminal laws at present. 

Woman often do not seek divorce despite abuse at home because they have no one to turn to. The stigma associated with being a divorced woman prevents her parents from taking her back. The proposed law protects her right of residence in her matrimonial home without seeking a divorce. Statistics show that less than one per cent of women who suffer violence actually lodge a complaint. By assuring her of her rights, the proposed law hopes to empower more women to seek legal redress against violence.

The long-term rights over property are not decided under the law, and hence prevents misuse of the law for property disputes. The civil law is much milder when compared to other criminal laws dealing with social evils like dowry, which books the offender for a non-bailable offence.

The magistrate can prevent the abuser from entering a workplace or any other place frequented by the woman. He can be prevented from isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from domestic violence. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition, according to the statement of objects and reasons of the Bill.

The magistrate can appoint Protection Officers and register non-governmental organisations as service providers for assisting the aggrieved person with respect to her medical examination and for obtaining legal aid and safe shelter.

Under the Bill, if the magistrate considers that the circumstances of the case so warrants, and if either party to the proceedings so desires, he may conduct them in camera.

If the abuser breaches the magisterial protection order, it will be made an offence and shall be punishable with imprisonment which may extend to one year or fine upto Rs 20,000 or both.

Now they expect abused person to live with abuser under same roof, Indian law maker are insane.
What they are going to do where family live in one room house? Draw a line.
Invitation to murder.

Law, Lawyers, Judiciary - Guest - 08-23-2005

SC criticises Govt over reservation issue in private collegesQUOTEGiving vent to its anguish over the "unwanted criticism" it got over the ruling on reservation in private professional colleges, the Supreme Court on Tuesday said if the Government was so intolerant, it could take steps to close down the courts.

"Tell us, we will wind up the Courts and then do whatever you want," a visibly hurt Chief Justice RC Lahoti told Attorney General Milon K Banerjee.
QUOTEWhen both the Attorney General and Additional Solicitor General Gopal Subramaniam were at pains to explain to the court that they hold it in high esteem, the court said "should you not tell your clients to give the respect the courts deserve."

The Bench said "if this is the attitude of the Government towards the court, then we will go on doing our duty and let them do theirs."

Law, Lawyers, Judiciary - Guest - 08-25-2005

<img src='style_emoticons/<#EMO_DIR#>/clap.gif' border='0' style='vertical-align:middle' alt='clap.gif' />
JUSTICE SHALL PREVAIL :
I[FONT=Courier] think, nobody needs to remind politicians as to in what regard they r held by public. They r mesquerading as both legislatures and executives without doing justice to either. In fact, take out the executive powers of these politicians and they will leave politics as hardly any1 of them is fit to sit in the seat of Parliament.
In the matters of Justice, Supreme Court is supreme. Let politicians not destroy this seat of Vikramaditya.
Jai Hind!

Law, Lawyers, Judiciary - Guest - 08-30-2005

Pioneer
QUOTECongress and the judiciary 
A Surya Prakash
The recent attempt by some politicians to whip up a 'confrontation' with the judiciary over the Supreme Court's order in regard to admissions to private unaided professional colleges should be a matter of concern for all citizens who value the independence and privileged presence of both Parliament and the Supreme Court in the constitutional scheme of things and who yearn for their harmonious coexistence.

Such has been the criticism of the court's order that it provoked the Chief Justice to say that the Government could as well wind up the courts. His outburst was obviously triggered not so much by the comments against the court's order as by the tone and tenor of the attack.

Though the issue has not gone out of hand, the nature of the attack on the judiciary is worrisome because of the disturbing track record of the Congress vis-Ã -vis judicial independence.

We need to ask ourselves why a clash between Parliament and the judiciary becomes a distinct possibility the moment the Congress comes to power at the Centre. Second, will the party never reconcile to the existence of an independent judiciary?

Though the judiciary is not entirely faultless, there is no denying that it has had to step in time and again to save the Constitution and basic democratic principles enshrined in it. The reckless use of Article 356 to impose Central rule in states is a case in point.

The Congress, which ruled the country for all but three years in the first four decades after independence, freely used this constitutional provision to undo the peoples' verdict whenever it was rejected by the voters in the states.

Finally, the Supreme Court stepped in and ended this periodic assault on the Constitution, when a nine-judge bench gave its verdict in the Bommai case over a decade ago. The court made it known that it would no longer remain a passive spectator to the violation of constitutional principles by the Union Government.

It declared that henceforth the validity of the proclamation issued under Article 356 would be judicially reviewable, that the court would, if necessary, scrutinise the material sent to the President and if necessary, restore the Ministry that has been dismissed and revive the Assembly that has been dissolved.
Â
Suffice it to say that through this judgement, the court virtually put an end to the misuse of this provision by the Union Government. Since this judgement, there has been a dramatic decline in the application of Article 356.

The Supreme Court has also ticked off partisan governors like Syed Sibte Razi, who sought to undo the electoral verdict in Jharkhand earlier this year. But for the firmness displayed by the court, such criminal subversion of constitutional principles would have been the order of the day.

The Supreme Court's judgement in the Bommai case is just one example of the court's critical role in furthering the cause of democracy and protecting the rights of the primary stakeholders the people.

There are scores of other cases, but the one that truly stands out is the court's judgement in the Keshavananda case in 1973. In this case the court propounded the doctrine of 'basic structure'. It held that while Parliament could amend any part of the Constitution, it should not alter the basic structure of the Constitution.

Unwilling to accept this doctrine, the Congress launched a nation-wide campaign against the judiciary and it was not uncommon in those days to hear the demand for 'committed judges' (judges 'committed', not to the Constitution but to the Congress point of view!) from Congress quarters.

Members of this party accused the judiciary of being reactionary, conservative and anti-poor and even tried to whip up public sentiment against the Supreme Court. Much of this oral onslaught against the judiciary was translated into constitutional provisions after Indira Gandhi imposed the Emergency in June 1975.
Â
The first of these amendments was the 38th Amendment Act which barred judicial review of the emergency proclamation. Next came the 39th Amendment, which was meant solely to pre-empt the Supreme Court, which was hearing India Gandhi's election case.

Then came the 42nd Amendment which declared that henceforth any amendment to the Constitution cannot be questioned "in any court on any ground". It declared that Parliament's power to amend the Constitution was unlimited. Which meant that Parliament had the unfettered power to preserve or destroy the Constitution.

Finally, the most shocking and reprehensible provision in the 42nd Amendment was the power it vested in the President for two years to amend these provisions in the Constitution, through an executive order!

Emboldened by the Emergency, which had converted India into a one-party dictatorship, Congress tongues wagged freely in Parliament. Apart from displaying utter contempt for the judiciary, Congressmen misused parliamentary privilege to even hold out threats to the Supreme Court.

Swaran Singh, who had authored the party's 'constitutional review' told the Lok Sabha on October 26, 1976, that the Constitution did not empower the High Courts and the Supreme Court to examine the constitutional validity of a constitutional amendment. Accusing the courts of committing "crude sort of invasion", he said, "Unfortunately, the courts transgressed the limits prescribed for them."

