Advocates Training Scheme Inaugurated

Rajiv Gandhi Advocates  Training  Scheme  was inaugurated in the National Law University Delhi today.   Minister of Law & Justice Dr. M. Veerappa  MoilyChief Minister of Delhi Smt. Sheila Dikshit and the Chief Justice of Delhi High Court and Chancellor of National Law University Delhi Mr. Justice Dipak Misra were present on the occasion.

Presiding over the  function, the  Minister of Law & Justice said “Globalization of law includes global connections, global interdependence, global information, global finance, global governance and global rights. Legal profession in the 21st Century must focus on the rapid changes in legal education and the legal profession that are taking place throughout the world, the phenomenon that is often referred to as the globalization of legal profession.”

The primary purpose behind the development of the lawyers’ training program is to standardize the training of future generations of lawyers in the globalization era. Achieving this goal is critical to ensure that lawyers’ attain a minimum level of legal knowledge and advocacy skills before they take on the responsibilities associated with representing clients before the courts. Additionally, the training plan has been designed to increase public confidence in the legal system by setting clear ethical standards for the practice of law and training future lawyers about their ethical obligations to society and the role they play in promoting the integrity of the legal system as a whole. Training programme helps in enhancing following skills of the advocate trainees.

Builds better communications skills.

Develops hidden talent.

Ensures consistent quality.

Provides greater focus.

Produces more effective/productive efforts.

Clarifies the concept of marketing as a business process.

With respect to the roles of the justice system, the legal profession and the people in this Herculean effort at transformation, the justice system is expected to operate so as to eliminate injustice from society.  The Article 39-A of the Constitution of India mandates that the state shall provide “by suitable legislation or schemes or in any other way” to ensure that opportunities for seeking justice are not denied to any citizen “by reason economic or other disabilities”. It imposes a duty on the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity and in particular State shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.  Access to Justice is recognised as a fundamental right.  An effective justice delivery system requires that (i) justice be made available at the door step of people and (ii) we should have talented, dedicated and qualified legal professionals who serve at the grass root level. So far as providing justice at the doorstep is concerned, we have courts at the District and Taluka levels. Now, we also have ‘Gram Nyayalaya’ at village and intermediate level.  There is no dearth of talented and dedicated law graduates at grass root level but there is no motivation and encouragement for them to come forward and stay in legal profession at district, Taluka and village level.  Result is, despite their ability most of these young lawyers are not getting proper opportunity and exposure in the profession.  At the end, they become brief less lawyer.  There has been a far reaching cry to give proper professional training to the Advocates so that they not only become good lawyers but also are competent to compete with high profile law firms.

The Supreme Court in the case of State of Maharashtra Vs. Manubhai Pragaji Vashi, (1995) 5SCC 730 has observed that the need for a continuing and well-organised legal education, is absolutely essential reckoning the new trends in the world order, to need the ever-growing challenges.  The scheme envisages selection of 10 young practicing advocates from each state of India, every year for being imparted professional training.

 A preference shall be given to those candidates who belong to SC/ST, OBC, Woman and Physically Handicap. The National Law University, Delhi will implement the scheme at the national level by providing the Advocates one month training in its campus and the Advocates will be placed with a Senior/leading Advocate at their respective places for one month training.

This training programme will cover:

ADR Mechanism for settlement of Disputes;

Plea bargaining and its importance;

How to use Information Technology and Communication in court proceedings? Advantages of these tools in court proceedings;

Art of cross – examination;

How to present the case and argument before the Court?

Provisions contained in “Hague Convention on the Service abroad of Judicial & Extra Judicial Documents in Civil and Commercial Matters” – Mechanism of service of summons and other judicial documents issued by Indian court to persons residing in foreign territory and vice versa.

Effect and advantages of having Mutual Legal Assistance Treaty in civil and commercial matter; and in criminal matter, Extradition Treaty and Treaty on transfer of convicted persons with foreign countries.

Intellectual Property laws including ‘Competition Law’ – Their use, importance and relevance in modern day business;

Cyber Laws – How to deal with cyber crimes and related issues;

Specific legislations useful in day to day life viz. the Domestic Violence Act, 2005, the Protection of Child Rights Act, 2005, The Dowry Prohibition Act, 1963, Gram Nyayalaya Act, 2009 etc.

