Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.
Judiciary & government
The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”
It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).
Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.
Unheeded lessons from the past
It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.
What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.
Importance of propriety
In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.
For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.
The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.
(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)
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- Supreme Court seeks balance between fair trial and press freedom (indialawyers.wordpress.com)
NATIONAL LEGAL RESEARCH DESK
The Union Cabinet today approved the introduction of a Bill in the Budget Session of Parliament to amend the Registration of Births and Deaths Act, 1969 to include registration of marriages as well, so that the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.
The Cabinet also approved introducing a Bill in Parliament to further amend the Anand Marriage Act, 1909 to provide for registration of marriages under the Act.
The proposed Bills will be beneficial for the women from unnecessary harassment in matrimonial and maintenance cases. It will also provide evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage.
The Hon`ble Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized and inter alia directing that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.
The Committee on Empowerment of Women (2006-2007) in its Twelfth Report (Fourteenth Lok Sabha) on “Plight of Indian Women deserted by Indian husbands” has viewed that all marriages, irrespective of religion should be compulsorily registered and desired that the Government to make registration of all marriages mandatory, making the procedure simpler, affordable and accessible.
The 18th Law Commission of India in its 205th Report titled” Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” vide paragraph (iv) recommending that “registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government”.
The 18th Law Commission of India further in its 211th Report titled “Laws on Registration of Marriage and Divorce- A proposal for consolidation and Reform”, recommending for a Parliamentary Legislation on Compulsory Registration of Marriages by enacting of a “Marriage and Divorce Registration Act” which may be made applicable to the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions”.
The Registration of Births and Deaths Act, 1969 (18 of 1969) is an Act to provide for the regulation of registration of births and deaths and for the matters connected therewith. Accordingly, provisions have already been provided in the said Act for Registration establishment consisting of Registrar-General, Chief Registrar and Registration Division, District Registrars and Registrars. Further, procedures for registration of births and death and for maintenance of records and statistics are provided for in the said Act. Also, by virtue of the powers conferred under section 30 thereof, rules for compulsory registration of births and deaths have been framed by all the State Governments and Union territory Administrations. Therefore, if the said Act is suitably amended to include registration of marriages as well, then the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.
The registration of marriages of the parties under the proposed amendment would not affect any right recognized or acquired by any party to marriage under any law, custom or usage.
PUBLISHED IN THE BAR AND BENCH
The Constitution of India was adopted by the Constituent Assembly on “November 26”, 1949. Thirty years after, under the leadership of Dr. L. M. Singhvi, the Supreme Court Bar Association declared November 26th as the National Law Day. Thereafter, every year, this day is celebrated as the Law Day, all over India, especially by members of the legal fraternity. This day is celebrated to honour the 207 eminent members of the Constituent Assembly who are considered the founding fathers of the Constitution of India.
Shri M. N. Krishnamani, President, Supreme Court Bar Association, on a Law Day address said that the main objective of celebrating Law Day is, “We want to be a coherent democracy governed by the rule of law. In fact, true democracy and the rule of law always go together. It is the rule of law which guards the democratic polity. Therefore, the real purpose of celebrating Law Day is to rededicate ourselves to the following cardinal principles which formed the solid foundation on which this grand constitutional edifice is erected: (i) the rule of law, (ii) independence of the Judiciary, and (iii) the independence of legal profession. These three principles are intimately interconnected. The main purpose of independent judiciary and an independent bar is only to ensure that there is the rule of law.”
Law Day is an important day for the members of legal profession in India and also for the people of India. Lawyers and the Indian judiciary have time and again been the last resort of protecting rights and liberties of individuals. It is a special day we all should celebrate and recognize those who have played active role in upholding the rule of law and protected our rights and liberties.
On this day we would like to recognize two legal luminaries who have played an important role in promoting the spirit of our Constitution through their judgments, Justice B. Sudershan Reddy and Justice G. S. Singhvi. While the former retired recently on July 7, 2011, the latter continues to serve and is scheduled to retire on December 12, 2013. The Indian Supreme Court recently pronounced some path breaking decisions. It is interesting to note that at least one of the two above mentioned judges have been a part of the bench which has delivered such eye-opening judgments.