Mr NKP Salve loftily declared in Parliament, "There comes a time when the Constitution has to be saved from the court and the court from itself." Speaking a day after Swaran Singh, Prime Minister Indira Gandhi, who had whipped up a campaign against the judiciary, said, "We do not accept the dogma of the basic structure."

Referring to Swaran Singh's remark that the judges had 'imported' the phrase 'basic structure', Mrs Gandhi said, "I would not say that they have imported it, since it does not exist in any other Constitution. They have invented it."

But, here is this gem from CM Stephen. This man, who often made a public display of his servility to the Nehru-Gandhi family, ponderously declared: "Now, the power of this Parliament is declared to be without any limit and the laws passed by this Parliament by way of amending the Constitution are declared to be out of bounds for any court.

It is left to the courts whether they should defy it. I do not know whether they will have the temerity to do that but if they do, as the Law Minister said, that will be a bad day for the judiciary. The committee of the House is sitting with regard to the enquiry into the conduct of judges and all that. We have got our methods, our machinery."
Â
To the best of my knowledge, no other citizen of India has sought to intimidate the Supreme Court in this manner. Mr Stephen got away with it because he said this within a parliamentary chamber.

However, his remarks epitomised the basic attitude of Congressmen towards the judiciary in the 1970s. Since the party has such a terrible legacy in the area of constitutionalism, one's antenna is up whenever it comes to power, more so when, just as in the early 1970s, it survives in office with the help of communist support.

The Congress has never reconciled itself to the 'basic structure' doctrine. But, imagine what would have happened to democratic values and the basic rights bestowed on us by the Constitution if the Supreme Court had not erected this firewall called 'basic structure'.

Would the scores of vandals, who have strutted around on the political firmament over the last 30 years, have left the Constitution unmolested? Would the core of this Constitution have survived the CM Stephens of the Congress? That is why the people at large need to be extra vigilant when members of the Congress turn critical of the judiciary.

Law, Lawyers, Judiciary - Guest - 09-20-2005

QUOTELawyers set up Hindu law board 
Lucknow, Sept. 18: The All India Muslim Personal Law Board seems to have inspired Hindus to set up a similar body. A group of lawyers practising in the Allahabad High Court on Saturday set up the All India Hindu Personal Law Board.

Board chairman Ashok Pandey told this newspaper, âWe set up the board on the auspicious occasion of Anant Chaturdashi and we will work to safeguard the rights of Hindus who can bring property disputes and marital disputes before it. We will work towards removing social evils like dowry and the Board will have the power to appeal for social boycott of families that do not treat their daughters-in-law with respect and love.â According to Mr Pandey, the AIHPLB will work towards ârectifying the follies committed by our elders at the time of Independence.â

âAt that time, India should have been declared a Hindu Rashtra and all constitutional posts should have been reserved for natural Hindus â persons born to Hindu parents. Protection and repair of temples and Hindu shrines should have been made the constitutional duty of the government. Symbols of national shame like roads named after Mughal rulers should have been removed. The Board will take legal steps to ensure that these tasks are accomplished,â Mr Pandey explained.

The Board proposes to have all Shankaracharyas and chief priests of the Badrinath and Kedarnath temples as ex-officio members on the working committee and their opinion will be sought on matters that concern the Hindu religion. A two-member delegation will meet the Shankaracharyas to seek their consent, and the national convention of the board will be held in Lucknow in October.

www.deccan.com/home/homed...aw%20board 
Why not?

Law, Lawyers, Judiciary - Guest - 10-08-2005

Interesting judgement..

http://in.rediff.com/news/2005/oct/06hc.htm

QUOTEThe marriage of a minor girl above 15 years of age is not illegal if it is her free will and she cannot be sent to Nari Niketan against her will, the Delhi high court has ruled.

Law, Lawyers, Judiciary - Guest - 03-12-2006

What did you say?
Posted online: Sunday, March 12, 2006 at 0000 hrs

FOR close to 59 years, âperjuryâ never made news in India. Last week, it cropped up for the first time. Not once, but twiceâin connection with two cases that have rocked the nation: The Best Bakery trial and the Jessica Lall murder case. On Friday, Zaheera Shaikh surrendered herself in the Mazagon courts after the Bombay special trial court in the Best Bakery case issued notices for perjuryâdefined in Indian penal laws as ââgiving false evidenceâââand the Supreme Court convicted her with a one-year imprisonment term for telling lies in a related contempt of court case.

In the Jessica Lall case, the Delhi High Court has sou motu taken cognizance of the police/prosecution theory on ââhostile witnessesââ.
Both cases are demonstrative of the fact that India is finally gearing up to strictly enforce laws relating to perjury and false witness, which could go a long way in deciding future criminal cases. This is because a personâs statement on oath, testimony, and/or in sworn affidavit is regarded as the truthâunless the contrary is establishedâand vital evidence on which judicial decisions are based.
Wheels of Justice
THE high rate of acquittals in criminal cases in India is mainly due to witnesses turning hostile. The criminality of ââbuyingââ of witnesses by influential accused can be handled only by strictly enforcing the penal law on perjury. Now the allegation that Zaheera took money to retract her statement is open to judicial scrutiny.
Though Zaheera is not the lone example of perjuryâin a majority of cases in Indian courts, false evidence or retraction of statements result

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Law, Lawyers, Judiciary - Guest - 03-12-2006

Capt Manmohan Kumar,
Please provide link also.

Law, Lawyers, Judiciary - Guest - 06-13-2006

<!--emo& Tongue

--><img src='style_emoticons/<#EMO_DIR#>/tongue.gif' border='0' style='vertical-align:middle' alt='tongue.gif' /> Govt considering law on euthanasia

- Nidhi Razdan/Devdeep Purohit/Rahul Srivastava

Monday, June 12, 2006 (New Delhi/Kolkata):

For the first time India is considering a mercy killing law for patients who have no chance of recovery. It's a controversial proposal and currently the thought is to allow it only after its been cleared by a panel of doctors.

Vijay is just 12 year old. Suffering from a terminal disease he could well become the face of an old debate: the right to die. His parents want to put an end to his suffering, but the law prohibits it.

But now there's hope. The law commission of India has recommended that the law needs to protect terminally ill patients and if they refuse medical treatment they should not be charged with attempt to commit suicide.

"We are looking into the recommendations. The proposals have been sent to health ministry for their opinion," said H R Bharadwaj, Law Minister.

Complicated issue

But it's a complicated issue. Consider the doctors. In Hyderabad 25-year-old Venkatesh who was on life support wanted his doctor to pull the plug so that he could donate his organs. The doctor could not and Venkatesh died within days of his request.

So if euthanasia is made legal who takes the final call? The patient or the doctor? The law commission proposes the patient or his family requests his doctor for mercy killing.

If the doctor agrees then he approaches a government-appointed three member expert committee of doctors which then has to concur.
But medical experts want more safeguards to protect patients like the aged or even women.

Easier way out?

Others say in a poor and large country euthanasia could tempt patients and families to take the easier way out, even if it means death.