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To check motivated PILs, Govt works on law

INDIAN EXPRESS

After he took over as the 38th Chief Justice of India last year, Justice SH Kapadia said huge costs would be imposed on litigants filing frivolous public interest litigation (PIL) petitions. His statement was widely welcomed because instances of unscrupulous elements filing PILs to advance personal or pecuniary interest had witnessed an upward trend in recent years. And last year too, a bench of the apex court raised concern over the misuse of PILs. The same bench had also issued a set of guidelines, which it wanted all courts in the country to observe while entertaining PILs.

In a speech in September 2008, Prime Minister Manmohan Singh also expressed concern over the misuse of the PIL: “Many would argue that like in so many things in public life, in PILs too we may have gone too far. Perhaps a corrective was required and we have had some balance restored in recent times.”

Now, in what could result in the most effective tool against frivolous PILs, the Union Ministry of Law and Justice is giving final touches to a law to regulate the PIL. And helping the Ministry in its endeavour is none other than former Chief Justice of India P N Bhagwati, acknowledged as somebody who along with Justice V R Krishna Iyer pioneered the concept of PIL in the country.

“For last many years, there has been demand that there should be some checks and balances so as to ensure that only genuine PILs, which are filed with the public good in mind, are allowed while those aimed at either harassing some individual or corporate or protecting the interests of an individual or corporate should be checked at the very initial stage. Even the Supreme Court was constrained to issue guidelines to regulate the PILs. We have decided to try and take it forward and bring a legislation laying down guidelines for PILs,” Union Law Minister M Veerappa Moily said.

Sources in the Law Ministry told The Indian Express that Moily has already held meetings with Justice Bhagwati and some legal experts to seek their suggestions. Among other things, the Ministry is proposing to effectively discourage and curb the PILs filed for extraneous considerations. It also wants to make it an offence for anybody to file a PIL for extraneous and ulterior motives and empower the courts to discourage such PILs by imposing exemplary costs.

In its judgment, where it talked of the need to regulate the PIL, the SC bench had said that instead of “every individual judge devising his own procedure for dealing with the PIL, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives”.

Aware that there could be some who might question the need for such a law, Moily said he was ready to bring around all such persons by explaining to them the need to have such a law. “We are not making it illegal to file a PIL. But we only want to check frivolous and motivated PILs,” he said.

Can Lokpal be investigator, prosecutor, jury and judge?

DHANANJAY MAHAPATRATIMES OF INDIA

Just 70 days ago, the UPA government succumbed to the pressure exerted by Team Anna, which posed as civil society being supported by advocates and actors, ex-babus, bloggers and twitteratti, swamis and social activists. The high decibel show at Jantar Mantar numbed the government’s political and constitutional thinking. Foxed by the red herring of Team Anna’s popularity, the Manmohan Singh government quickly agreed for a joint committee to draft the Lokpal Bill only to realise that the taste of the pudding is in its eating. Public placating of Team Anna was easy, but translating their exasperating demands into a bill was legally excruciating.

Though the Congress has now stressed that the government will not succumb to Team Anna’s pressures, the draft prepared by both sides, despite their inherent disagreements, has one thing in common. Representatives of both Team Anna and government have perceived more or less a Lokpal who will investigate, prosecute and then change cloaks to stand as jury and judge. This all-rolled-into-one power centre is abhorrent to any democratic system of governance, which gets its legitimacy from a fair system of justice delivery.

Why did the government first succumb to Team Anna, then criticise it and now question its representatives’ character? Does it reflect the vacillating mindset of the two power centres — the PM and the Congress president? Why did ministers rush to discuss with Team Anna on the one hand while on the other, a senior party leader publicly criticised the move? He also went around saying it was time for a young PM?

Manmohan Singh will celebrate his 80th birthday on September 26 next year. Rahul Gandhi will turn 42 in June 2012. Singh has not contested a Lok Sabha election, a victory in which transforms a candidate into a people’s representative. Rahul has won twice from Amethi. It is difficult to judge Singh’s feelings on the vacate-the-chair talk from within Congress circles when he is perceived to be engaged in finding solutions to the most trying situations, both political and social. But what must be worrying the PM and the entire political class is the confrontational build up between the representatives of people and the ‘civil society’ to garner space in the legislative arena in the name of participatory democracy.

Can self-proclaimed representatives of civil society be recognised as harbingers of new legislative framework when the Constitution recognises only the Parliament and Assemblies as law-makers? In the early 1970s, the famous Keshavananda Bharati case was argued before a 11-judge bench of the Supreme Court on Parliament’s power to amend the Constitution. The Indira Gandhi government had argued that a political party enjoying two-thirds support in both Houses of Parliament could delete all provisions.