In Ram Jethmalani & Ors vs. Union of India & Ors, Justice Reddy criticised the Union government, strongly, for loosening its strings when it came to investigation of black money related cases and asked the government to tighten its grip over perpetrators of such crimes. He reiterated his point by constituting a Special Investigation Team (SIT) to monitor the investigation and the steps being taken to bring back black money stashed away in foreign banks. Also, Pune-based businessman Hasan Ali Khan’s bail plea was stayed and he was made available for custodial interrogation only because of the earlier directions issued by Justice Reddy .
In the Salwa Judum case, Justice Reddy came down heavily on the Chattisgarh government and the Centre for appointing tribals as Special Police Officers (SPOs) and training them to counter Maoists and held the action to be “unconstitutional” by highlighting the importance of human rights.
In 2008, he was also a part of the bench which laid down the guidelines for dealing with Public Interest Litigation, based on which the government is, presently considering a Bill. He reiterated that the High Court judges could not order suo motu investigation merely by treating anonymous letters and petitions listing allegations against individuals or institutions as PILs.
The fight for relevance of PILs has gained momentum again this year, due to Justice Singhvi’s judgment in Delhi Jal Board Appellant v/s National Campaign for Dignity and Rights of Sewerage and Allied Workers & others. The bench, in the above mentioned case, stated that it would be denial of justice if the courts denied addressing the genuine petitions filed by individuals, social workers and NGOs. The Court reminded that it is the duty of the judicial constituents of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity.
While dealing with Justice Dinakaran’s petition, the Apex Court, comprising of a bench of which Justice Singhvi was a part of, refused to be bogged down by the delay tactics used by Justice Dinakaran. It ruled that former Sikkim High Court Chief Justice, Justice Dinakaran’s known silence with regard to P. P. Rao’s appointment to the Rajya Sabha Committee for a period of almost ten months, militates against the bona fides of his objection to the appointment of P. P. Rao as member of the Committee. As a result of this decision Justice Dinakaran had to resign to save his face from an impeachment proceeding.
Further, it was Justice Singhvi’s(pictured) order in the 2G case which asked the Central Bureau of Investigation to conduct investigation without being influenced by politicians or other influential persons, which finally led to the numerous charges, arrests and trials against the elite class of influential people who were involved in the scam. If not for his order, trial of this scam may have gone on for years without any ultimate result due to overreaching hands of corruption. This shows that Justice Singhvi is unperturbed by who is the government in the Centre and believes in only doing his job and upholding the values and goals of our Constitution.
While hearing a public suit by the All India Drug Action Network of several NGOs which challenged the government’s proposed policy on drug pricing, a bench comprising of Justice Singhvi and Justice S. J. Mukhopadhaya communicated to the central government that the prices of medicine should not shoot up further as the prices of medicine and ordinary lab tests were already too high.
On last Wednesday, a division bench of the Supreme Court, comprising of Justices Singhvi and H. L. Dattu granted bail to seven corporate accused in the 2G scam case, who had been in jail even after the charge sheet was filed and the investigation was complete. Justice Singhvi has played a balanced role here. This decision brings an end to the present trend of keeping under-trials in custody for prolonged period of time without any rational justification. While his initial order in the 2G scam paved way for the arrests and a proper investigation, the present order upheld the rights of the accused envisaged under our Constitution and other laws.
The aforementioned judgments of Justice Reddy and Justice Singhvi evidence the fact that the sacrosanct principles which have been envisaged in our diverse and elaborate Constitution by our founders are in the hands of sound judges. Their judgments have acted as eye-openers for not only the state and central government but also for the citizens of India. In an era, where the Judiciary is embroiled in controversies, these two eminent judges have continuously delivered such judgments which have upheld the values imbibed in the Constitution. On this special day, we salute you.
