LAW RESOURCE INDIA

Tata petition raises question of two conflicting rights

Posted in CONSTITUTION by NNLRJ INDIA on November 30, 2010

Vidya Subrahmaniam & J. Venkatesan in THE HINDU

New Delhi: Did Outlook weekly and Open magazine violate the privacy rights of individual citizens when they placed in the public domain hundreds of conversations that corporate lobbyist Niira Radia held with industry heads, journalists, bureaucrats, public servants and ministers?

The question becomes relevant in the context of a petition filed in the Supreme Court on Monday by Tata Group chairman Ratan Tata claiming infringement of privacy on account of the release of a portion of his conversations with Ms. Radia. The wire taps were ordered in 2008 and 2009 as part of an Income Tax surveillance on Ms. Radia, who at that time represented both the Tata Group and the Mukesh Dhirubhai Ambani group.

The tapes were appended to a Public Interest Litigation that lawyer Prashant Bhushan filed in the Supreme Court seeking a probe into the 2G spectrum scam. Last week, the tapes found their way into the pages of the two magazines from where they were picked up by countless other publications as well as Internet sites.

At the heart of the debate are two conflicting rights. The larger citizenry’s right to know and the individual’s right to privacy. Speaking to The Hindu on Monday, Mr. Bhushan said he would contest any injunction on the publication and dissemination of the tapes sought by the industrialist. Those representing Mr. Tata refused to go on record but said the tapes, portions of which were “of a purely personal nature,” ought to have been used only for the purpose for which they were intended by the government, and their subsequent leak had seriously injured Mr. Tata’s image and reputation and constituted a violation of his privacy.

Mr. Bhushan disputed this saying privacy concerns were peripheral to the core issue of national interest. The tapes revealed the subversion of the key pillars of the State — the executive, Parliament and judiciary — by a powerful coterie with its own vested interests: “In this case the citizen’s right to know completely overrides the individual’s right to privacy.”

According to Mr. Bhushan the imperatives of transparency were supreme and he cited the enactment of The Right to Information Act on the premise that the “right to know” was a fundamental right within the meaning of the right to free speech. He said even though the RTI Act prescribed a set of exemptions to the release of information, it also allowed the exemptions to be waived in “public interest.”

“In a situation where every institution has been compromised, where there is illegality and wheeling-dealing across the board, people have a right to know what is going on.”

Mr. Bhushan also argued that no case could be made out against those who had leaked the tapes. Far from it, it was the right and duty of public officials to disclose information and act as whistleblowers. “If the IT department or the Central Vigilance Commission is engaged in a cover-up, then it becomes the duty of the official in the department to bring this to the knowledge of citizens provided the disclosure does not impinge on national security.”

Weighing in on the side of privacy, the former Additional Solicitor General, K.T.S. Tulsi, said tapping of telephones even by the government was permissible only in the rarest of rare cases affecting the sovereignty and integrity of the nation, and economic offences did not count among them: “If the IT department is allowed to tap every telephonic conversation, then this will be the starting point of investigation in every case and there will be no personal freedom.”

Mr. Tulsi said if the government was allowed a free run in this matter “it will be easy for the ruling party to trump up charges against political opponents and then order indiscriminate tapping of conversations.” His counter to the RTI argument was a 1997 Supreme Court ruling holding the “right to privacy” to be a part of the right to “life” and “personal liberty,” enshrined under Article 21 of the Constitution.

There were four broad points made on behalf of Mr. Tata and other individuals featured in the conversations. First, the government’s own limited power to order wire taps must be treated as an emergency power subject to scrutiny and revision by the courts. Secondly, even in the rare situation where tapping was resorted to, it had to be done by an established legal procedure. Three, the privacy of individuals at the other end of the conversations had to be protected at all times. And finally, public interest was not an undefined, overarching space under which blanket permission could be sought for tapping conversations.

http://www.hindu.com/2010/11/30/stories/2010113060230800.htm

Can CJI cleanse system of corruption?

Posted in CORRUPTION, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 29, 2010
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA / NOVEMBER 29,2010
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

It was the unjust act of King Claudius causing agony and trauma to Prince Hamlet that made Marcellus scathingly comment about the Danish royal house in Shakespeare’s drama `Hamlet’ — “Something is rotten in the state of Denmark.”

On Friday, the Supreme Court drew a parallel between the Danish royal house of `Hamlet’ with today’s Allahabad High Court and showed unusual fury in castigating some judges of Allahabad HC by saying two ex-parte interim orders passed on June 11 and 18 on a petition filed by one Raja Khan “were clearly passed on extraneous considerations”.

The SC pointed a finger at the integrity of some judges of the HC by narrating how their relatives practising in the same court had reaped luxury since they became judges. “There is something rotten in Allahabad HC,” it said in exasperation.