"Medical facilities in India are not same. Not all Indians can afford the available treatments. A terminally ill patient in the Andamans can find cure in Delhi, Mumbai. I feel there is no need to rush with a law," said Indrajit Ray, Head, MCI Ethics Committee.

Euthanasia is a Greek word meaning death. In a country where the spread of health services is poor and costs too dear euthanasia or mercy killing may find support.

But it's a globally unresolved issue. Only in Holland mercy killing is on the right side of the law. Here in India the government will have to kill all possibilities of abuse before right to die can be added to the constitution.

[Last Updated: 20:54 IST]

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Law, Lawyers, Judiciary - Guest - 08-04-2006

QUOTEHindustan's legal system is a continuation of the colonial legal
system. The colonial legal system transplanted an alien rule of law
into a nation governed by dharma and related legal systems. A number
of debilities of the present-day system are traceable to this fact
that the colonial loot and oppression is simply continued by
indigenous colonialists (read the criminalised political class)--
manipulating the legal system to their personal advantage (the
nation's abhyudayam does NOT even come into the reckoning). How can
such a criminalised class be allowed to define and regulate a criminal
justice system?

There is the second problem. The colonial continuing legal system is
inadequate to deal with terror war, proselytization war and internal
insurgencies (egged on by external powers) disrupting the state
apparatus and security of the nation.

The legal system is broke and needs fixing. Nariman wonders if the
system can be saved at all. Read on...

-abcd

The Right to Silence: Should it be so sacrosanct?
8/1/2006 10:36:08 PM
- By Fali S. Nariman
-
One of the more controversial aspects of the Malimath Committee Report
(which has not been accepted by the Government of India) is the
inviolable rule as to the 'right to silence' of the accused â at all
times, and in all cases.

The accused is a good source of information; perhaps the best source
about the commission of the offence, but this source is not tapped for
fear of infringing the 'Right to Silence' guaranteed by Article 20(3),
which states that 'No person accused of any offence shall be compelled
to be a witness against himself. But the testimonial compulsion that
is prohibited under Article 20(3) of the Constitution, as explained by
several decisions of the Supreme Court itself, is against duress. The
Article does not prohibit admissions on confessions made without
inducement, threat or promise; it does not bar the accused from
voluntarily offering himself to be examined as a witness. The
conclusions of the Malimath Committee (on the Right to Silence) are as
follows:

In the considered view of the Committee, drawing of adverse inference
against the accused on his silence or refusing to answer will not
offend the fundamental right granted by Article 20(3) of the
Constitution, as it does not involve any testimonial compulsion.
Therefore the committee is in favour of amending the Code to provide
for drawing appropriate inferences from the silence of the accused.
But these conclusions are at variance with the law as it is presently
enacted in the Code of Criminal Procedure, 1973, which prohibits
adverse inferences being drawn from the deliberate silence of the
accused.

Although principles basic to the rule of law â the presumption of
innocence, the importance of a fair trial, and guaranteeing the rights
of individual accused â remain constant, in grave situations, as for
instance in heinous or terrorist-related situations, I believe that
the rule of law should take into account the importance of what is at
stake, whilst maintaining the basic rights of the defence.

Let me address this question. Is the concept of the rule of law strong
enough, or elastic enough, to devise means which would help maintain a
balance of "justice"? Justice for victims, as well as fairness to
those charged?

Under Scottish criminal law, for instance, the concept of a fair trial
is not solely a question for the accused. Lord Wheatley said that
"while the law of Scotland has always very properly regarded fairness
to an accused person as being an integral part in the administration
of justice, fairness is not a unilateral consideration, fairness to
the public is also a legitimate consideration." The judge went on to
say, "It is the function of the Court to seek a proper balance to
secure that the rights of individuals are properly preserved."

There is much tension in the rule of law as applied to
terrorist-related offences. And there is increasing concern that the
dice are loaded against the prosecuting agency, and in favour of the
accused terrorist. This perception of reasonable people â people who
also believe in the presumption of innocence, the need for a fair
trial, etc. â cannot just be wished away or ignored.

In the New York Times of March 25, 2006, it was reported that
England's home secretary, Charles Clarke, said that under the
adversarial system of justice, convictions were notoriously difficult
to secure in terrorist trials. He would support a shift to an
inquisitorial system in terrorist cases, because it offered protection
to the public. In France, magistrates interrogate suspects before
their lawyers are brought in. But the home secretary then added â
almost as an afterthought â "that nobody wants to give up the judicial
system that has served the English-speaking peoples so well for more
than a hundred years: But we have never faced such a menace before,
and we may have to make an exception for terrorism." (Emphasis
provided) What that exception is has to be worked out separately in
every nation-State.

I believe that victims of acts of terrorism are not to be treated as
mere victims of some tortuous action and given ex-post facto benefits
evolved by legal regimes in the form of "socialisation of risks."
Social guarantees for the benefit of victims of terrorism are simply
not enough. Serious consideration needs to be given to the proposal
that in terrorist-related offences, the right of the accused to remain
silent (a right given to him under most criminal justice systems)
should give way to the larger interests of society, and of victims
that are affected by the criminal acts.

In 1968, Lord Hartley Shawcross, who for many years was Britain's
Attorney General, gave evidence to a commission of inquiry set up in
Quebec, Canada, to study the administration of criminal law. In his
autobiography, he records what he said:

During evidence that extended over two days I told the commission that
I favoured the French procedure of juge d'instruction who conducts a
preliminary examination of witnesses, including the accused, whose
answers then form part of the evidence in the case.

In England judges are more or less umpires enforcing the rules of the
game, after which they throw it to the jury and ask "Howzat?: The
French juge d'instruction on the other hand is more like a scientist,
probing for the real truth.

It is time we recognise that in heinous and terrorist-related
offences, which can be suitably and precisely defined by law, what is
known as the "Right to Silence" is not really a right but a privilege,
and although every accused has a right to be presumed innocent till he
is proven guilty, in heinous and terrorist-related crimes the accused
has an obligation to assist the judge â not the prosecution, but the
judge â in the discovery of the truth. In such cases, the accused
should not have any right to remain absolutely silent and refuse to
answer questions on oath.

The accused, like any other witness knowing the facts, must tell the
Court what he knows. A presumption to be drawn from his failure to
give evidence may not be enough; it might well conflict with the
presumption of innocence, hence there should be a positive obligation
imposed by law on such a person to assist in the investigation, and if
so required by the Court (again, let me emphasise, not required by the
prosecution, but by the Court alone) to give evidence. This would not
transgress, but further the purposes of law. It would not be a
disproportionate response to the serious problem of terrorism.

There are many other causes for the current lack of public confidence
in criminal law administration.