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Draft Real Estate (Regulation & Development) Bill, 2011, Draft Model Property Rights to Slum Dwellers Act, 2011 and Central Legislation for Street Vendors
Ministry of Housing & Urban Poverty Alleviation notified the `Draft Real Estate (Regulation & Development) Bill, 2011`, The Draft Model Property Rights to Slum Dwellers Act, 2011` and Central Legislation for Street Vendors at a Press Conference in New Delhi.
I. Draft Real Estate (Regulation & Development) Bill, 2011
The Draft Real Estate (Regulation & Development) Bill, 2011 seeks to establish a regulatory oversight mechanism to enforce disclosure, fair practice and accountability norms in the real estate sector, and to provide adjudication machinery for speedy dispute redressal. This Act is in pursuance of the powers of Parliament to make laws on matters enumerated in the Concurrent List namely, transfer of property other than agricultural land; registration of deeds and documents, and contracts including partnerships, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land. The Bill aims at restoring confidence of the general public in the real estate sector; by instituting transparency and accountability in real estate and housing transactions. Currently, the real estate and housing sector is largely unregulated and opaque, with consumers often unable to procure complete information, or enforce accountability against builders and developers in the absence of effective regulation. The sector, in recent years, has also emerged as a source of black money and corruptions in the economy. The Bill is expected to ensure greater accountability towards consumers, bring transparency and fairness in transactions and reduce frauds and delays significantly. All of these factors would make sizable dent in the corruption in this sector.
The Bill is also expected to promote regulated and orderly growth through efficiency, professionalism and standardization. It seeks to ensure consumer protection, without adding another stage in the procedure for sanctions.
The salient features of the Draft Real Estate (Regulation & Development) Bill are:
- Establishment of a ‘Real Estate Regulatory Authority’ in each State by the Appropriate Government (Centre for the UTs and State Governments in the case of the States), with specified functions, powers, and responsibilities to facilitate the orderly and planned growth of the sector;
- Mandatory registration of developers / builders, who intend to sell any immovable property, with the Real Estate Regulatory Authority as a system of accreditation;
- Mandatory public disclosure norms for all registered developers, including details of developer, project, land status , statutory approvals and contractual obligations;
- Obligations of promoters to adhere to approved plans and project specifications, and to refund moneys in cases of default;
- Obligation of allottee to make necessary payments and other charges agreed to under the agreement and payment of interest in case of any delay;
- Provision to compulsorily deposit a portion of funds received from the allottees in a separate bank account, to be used for that real estate project only;
- The Authority to act as the nodal agency to co-ordinate efforts regarding development of the real estate sector and render necessary advice to the appropriate Government to ensure the growth and promotion of a transparent, efficient and competitive real estate sector; as also establish dispute resolution mechanisms for settling disputes between promoters and allottees/ buyers;
- Authorities to comprise of one Chairperson and not less than two members having adequate knowledge and experience of the sector;
- Establishment of a ‘Real Estate Appellate Tribunal’ by the Central Government to hear appeals from the orders of the Authority and to adjudicate on disputes. Tribunal to be headed by a sitting or retired Judge of Supreme Court or Chief Justice of High Court with 4 judicial and at-least 4 administrative/technical members;
- Chairperson of the Tribunal to have powers to constitute Benches, for exercising powers of the Tribunal;
- Establishment of a Central Advisory Council to advise the Central Government on matters concerning implementation of the Act.
- Council to make recommendations on major questions of policy, protection of consumer interest and to foster growth and development of the real estate sector;
- Penal provisions to ensure compliance with orders of the Authority and Tribunal;
- Jurisdiction of Civil Courts barred on matters which the Authority or the Tribunal is empowered to determine;
- Both Centre and States to have powers to make rules over subjects specified in the Bill, and the Regulatory Authority to have powers to make regulations;
- Powers to Central Government to issue directions to States on matters specified in the Act have also been specified.