The worrying point: if this is the perception of the highest court of the country about the state of affairs in the largest HC, can the 20 crore people of Uttar Pradesh be blamed for carrying tales about injustice in the temples of justice?

Just a few days back, during a hearing in a sensitive case, a senior SC judge made a poignant remark: “When there is total failure in the system, where will the people go?”

A person knocks the doors of courts only after he gets disillusioned with the administrative merry-go-round. Given the crux of SC’s judgment on Friday, there is little he can do, except suffer in silence or resort to extra-judicial methods, as was warned by the same judge, to solve his problem.

Not long ago, in the All India Judges Association case in 1992, the SC had raised the common man’s hopes by setting exalting standards for judges. It had said, “The conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamour, regardless of public praise, and indifferent to private, political or partisan influences.”

It added, “He should administer justice according to law, and deal with his appointment as public trust, he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for purpose of advancing his personal ambitions or increasing his popularity.”

No doubt, a majority of judges attempted to adhere to most of these qualities and were regarded as persons of “unimpeachable integrity”. And this was reflected in then CJI Sam Piroj Bharucha‘s speech at Kollam, Kerala, on December 22, 2002: “More than 80% of judges in this country, across the board, are honest and incorruptible. It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that judiciary does not tolerate corruption in its ranks, it is requisite that corrupt judges should be investigated and dismissed from service.”

Present CJI, Justice S H Kapadia, declared on Friday, when the SC delivered the stinging judgment on the Allahabad HC, “I will prove that within the current system, in the next two years, when I am Chief Justice of India, that good judges can be appointed.”

Will the CJI’s assertion help lift the credibility of the present collegium system of appointment of judges, which many consider opaque. There may be pitfalls. If Justice Bharucha’s statement was interpreted as an admittance of prevailing level of corruption in judiciary, then Justice Kapadia’s assertion could also be understood to be a remark that certain appointments under the “current system”, prior to his becoming CJI, were not “good”.

Whatever be the interpretations, the task appears to be cut out for Justice Kapadia in the wake of the SC judgment indicting several judges of the Allahabad HC.

If he wants to lift the spirits of 20 crore people of Uttar Pradesh, then he must prepare for some drastic action to cut out the cancer of corruption threatening the justice delivery system in the state, graphically pointed out by a Bench of Justices Markandey Katju and Gyan Sudha Misra. We can only wish him luck.

dhananjay.mahapatra@timesgroup.com

Read more: Can CJI cleanse system of corruption? – The Times of India http://timesofindia.indiatimes.com/india/Can-CJI-cleanse-system-of-corruption/articleshow/7005889.cms#ixzz16fiwjkjW

Supreme Court judges divided over illegal and indecent act

Posted in MARRIAGE LAWS, WOMEN EMPOWERMENT by NNLRJ INDIA on November 28, 2010

RAKESH BHATNAGAR IN THE DNA

Is it an offence to cohabit with a woman after inducing a belief of marriage in her? Is it an offence to back out of such a relationship? Supreme Court (SC) judges Markandey Katju and Gyan Sudha Mishra are divided and want a larger bench to decide the matter. Chief Justice of India (CJI) SH Kapadia will soon take a call on setting up such a bench to put at rest the controversy over an ‘illegal’ act and ‘indecent’ behaviour. Katju and Mishra differences have emerged over an appeal filed by Ram Chandra Bhagat, who was convicted by a trial court and the Jharkhand high court for committing an offence under IPC section 493 (cohabitation by a man after deceitfully inducing a belief of lawful marriage in a woman). The section also says every man who by deceit cohabits with a woman who is not his wife on the assurance that they are a legally married couple is liable to be punished with imprisonment up to 10 years.

Mishra found no ambiguity in this provision. She agreed with Katju on the limited issue that law and morality might stand on different footings. But in her perception they are “inextricably linked”. Mishra also said a legal decision could not be based purely on morality.Katju, however, said often an act may be regarded immoral by society, but it may not be illegal. He offered a different interpretation of section 493 IPC that it is meant for couples legally married under Hindu Marriage Act.Revenue officer Bhagat lived like a couple with Sunita Kumari for years and they had two children. Sunita accompanied him wherever he was posted. He had filed an affidavit with the authorities that they were a married couple. The voters list too shows this. However, he kicked her out of home in 1990. She lodged a criminal complaint and the courts convicted Bhagat, saying he had committed fraud and cheated Sunita.

Bhagat has not behaved like a “gentleman”. He lived with Sunita for nine years and had two children with her and “hence as a decent person he should have married her, which he did not do”, they said.

Katju, however, said Bhagat didn’t commit an illegal act and that there was a difference between law and morality.“If we say something is illegal, we must point to some specific section of IPC or some other statute which has been violated,” he said, adding, “Merely saying that the person has done something improper will not necessarily make the act illegal.”

http://www.dnaindia.com/india/report_supreme-court-judges-divided-over-illegal-and-indecent-act_1472733

Who gets your email account when you die?