Excerpted with permission from Penguin Books India

Excerpts from Fali S. Nariman, 2006, India's Legal system: can it be
saved?, Penguin

Blurb about the book: There are over eight lakh practising lawyers in
Indiaâafter the United States, our country has the second largest
legal profession in the world. But how are lawyers and the judicial
system in India perceived today?Â It is no secret that the very
thought of facing the courts in India leaves the common man with a
sense of dread and despair; cases drag on interminably, and justice
sometimes seems like an afterthought. Who or what is responsible for
this situation? Where have we lost our way? It is at times good to see
ourselves as others see us, and the picture is not a very flattering
one, argues Fali S. Nariman, renowned constitutional expert,
practising lawyer and president of the Bar Association of India. In
this frank and thought-provoking book he realistically appraises the
performance of those in the profession and what they need to do in the
years ahead, and addresses some home truths about our country's legal
system.
http://penguinbooksindia.com/Books/BookDetail.asp?ID=6310

National Conference on "Reinventing Indian Legal System for Achieving
Double Digit Economic Growth"
April 10, 2004, New Delhi

Inaugural Address by Hon'ble Mr Justice Rajendra Babu, Judge, Supreme
Court of India

For more than one decade, both developed and developing countries have
engaged in ambitious economic reforms programs. Justice, law and human
rights are fundamental prerequisites for economic and social
development. Economic Growth cannot be separated from the
corresponding improvement in Legal field. It is difficult to
compartmentalize the `Economic growth' or `Political advancement' or
`Social progress' or Legal improvement' from each other. There is
`development' in the general sense. At the same time it would be
misleading to talk about `Economic growth' or `Legal improvement' as
separate entities. These are all various facets of `Development' that
we are ultimately trying to achieve. It is this integrated view that
we need to develop in the present context. While talking about
`Development' one won't ask whether it is - economical, social,
political or legal. Rather it encomno space passes all. In this
perspective legal or judicial reform could be seen as contributing to
the overall development of the country. Therefore the attempt to
"reinvent Indian legal system" and "attempt to achieve double digit
economic growth" are not fragmented concepts, but are two major
contributors of the national development.

Ultimately we desire to make India a developed country. Here the role
of law is as important as that of economic growth. Therefore, if we
want to develop we need notable economic growth. And economic growth
is impossible to achieve without a vibrant legal system. For example
the `East Asian Miracle' was strongly supported by a strong legal
system in those East Asian economies. The booming of the Chinese
economy is heavily indebted to the revamping of its legal system. The
lack of a strong legal system also contributed to the recent collapse
of Argentinean economy. Such connections between the collapse of
economies and the non-active legal systems could be understood by
learning the socio-economic systems of many African and Latin American
countries. No country could achieve the status of `Developed' without
a strong legal system. Legal and judicial reform is important not only
for legal development, but also for development in other spheres, such
as economic development or political development and so on. This in
turn contributes to overall development of the country. All these are
like a thickly interwoven textile. Hence the economic growth of a
country should be at par with its judicial reforms. Then only can
overall development be achieved. We should be clear in the context of
this conference that we must look at the law locally and think about
it globally. In other words, legal standards are ones that are
normative and can be generalized, but law is necessarily a locally
developed framework. Reinventing the Indian legal system can provide
an enabling environment for achieving a double-digit economic growth.

In recent years, the interest in the role played by institutions in
shaping economic development has grown steadily. In fact, according to
some estimates countries with good institutions are twice as efficient
and grow three times as fast, in per capita terms, as countries with
poor institutional endowments. Among the institutions that most
influence economic performance, the legal and judicial systems play a
prominent role.
No matter how good is a country's legislation, it will not stand up by
itself. To be effective, laws need to be supported by well-functioning
enforcement and dispute-resolution institutions. In this way, the
courts play a central role in market economies, guaranteeing that the
rule of law in fact applies. Let me now venture to offer a few
examples of what aspects of judicial functioning influences economic
functioning.
Technological Progress : A first channel through which
well-functioning legal and judicial systems may stimulate growth is by
protecting intellectual property, and in this way fostering
technological progress and absorption. There are two different
mechanisms that could produce this result. One, less developed
countries with stringent intellectual property legislation may find it
easier to buy advanced technology from firms in industrialized
countries, whether embodied or not in capital goods. Two, by
encouraging domestic firms to invest in research and development
(R&D).

Investment: Another way well-functioning judicial systems foster
growth is by stimulating a more rapid accumulation of factors of
production. In particular, investment in both physical and human
capital will be encouraged by securing property rights,
well-functioning legal and judicial systems and political stability.
In the case of rights that depend on a grant from the State, such as
land, intellectual property and the right to explore mineral resources
or other public concessions, poor enforcement and the risk of
administrative expropriation reduce the expected value of the property
right and, therefore, the returns on new investment. Dysfunctional
judicial systems may also discourage savings and stimulate capital
flight, reducing the volume of funds available to finance investment.

Efficiency: Finally, malfunctioning judicial systems hamper growth by
stimulating an inefficient use of resources and technology, moving
countries away from their potential or best practice output. High risk
and large transaction costs move the country's price system away from
international standards mainly by distorting resource allocation.
Because if contract and property rights are properly enforced, firms
may decide not to pursue certain activities, forego the opportunity to
specialize and exploit economies of scale, mix inputs inefficiently,
not allocate production among clients and markets in the most
efficient fashion, keep resources unemployed, etc. Efficiency may also
be affected if weak judicial performance segment markets to an extent
that competition is significantly reduced.

Securing property rights against administrative expropriation: The
most oft-cited channel through which functional judicial and legal
systems stimulate growth is by protecting private property rights from
administrative expropriation. The risk of expropriation arises from
the fact that the State, as any party in a contract, has an incentive
to behave opportunistically. Also as in any contract, the risk is
higher the more specific is the investment the other party has to make
to fulfill its side of the bargain. What makes the State so special is
the monopoly of legal coercion given to it by society, which increases
its degrees of freedom to unilaterally change the terms of the
contract or not abide by them, while still not breaking the law.
Therefore, while contracts may specify clauses aimed at constraining
government opportunism, transacting with the public sector is
particularly dependent on the protection awarded by an independent
judiciary.

A key element in economic liberalization is to reduce uncertainty for
investors. Things other than courts contribute, such as policy, trust,
crafting legislation, and more. While the public may perceive the
judicial system as having a major influence at certain moments noted
by the media, it may in fact have its greatest influence when it is
not widely noticed because, that is when it is casting its influence
silently into administrative and legislative arenas, keeping officials
honest and balanced in their responsibilities. This in turn influences
investment decisions.

The economic growth of any country will greatly revolve around a
strong, healthy and effective judicial system. The innumerable delays
within our judicial system, the myriad of procedures and documents and
improperly trained judges have all resulted in ensuring that our legal
system remains a big hurdle in achieving double digit economic growth
for our country. Hence we need to analyze the role of legal and
judicial institutions in determining the pace and form of economic
development is crucial. What are the merits and flaws of different
legal and judicial systems? What are their distributive impacts? How
should legal and judicial systems be reformed in developing and
transition economies to foster economic growth? Who are the
beneficiaries and the opponents of judicial reform in these countries?
How to employ law as a tool for achieving economic growth? These are
all questions that this conference should seek to address.
The theme of this conference is "Justice in Time". In fact the modern
business is all about `timings'. And time, invariably is the essence
of the business transaction. Therefore justice in time is a
sine-qua-non of modern business transactions. The oft-repeated phrases
"Justice delayed is justice denied" and "Justice hurried is justice
buried" may sound cliched, but the true challenge even today before
the legal fraternity is to strike the right balance between the two.
In this context our aim should be to ensure "quick dispensation of
Justice without being hasty".