The bench’s shock and dismay forced the government to mould its arguments, “Though legally, there is no limitation to the amending power, there are bound to be political compulsions which make it impermissible for Parliament to exercise its amending power in a manner unacceptable to the people at large.” The apex court in Keshavananda case [1973 (4) SCC 225] said, “The strength of political reaction is uncertain. It depends upon various factors such as political consciousness of people, their level of education, strength of political organisation in the country, the manner in which mass media is used and finally, the capacity of the government to suppress agitation.

“Hence, people’s will to resist an unwanted amendment cannot be taken into consideration in interpreting the ambit of the amending power. Extra-legal forces work in a different plane.” The SC refused to accept the argument saying it was difficult to fathom the depth and weight of people’s wish when it came to change in law. In the present context, people are exasperated by the level of corruption, but is it their wish to have a all-in-one Lokpal? Are extra-legal forces true reflectors of the people’s wish and will?

http://timesofindia.indiatimes.com/india/Can-Lokpal-be-investigator-prosecutor-jury-and-judge/articleshow/9007025.cms

Wrong people sometimes elevated to higher judiciary: Ex-CJI Verma

TIMES OF INDIA

NEW DELHI: Acknowledging that certain individuals with doubtful integrity were elevated within the higher judiciary, former Chief Justice of India JS Verma — who had envisaged the collegium system of judicial appointments — said a national commission should be put in place to ensure greater transparency. This comes on the back of growing pressure for greater transparency and accountability in judicial appointments.

Justice Verma – who wrote the 1993 Supreme Court judgment that was institutionalized in the form of a collegium – said his judgment had not been properly implemented and errors had occurred because of “improper working”. Asked if the greatest error was that “the wrong sort of person has either been elevated or made it to a Chief Justice”, he bluntly responded, “Correct”.

Asked in an interview on TV news channel CNN-IBN if, as CJI in 1997, he had first recommended and then withdrawn approval for a High Court judge to be made chief justice of an HC, Justice Verma said, “Well, the prime minister rang me up and said he’ll clear it, because it has come from me, but he had disturbing reports about his integrity. I said don’t clear it, send it back to me. I withdrew the recommendation and also told two of my colleagues in the Supreme Court who had recommended his appointment that this is not the thing to be done and I also rang up that particular judge himself and told him I’m withdrawing your recommendation.”

When asked whether one of his successors, Justice A S Anand, who knew about the incident, later promoted the judge and whether the judge was Justice Ashok Agarwal, Justice Verma responded, “Well, let us not take names”.

Justice Verma added that several people whom he had not considered suitable were elevated after he retired, giving credence to the belief that judicial appointments were not as fair and transparent as made out to be.

In another revelation, the former CJI cited the case of Justice M M Punchhi, whose impeachment had been sought by the campaign for judicial accountability. Justice Verma said he was willing to permit the allegations to be probed but the political executive refused to allow this. When asked if former PM Inder Kumar Gujral refused to accept that an FIR be lodged against Punchhi, Justice Verma said, “Well, that’s what he clearly said. And also the President, who did not say it directly, he said it through the prime minister. That was all I could do.”

Underlining his willingness to have Punchhi probed, Justice Verma explained, “Because the allegations, if proved, were serious and therefore they required to be investigated, so that one could know whether they were true or not.” He acknowledged that Justice Punchhi was later elevated to CJI despite facing what he called “serious allegations”.

Justice Verma was also clear in his stand against former CJI K G Balakrishnan‘s continuance as National Human Rights Commission chairman. Asked if Balakrishnan should demit office in the face of allegations of financial irregularities, Justice Verma said, “He should have demitted long back and if he doesn’t do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office.”

http://timesofindia.indiatimes.com/india/Wrong-people-sometimes-elevated-to-higher-judiciary-Ex-CJI-Verma/articleshow/9006145.cms

Keep PM, higher judiciary out of Lokpal: ex-CJI

CNN IBN

Karan Thapar: With the Lokpal issue continuing to dominate the news, we present the views of one India‘s greatest jurists and a long time advocate in judicial accountability former chief justice of India Jagdish Sharan Verma. Justice Verma, let me start with the obvious question. As a former chief justice of India, should the higher judiciary be brought under the ambit of the Lokpal or would that be a mistake?

JS Verma: That would be a mistake.