Posted in DIGITAL ASSETS by NNLRJ INDIA on November 28, 2010
Image representing Google as depicted in Crunc...

Image via CrunchBase

DIVYA A IN THE TIMES OF INDIA

Our lives are becoming more virtual by the day with email, social networking, internet banking accounts and digital photo albums and data stored on our PCs, but what of death? Who gets access to those passwords and usernames? Who can log on as the digital heir? This is why everyone needs a digital will. This is the document that bequeaths a person’s digital assets to his heirs.

How can this be done? The first step is to create a digital inventory – an index of your “soft” assets. Second, get your digital signature authenticated. “Then, it won’t take more than a day and a couple of thousands (of rupees) to have your digital will ready,” says Supreme Court advocate Pavan Duggal, who specializes in cyber law.

Duggal says a digital will is important because there have been many disputes about digitized data in recent times. “Most of us never think about making arrangements to name an heir for our digital assets, and it becomes a Herculean task for legal representatives to get a succession certificate for such data. It could take years in court.” There have been fights over a dead writer’s manuscript on his PC, a deceased photojournalist’s digital photo library and a businessman’s financial records in his email account.

Service providers have different policies about passing on digital information after an account holder’s death. For example, Yahoo! terminates accounts and Google, which manages Gmail (email), Orkut (social networking) and Picasa (online photo-sharing), gives conditional access to kin.

Google India spokesman Gaurav Bhaskar says, “Account details of a deceased can be passed on only to someone who furnishes proof of authority under local law that he is the lawful representative of the deceased, and presents the death certificate and other documents. The process may take up to 30 days.”

But most people, says Mumbai-based cyber behaviour expert Neeta Mehra, don’t want personal stuff such as email, social networking accounts or blogs to be passed on. “To avoid this, one can use the services of ‘do-it-yourself account guardian’ websites where one can upload all secret data and opt for account incinerator services (getting your account deleted in the event of death),” she says. Such websites need a death certificate and a copy of the obituary. However, they are not governed by any law.

Duggal says Indians are gradually waking up to this issue. “For the first time in India, in April, a Delhi businessman opted for a digital will. Since then, six more have followed suit. Many have approached me to discuss their digital estate and to make their wills.”

Read more: Who gets your email account when you die? – The Times of India http://timesofindia.indiatimes.com/home/sunday-toi/special-report/Who-gets-your-email-account-when-you-die/articleshow/6962066.cms#ixzz16YUV3Ntw

Telephone Interceptions – Privacy vs Public Interest – Will the SC Decide

Posted in CONSTITUTION, HUMAN RIGHTS, JUSTICE, RIGHTS by NNLRJ INDIA on November 28, 2010

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Stung by tape, Tata may move SC

Dhananjay Mahapatra, TNN, Nov 28, 2010, 02.18am IST

NEW DELHI: Ratan Tata, chairman of Tata group of companies, may move Supreme Court on Monday against the publication of intercepts of his conversation with Niira Radia, who handles corporate communication for the group. The head of the Rs 320,000 crore salt-to-software conglomerate feels, according to sources, that publication of intercepts of the conversation has violated his right to privacy.Sources also said Tata holds that as Radia’s phones were tapped by government agencies specifically for investigating a possible offence, the recorded conversations should have been used for that purpose alone. He feels strongly about the publication of conversations, which have no bearing on the case under investigation.

He, however, wants to make it clear to the SC that he does not want to stand in the way of an investigation into the 2G scam in any manner.

Seeking to invoke the writ jurisidiction of the apex court for immediate relief, Tata plans to argue that as Radia’s calls were intercepted by the Income Tax department and the recordings were required to be available only toofficial agencies, it was rather surprising the conversations found their way into the media.

It was all the more intriguing as some parts of the conversation were purely private in nature, and completely unrelated to the suspected offence. The sole purpose of leaking the details was to titilate the public, Tata plans to say. Tata’s argument is that while the taped conversation could surely be used for the purpose of investigation and bring the guilty to book, the availability of the intercepts — supposedly in safe custody of official agencies — with the media shows they were either stolen or leaked.

The veteran industrialist wants those who had stolen these tapes or those who leaked them to be punished. He is preparing to cite well settled law laid down by the apex court to show that such publications clearly encroached on his private space and breached his right to privacy. The SC had declared right to privacy as a part of right to life, the most important of the fundamental rights of a citizen. Tata, in an interview to NDTV on Friday, had said the leak of the intercepts was meant to create a smokescreen around the real issue behind the 2G scam.

The I-T department started recording telphonic conversations of Radia, whose Vaishnavi Corporate Communications handles the PR for group companies, for suspected tax violations. It twice took Union home ministry’s approval to keep tabs on Radia’s phones. The first permission to tap Radia’s phones was for 120 days, begining August 20, 2008, and the second, for an identical number of days, from May 11, 2009 onwards.