A variety of suggestions have been offered on the issue ranging from
increasing the number of judges, to limiting the right to appeal and
to setting up of more specialized courts etc. Specialized courts for
adjudicating bankruptcies, labor relations disputes, tax cases, or
other commercial matters are usually high on the list of priorities
when we think about creating the institutional infrastructure for a
market economy. These courts have gained favor in the United States in
the past 50 years and have a longer history in some parts of Europe.

Therefore, in my view we could concentrate in establishing Specialized
courts for adjudicating commercial or economic disputes. Specialized
courts have several distinguishing characteristics. They are subject
matter specific- that is , judges handle only certain kinds of cases.
They usually follow streamlined rules of procedure to speed up
hearings and increase accessibility. They shorten the appeals process,
and they may or may not permit appeals to courts of general
jurisdiction. Often, but not always, they recruit through attractive
terms of service especially high-caliber judges who are experts in
their fields. These characteristics offer several theoretical
advantages.

Subject-matter specialization can reduce delay and improve the quality
of decisions. Judges who hear the same types of cases day in and day
out come to recognize fact patterns and issues more quickly and
accurately than those who encounter cases only occasionally. As a
result they can control the lawyers more easily, see possibilities for
settlement, and write better decisions. Their chance to see trends may
also put them in a better position to develop the law to suit evolving
conditions than judges who see a mix of cases.
Streamlined procedures reduce the time and money parties spend on
litigation. It may lower barriers to the use of courts by making
filing easier and by clarifying what litigants need to do to prepare
their cases.
Similarly, a shortened appeals process blocks the tactical use of the
courts by parties to a dispute. It makes endless appeals to postpone
payments or to harass litigants difficult. And using the appeals
process to shift costs under conditions of high inflation or deflation
becomes less feasible.

The ability to attract high-caliber judges through attractive terms of
service tends to improve the quality of judgments and discourage
corruption. It is sometimes argued that the temptation to accept
bribes increases with the difference between the perceived adequacy of
compensation and the amounts in controversy in the cases that come
before the court. If so, giving high compensation or other benefits to
judges who handle disputes in which large amounts of money are at
stake theoretically may help make these courts "good governance
zones."

I only want to provoke a line of thinking by advancing the idea of
Specialized Business Courts in the larger context of delineating the
role of legal system in economic growth. There is persuasive evidence
that well-functioning judicial systems foster economic growth. By
securing property and contract rights, reducing policy instability and
curbing administrative expropriation, impartial, timely and
predictable judiciaries stimulate investment, efficiency and
technological progress.

I am positive that the aspects that I have focused on and many others
will be discussed and analysed in the following business sessions. I
am glad that this conference is a step towards achieving a steady
double-digit economic growth by improving and strengthening our legal
system. I also applaud the Federation of Indian Chambers of Commerce
and Industry and the Bar Association of India for organizing this
Conference. I wish this conference every success.
Thank you.
http://www.ficci.com/media-room/speeches-p...ustice-inug.htm

National Conference on "Reinventing Indian Legal System for Achieving
Double Digit Economic Growth"
April 10, 2004, New Delhi

Speech by Dr N.M. Ghatate, Vice-Chairman, Law Commission of India

Speedy justice has been declared a fundamental right by the Supreme
Court over 25 years back. It still remains a far cry. Direct
consequence of which is loss in the confidence in legal system which
in turn has resulted in increase in crime rate because criminals know
they can get away and even honest men are compelled to resort to
extra-legal way to redress their grievance.

Various proposals to tackle the problem of judicial arrears and delay
have been tried such as to ease the work-load of the courts by
establishing specialized tribunals; increasing the manpower of
judiciary, increasing the number of courts, simplifying the procedural
laws and cutting down appeals. However, the problem continues and the
society suffers. The public has right to know who is responsible
whether it is the judiciary, the executive or the legislature? The
judiciary faults the executive for not providing judicial manpower and
court in proportion to population. This justification is valid only to
a certain extent.

Adjudication is not like essential services like water, health-care
which have direct nexus with population. And this argument tends to
make the executive and legislature primarily responsible for the
arrears which is not correct. Legal community, which includes judges
and lawyers, also has a a responsibility to tackle this problem after
all reason de atre for their existence is justice to the litigant
public in civil cases and to society in criminal cases. The Supreme
Court has interpreted Articles 124 and 217 of the Constitution in
Advocates on Records case decided in 1993 that it will have primacy in
appointing judges. The correctness of this judgement is outside the
scope of this article. But having taken over this power, it invariably
follows a duty on the Supreme Court that there are no vacancies. It
knows well in advance when a particular judge will retire and vacancy
will arise. Therefore, the recommendations of persons to be appointed
as judge should reach the government well in advance. As of today the
total strength of judges in High Court is 669 out of which there are
163 vacancies which come to more than 25%. The total strength of
judges in Supreme Court is 26, there are two vacancies. I understand
that the government has been asking the judiciary to send the names
again and again. Why aren't the names sent. If recommendation to fill
the vacancies are not sent in time, and therefore vacancies are not
filled and delay occurs in disposing of cases who is responsible?
Since the date of occurrence of vacancy is known years before, the
practice of submitting the names and appointment should be over well
before the vacancy occurs so that each court works full sanctioned
strength at all times. However, this is only a part of the problem of
delayed justice.

The other method, which is no less important to solve this problem of
delay and arrears in we should have performance assessment or audit,
of work-load of court as well as individual judges and advocates on
the basis of statistical data. This is now possible with
computerization. This data should include details such as about the
number of cases disposed by each judge, names of judges who heard and
lawyers who appeared in the case; adjournments granted with names of
advocates and judges, time taken to decide the case, time lag between
judgement and the conclusion of hearing, legislation under which cause
of action is evoked or is appealed; what was the result and defect
pointed out and suggestions made to amend laws by the judiciary. Such
a data base will provide basis for assessing the efficiency of judges
and the advocates and the impact of laws in generating litigation. It
will also facilitate mapping the judicial activity subject-wise,
Act-wise as well as judge and lawyer-wise. It will also help
legislature to amend laws to plug loopholes and take remedial actions
to control litigation.

Such data base will also facilitate monitoring progress of pending
cases and help Chief Justices to find bottlenecks and take action in
management of cases and enables him to assess the quality and
performance of the judges and the bar on the basis of facts and
figures.

Publication of such statistics will increase the judicial efficiency
as found in the U.S.A and Britain. The American and the British courts
annually publish such reports. This has not only helped in reducing
delays but has also made legal system more transparent and thereby
more efficient and accountable to the people. It will also enhance the
image of the judiciary in the public eye.