Karan Thapar: Why would it be a mistake?

JS Verma: It will foul with the basic structure of the Constitution.

Karan Thapar: Explain to me why you believe bringing the judiciary under the Lokpal would breach the basic structure of the constitution?

JS Verma: Judicial review is a basic feature, part of the basic structure for which an independent judiciary is essential and the Constitution treats the higher judiciary separately, rather the whole of it. Article 50 separates, rather mandates separation of judiciary from executive. The subordinate judiciary is also subdued to control only of the higher judiciary. Article 235 and Article 124, sub article 5, provides for a separate law to be enacted for dealing with proven misbehaviour of the High Court and Supreme Court judges.

Karan Thapar: So what you’re saying is that if the judiciary were brought under the ambit of the Lokpal, judicial review would be affected and undermined?

JS Verma: Certainly. It would be.

Karan Thapar: And if judicial review is undermined, would the independence of the judiciary also be adversely affected?

JS Verma: That is directly connected with it. The judiciary under the Constitution is the custodian of the rule of law which is the bedrock of democracy. So ultimately the democratic structure would be affected.

Karan Thapar: And if the independence of the judiciary is affected, then does that mean that the separation of powers which is intrinsic to our Constitution would also be damaged?

JS Verma: Directly, which is actually expressly mandated separation of powers in Article 50.

Karan Thapar: So are you absolutely sure that what you describe is a cascading damaging effect and an adverse effect on the constitution would follow immediately if the judiciary is brought under the Lokpal, you’re absolutely sure of that?

JS Verma: I’m absolutely sure of that.

Karan Thapar: So at all costs you’re saying the judiciary must not come under the Lokpal?

JS Verma: Certainly not under that. It must be under a law enacted under Article 124(5), which not only me, but the judiciary has also been advocating for long.

Karan Thapar: Now I’ll come to that in a moment’s time. Let me put to you a second and different concern some people have if the judiciary were to be brought under the Lokpal. They say it would result in what they call, a circularity of accountability. On the one hand, the Lokpal has the powers to investigate charges, on the other hand, the same judges have the power to question decisions on the behaviour of the Lokpal. Is that circularity desirable or should it be avoided at all costs?

JS Verma: Actually, it must be avoided at all costs because I may know, as a fact from sitting judges, they are very uncomfortable about it and to put it bluntly, if I were in that position today, and I was offered a judgeship, I would without hesitation say no. You need very competent or the best amongst the members to be judges in order to ensure good justice delivery system.

Karan Thapar: Are you also therefore suggesting that this whole debate about bringing the judiciary on the Lokpal, is worrying sitting judges?

JS Verma: Yes it is, and not only that, as it is, it is becoming difficult to attract the best from the bar and it will make it more difficult.

Karan Thapar: So if the judiciary would have come under Lokpal, it would deter good people joining the bar?

JS Verma: Certainly, and laws’ delays is also connected with it. You have one competent person. He does the work of two-three persons.

Karan Thapar: So a second effect of bringing the judiciary on the Lokpal would be that you would have even greater arrears of justice?

JS Verma: Certainly, laws delays would mount.

Karan Thapar: Now, you’re a great advocate of judicial accountability, but you firmly believe that this should happen by way of a separate judicial accountability bill. Anna Hazare‘s team points to several infirmities in the present judicial accountability bill which is before Parliament. To begin with they say that bill only talks about misbehaviour and misconduct which at best is an indirect and tangential way of covering corruption.

JS Verma: Well, it is too naive to say that misbehaviour does not cover corruption. Actually any improper behaviour is misbehaviour and corruption is the worst form of improper behaviour. As a matter of fact there examples abounding. Dinakaran is being proceeded against now, that’s for corruption. Earlier V Ramaswamy was proceeded against, for corruption under this very provision.

Karan Thapar: So the argument that the judicial accountability bill talks about misbehaviour, misconduct and not corruption and therefore it’s weaker than the Lokpal, is an argument you dismiss altogether?

JS Verma: Actually, it is too simplistic and too naïve, and the word misbehaviour has been deliberately used because it has a very wide connotation.

Karan Thapar: In fact in a sense it’s wider than corruption?

JS Verma: Of course, corruption is only a part of it.

Karan Thapar: Now a second infirmity that Anna Hazare’s team points to, in the judicial accountability bill, is the mechanism that gives sanctions for a judge to be investigated. They say under the bill the sanction is given by the accused judge’s colleagues and friends sitting on the same bench as him, and they may be prone to protect him. They say in comparison, under the Lokpal, the sanction is given by an independent 7-man bench which has no connection to the accused judge and, therefore, will be impartial.