Of the 5,851 call intercepts detailed in the Radia tapes, which had been handed over by I-T department to CBI on November 26, 2009, for a detailed investigation into 2G spectrum scam, many are said to be conversations which were private in nature. Interestingly, the SC had in 2006 entertained a petition from MP Amar Singh, now expelled from Samajwadi Party, to stay publication of his conversations which were unauthorisedly intercepted and put on CDs widely distributed in political circles and among media.

Later, an NGO — Centre for Public Interest Litigation (CPIL) –had requested the SC to allow publication of the tapes saying that of the 18 conversations recorded in the CD, only three could be said to be private in nature. The rest, argued the petitioner, related to transactions of money and deal making, which could be termed as a conspiracy to commit an offence and should be probed and be allowed to be made public. Soon after the filing of the petition, the Centre had framed new guidelines on telephone interception by police and other agencies that authorised only the home secretaries of the states and the Centre to pass orders in this regard.

dhananjay.mahapatra@timesgroup.com

The spotlight is on the media now

Priscilla Jebaraj in THE HINDU

The Niira Radia episode raises questions about the boundary between legitimate news gathering, lobbying and influence peddling.

The publication of taped conversations between Niira Radia — a lobbyist for Mukesh Ambani and Ratan Tata with a keen interest in the allocation of ministerial portfolios — and editors, reporters, industrialists and politicians has shone a harsh and even unwelcome light on the web of connections which exist between the worlds of business, politics and journalism.

The transcripts — drawn from 104 phone conversations recorded between May and July 2009 when the Manmohan Singh government was in the process of beginning its second innings — also raise questions about the boundary between legitimate news gathering, lobbying and influence peddling. Even as the journalists involved have strongly defended their conduct, others in the media are divided with some believing the boundary was transgressed.

The transcripts were published last week by Open and Outlook magazines, which sourced them to audio recordings submitted recently to the Supreme Court by advocate Prashant Bhushan as part of a PIL on the 2G scam. The magazines claim the recordings were made by the Income Tax department as part of its ongoing surveillance of Ms Radia. The recordings are believed to be part of a wider set of phone taps, though who leaked this particular selection and why is not known.

In the tapes, NDTV Group Editor Barkha Dutt and Hindustan Times‘ Advisory Editorial Director Vir Sanghvi both appear to be offering to use their connections and influence with Congress leaders to pass on messages from Ms Radia, who seemed to be representing a section of Dravida Munnetra Kazhagam interests. Other senior business journalists have discussions with Ms Radia about the gas pricing dispute between the Ambani brothers, mostly regarding favourable coverage for Mukesh Ambani. Prabhu Chawla, India Today‘s editor of language publications, appears to be offering her “advice” on how to pursue an appeal in the Supreme Court.

On the political front, in multiple conversations, both Ms Dutt and Mr. Sanghvi offer to mediate between the Congress and the DMK, and even help to set up meetings, in order to dispel misgivings between them on the specific role of Dayanidhi Maran and the allocation of portfolios more generally. In what seems to be an ongoing conversation during the stalemate between the Congress and the DMK over Cabinet berths, Ms Dutt asks Ms Radia what she should tell her Congress contacts. “Oh God. So now what? What should I tell them? Tell me what should I tell them?” she asks.

After listening to Ms Radia’s instructions, she promises to speak to Congress leaders. “OK, let me talk to them again,” she says. In a later conversation, she says, “That’s not a problem, I’ll talk to [Congress leader Ghulam Nabi] Azad —I’ll talk to Azad right after I get out of RCR [which has been read as Race Course Road, where the Prime Minister lives].” In separate conversations with A. Raja and Atal Bihari Vajpayee‘s foster son-in-law, Ranjan Bhattacharya — who also, surprisingly, appears to be playing the role of a conduit to the Congress — Ms Radia speaks of Ms Dutt’s help. “I made Barkha call up Congress and get a statement,” she tells Mr. Bhattacharya. In response to questions on Twitter, however, Ms Dutt has categorically denied acting on any promise to pass on messages to the Congress.

In his conversations with Ms Radia on the Cabinet issue, Mr. Sanghvi claims to be passing on information from Congress leader Ahmed Patel. “I spoke to Ahmed … Ahmed is the key figure. Ahmed says, ‘We told him, we told Maran also that we’ll deal with Karunanidhi, so he has gone back’,” he tells Ms Radia. Later, she asks him to pass on the message that the Congress must deal directly with DMK chief M. Karunanidhi. “I was supposed to meet Sonia today but I’ve been stuck here. So, now it’s becoming tomorrow. I’ve been meeting with Rahul, but tell me … So, who should they talk to?” When she replies, “They need to talk directly to Karunanidhi,” Mr. Sanghvi’s response is: “Let me try and get through to Ahmed.”