II. Draft Model Property Rights to Slum Dwellers Act, 2011
The Ministry of HUPA proposed the strengthening of its Slum redevelopment strategy by working towards a slum free India, and assigning property rights to Slum Dwellers, under the Rajiv Awas Yojana (RAY). RAY proposes decisive action for inclusive urban development that acknowledges the presence of the poor in cities, recognizes their contribution as essential to the city`s functioning, and redresses the fundamental reasons for inequity that ties them down to poverty.
The conferment of property title is a new direction for national policy that aligns national approach to the global practice. It sees ownership of property as the best investment in democracy, by creating for the household due space within the formal system, and thereby a vested interest in peace and legal order.
The Model law is aimed at bringing within the formal system, those who are forced to live in extra-formal spaces and in denial of right to services and amenities available to those with legal title to city spaces, and at correcting the deficiencies of the formal system of urban development and town planning that have failed to create conditions of inclusiveness and equity, so that, henceforth, new urban families, whether by way of migration or natural growth of population, have recourse to housing with civic amenities, and are not forced from lack of options to create encroachments and slums and live extralegal lives in conditions of deprivation of rights and amenities.
The Model law intends to enable the household to access the formal channels of credit; it draws the entire extralegal economy of slums out of the informal market; it enriches the slum dweller by giving him access to mortgageable rights for housing construction, and the formal economy by enabling a quarter of its population to participate in its growth. The importance that Central Government gives to this measure for inclusion and equity may be gauged from the decision to link central support for slum redevelopment with the empowering of the slum household with property rights.
The salient features of the Draft Model Property Rights to Slum Dwellers Act, 2011 are:
- Facilitation of inclusive growth and slum-free cities, to provide assured security of tenure, basic amenities and affordable housing to the slum-dwellers.
- Every landless person living in a slum area in any city or urban area on 4th June, 2009 shall be entitled to a dwelling space at an affordable cost.
- Every Slum dweller or the Collective of the Slum Dwellers shall be given a legal entitlement, which shall be in the name of the female head of the household or in the joint name of the male head of the household and his wife.
- Every slum dweller eligible shall be provided with basic civic services until the site for the dwelling space has been developed.
- The dwelling space so provided shall not be transferable but allowed to be mortgageable for raising housing loan, or in need to sell- but only to the Government or the Collective as the case may be.
- The dwelling space may be provided in-situ as far as possible, provided in cases on public interest they shall be resettled elsewhere.
- Constitution of a Grievance Redressal Committee for the purposes of resolving disputes in relation to matters about identification of slum dwellers.
- State Government shall prescribe and notify participative and transparent procedures for identification and periodic survey of slum dwellers for purpose of granting legal entitlement to slum dwellers.
- Establishment of City / Urban Area Slum Redevelopment Committee for implementing the provisions of the Act namely- to survey and make a list of slum dwellers, make an inventory of existing position regarding slum areas, formulate schemes for slum redevelopment/up-gradation/resettlement and for rental housing (including dormitories and night shelters) for the urban poor and slum-dwellers in-eligible etc.
- Establishment of a State Slum Redevelopment Authority (to be headed by the Chief Minister) to continuously monitor implementation of the Act and to recommend corrective measures wherever necessary.
- Emphasis on Community Participation by providing for establishment of Slum Development Committee for each slum area comprising of members for plan preparation, implementation, monitoring & evaluation, and post project maintenance.
- Power to acquire land for redevelopment/up-gradation and for resettlement under the Land Acquisition Act, 1894 as amended from time to time.
- Responsibility of the Government to prevent encroachment or of construction of illegal structures towards which necessary amendment to the Municipal and other Acts need to be undertaken.
- Civil courts not to have jurisdiction on matters for which the City/Urban Area Slum Redevelopment Committee, State Slum Redevelopment Committee, Grievance Redressal Committee, or the Tribunal is empowered.
- Power of the State Government to make rules on matters specified in the Act.