JS Verma: The experience so far shows that this is not a valid argument, because every time a judge has been proceeded against, whether it was Ramaswamy or Dinakaran, it is the judiciary which has moved it and I know from personal experience the number of judges I proceeded against. It was the political executive which let them off. Not only that, take an obvious example, lawyers are disciplined by the Bar council of India that is under lawyers themselves. Why can’t judges be trusted, and ultimately you have any mechanism, it would be a subject to jurisdiction of Supreme Court.

Karan Thapar: Prashant Bhushan, I imagine would respond to what you said by pointing out that there have been innumerable instances of allegations against judges, but on very few occasions has the Chief Justice of India actually given permission for an FIR. He says that if this matter were to be handled by the Lokpal the number of instances where permission to lodge FIRs would increase substantially.

JS Verma: For obvious reasons he doesn’t know all the facts. I know it from within and I know from personal experience even about myself, that the number of judges I’ve proceeded against, I offered to give consent or permission to record FIR, the political executive didn’t accept it.

Karan Thapar: Now, you’re, therefore, saying to me despite all the arguments that the Anna Hazare team has put, you remain clear in your mind that the higher judiciary must not come under the Lokpal?

JS Verma: I’m very sure about it and that is based on my experience from inside for about 26 years.

Karan Thapar: Let’s then come to two other issues that have been in the news. First, should the Prime Minister come under the ambit of the Lokpal?

JS Verma: I don’t think so. The Parliamentary democracy that we have adopted as the system, there the Prime Minister should be accountable only through Parliament.

Karan Thapar: What about making the Prime Minister accountable to the Lokpal but with certain exclusions such as national security or defence?

JS Verma: As a matter of fact, so far as the ordinary law is concerned, that applies to the Prime Minister in any case for offences under the general law. But then so long as he retains the majority in the House of people, he is bound to remain the Prime Minister.

Karan Thapar: In fact Prashant Bhushan and Anna Hazare’s team might turn the argument you’ve just given me on its head by pointing out that if the Prime Minister can be covered by the ordinary law, if he can be covered by the Prevention of Corruption Act, why shouldn’t he be covered by the Lokpal?

JS Verma: The simple answer is that if he is covered in this respect by the ordinary law, you don’t need a Lokpal to cover him on those things, and for the other things, you can’t have a lame duck Prime Minister, because there’s no provision for President’s rule at the Centre.

Karan Thapar: Okay, I understand the point you’re making, others may disagree with it, what about then MPs, specifically in terms of what they do or say, their speeches or their voting in Parliament, if the shadow of corruption falls over those activities, should that come under the Lokpal?

JS Verma: So far as I am concerned I’m clear that the Tiananmen bribery Supreme Court judgement needs to be overruled, that’s absolutely wrong. But then so far Article 105 relating to Parliament and 194 relating to state legislatures are concerned, they clearly provide for privileges to be codified, and so far as their conduct inside the House is concerned, that is subject to provision and, therefore, that should not have any outside body. Even the judiciary’s intervention is limited in that.

Karan Thapar: So in fact Article 105 with respect to Parliament to take that as an example, grants immunity to what MPs do with in the House and unless you can change the Constitution you cannot bring that under the ambit of the Lokpal, but what you’re also saying at the same time is what’s more important is to codify the privileges and spell them out in specific detail, as that would have a constraining effect and a good effect on the behaviour of MPs?

JS Verma: Certainly.

Karan Thapar: In which case, let me end this section by saying this to you. Anna Hazare has repeatedly said that if his entire proposal, all his proposals in there in entirety are not accepted by the government, he will relaunch his fast-unto-death on August 16. Do you believe that fasting-unto-death is a sensible way of negotiating something as complex and constitutionally sensitive as the Lokpal.

JS Verma: I think it is undemocratic, because ultimately the law has to be made by Parliament. Everyone in democracy has the right to have his voice heard, considered and by the deciding authority, it must consider and then decide.

Karan Thapar: But a fast-unto-death is undemocratic?

JS Verma: Yes, it’s undemocratic.

Karan Thapar: Justice Verma, let’s come to how judges are chosen. In 1993, you wrote the Supreme Court judgement, which gave the primary role to the judiciary itself. Today you believe that task needs to be assigned to a national judicial commission. Is that because the wrong sort of people have been elevated to judiciary.

JS Verma: That impression and it’s not unreasonable and that is because the judgement as I understand and I would like to think has not been properly implemented and the errors which have occurred are because of improper working.

Karan Thapar: And the greatest error that has occurred is that thw rong sort of person has either been elevated or made in to a Chief Justice?

JS Verma: Correct.

Karan Thapar: Now you in fact have a striking example of how the wrong sort of person gets elevated. It starts in 1997 when you were Chief Justice of India and you recommended the elevation of a High Court judge to become the Chief Justice of a state High Court. What happened thereafter?

JS Verma: Well, the Prime Minister rang me up and said he’ll clear it, because it has come from me, but he had disturbing reports about his integrity. I said Prime Minister don’t clear it, send it back to me, I withdrew the recommendation and also told two of my colleagues in the Supreme Court who had recommended his appointment that this is not the thing to be done and I also rang up that particular judge himself and told him I’m withdrawing your recommendation.

Karan Thapar: So the most important thing is that you told that judge himself and you also told your colleagues in the Supreme Court who had recommended this gentleman that this was the reason that you were withdrawing your recommendation?

JS Verma: Because my judgement said that antecedents are best known to political executives.

Karan Thapar: And the reason why antecedents are best known to political executives is because they have the means and the mechanisms to keep a check on a man’s integrity, judges themselves don’t?

JS Verma: Correct.

Karan Thapar: A few months or a few years after you demitted office, one of your successors as Chief Justice of India who knew the full story to whom you had explained the reasons why you were withdrawing the recommendation of the concerned judge disregarded everything and went on to promote him to Chief Justice. Is that right?

JS Verma: Unfortunately yes.

Karan Thapar: So clearly a man whose integrity was under question, whose recommendation you had knowingly withdrawn, was equally knowingly and deliberately promoted by one of your successors. Was the Chief Justice who promoted this gentleman Justice Anand and was the gentleman himself Ashok Agarwal?

JS Verma: Well, let us not take names.

Karan Thapar: But I noticed you’re not denying it. Let me put this to you. Was this a one off, isolated solitary instance or are there several other instances where inappropriate people have been elevated to the judiciary?

JS Verma: Well, some people who are not considered suitable in my time and I used to consult five including those who succeeded me thereafter, a few of them were appointed soon after I had retired.

Karan Thapar: So there are several instances of people who were not considered suitable in your time, who were promoted by your successors and once again your successors were aware that these were unsuitable people.

JS Verma: No no, for the Supreme Court they were all involved in the decision.

Karan Thapar: So clearly there were successors who disregarded the reasons you had for not promoting and chose deliberately to promote people who were deemed inappropriate and unsuitable?

JS Verma: You don’t want me to answer that specifically.

Karan Thapar: Once again I’m taking that as a yes and your smile says it all. If a national judicial commission existed, can you be absolutely sure such mal practices wouldn’t continue to happen?

JS Verma: Well, that would act as a check, no doubt, and I think the time has come when more checks and balances are required and the best thing is transparency – everything in writing and all that being in public domain so that that accesses internal check.

Karan Thapar: A moment ago, in answer to a different question, you mentioned how when you were Chief Justice you had given permission for an FIR to be lodged, but the executive of the day refused. Let me ask if I have got the story right. You are referring to an instance that happened in 1997-1998 when you were Chief Justice. The campaign for judicial accountability had presented a petition calling for the impeachment of Justice Punchhi, in the end Justice Punchhi succeeded US Chief Justice of India, but the truth is that you were prepared to grant permission for an FIR to investigate the allegations against Justice Punchhi, but the Prime Minister of the day Inder Gujral refused to accept.

JS Verma: Well, that’s what he clearly said. And also the president, who did not say it directly, he said it through the Prime Minister. That was all I could do.

Karan Thapar: But the important thing is that as Chief Justice of India you were prepared for an FIR, you were prepared to give permission for an FIR to investigate the allegations against Punchhi.

JS Verma: Because the allegation if proved were serious and therefore they required to be investigated, so that one could know whether they were true or not.

Karan Thapar: This also means that Justice Punchhi was elevated to Chief Justice even though he faced what you call serious allegations that should have been investigated?

JS Verma: These are the facts.

Karan Thapar: If a national judicial commission had existed at that time, would it have investigated the allegations against Justice Punchhi?

JS Verma: It is like this. I did whatever power I had at that time. I didn’t have anything more than that. Even in the letter which I wrote I mentioned that.and, therefore, any mechanism which could be as a matter of fact persuaded to make an enquiry, I would have done that.

Karan Thapar: So you did at that time what you could under the powers that you had, you didn’t have powers to go further, but if a national judicial commission had existed, then it would have had the powers to investigate those allegations, am I right in that?

JS Verma: Because then the Prime Minister alone would not have decided.

Karan Thapar: Quite right. The national judicial commission would have decided and it would have automatically investigated. And, therefore, it also means that if an investigation had been carried out, it’s possible not necessary, but possible that Justice Punchhi might never have become Chief Justice.

JS Verma: Well, that would depend on the outcome of the investigation because you see, material not being produced, it not being investigated, I can’t say that.

Karan Thapar: But then the doubts would have been removed, one way or the other.

JS Verma: Yes, yes of course, and in national judicial commission I would have been there as the Chief Justice of India, I could not have just offered it to the Prime Minister and leave it there, I would have persuaded them.

Karan Thapar: One last question, you’re not just a former chief justice of India, you’re also a former chairman of the National Human Rights Commission. One of your successors, Chief Justice KG Balakrishnan today faces serious allegations and they are indeed serious allegations amounting to corruption. Yet he refuses to resign. Is it okay for him to continue in office while facing these allegations or should he step aside?

JS Verma: I have said it long back and I have no hesitation repeating. He should have demitted long back and if he doesn’t do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office.

Karan Thapar: But this is a matter of urgency as it affects the good name of the NHRC?

JS Verma: Not only that, it affects internationally. NHRC actually faced flak recently when there was a threat to downgrade its status, whereas earlier, I remember in our time, Mary Robinson used to say please advise others and that’s what I’m doing.

Karan Thapar: So the good name and standing of India requires that urgent action be taken and Justice Balakrishnan be persuaded to step down?

JS Verma: Absolutely. If he doesn’t do it himself.

Karan Thapar: Justice Verma, a pleasure speaking to you.

JS Verma: Thank You.

http://ibnlive.in.com/news/keep-pm-higher-judiciary-out-of-lokpal-excji/162837-3.html

A law that thwarts justice

Prabha Sridevan in THE HINDU

Section 15 of the Hindu Succession Act that determines the order of succession in the case of a Hindu woman who dies intestate should be amended for, it reflects an entrenched system of subjugation of women.

The family that had sent a young woman back to her parents after her husband’s death, surfaced when she died. There was a contest between her mother and the husband’s sister’s sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”

“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “ The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women‘s Rts. L. Rep. 175 (1982), adding that “women’s equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”

This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.

The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.

If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman’s horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”

Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband’s family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.

Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father’s heirs, and any property she inherited from her husband or father-in-law will go to the husband’s heirs.

The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”

In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.

Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”

A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband’s heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.

Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts ( Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father ( Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).

In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.

In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband’s sister’s children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents’ support. These are the ground realities.

Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.

Justice Bhattacharjee’s criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man’s estate and the woman’s estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.

Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.

Professor Williams’ article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

http://www.hindu.com/2011/06/27/stories/2011062751711000.htm

Cyber fears

V VENKATESAN IN THE FRONTLINE

Certain provisions in the rules notified under the IT Act cause concern about the security of sensitive personal information.

ON April 11, the Union Ministry of Communications and Information Technology notified new rules under the Information Technology Act, 2000, to regulate the use of the Internet. This led to widespread apprehensions that the government and private persons might gain free access to sensitive personal information concerning Internet users.

The government, however, clarified in a press release that the intent of the rules was to protect sensitive personal information and not to give the government undue powers to access such information. The government added that wide public consultations had been held before finalising the rules and that the rules had been endorsed by the stakeholders.

As the government is empowered to make rules in order to carry out the purposes of an Act, it is necessary to examine whether the rules have a nexus with such purposes. Among the four sets of rules notified on April 11, The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, caused serious concern in civil society. Rule 3 in this set defines sensitive personal data or information as “such personal information which consists of information relating to password; financial information such as bank account or credit card or debit card or other payment instrument details; physical, physiological and mental health condition; sexual orientation; medical records and history; biometric information; any detail relating to the above clauses as provided to body corporate for providing service; and any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise”.

Rule 3 has an important proviso, which says that any information that is freely available or accessible in the public domain or furnished under the Right to Information Act, 2005, or any other law, shall not be regarded as sensitive personal data.

Rule 2(b) defines “biometrics” as technologies that measure and analyse human body characteristics, such as “fingerprints”, “eye retinas and irises”, “voice patterns”, “facial patterns”, “hand measurements”, and DNA for authentication purposes.

The controversial provision is Rule 6, which deals with disclosure of information. Rule 6(1) lays down that disclosure of sensitive personal data by a body corporate to any third party shall require prior permission from the provider of such information, unless such disclosure has been agreed to in the contract between the body corporate and the provider of information, or where the disclosure is necessary for compliance of a legal obligation.

Rule 6(1) carries a key proviso, which, its critics say, can be misused. It lays down that such information shall be shared, without obtaining prior consent from the provider of information, with government agencies mandated under the law to obtain information, including sensitive personal data for the purpose of verification of identity, or for prevention, detection, investigation, including cyber incidents, prosecution, and punishment of offences. The government agency, under this proviso, shall send a request in writing to the body corporate possessing the sensitive personal data or information, stating clearly the purpose of seeking such information. The government agency shall also state that the information so obtained shall not be published or shared with any other person. Many consider Rule 6(2) to be even more draconian. It says that notwithstanding anything contained in Rule 6(1), any sensitive personal data shall be disclosed to any third party by an order under the law. The safeguards in Rule 6(3) and 6(4) that the body corporate or the third party receiving such sensitive personal data shall not publish or disclose them further are considered weak.

Rule 7 elaborates on this. As the bar on the body corporate is only against publishing sensitive personal data, it may transfer such data to any other body corporate or a person in India, or located in any other country, that ensures the same level of data protection that is adhered to by the body corporate as provided for under these rules. The rule says that the transfer of such data may be allowed only if it is necessary for the performance of the lawful contract between the body corporate or any person on its behalf and the provider of information or where such person has consented to data transfer. Critics ask whether these safeguards will be complied with absolutely, and if not, what the remedies available to a victim are.

R. Chandrashekhar, Secretary in the Department of Information Technology, said the rules were framed to fix the liability on service providers, intermediaries and bodies looking after the details of the users as the government could not allow complete insulation to anyone from any illegitimate activity that involved a body or a person. “The rules were made to define that liability and restrict that liability,” he clarified. He denied that the government intended to restrict free speech through these rules.

Concerns have been expressed over another set of rules, too. The Information Technology (Intermediaries guidelines) Rules, 2011, impose certain duties on intermediaries such as Facebook, Google and Twitter to observe due diligence. Rule 3 in this set requires that the intermediary shall publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person.

Rule 3 (2) requires that such rules and regulations, terms and conditions or user agreement shall inform users not to host, display, upload, modify, publish, transmit, update or share any information that belongs to another person and to which the user does not have any right to, and is grossly harmful, blasphemous, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.

Powers to censor content

The loose language of this rule, critics fear, can be interpreted widely, and the intermediaries may enjoy extraordinary powers to censor content, resulting in unnecessary restrictions on freedom of expression.

Rule 3 (2) (i) requires the intermediary to ensure that the content posted by the user does not threaten the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or cause incitement to the commission of any cognisable offence or prevent investigation of any offence or is insulting to any other nation. Again, this rule is loosely phrased, and does not explain how the intermediary can conclude that a particular post “threatens to…”.

Rule 3(4) is even more mischievous. It requires that the intermediary, upon obtaining knowledge by itself or being brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any such information as mentioned in Rule 3(2), shall act within 36 hours and work with the user or owner of such information to disable it. Further, the intermediary has also to preserve such information for at least 90 days for investigation.

Rule 3(11) provides the remedy for an aggrieved user. It requires the intermediary to publish on its website the name of the grievance officer and his contact details as well as the mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of Rule 3 can notify their complaints. The grievance officer has been asked to redress such complaints within one month from the date of receipt of a complaint. Ironically, the rules do not provide content writers a means to defend their work or appeal a decision by the intermediary to remove content. The absence of natural justice in the rules will make it easy for critics to challenge them legally.

Google has expressed fears that the rules could impede its operations in India as it could become liable for questionable content posted by third parties and suffer great harm in terms of huge fines or other punishment. It is reported that the Indian authorities have asked Google to remove content that speaks ill of leading politicians. The Ministry has denied that it intends to acquire regulatory jurisdiction over content posted on the Web.

http://www.frontlineonnet.com/stories/20110701281304700.htm