On his part, Mr. Sanghvi has indignantly denied any wrong-doing. “When there’s a fast moving story like the formation of government, you talk to all kinds of sources. Most of the time, they’re quite busy doing whatever they want and they don’t actually give you the information unless you string them along,” he told The Hindu. “It just seemed easier to say, ‘Yeah, yeah, I’ll do it’ and then forget about it.” He insisted that he had never acted on Ms Radia’s requests to call Mr. Patel or anyone else in the Congress “as anyone in the government will know.” However, even if he had called Mr. Patel as promised, it would not have been unethical if it was not privileged or secretly communicated information, he felt.

Ms Dutt declined to answer The Hindu‘s questions, citing legal concerns, but she has been freely offering answers to similar queries on her Twitter account over the past few days. “Let’s put it like this, unless we only cover news based on bland press conferences, we have to talk to all sorts, good and bad,” she said in one tweet. “I think there is nothing wrong in stringing along a source for info… I think EVERY journo has the right to engage a source, its NO CRIME … as a matter of record, I never passed the message. But info sharing per se is not immoral in a fluid news situation,” she tweeted.

In an official response to the publication of Ms Dutt’s conversations in Open magazine, NDTV said it was “preposterous” to “caricature the professional sourcing of information as ‘lobbying’.”

Other senior journalists are not so sure about the appropriateness of the conversations but admitted there are growing gray areas in the ethics of journalism. “Cultivating a source, giving him a sense of comfort, that you are not antagonistic, massaging his ego — all that is fine. But acting as an intermediary is inappropriate,” said one senior television journalist who asked not to be named. The same editor felt that increased competition led to today’s journalists being in more constant and informal touch with their sources, and he admitted that misusing this legitimate proximity was now easier than ever. But he hastened to add that political reporters often make tall claims or promises to get their sources to part with information.

The same argument is echoed by Diptosh Mazumdar, national editor of CNN-IBN, who endorsed Ms Dutt’s insistence that she had done nothing wrong. “Regarding Nira Radia tapes, let me say that accessing info is a difficult job and ur promises to ur source is often a ploy to get more info,” he said on Twitter. “When there are fast moving Cabinet formation stories, you make every possible move to get the info out, those promises mean nothing …” Rajdeep Sardesai, IBN’s editor-in-chief tweeted in response to the Open story: “Conversation between source and journo is legitimate. If quid pro quo is shown, expose it. Else, don’t destroy hard earned reputations.”

Apart from the portfolio-related recordings, many of Ms Radia’s conversations dealt with the tussle between the Ambani brothers over gas pricing. She is heard berating financial journalists for the poor placement of stories she had passed on. In one conversation, Mr. Sanghvi asks Ms Radia — who represents Mukesh Ambani — what kind of story she wants him to do on the gas dispute between the two Ambani brothers. Ms Radia talks of gas being a national resource and that the younger brother should have no right to insist that “a family MoU” he signed with her client be placed above “national interest.” Mr. Sanghvi’s column in the Hindustan Times the next day makes precisely the same argument. His defence is that this was genuinely his own view, and that the conversation with Ms Radia was only one of multiple inputs for his column.

In another conversation, India Today‘s Prabhu Chawla advises Ms Radia on Mukesh Ambani’s strategy in appealing the apex court against the Bombay High Court ruling in the gas pricing case. “You should convey to Mukesh that the way he is going about the Supreme Court is not the right way,” he tells her.

However, Mr. Chawla insists he was not giving any advice regarding the case. Instead, he told The Hindu that he was indulging in “social chit chat” with a source who called him, and merely giving his opinion that the Ambani brothers should come together since “when the brothers fight, the nation suffers.”

Perhaps because of the large number of journalists involved in the controversy, most Indian newspapers and TV channels have not covered the Radia tapes at all, even though they include conversations with Mr. Raja himself and Ratan Tata, head of the Tata group. This despite foreign newspapers like Wall Street Journal and Washington Post taking note of them and none of the protagonists denying the genuineness of the recorded conversations.

Though the blogosphere has been filled with outrage over the seemingly cosy relationship between the media and corporate lobbyists (one website has spoken sarcastically of ‘All India Radia’), questions have also been raised about privacy issues, especially since some of the conversations seem to be personal, with no direct news linkage. “I don’t agree that tapes of private individuals not breaking law should be aired,” Ms Dutt said on Twitter.

Outlook editor-in-chief Vinod Mehta defended his publication of the tapes, but declined to comment on the recorded conversations or answer further questions. “We printed the story because it was hugely in the public interest,” he told The Hindu. “Our purpose is not to pass judgment, but to put information in the public domain.”

New law against ‘uncle judges’ coming soon

Posted in IMPEACHMENT, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 28, 2010

NAGENDER SHARMA IN THE HINDUSTAN TIMES

With the Supreme Court coming down heavily on the Allahabad High Court, saying the kith and kin of some judges were practising as lawyers in the same court, the government proposes to check the widespread trend in the country by making a fresh law.The issue of ‘uncle judges’ was first raised by the Law Commission of India, which advises the law ministry on complex legal issues, in its report submitted to law minister M Veerappa Moily in August last year.