Unfortunately, our judiciary is reluctant to part with even simple
statistics available with them. For example, pursuant to a
Parliamentary question about the time lag between conclusion of
hearings and delivery of judgements and number of cases decided by
judges in the High Courts, the government asked for information and
about the number of judgements delayed over a period of one year. One
High Court replied that it would infringe its autonomy to furnish such
information. How? When it has direct relation with the delay. There
has been instance when some judges took more than two years to deliver
judgement. Also there are cases when judges having heard the case
retired without delivering judgement. As a result there had to be
fresh round of hearing causing unavoidable delay but also expense to
litigants. There was a case when one Chief Justice did not deliver a
single judgement during his entire tenure. Independence of judiciary
does not mean unaccountability. In a democratic system every
institution is accountable to people â the ultimate sovereign.
Judiciary and lawyers exist for litigants and general public. In the
circumstances, there is an urgent need to have a law providing for
collection and publication of judicial statistics. This will not only
help in better management of courts and pinpoint cause of delays and
take effective measures to tackle the problem of arrears. It will also
in turn increase the efficiency of courts and lawyers and thereby
improve the image of our legal system.

These suggestions will help in speedy justice, which as mentioned
earlier, is the command of Constitution under Article 21 â which is
the soul of Fundamental Rights and therefore binding on all the arms
of the state.
http://www.ficci.com/media-room/speeches-p...ice-ghatate.htm

JUDICIAL REFORM
Protect integrity, independence
Fali S. Nariman (Sept. 24, 2005)
Like old clocks, our judicial institutions need to be oiled, wound up
and set to true time.
â Lord Woolf, Lord Chief Justice of England
â
ARMED with a written Constitution our proud boast in India is that we
are a nation governed by laws, and not by men. But this is only true
in theory: the law is ultimately what the judges of the final court
say it is.
The reach of India's highest court is all-pervasive. The Supreme Court
sits in final judgment over the decisions not only of the high courts
in the states (there are 18 high courts for 28 states and Union
Territories), but also tribunals, (Central and State) functioning
throughout India; there are literally hundreds of them. And the law
declared by the Supreme Court, including its pronouncements on the
validity of enacted law, is binding (under the Constitution) on all
other courts and authorities in the country.

There is virtually no area of legislative or executive activity which
is beyond the highest court's scrutiny. Its writ extends to all two
million square miles of Indian territory, and over its (now) one
billion inhabitants. Empowering itself with the trappings of modern
technology, India's Supreme Court has been performing a stupendous
task with considerable distinction. But what of the future?

Public confidence
First, and always foremost, the judiciary as an institution needs to
preserve its independence, and to do this it must strive to maintain
the confidence of the public in the established courts. Independence
of judges is best safeguarded by the judges themselves â through
institutions and organisations that the law empowers them to set up,
to preserve the image of an incorruptible higher judiciary that would
command the respect of all right-thinking people.

In the United States, under the Judicial Councils Act, 1980, this task
has been gladly undertaken by the judges. But regrettably, so far,
there is no law in India to guide our judges, though there is a felt
need for one. The 1980 US Act confers powers on bodies constituted of
judges to take such action against a federal judge "as is appropriate,
short of removal." Under this law, a committee of fellow judges had
recently investigated complaints against a Federal District Judge,
John McBryde.

The Judicial Council had reprimanded him and suspended him from
hearing new cases for a year. McBryde argued that the 1980 law
violated the judicial independence which the US Constitution had
guaranteed to life-tenured federal judges. He said that it also
interfered with the mechanism of Congressional impeachment that the US
Constitution had established for removing judges. A one-year
suspension from hearing new cases, (he argued), was nothing but a
"temporary impeachment". But a US Court of Appeals rejected all these
pleas. And a petition for certiorari was denied by the US Supreme
Court: it accepted the argument of the Solicitor-General that judicial
independence, protected by Article III of the US Constitution, was
meant "to insulate judges from interference from other branches of
government â not from oversight by other judges". An American judge
once famously said: "some things will sometimes go wrong â in the
judiciary".

In India in recent times, some things have gone wrong. And citizens
need reassurance of a system of judicial accountability â a remedial
mechanism which will protect the higher judiciary from some of its own
members who have gone astray. Such reassurance can only be provided by
enacting a law on the lines of the American model.

Other aspects of judicial reform are not lacking for want of ideas. We
have been overwhelmed with innumerable reports of Law Commissions
(nearly 200 of them!) on all aspects of judicial governance. And a
bench of three Justices of the Supreme Court (through a judgment
delivered by its Seniormost Puisne Judge on August 2, 2005) has drawn
up a fine blue-print on case-management, on how to make recent
amendments in our procedural laws work on the ground, and how to get
more cases moving along in three different tracks: Fast Track, Normal
Track and Slow Track.

The Justices have requested the high courts to implement this
blue-print â they could not direct the high courts to do so because
under our constitutional scheme the latter are autonomous
constitutional bodies not subject to administrative directions of the
Supreme Court. But it is in the high courts that there are the largest
number of roadblocks and delays; in their administrative functioning
the high courts are answerable to no one but themselves. This often
enables the Supreme Court to plead helplessness: not a good augury for
integrated court-management. It is time that the Supreme Court is
entrusted with direct responsibility for the functioning of the high
courts: only then can the highest court be an effective apex court,
only then can the Supreme Court be made answerable (as it should be)
for judicial governance for the entire country.

Set standards
Judicial governance means that judges who are constitutionally
entrusted with the responsibility of protecting the rights of citizens
must also be seen to be persons of rectitude. They must make annual
financial disclosure statements, not privately to their respective
chief justices, but publicly. This is done by justices of the Supreme
Court in the world's oldest democracy, (the USA) and it is appropriate
that such disclosure statements of its judges be also published in the
world's most populous democracy (India). In this land of The
Bhagvadagita which says: "Whatsoever great men doeth, that other men
also do; the standard they set up, by that the people go", judges must
set an example for ministers, parliamentarians and higher officials of
government to follow.

And what about the law's delays? In a three-tier, precedent-bound
system like ours cases go on far too long; and one of the primary
reasons is too much time spent by lawyers citing case-law. Over the
years, our law reports are filled with some useful, and many
not-so-useful decisions. The Americans had the same problem but the
surfeit of judicial opinions in the United States is now kept strictly
under control by a simple judicial device known as "un-publication of
opinions". "Un-publication" means that an opinion, (or judgment)
because it is restricted to the facts of the case is (judicially)
designated not fit for publication in the official law reports, and
when this is put out on the website as an "un-published" opinion, it
just cannot be cited in court. This has proved most effective: the
rate of un-published opinions of federal courts in the United States
is presently around 80 per cent! To introduce this system in India
will require much spade work; thousands of judgments will have to be
scanned and declared "un-published"; but it will be worth the effort.
It will help reduce the law's interminable delays.

Next, take the business of judging â everyone knows that it is not
easy. Judging, like lawyering, is a technique â it requires experience
and expertise. And the most important, and yet the most deficient
aspect, in the judging of cases â in many of our High Courts today â
is the lack of will on the part of some of its judges to push cases
along towards either a speedy settlement or a speedy resolution. The
judge in India â unlike the modern judge in England and in the US â
still functions like an umpire in a cricket match: he will not declare
you out until either side makes an appeal.

Pushing cases can be unpopular. But once the bar recognises that a
particular judge sitting in a particular courtroom has made up his
mind to go through his list, and will not countenance lawyer's pleas
for adjournments, the bar in turn takes note, and cases somehow get
decided more effectively and in a more satisfactory manner than in
other courts. Why? Not because the judge sitting in that courtroom is
necessarily a person of greater erudition than the one sitting in the
next â but simply because he or she never forget the she when speaking
about judges) is practical and pragmatic, and gently but firmly moves
cases along towards a conclusion, disregarding what the lawyers may
want.

Fear of costs
And then, one outstanding failing in our system of judicial governance
is that although mandated by law, costs hardly ever follow the event.
The fear of costs is what the courts must instil into the dilatory and
speculative litigant including, I would plead on the litigant who
undertakes a PIL (public interest litigation). Projects and programmes
devised by popularly elected governments are held up for years in the
high courts (and in the Supreme Court) at the instance of persons who
have no direct interest, but on some suspicion of corruption or the
like â and when at the end of a tortuous judicial process such PILs
are ultimately dismissed, the loss in economic terms to the community
at large is never compensated. In India there is hardly any court
decision where costs are made to follow the event.

Then, take the problem of vacancies of judges in the superior
judiciary â they keep piling up. An action plan to prevent this is not
one which requires a high degree of sophistication or planning. It
requires only some elementary co-ordination between the Justice
Ministry and chief justices: of high courts and of the Supreme Court.
We all know that judges in high courts retire at 62 and in the Supreme
Court at 65. So there need be no unfilled positions: dates of birth
are recorded, and anticipated vacancies can always be filled in time;
if there is the will to do so.

And the imbalance in the retirement age of judges of high courts and
of the Supreme Court should have been rectified years ago. The ages of
retirement of all members of the higher judiciary â whether a judge of
the Supreme Court or of a high court â must be uniform, if only to
prevent the degrading spectacle of judges, when they reach 61,
anxiously looking upwards, waiting to be picked up and moved to the
highest court â and so gaining three more years on the bench. So what
do they do? Some (not many, I am proud to say), only some, take to
sycophancy, and since (as a Harvard Law Professor once told me) "great
men enjoy the genuflections of other men", flattery does help,
sometimes!

The present woeful method of selection of members of the higher
judiciary by the judges themselves, can only be remedied by
Parliament, since it has been mandated by judicial diktat, not by the
Constitution or by law. Judges of the high court and the Supreme Court
can be trusted to decide cases that come before them â but they cannot
be trusted to make absolutely binding recommendations for appointments
to the higher judiciary.

Exemplary discipline
In the end, reform is not merely about cases and the speed with which
they are decided. The judiciary of the 21st century needs to set an
example in exemplary self-discipline: discipline in its approach to
legal, and more often, political-cum-legal, problems that fall in its
lap. There is also need for greater transparency in the lifestyle of
the justices, and an abiding tolerance of public criticism. Litigants
no longer accept judge's decisions as they used to in the past. The
mystique of the judiciary â the "awesome Majesty of the Law" as it
used to be called â is no longer a sufficient protection. The job has
become harder. Judges are seen less as the impersonal agents of a
system and regarded more as human beings responsible for the failure
of the losing party; the attacks have shifted from the ball to the
player! Hence the need for ethics â and some guidelines from the top,
which "the top" too must scrupulously observe!

In a country like ours, and in times like these, it is not enough for
the judiciary to be independent of the executive and of all other
external influences. The Judges, because of the high office they hold
and the plenitude of powers they exercise, must be seen to have
qualities of excellence â of mind and of heart. Above all they must be
men and women of courage. Nobility and courage in the highest court
begets nobility and courage all down the line. In this country the
judiciary because of its prime importance needs both the Biblical
exhortation, and the Biblical warning that follows it: Ye are the salt
of the earth; but if the salt loses its savour wherewith shall it be
salted"?

â The writer is an eminent jurist and a Member of Parliament.
http://www.tribuneindia.com/2005/specials/...e_125/main4.htm

Law, Lawyers, Judiciary - Guest - 08-13-2006

Mass delay on an unimaginable scale

Law, Lawyers, Judiciary - Guest - 08-17-2006

<img src='style_emoticons/<#EMO_DIR#>/b_cowboy.gif' border='0' style='vertical-align:middle' alt='b_cowboy.gif' /> Kalam should not sign Office of Profit Bill
by N.H. Hingorani

THE controversial Office of Profit Bill, without any modification or removal of the objections indicated by President Abdul Kalam in his message to Parliament, was introduced in the Rajya Sabha on July 25, 2006. The Bill, which has been now passed by the Lok Sabha and Rajya Sabha, and is awaiting Presidential assent, would adversely affect the dignity of the office of the President.

While the legalisation, with retrospective effect from April 4, 1959, of the disqualification incurred or likely to be incurred by the holders of Office of Profit currently discharging executive, judicial and legislative powers, may be politically expedient to the stability of UPA Government, it is constitutionally incorrect.

Now, can the President withhold his assent to the unmodified controversial Bill presented to him again by Parliament? After all, Article 111 provides that if the Bill is reconsidered and passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent thereon. But then, such provision must be read along with other constitutional provisions.

Article 361 mandates that the President shall not be answerable to any Court for the exercise and performance of the powers and duties of his office. The reason is obvious. The President is, under Article 74(1), to act on the advice of his Council of Ministers. However, under Article 60, the President swears to âpreserve, protect and defend the Constitution and the lawâ. Article 61 provides a sanction against the violation of the Constitution by the President by impeachment. Such provisions lead to the inescapable conclusion that there is a sphere of Presidentâs activity or function for which he is personally responsible.

Let us consider the situation when the President is required by the Council of Ministers to do an act which, in the opinion of the President, is violative of the Constitution. The obvious proposition is the President can refuse to do such act. Let me explain by referring to the example given by the well known constitutional authority H.M. Seervai.

Article 85 of the Constitution provides that the President shall, from time to time, summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session. If the Council of Ministers advises the President to call the next session after a year, by which time the Ministry hopes to overcome its political difficulties, it is the duty of the President, consistent with his obligation under Article 60, to disregard such advice and call a session of the two Houses as required by Article 85 (1) of the Constitution.

Coming back to the Office of Profit Bill, the giving of assent or withholding of the assent by the President is anyway a part of the legislative process distinct from exercise of any of his executive power. The President is not bound by the advice of the Council of Ministers if such advice compels him to violate the Constitution or where the competence of Parliament to pass such a Bill is itself in doubt. Rather, it is the constitutional obligation of the President to withhold his assent to the controversial unmodified Bill in order to âprotect and defend the Constitutionâ should he believe that the Bill is constitutionally invalid.

In the prevailing situation, it is imperative to have an authoritative decision of the Supreme Court or its opinion on a Presidential reference under Article 143 of the Constitution on the constitutional validity of the controversial Bill, so as to prevent break down of the constitutional machinery.

The writer is a senior advocate, Supreme Court of India.

Law, Lawyers, Judiciary - Guest - 08-17-2006

<img src='style_emoticons/<#EMO_DIR#>/specool.gif' border='0' style='vertical-align:middle' alt='specool.gif' /> BJP supports JPC on office of profit
[ 17 Aug, 2006 1853hrs ISTPTI ]

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NEW DELHI: The main Opposition BJP on Thursday supported the idea of setting up a joint parliamentary committee to define what constitutes an office of profit, but suggested MPs holding other posts should quit them until the panel gives its report.

BJP Parliamentary Party spokesman Vijay Kumar Malhotra insisted a JPC in this regard vindicated his party's stand that there has to be a clear definition of what qualifies to be an office of profit.

"The parliamentary panel should aim to address concerns raised by the President (while he declined his assent in May to the office-of-profit legislation) and set out uniform standards and definition for what constitutes and office of profit across the country," he told reporters here.

The BJP leader maintained that his party favoured granting what he called one-time amnesty to lawmakers whose legislative positions have been challenged because they hold other posts with benefits.

Malhotra, whose party and its NDA allies had suggested President APJ Abdul Kalam seek legal advice over having opinion of the Supreme Court on the office-of-profit Bill passed in its original form again, said MPs holding additional posts should quit them for now.

"Let them (lawmakers) quit the additional posts they are holding. And if the JPC concludes that the posts they had been holding do not qualify as offices of profit, they can have them back," he remarked.

In separate comments, Malhotra attacked the Left over West Bengal's "clean chit" to Coca Cola and Pepsi in the state. "This shows contradictions within the communists who have banned the soft drinks in Kerala, but have found them safe for people of West Bengal," he said.

Law, Lawyers, Judiciary - Guest - 08-29-2006

<!--emo& Tongue

--><img src='style_emoticons/<#EMO_DIR#>/tongue.gif' border='0' style='vertical-align:middle' alt='tongue.gif' />
Bull's Eye 
In effect, the Prez signed a Bill which he himself thought legally questionable. If a petition against the law is now upheld by the Supreme Court to render it unconstitutional, will he resign?

RAJINDER PURI

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Will President A.P.J. Abdul Kalam get egg on his face? Once earlier he did. He signed the Bihar Ordinance which was later judged unconstitutional. He failed, thereby, to honour his oath of office to protect the Constitution. According to healthy democratic norms, he should have resigned. But there were extenuating circumstances. The cabinet interrupted his foreign visit with alarm bells of an impending crisis. So the President signed it actually while in Moscow.
Once bitten, twice shy. Or so it seemed at first. Jaya Bachchan was expelled from Parliament for holding an office of profit. Sonia Gandhi, anticipating trouble, quit Parliament and all offices of profit she held. Both returned to Parliament after re-election. All this while, MPs watched events with amusement. Suddenly, many MPs were threatened. They quickly passed the Office of Profit Bill which retrospectively exonerated them. Fifty-six offices of profit were legitimised.

The President was applauded for returning the Bill without signing it. He sought clarifications. In its present form he deemed the Bill legally questionable. Meanwhile, the MPs were nervous. The Election Commission could expel them before the hasty law to protect them was passed. They immediately returned the Bill without any alteration for the President to sign. Under the Constitution, the President had to sign the Bill returned by Parliament but there was no time limit for him to do so. For nine days, the President waited, refusing to sign.

In an unprecedented move, the PM met him and urged him to sign the Bill. The President held back. Parliament then appointed a Joint Parliamentary Committee (JPC) to address the Presidentâs specific concerns about the Bill in its present shape. The situation became clear. Parliament itself, by implication, had admitted that the Bill in its present shape was dead unless recommendations of the JPC were incorporated. The JPC was to submit its report by the end of the next winter session of Parliament. That was more than sufficient time for the Election Commission to expel over 40 MPs attracting the existing law on office of profit.

Then, inexplicably, the President signed the existing unaltered Office of Profit Bill to make it law. All MPs under threat were let off the hook. Political observers were stunned. But nobody dared criticise the President. In effect, he signed a Bill which he himself thought legally questionable. If a petition against the law is now upheld by the Supreme Court to render it unconstitutional, will the President resign?

--------------------------------------------------------------------------------

(Puri can be reached at rajinderpuri2000@yahoo.com)

Law, Lawyers, Judiciary - Guest - 08-30-2006

<img src='style_emoticons/<#EMO_DIR#>/thumbup.gif' border='0' style='vertical-align:middle' alt='thumbup.gif' /> Govtâs slip-road legislations under SC watch

Satya Prakash

New Delhi, August 30, 2006

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Does Parliament have the power to place a law which circumvents a court order under the Ninth Schedule of the Constitution to prevent judicial review? Faced with this question, the Supreme Court on Wednesday decided to set up a nine-judge Constitution Bench to examine the issue.

A bench headed by Chief Justice YK Sabharwal gave the order on a bunch of petitions challenging the constitutional validity of several state laws brought under the Ninth Schedule by separate Acts passed by Parliament. The bench asked all the parties to submit their written submissions by September 27 and fixed October 9-13 for the hearing of the case.

The court will examine the legislative competence of Parliament to pass laws that circumvent its verdicts and put the same under the Ninth Schedule to prevent judicial review. A ruling in the case will have a bearing on several laws enacted by Parliament, including the one putting a one-year moratorium on demolitions and sealing of unauthorised property in Delhi.

Quota laws too may be affected. One of the important laws under challenge is the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in educational institutions and of appointment or posts in services under the state) Act 1994 â which provides 69 per cent reservation in that state. The law was passed immediately after the Supreme Court verdict in the Mandal case which put a ceiling of 50 per cent on reservation in jobs.

Law, Lawyers, Judiciary - Guest - 09-11-2006

<img src='style_emoticons/<#EMO_DIR#>/argue.gif' border='0' style='vertical-align:middle' alt='argue.gif' /> CJI attacked in '75, appeal still pending in HC
Dhananjay Mahapatra
[ 11 Sep, 2006 0138hrs ISTTIMES NEWS NETWORK ]

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The three convicts promptly filed appeals in the Delhi HC challenging their conviction. The HC, since then, is hearing the appeals.

The trial in the murder case against the three is still going on in the Patiala House courts, to where the case was transferred from Samastipur on the orders of the SC in December 1979.

The accused, their families and the witnesses, going through the rigours of the slow-paced trial, are the worst sufferers. And after 30 years of trail their mental condition can well be imagined.

M L Lahoty was a junior advocate when he started appearing in this case with illustrious seniors like Rajinder Singh and Ram Jethmalani. After 31 years, he himself has been designated as a senior advocate but feels shy to say how each time he come back with another date.

The slow proceedings in the L N Mishra murder trial have even echoed in Parliament. Participating in a debate in 2002, Jethmalani as an MP said: "In 1975, L N Mishra was murdered. The case is still going on in the trial court. Who can have respect for this kind of system?"
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