III. Credit Risk Guarantee Fund
To address the issue of credit enablement of EWS and LIG households, the Ministry proposes to create a Credit Risk Guarantee Fund Scheme (CGFS) under Rajiv Awas Yojana. The salient features of the proposed fund are as follows:
Under the Credit Guarantee Fund Scheme (CGFS) the Government of India will provide credit guarantee support to collateral-free / third-party-guarantee-free housing loans up to Rs. 5 lakh extended by lending institutions for Low Income Housing. The CGFS will cover the housing loans to EWS/ LIG borrowers for the purposes of repairs, home improvement, construction, acquisition, and purchase of new or second hand dwelling units, involving an amount not exceeding Rs. 5 lakh per loan. The guarantee cover available under the scheme is proposed to be to the extent of 90% of the sanctioned housing loan amount for a loan amount of upto Rs.2 lakh. And 85% for loan amounts above Rs.2 lakh and upto Rs. 5 lakh. To administer and oversee the operations of the Scheme, provision has been made for establishment of a Credit Risk Guarantee Fund Trust for low income housing (CGFT). Rs.1000 crores has been earmarked as an initial Corpus for CGFS.
IV. Central Legislation for Street Vendors
The Ministry of Housing & urban Poverty Alleviation had come up with a new National Policy on Urban Street Vendors in 2009 after a comprehensive review of the previous policy. The Policy underscores the need for a legislative framework to enable street vendors to pursue an honest living without harassment from any quarter. We had drafted a Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009 and circulated to all States/UTs, requesting them to take a cue while legislating on the subject. The progress on state legislation has not been encouraging. We are receiving continuous representations from the individual street vendors and their organisations to bring a central legislation which would be uniformly and mandatorily applicable to all the states and UTs. We are working to evolve and effective and practical central legislation for protection of livelihood rights and social security of street vendors in consultation with all concerned stakeholders including State Government.
The bill would be based on the following basic principles:
- Legitimate street vendors are protected from harassment by police and civic authorities.
- Vending zones/spaces are demarcated for the street vendors. While demarcating the concept of traditional natural markets to be kept in mind.
- Adequate representation to street vendors and women in particular, is provided in the institutional structures created for ensuring proper implementation of the proposed law.
- A robust, effective and quick grievance redressal and dispute resolution mechanism is established.
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Department of Administrative Reforms and Public Grievances has prepared a Draft Bill called “Citizens Right to Grievance Redress Bill, 2011”. This is a comprehensive rights based bill for the citizens of the country, providing statutory backing for getting timely services and goods specified in citizens charters of public authorities from Gram Panchayat, Block, District, State up to Central Level. Any violation of the citizens charter will be dealt as a grievance and institutional mechanism has been provided for time-bound grievance redressal and malafide action on the part of responsible officers will lead to penalty / disciplinary action.
Key recommendations in the Draft Bill are:
- There will be a Citizens Charter, and a protocol will be put in place.
- Bill can be enacted as a central legislation under the concurrent list Item 8 (actionable wrongs) and can cover:
- Central Schemes and Central Government Departments
- Provide a Platform to States to make this a Grievance Redressal Mechanism for State Schemes and Departments
- Bill will incorporate the institution of Information and Facilitation Centre in all public authorities to ensure that Citizens can be facilitated and grievances are systematically recorded and tracked using telephone, sms, web etc.
- First level Redress should be within concerned department as proposed. This should be done through a Grievance Redress Officer in each department
- The second level redress/ appeal will be at the level of Head of the Department of the public authority.
- State Grievance Commissions should be set up as second level appellate authorities.
These documents are placed in the public domain for inviting comments and suggestions which can be forwarded at the following email address by 23.11.2011:
THE DRAFT OVERVIEW AND THE BILL
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This case was initially a criminal appeal, but later was converted into a Public Interest Litigation suo motu by our order dated 14th February, 2011. By that order we dismissed the criminal appeal of the appellant and upheld his conviction. However, we were of the opinion that the problems of sex workers required urgent attention by this Court. Hence, we proceeded thereafter to continue with the case as a Public Interest Litigation and passed several orders thereon, including an order dated 19.07.2011 setting up a Panel with Mr. Pradip Ghosh, Senior Advocate, as its Chairman.
Today, the case has been listed again before us and a Third Interim Report dated 12.09.2011 of the Panel appointed by our order dated 19.07.2011 has been filed before us by the Chairman of the Panel Mr. Pradip Ghosh, learned senior counsel.
From a perusal of the report submitted by the Panel report it appears that the Panel has been doing very good and sincere work in connection with the task which we have entrusted to it. The Panel has taken great pains and has held regular meetings to discuss the problem of sex workers. We have earlier pointed out in one of our orders that the problem of sex workers cannot be resolved in a very short time and will require long, patient effort.
Our initial aim was to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty. No girl would ordinarily enjoy this kind of work, but she is compelled to do it for sheer survival. Most sex workers come from poor families, they are subjected to ill treatment by the owners of the brothels, they are often beaten, not givenproper food or medical treatment, and made to do this degrading work. Probably much of the money paid by their customers is taken away by others.
We are happy to note that the Panel has set about its task in right earnest, and is considering ways and means to implement our ideas so that the sex workers can get some technical training through which they can earn their livelihood and thus lead a life of dignity which is guaranteed by Article 21 of the Constitution of India.
In the Third Interim Report the Panel has prayed for the following :-
(a) An appropriate order directing the State Governments and the Local Authorities to issue Ration Cards to the sex workers treating them as persons in special category and relaxing the rigours of the Rules/requirements regarding the verification of their address and without mentioning their profession in the Card;
(b) An appropriate order be made directing the Central Government and the Election Commission to issue Voter’s Identity Cards to the sex workers in relaxation of the rules/requirements in that behalf and without insisting on strict proof of their address/profession and without specifying their profession on the face of the Card;
(c.) An order be made directing the Central Government and the State Governments to ensure that the admission of the children of sex workers in appropriate classes in the Government schools and Government sponsored schools and the schools run by the Municipal and District level authorities is not hampered in any way, because of their impaired social status.
(d) An appropriate order be made directing the Central Government to suitably alter and widen the UJWALA Scheme within a period of six months as directed by order dated 24.08.2011 (vide paragraph 26 of the said order) made in this matter.
(e) An order or direction be made to the effect hat the amount paid or to be paid by the Central Government, State Governments and the Union Territories to the Secretary General of this Hon’ble Court as directed by order dated 24.08.2011, be deposited in the Bank Account of the Panel in the UCO Bank Supreme Court Compound Branch, in the name of “Panel Appointed by Supreme Court in Criminal Appeal No. 135/2011″ to be operated jointly by the Chairman of the Panel Mr. Pradip Ghosh and Mr. Jayant Bhusan, a member of the Panel, in terms of the order dated 24.08.2011.
(f) Such appropriate orders as may be deemed fit and proper be made, for compliance by the Central Government of the earlier order made by the Hon’ble Court on 24.08.2011 with regard to office accommodation, secretarial staff assistance and furnishing the office with necessary infrastructure and to furnish report of compliance in this Hon’ble Court within a period to be fixed by the Hon’ble Court.”
We are of the opinion that the suggestions of the Panel are good suggestions. Sex workers face great difficulty in getting ration cards, voter’s identity cards or in opening bank accounts, etc. We are of the opinion that the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others.
We, therefore, recommend that the suggestions made by the Panel in its Third Interim Report (which has been quoted above) shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. If there is any difficulty in implementing them, then on the next date we should be told about such difficulty.
Needless to say, without a proper office and infrastructure the Panel will not be able to discharge its duties properly. We, therefore, again request the Central Government and the State Government of Delhi to do the needful in this connection expeditiously.
We are informed that in pursuance of our order dated 24.08.2011 the Central Government has deposited a sum of Rs. 10 Lakh with the Secretary General of this Court. Some of the States/Union Territories have made payment as directed by us. However, some of the States/Union Territories are yet to make payment. We direct that those States or Union Territories which have not yet made payment shall make payment within three weeks from today (except those which have no sex workers).
We further direct that the amount deposited with the Secretary General of this Court shall be transferred to the account of the Panel in the UCO Bank, Supreme Court Compound Branch in Savings A/C No. 02070210000939.
List this case on 15.11.2011 by which time another report shall be submitted by the Panel. We hope and trust that the recommendations made by the Panel will be implemented by then by the concerned authorities.
J (MARKANDEY KATJU)
J (GYAN SUDHA MISRA)
- Email panel constituted by Supreme Court at : firstname.lastname@example.org (indialawyers.wordpress.com)
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VIOLATIONS UNDER THE PNDT ACT AND THE PENALTIES
THE PNDT ACT
Non-availability of copy of the PNDT Act in the registered centre
Non- Display of registration certificate in the centre.
Non-Display of Board in the premises in English and Local Language that ‘Disclosure of the sex of the foetus is prohibited under law’.
Rule No. 17(2)
Rule No. 6(2)
Rule No. 17(1)
|For Minor Offences:
Case may be launched in the court of JMIC u/s 25 of the Act. Punishment may extend to 3 months or with fine, which may extend to Rs. 1,000/-for first offence. Additional fine upto Rs. 500/- per day for the period of contravention for subsequent offence.
Show cause notice u/s 20(1),(2) for temporary suspension of registration.
Under Section 20(3)
|2. Advertisement relating to pre-conception and pre-natal determination of sex.||Section 22(1), (2).||U/s 22(3) of the PNDT Amendment Act, imprisonment which may extend to 3 years and with fine which may extend to Rs. 10,000/-.
Case is to be launched in the court u/s 28 of the Act
|3. Unregistered centres. It includes all such centres where any portable equipment capable of detecting sex before or after conception is used. The owner of such equipment may be having a registered facility somewhere else.||Section 3||Any such equipment has to be sealed and seized by the Appropriate Authority concerned. He/She may
Launch the case in the court u/s 28 of the Act.
Register such centre after receiving 5 times the registration fee as penalty and after taking a undertaking as per the PNDT Rules-Rule 11(2).
|4. Irregularities in registered centre
Owner/employee conducting the ultrasonography not qualified.
More ultra sound Machines /equipments where
as less number register.
Minor deficiency in record
Section 3(2) and Rule 3(b).
Under Rule 4.6 and as per Form ‘A’. Sr. No. 8
Under rule 9.
|The Appropriate Authority or person authorized thereupon may:
Issue show cause notice u/s 20(1)(2) of the Act and with the endorsement of the Advisory Committee, may suspend (for a reasonable period) or cancel the registration, as per the magnitude of the violation.
May take Suo Moto action u/s 20(3) and suspend the registration without issuing show cause notice.
1.During the period of suspension of registration, the equipment needs to be sealed and signed and kept with the owner. After cancellation of the registration, the equipment has to be sealed and seized.
Any body aggrieved by the above decision may appeal to the higher-level Appropriate Authority within 30 days of the action. The appeal shall be disposed of by the higher authority within 60 days of its receipt.
Irregularities in record keeping as per revised form ‘F’ are a major offence.
|Section 4, 29 and Rule-9.||Contravention (a major offence) of provision of section 5 and 6 of the Act and punishable U/s 23(1) of the PNDT Act.|
|6. Sex Selection||Section 3A. 4(5). 6 read with section 2(0)||Violation of section 5 and 6 of the Act and punishable u/s 23 of the Act.|
1. All offences under the Act are cognizable, non-bailable and non-compoundable (Section 27).
Even a case has been registered by the police, no court shall take cognizance except the complaint has been filed by the AA or by the person/group who had served a legal notice of 15 days to the AA already (section 28).
Action u/s 20 and filing of criminal complaint u/s 28 can go simultaneously (section 20).