Based on the feedback provided by the commission, the law ministry is now ready with the judges standards and accountability bill to be introduced in the Parliament, which seeks to make it mandatory for judges to follow judicial standards.

Moily was cautious in his response to the unprecedented remarks by the country’s top court about the largest high court.

“It is a serious matter,” was all he was willing to say.

Ministry officials admitted the issue was not confined to the Allahabad High Court alone. “We have information about Himachal, Punjab & Haryana and Rajasthan high courts,” said an official.

“Often we hear complaints about uncle judges. As a matter of practice, a person who has worked as a district judge or has practiced as a lawyer in a high court for many years is appointed as a judge, he is bound to have colleagues and kith-kin there,” the law commission had stated.

“Even in government services, particularly, Class II and upwards, officers are not given postings in their home districts. In the same way, judges whose kith and kin are practicing in a high court should not be posted there. This will eliminate uncle judges,” the report stated.

Following the strong observations by the commission, the ministry, in its new bill, has made a specific reference to address the issue of ‘uncle judges’.

“No judge shall permit any member of his immediate family (including spouse, son, daughter, son-in-law or daughter-in-law or any other close relative) who is a member of the bar to appear before him or be associated in any manner with any case to be dealt by the judge,” states section 3 of the bill.

Further the definition of close relative includes brother or sister of the judge, brother or sister of the spouse of the judge and brother or sister of either of the parents of the judge, according to the proposed law.

It also debars any practicing lawyer who falls in the family and relative category of the judge to use his residence “for their professional work.

http://www.hindustantimes.com/New-law-against-uncle-judges-coming-soon/H1-Article1-631830.aspx

Bar chorus for court clean-up

Posted in ACCOUNTABILITY, IMPEACHMENT, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 28, 2010

SATYA PRAKASH IN THE HINDUSTAN TIMES

A day after the Supreme Court slammed the Allahabad High Court for some of its “incorrigible” judges passing orders on “extraneous considerations”, bar leaders on Saturday said it was time to stem the rot. Former law minister Shanti Bhushan, who recently filed an affidavit in the apex court saying eight former chief justices of India were definitely corrupt, said, “I have been saying this for years. Now even the Supreme Court has said it.

“The real problem is that there are hardly any crusaders in the judiciary. Even honest judges try to defend the corrupt ones because they feel it’s one judicial family,” Bhushan said, hailing justice Markandey Katju as a crusader for having asked the Allahabad HC chief justice to clean his house by transferring the “incorrigible” judges.

Senior advocate Rajeev Dhavan said: “The SC’s comments point to a problem that exists in the judiciary. But Justice Katju can only protest…He has not provided any solution.”

Asked if transfer of “uncle judges” would solve the problem, former Delhi Bar Council chairman KC Miittal said,  “There has to be a comprehensive, transparent transfer policy. In any case it can only be a temporary solution.”

Dhavan, who represents Tehelka in a contempt case, wondered why the magazine and advocate Prashant Bhushan should be hauled up for contempt when the SC itself was making such comments.

Maintaining that poor bar leadership has compounded the problem, Miittal said the Bar Council of India should come out with stringent norms to check “uncle judges” syndrome.

Former BCI chairman VC Mishra said: “The evil pointed out by the SC is not limited to the Allahabad HC. It is there in all other HCs as well.”

He, however, said transferring a dishonest judge from one HC to another was not the real solution. “No judge should join a high court where he had been practising as a lawyer.”

Lucknow-based Oudh Bar Association president RS Pande said the real problem was the secret appointment process. “It should be made more transparent and… after thoroughly checking the background of the candidates,” Pande said.

BCI chairman Gopal Subramanium said: “We will certainly take it up in our next meeting.”

http://www.hindustantimes.com/Bar-chorus-for-court-clean-up/Article1-631800.aspx

Judicial corruption: Pulling punches

Posted in COURTS, IMPEACHMENT, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on November 27, 2010

Jay Bhattacharjee / New Delhi November 28, 2010, 0:17 IST  IN THE BUSINESS STANDARD

The recent decision of the committee appointed by the Rajya Sabha Chairman has held that a judge of the Calcutta High Court, Soumitra Sen, was prima facie guilty of grave financial offences and must face impeachment proceedings in Parliament. This has been showcased as a much-needed curative to tackle corruption in the country’s higher judiciary (the High Courts and the Supreme Court).

Indeed, the stench of graft and malfeasance from India’s palaces of justice was becoming all-pervasive. Even judges were feeling the heat, although the reaction of most of them was the usual strategy adopted by people whose privilege and status are under scrutiny. Their castles were fortified and defensive salvos were fired. However, public indignation forced the legislature and the executive (the two other constitutional branches of the Republic) to introduce some measures for judicial accountability. A wishy-washy bill was passed by Parliament and may become law in the near future.

We need to examine the backdrop. Supreme Court and High Court judges are covered under the provisions of Article 124 (4) of the Constitution and cannot be removed from office except by an order of the President, passed after a judge has been impeached by Parliament. The rules of impeachment are like a hurdle race — the accused must be pronounced guilty of “misbehaviour or incapacity” by both the Rajya Sabha and the Lok Sabha, and in each case, the verdict has to be supported by a majority of the total membership of each House and by a majority of “not less than two-thirds of the members of the House present and voting”. Article 124 (5) gives Parliament the power to frame laws that govern the entire impeachment mechanism. Pursuant to this Article, Parliament passed the Judges (Inquiry) Act in 1968.

These two Articles of the Republic’s Constitution make our senior judiciary one of the planet’s most protected species. The luminaries who framed the guiding document of the young nation with an ancient history of justice and jurisprudence would have been horrified if they had witnessed the judiciary’s peccadilloes, which we have been experiencing. And they would have been outraged that this group had extended its constitutional immunity by a self-serving pronouncement, 41 years after the Constitution came into effect. This is, of course, the Supreme Court’s landmark verdict in K Veeraswami vs Union of India and Others, {(1991) 3 SCC 655}, in which a majority of judges (4 to 1) decided on a vital issue that affects us all.

In a 100-page document, the bench ordained that any criminal case against a Supreme Court or High Court judge will be registered only after the President sanctions the prosecution, after consulting the Chief Justice of India (CJI) and in accordance with his advice. The stated rationale was that the judiciary needed to be protected against any interference by the executive. The bench went on to assert that “care should be taken that honest and fearless judges are not harassed” but are “protected”.

The operative part of the pronouncement reads as follows: “It is accordingly directed that no criminal case shall be registered under Section 154, CrPC against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India (CJI) is consulted in the matter…If the CJI is of opinion (sic) that it is not a fit case for proceeding under the Act, the case shall not be registered…It is necessary that the CJI is not kept out of the picture of any (emphasis added) criminal case contemplated against a Judge”.

With these few lines, the Indian judiciary carried out a virtual coup against the Republic’s citizens. The ramifications are staggering; Section 154 of the CrPC deals with the dreaded First Information Report (FIR) that is every law-abiding citizen’s nightmare. This is the document that empowers any thanedar in the country to knock on your doors, even at night, and take you to a lock-up in the police station where the FIR was lodged, if the offence recorded in the FIR is non-bailable. In such an eventuality, we can forget the standard Hindi film dialogue where the victim bravely asks the police posse for the “arrest warrant”.

Thanks to the Veeraswami verdict, the Indian senior judiciary has arrogated to itself a blanket immunity that the Constitution’s framers never contemplated. An unvarnished reading of the judgment leads to the conclusion that a judge can commit any offence under the laws of the land, but his or her prosecution can only be initiated with the CJI’s permission. This is certainly the interpretation that is being currently followed by the country’s judicial and political establishments.

To make matters worse, as the Sen case demonstrates, the judiciary has extended the ratio of the Veeraswami decision to offences alleged to have been committed before a judge assumed office. Nowhere does the otherwise tainted judgment say this. Sen is charged with committing swindles when he was an ordinary mortal like the rest of us. It is absurd that the procedure prescribed under the 1968 Act, read with the relevant Articles of the Constitution, should be followed to remove him from office. This is clearly an extreme example of shadow-boxing by the nation’s elites. Citizens must ask whether this charade should continue. Why has he not been charged, so far, under the relevant sections of the IPC, as would have been done in the case of any other citizen?

If this is a portent of how future proceedings will be conducted in cases of wrongdoing — such as the Commonwealth Games or the 2G spectrum scandals — we should all be running scared.

The author is a senior corporate and business analyst in Delhi

http://www.business-standard.com/india/news/jay-bhattacharjee-judicial-corruption-pulling-punches/416332/

Constitution Bench to decide on RTI vs right to judicial immunity

Posted in ACCESS TO JUSTICE, ACCOUNTABILITY, COURTS, GOVERNANCE, JUDICIAL REFORMS, JUDICIARY, RTI by NNLRJ INDIA on November 27, 2010

J. Venkatesan in THE HINDU

‘Independence of judiciary and right to free speech are of great value’

 

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

NEW DELHI: A Constitution Bench of the Supreme Court will decide the conflict between the right of citizens to obtain information under the Right to Information (RTI) Act and the right to immunity enjoyed by the judiciary not to disclose information pertaining to appointment of judges.

A Bench comprising Justice B. Sudershan Reddy and Justice S.S. Nijjar on Friday referred to the Chief Justice of India, S.H. Kapadia, for posting before a Constitution Bench of appropriate strength the issues raised in the appeal preferred by the Central Public Information Officer (CPIO) of the Supreme Court against a Delhi High Court judgment directing furnishing of information on appointment of judges.

Acting on a petition from S.C. Agrawal, the Central Information Commission directed the CPIO to furnish information on the correspondence exchanged between constitutional authorities with file notings relating to the appointments of Justice H.L. Dattu, Justice A.K. Ganguly and Justice R.M. Lodha (all to the Supreme Court) superseding Justice A.P. Shah (who retired as Chief Justice of the Delhi High Court). The Delhi High Court confirmed this order. The present appeal is directed against this order.

The Bench in its order said: “We are of the considered opinion that a substantial question of law as to the interpretation of the Constitution is involved in the present case which is required to be heard by a Constitution Bench.

“The case on hand raises important questions of constitutional importance relating to the position of the CJI and the independence of the judiciary on the one hand, and on the other, the fundamental right to freedom of speech and expression.”

Justice Reddy, writing the reference order, said: “The RTI Act merely recognises the constitutional right of citizens to freedom of speech and expression. Independence of judiciary forms part of the basic structure of the Constitution.

“The independence of the judiciary and the fundamental right to free speech and expression are of great value, and both are required to be balanced.”

Healthy nation

The Bench said: “The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issues. Most of the times we reel under the pressure of precedents.”

The Bench said the questions that arise for consideration are whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought; whether the information sought amounts to interference in the functioning of the judiciary; and whether the information sought cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision.

It also covers the question of whether the information sought is exempt under Section 8 (i)(j) of the RTI Act.

FOR THE COMPLETE JUDGEMENT

RTI ON SUPREME COURT JUDGES APPOINTMENTS CASE

Something rotten in Allahabad HC: Supreme Court

Posted in COURTS, JUDICIAL REFORMS, JUDICIARY, JUSTICE, UNCATEGORIZED by NNLRJ INDIA on November 27, 2010

Dhananjay Mahapatra, TIMES OF INDIA, Nov 27, 2010, 01.18am IST

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

NEW DELHI: Just when exposes of scams have roiled the political class, Supreme Court has trained the spotlight on growing corruption in higher judiciary by a stunningly candid acknowledgement about the sleaze prevalent in the country’s largest High Court. “Something is rotten in the Allahabad High Court,” Justices Markandey Katju and Gyan Sudha Misra said on Friday as they expressed distress over rampant nepotism and corruption in the HC.

“Some judges (of the HC) have their kith and kin practising in the same court, and within a few years of starting practice, sons or relatives of the judges become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when sons and relatives of judges could derive no benefit from their relationship and had to struggle at the Bar like any other lawyer,” the Bench said.

“We are sorry to say but a lot of complaints are coming against certain judges of Allahabad HC relating to their integrity,” said the Bench while requesting the HC Chief Justice to take strong “house cleaning measures”, including recommending transfers, of the “incorrigibles”.

The observation echoed what many have felt for long but have been unable to express for fear of being punished for contempt of court.

Quoting Shakespeare’s “Something is rotten in Denmark” from Hamlet, the Bench said, “It can similarly be said that something is rotten in Allahabad High Court.”

The Allahabad HC is the largest in the country with a sanctioned strength of 160 judges. However, it is operating with only 73 judges as there are 87 vacancies.

However, the Bench clarified that all lawyers who had close relatives as judges of the HC could not be said to be misusing that relationship. “Some are scrupulously taking care that no one should lift a finger on this account (sic). However, others are shamelessly taking advantage of this relationship,” it said.

The trigger for the outburst came from the two ex-parte interim orders passed by a judge of Allahabad HC even when the issue concerned was outside the jurisdiction of the HC, belonging to the domain of Lucknow Bench of the HC.

The SC said, “We are of the opinion that the two ex-parte interim orders of the single judge of the Allahabad HC were clearly passed on extraneous considerations.”

Taking strong exception to such judicial misconduct, it said, “The faith of the common man of the country is shaken to the core by such shocking and outrageous orders such as the kind which have been passed by the single judge.” After venting their feelings, the two judges said both the Allahabad HC and its Lucknow Bench “needs some house cleaning”.

“We request the Chief Justice of the HC to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles,” the Bench said.

Wanting this order to have a salutary effect on the entire judiciary facing problems relating to corruption, the apex court said, “Let a copy of this order be sent to Registrar Generals/Registrars of all HCs for being placed before the chief justice of the respective HCs.”

There are 21 HCs in the country with a total sanctioned strength of 895 judges. However, nearly one-third of the posts, 285, are lying vacant. A total of 41 lakh cases were pending in the HCs as on March 31.

http://timesofindia.indiatimes.com/india/Something-rotten-in-Allahabad-HC-Supreme-Court/articleshow/6996746.cms#ixzz16TvZVOym

%d bloggers like this: