LAW RESOURCE INDIA

Hospital deaths & F1 fuel tale of ‘Two Indias’

Posted in ACCOUNTABILITY, DEMOCRACY, FUNDAMENTAL RIGHTS, GOVERNANCE, HUMAN RIGHTS by NNLRJ INDIA on October 31, 2011
School in Andhra Pradesh

Image by ILRI via Flickr

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Recent events confirm the western world’s view that India is a country of contradictions. Foreigners who hold this view and have come to witness India record its name in the international Formula One race calendar must have felt vindicated.

How else can one explain the country breaking barriers in the field of science and technology, medical research and yet be counting the abnormally high deaths reported from hospitals in West Bengal and Uttar Pradesh and the government’s inability to reduce the high incidence of suicide among farmers in Maharashtra, Karnataka and Andhra Pradesh. The purpose of research in the field of medical science is to give the right to life the deserved meaning by finding ways and means to fight diseases. If a government is duty-bound to encourage such research, it is also constitutionally obliged to provide proper health infrastructure, including adequate number of doctors, so that people do not fall victim to any ailment.

If India has marched into the 21st century with a string of successes in scientific developments, how does one explain the death of 17 newborns in the last few days in Kolkata’s Burdwan Medical College Hospital? Who will compensate the parents for their loss? Surprisingly, the Mamata Banerjee government has already given a clean chit to the hospital by terming it as natural deaths. In eastern UP, nearly 500 people, mostly children, have died of encephalitis in the last four months. In BRD Medical College Hospital, three patients fought for space on each bed. Unable to take the load, the X-ray machine, ventilators and other equipment malfunctioned. Can patients and relatives of those who succumbed to the disease claim compensation from the government for poor health infrastructure?

The Supreme Court has consistently held that it is obligatory on the part of the government to provide adequate medical services to citizens. It had categorically held in State of Haryana vs Smt Santra [2000 (5) SCC 182] that the government’s health service officials were not spared from liability of paying damages to patients and their relatives for medical negligence. The healthcare system in its true sense has not reached the rural hinterland. Despite the much publicised National Rural Health Mission (NRHM), there are only 23,000 primary health centres in rural areas, each with six beds catering to a population of 20,000-30,000. Is this infrastructure enough to provide free basic healthcare? Can a villager, who is not poor if he spends Rs 32 on his food daily, afford to go to a private hospital which has expertise in fleecing patients? Can a villager ever dare to complain against the absence of doctors, support staff or unavailability of medicines in these PHCs? The SC in Spring Meadows Hospital vs Harjol Ahluwalia [JT 1998 (2) SC 620] said, “The relationship between doctor and patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is therefore the function of medical ethics to ensure that superiority of the doctor is not abused in any manner.”

Caught in the quagmire of inadequate health infrastructure and costly treatment in private hospitals, it is little wonder that quacks have a field day in rural India. There is a mushrooming of private medical colleges but none of the doctors who pass out would like to practise in rural areas, for villagers can never pay the fees he would demand to meet the expenses he incurred in getting an MBBS degree. We must have Formula One races in India. But is it not equally or more important for the government or the private sector to spend an equal amount to have high-class health infrastructure to cater to the rural poor?

http://timesofindia.indiatimes.com/india/Hospital-deaths-F1-fuel-tale-of-Two-Indias/articleshow/10548701.cms

Age is just a number

Posted in CONSTITUTION, COURTS, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on October 29, 2011

Supreme Court of India

SOLI SORABJEE IN THE HINDUSTAN TIMES

The mandatory age of retirement of a Supreme Court judge under our Constitution is 65 years. The National Commission to Review the Working of the Constitution, headed by retired chief justice MN Venkatachaliah and comprising eminent persons, in its report recommended that age of retirement be raised to 68 years. So far the proposal has not been accepted. A majority of Supreme Court judges at the age of 65 are in fine fettle and we lose good experienced judges because of the mandatory age. Of course, there could be exceptions as in the case of a judge whose advancing age becomes manifest in his judgements or a maverick judge whose retirement because of his bulldozer disposal of cases and undignified behaviour on the Bench is a welcome relief to the consumers of justice and the legal fraternity. But such cases are few and far between. All things considered, there is merit in the proposal to increase the retirement age to 68.

What can or should a Supreme Court judge do after retirement? He cannot plead or act in any court or before any authority owing to the mandate of Article 124(7) of the Constitution. At present, on retirement, a Supreme Court judge receives not full pension but a monthly pension which is less than the amount of his last drawn salary.

Should Supreme Court judges after retirement be prohibited from acting as an arbitrator? Awards given by Supreme Court judges are challenged in district courts or high courts depending on the order of reference to arbitration. The underlying rationale is that successfully challenge to awards will not redound to the credit of the retired Supreme Court judge and will lower the image of the apex court. But remember that in many cases retired Supreme Court judges received pathetically low remuneration when they were judges in the high court. Retired Supreme Court judges do not live on love and fresh air. Besides, parties by their choice of arbitrators can have an excellent arbitral tribunal whose award would be final subject to limited grounds of challenge, which is far preferable to adjudication of disputes by the district court, then the high court and ultimately by the Supreme Court.

The fact that some retired judges prolong arbitration proceedings is not a valid reason to restrict the fundamental right under Article 19(1)(g) of other judges who conscientiously conclude arbitration proceedings in reasonable time. It is admirable that some retired Supreme Court judges, eg former chief justices MN Venkatachaliah and JS Verma and justice Ruma Pal, by a self-denying ordinance, decline to act as arbitrators. However, there should be no constitutional embargo on retired judges acting as arbitrators.

What about retired Supreme Court judges giving legal opinions, which invariably are flaunted by parties before courts and judicial authorities? Judges of the Supreme Court and high court strongly disapprove of opinions of retired judges which are annexed to the pleadings or cited in argument and refuse to look at them. However, this cannot be said of tribunals and judicial authorities who are likely to be influenced by the opinion. The purpose of an opinion is to render legal assistance to the client and not to influence judicial authorities. Therefore, it must be expressly stated in the opinion that the opinion should not be cited before any court or tribunal or authority or any government department or any adjudicating body. In that case parties will not seek a written opinion and may have to content themselves with oral advice which would enable them to decide their course of legal action.

A vexed issue is whether a retired Supreme Court judge should be appointed as the president or chairman of a tribunal or head a Commission of Inquiry. It is desirable that a retired Supreme Court  judge does not head a Commission of Inquiry, which, by virtue of its terms of reference, has strong political overtones. Experience has shown that in such cases whatever may be the ultimate report, the commission and its presiding judge will be subject to carping, abusive criticism. As regards tribunals, much would depend upon the nature of the tribunal and the functions it is required to perform. A competent judge and especially one experienced in the field in which the tribunal exercises its functions would enhance the standing of the tribunal and impart credibility to its functioning and its orders.

However, one caveat needs to be entered. No retried judge of the Supreme Court should be appointed to head any tribunal soon after his retirement except where his appointment is provided by statute as in the case of chairman of the National Commission on Human Rights. Appointment process takes time and must have been initiated during the period the appointee was a sitting judge.

The public perception in the present environment of distrust and cynicism can well be that the judge in view of his prospective appointment was inclined as a sitting judge to pass orders favourable to the government. Justice Sharma’s appointment as chairman of Vansadhara Water Dispute Tribunal and justice Katju’s appointment as chairman of the Press Council were made promptly after their retirement. There is no doubt that their prospective appointment did not in any manner affect the discharge of their judicial functions.

Justice is rooted in confidence and confidence is the bedrock of judicial independence. Public perceptions cannot be brushed aside. Therefore there should be a cooling period of six months or a year before the appointment of a retired Supreme Court judge to a tribunal or any other judicial body. This should dispel apprehensions in the matter and sustain public confidence in the integrity of the judicial system and the independence of our Supreme Court judges.

(Soli Sorabjee is former attorney general of India. The views expressed by the author are personal.)

http://www.hindustantimes.com/News-Feed/ColumnsOthers/Age-is-just-a-number/Article1-762253.aspx

Judicial delay may become a thing of the past

Posted in CORRUPTION, COURTS, JUDICIAL REFORMS, JUDICIARY, JUSTICE, SUPREME COURT by NNLRJ INDIA on October 26, 2011

N R MADHAVA MENON IN THE HINDU

The National Mission to improve the delivery of justice is at work.

In October 2009, on the basis of a Vision Document adopted at a judicial conference in New Delhi, the Government of India approved in principle a National Mission to reduce pendency and delays in the judicial system and enhance accountability through structural changes, higher performance standards and capacity-building. Many past attempts to achieve the goals did not yield results because of lack of institutional capacities, inadequate funding and want of a political will.

When it was realised that without judicial reform the development agenda cannot be carried forward, the 13th Finance Commission made specific recommendations for the grant of funds to improve justice delivery. The Union government announced a series of policy initiatives aimed at reducing pendency from an average of 15 years to three years — within a three year period. It was considered by many as too ambitious for a system used to chronic delays, outmoded procedures and indifferent management. With the money made available and strategies and plans worked out, the government has now come up with a National Mission to accomplish the goal within five years, coinciding with the period of the 12th Five Year Plan. This is a look at the Mission Goals, analysing the components of the Action Plan, examining the strategies proposed and evaluating the prospects, given the conditions on the ground and the constraints.

The catalyst

For a long time, the judiciary was outside the radar of the Planning Commission which distributed development grants. And when the Commission started providing funds, it turned out to be too meagre to make any capacity improvement. The State governments did not increase the number of courts required to handle the mounting number of cases, and the existing ones did not get the needed infrastructure. The judiciary is still to acquire information and communication technology (ICT) support systems to modernise processes, and continues to labour under the weight of over three crore pending cases.

Setting a condition that the government, the single largest litigant, frame a litigation policy aimed at reducing avoidable and unnecessary litigation, the Finance Commission recommended a grant of Rs. 5,000 crore to improve judicial outcomes through six strategic initiatives. These included increasing the number of court working hours, using the existing infrastructure but conducting proceedings in morning/evening hours under a shift system. Other measures involved increased use of Lok Adalats to ease pressure on courts, promotion of Alternative Dispute Resolution methods, training of judicial officers and public prosecutors to enhance capacities, addition of facilities in judicial academies, and the creation of posts of Court Managers in every judicial district to assist in administrative functions. The Central government issued a series of orders sanctioning funds and providing guidelines for the utilisation of the grants. The State governments have started issuing orders for utilisation.

Strategic initiatives

The Department of Justice, now headed by an independent Secretary-level officer under the Ministry of Law and Justice, has assumed the role of the Mission Directorate with the Secretary to Government as Mission Leader. Judicial reform is now as much a function of the government as it is of the judiciary. The Planning Commission has constituted a Working Group on Justice to prepare the demands of the justice system under the 12th Plan, and one can expect continued support, besides the Finance Commission allocations, for the Justice Department’s Mission initiatives. The time is opportune for a breakthrough in the delivery of justice through the National Mission. The first step is to understand the implications of the Strategic Initiatives of the Action Plan and respond to the role and responsibilities envisaged under it. The Action Plan contemplates five strategic initiatives: policy changes, re-engineering procedures, human resource development, leveraging ICT and improving the infrastructure of the subordinate judiciary.

Among policy initiatives, the government has moved legislation proposing to increase High Court judges’ retirement age and enhance judicial standards and accountability. National and State litigation policies are in the process of implementation as part of the National Mission. The All India Judicial Service is being taken up for Parliament’s consideration. Improving the capacities of the judiciary proportionate to the workload is under way through judicial impact assessment as part of the legislative process. To improve human resources, legal education reforms are being considered.

Re-engineering of processes by removing bottlenecks and fast-tracking procedures constitute a major strategy to reduce delays. This may require amendments to statutes and rules; the Law Commission is being asked to work on it. Together with Lok Adalats, mediation, plea bargaining and negotiated settlements, a large part of pending cases is expected to be resolved. Clubbing similar kinds of cases, leaving administrative functions to Court Managers, introducing modern management tools and systems for docket and case management and so on, are other strategies mooted. In 2007, the e-courts project was initiated at a cost of Rs.440 crore (now revised to Rs.935 crore) to provide ICT infrastructure in district and subordinate courts and to computerise judicial records. This is scheduled for completion by 2014, enabling the National Arrears Grid to be operational for integration with the Mission Plan. With the introduction of e-courts, along with video-conferencing, e-filing and related ICT-enabled services, the justice delivery system can be transformed to become people-friendly, less expensive and expeditious.

The human resource component will still be critical, and as such the Mission proposes not only to fill up judicial vacancies but also strengthen training through judicial academies. Efforts to provide continuing education and training for lawyers and public prosecutors are under way with the involvement of Bar Councils and law schools. Many of the shortcomings in the institutions and procedures can be overcome if motivated, competent personnel are available in adequate numbers.

Another component of the Mission involves the development of infrastructure in district and subordinate courts. During the 12th Plan period, all the 15,000 courts are expected to have buildings and equipment for them to be able to operate with efficiency. For this, substantial funds are sought to be provided by the Union government on 75:25 sharing basis. States have been asked to develop the design of modern court complexes in every district and estimate fund requirements. Hopefully, the judicial architecture will soon see a decisive change in terms of efficiency and towards a litigant-friendly atmosphere. Gram Nyayalayas to help rural folk access inexpensive justice at their doorsteps is another step envisaged. Again, with police modernisation, forensic science development, criminal tracking network system and similar initiatives being implemented, it is hoped that criminal justice will soon have a human face.

Popular support

The plan is ready and the funds have been made available. Now what is needed is time-bound implementation in mission mode by the functionaries, and popular support to sustain the momentum. Unfortunately, even informed sections do not believe that pendency and arrears can be controlled given the prevailing mindset of those in charge of the systems, and the undue benefits the vested interests enjoy by keeping the systems as they are. The litigant public seems to be reconciled to their fate and the powerful among them are increasingly using extra-judicial methods to get their due.

Of course, this was the sentiment in the early-1990s about the economy as well. A decisive leadership took the risk and made the change possible, which the people welcomed in due course. Can such a thing happen in the judicial sector in the present context when the political will seems to be forthcoming and the funds have been provided? Let there be a campaign for judicial reform among the public to get the actors motivated by the leadership to take the Mission seriously for the cause of justice and development.

(Dr. Madhava Menon is a former Vice-Chancellor of the National Law Schools in Bangalore and Kolkata, and a member of the Advisory Council of National Mission for Justice Delivery and Legal Reforms set up by the Government of India.)

SOURCE: THE HINDU /    LINK:http://www.thehindu.com/opinion/lead/article2571375.ece?homepage=true

No need for corroboration and conviction can be imposed on the sole statement of the victim – Supreme Court

Posted in SEXUAL OFFENCES, SUPREME COURT, VICTIMS by NNLRJ INDIA on October 26, 2011

The Supreme Court has ruled that in rape cases there is no need for corroboration and conviction can be imposed on the sole statement of the victim. A bench of justices P Sathasivam and B S Chauhan said that the victims testimony cannot be looked at with suspicion. Supreme court adeed that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The Prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Hence, the victims evidence need not be tested with the same amount of suspicion as that of an accomplice. The bench dismissed an appeal filed by Mohd Imran Khan and Jamal Ahmed challenging their conviction for rape of a minor girl about 22 years ago. The defence had argued the victim’s statement cannot be relied upon as she had eloped with the accused.

In 2009, the court had ruled the same when awarding rigorous life imprisonment to convict Raju, a resident of east Delhi for raping his five-year-old neighbour. The apex court had ruled that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent, is even more reliable. Evidence Act does not says that victims evidence cannot be accepted unless it is corroborated in material particulars. The court had also ruled that a victim is undoubtedly a competent witness under Section 118. However, courts also say that if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

Errors in Age Verification

The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side.

In Jaya Mala v. Home Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this Court held:

However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550)

Judgement Text:

EVIDENCE OF PROSECUTRIX:

It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as  that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act’), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim.

The rapist degrades the  very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2). This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein this Court observed that the courts must, while  evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.

Similarly, in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9, it has been observed as under:

It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.

Much reliance has been placed by learned counsel for the appellants on the judgment of this Court in Javed Masood & Anr. v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held that in case the prosecution witness makes a statement and is not declared hostile, he is supposed to speak the truth and his statement is to be believed.

It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix.

Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O. (PW.15) particularly in view of the birth certificate available on the record. In view of our finding in respect of the date of birth we are of the view that Puran Singh, I.O. (PW.15) unfortunately made an attempt to help the accused/appellants, though in the examination-in- chief the witness has deposed that the Birth Certificate providing the date of birth as 2.9.1974 was genuine.

Be that as it may, by now Puran Singh (PW.15) might have retired as the incident itself occurred 22 years ago. Therefore, we do not want to say anything further in respect of his conduct.

In State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185, this Court while dealing with a similar issue held:It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently  of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.

The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. Investigating Officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. (Vide: Jamuna Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC 1 1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254)

Shri Amrendra Sharan, learned senior counsel has placed reliance on the judgment of this Court in Baldev Singh & Ors. v. State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang rape had been sentenced to 10 years RI and a fine of Rs.1000/- each had been imposed and served about more than 3 years imprisonment and incident had been very old, this Court in the facts and circumstances of the case reduced the sentence as undergone, directing the appellants therein to pay a sum of Rs.50,000/- of fine to be paid to the victim and prayed for some relief.

The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit   case to reduce the sentence further in a proved case of rape of a minor. The appeals lack merit and are, accordingly, dismissed.

Juvenile officer at every police station must: court

Posted in ACCESS TO JUSTICE, CHILD RIGHTS, CRIMINAL JUSTICE SYSTEM, JUVENILE JUSTICE by NNLRJ INDIA on October 23, 2011

J VENKATESAN IN THE HINDU

“He shall take care of safety, food and basic amenities of the child”

The Supreme Court has directed the Director-Generals of Police of all the States and Union Territories to ensure that at least one police officer in every police station is designated as Juvenile/ Child Welfare officer to deal with the children in conflict with law. In its interim order, a Bench of Justices R.V. Raveendran (since retired) and A.K. Patnaik said: “The Home departments and the DGPs of States/UTs will further ensure that Special Juvenile Police unit, comprising all police officers designated as Juvenile or Child Welfare Officer, is created in every district and city to coordinate and upgrade the police treatment to juveniles and the children as provided in Section 63 (2) of the Juvenile Justice [Care and Protection of Children] Act, 2000.”

According to the Juvenile Justice (Care and Protection Children) Rules 2007, as soon as a juvenile is apprehended, the designated juvenile/child welfare officer of the nearest police station shall be asked to take charge of the matter. The officer shall produce the child before the Juvenile Justice Board (JJB) within 24 hours.

He shall intimate the parent or guardian, collect his socio-economic background and report the matter to the JJB.

Except in grave offences like rape, murder or one committed jointly with an adult, the case against a juvenile or child shall not be registered as an FIR and no charge sheet shall be filed, except making an entry in the general diary of the police station. The officer shall be responsible for the safety, food and basic amenities of the offender. Since the Act and the Rules framed were not being followed, the Supreme Court had been monitoring the implementation of the Act on the writ petition filed by Sampurna Behura and passed orders to the States/UTs from time to time. The court has already passed several orders for constitution of JJBs under Section 4 of the Act and Child Welfare Committees under Section 29 of the Act and most of the States and UTs have taken steps to constitute them.

Monitoring to continue

The Bench in its recent order made it clear that it would continue to monitor implementation of the provisions of the Act and asked the District Legal Service Authorities to provide the required training to the officers. It directed the matter to be listed in the first week of January, when the State governments and the UTs would file an affidavit outlining steps taken by them pursuant to this order.

http://www.thehindu.com/news/national/article2562888.ece

Media and issues of responsibility

Posted in CENSORSHIP LAW, MEDIA ETHICS, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on October 23, 2011

THE HINDU

The Indian media display certain defects. These should ideally be addressed and corrected in a democratic manner. But if the media prove incorrigible, harsh measures may be called for. The time has come when some introspection by the Indian media is required. Many people, not only those in authority but even ordinary people, have started saying that the media have become irresponsible and wayward, and need to be reined in.

Only a couple of days back I read in the newspapers that the Union government has issued some regulations regarding licences for news channels, to which there was a lot of reaction. Under the Constitution of India, freedom of the media is part of the freedom of speech guaranteed by Article 19 (1) (a). However, no freedom can be absolute, and reasonable restrictions can be placed on it. One of the basic tasks of the media is to provide truthful and objective information to the people that will enable them to form rational opinions, which is a sine qua non in a democracy. But are the Indian media performing this role properly?

I may only mention certain defects in the functioning of the India media today.

Twisting facts

One of the defects is that the media often twist facts. I would like to give an example.

One day, a leading English newspaper published on its front page a photograph of Justice Gyan Sudha Misra of the Supreme Court with the caption: “Supreme Court Judge says that her daughters are liabilities.” This was a distorted and fallacious item of news, published on the front page.

Supreme Court Judges have to disclose their assets and liabilities. Against the liabilities column, Justice Misra had written: “two daughters to be married.” Strictly speaking, it was not necessary to mention this because liabilities mean legal liabilities, for example, housing loan, car loan, and so on. Justice Misra’s intention was obviously to say that she would have to spend on her daughters’ future marriage. She has three daughters (no son), only one of whom has been married. Justice Misra never said, nor intended to say, that her daughters were liabilities. The news was false and defamatory, with the obvious intention of creating a sensation.

Paid news

A second defect concerns the issue of paid news that has become prominent of late. In the 2009 elections, it was a scandal. How this vicious practice could be stopped needs to be discussed. Incidentally, in compliance with an order of the Chief Information Commissioner dated September 19, 2011, we have placed the 71-page report of the Committee consisting of Paranjoy Guha Thakurta and Sreenivas Reddy on our website, http://www.presscouncil.nic.in with the disclaimer that the Press Council had rejected this report at its meeting held on April 26, 2010.

Non-issues as real issues

A third defect is that the media often portray non-issues as real issues, while the real issues are sidelined. The real issues in India are economic, that is, the terrible economic conditions in which 80 per cent of our people are living, the poverty, unemployment, lack of housing and medical care and so on. Instead of addressing these real issues, the media often try to divert the attention of people to non-issues. Such as that the wife of a film actor has become pregnant, whether she will give birth to a single child or to twins, and so on. Are these the real issues facing the nation?

At a Lakme India Fashion Week event, there were 512 accredited journalists covering the event in which models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour’s flight from Nagpur, in the Vidharbha region. Nobody told that story, except one or two journalists, locally.

Is this a responsible way for the Indian media to function? Should the media turn a Nelson’s eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages‘ where all is glamour and show biz? Are not the Indian media behaving much like Queen Marie Antoinette, who said that if the people had no bread, they should eat cake?

No doubt, sometimes the media mention farmers’ suicides, the rise in the price of essential commodities, and so on, but such coverage is at most 5 per cent to 10 per cent of the total. The bulk of the coverage goes to showing the life of film stars, pop music, fashion parades, cricket and astrology.

Tendency to brand

Here is a fourth defect. Bomb blasts have taken place near the Delhi High Court, in Mumbai, Bangalore and so on. Within a few hours of such a bomb blast, many TV channels started showing news items that said that the Indian Mujahideen or the Jaish-e-Mohammed or the Harkatul-Jihad-e-Islam had sent e-mails or text messages claiming responsibility. The names of such alleged organisations will always be Muslim ones. Now, an e-mail can be sent by any mischievous person, but by showing this on TV channels and the next day in the newspapers, the tendency is to brand all Muslims as terrorists and bomb-throwers.

The truth is that 99 per cent of the people of all communities, whether Hindu, Muslim, Christian or Sikh, and of whatever caste or region, are good. But the manner in which such news is shown on TV screens and published in newspapers tends to create the impression that all Muslims are terrorists, and evil — which is totally false. The person who sends such e-mails or text messages obviously wants to create hatred between Hindus and Muslims, which is the old British divide-and-rule policy continuing even today. Should the media, wittingly or unwittingly, become part of this policy of divide-and-rule?

No doubt there are defects not only in the media but in other institutions also, for example, the judiciary, the bureaucracy, and so on.

There are two ways to remove these defects in the media. One is the democratic way, that is, through discussions, consultations and persuasion — which is the method I prefer. The other way is by using harsh measures against the media, for example, by imposing heavy fines on defaulters, stopping government advertisements to them, suspending their licences, and so on.

In a democracy we should first try the first method to rectify the defects through the democratic method. For this purpose, I have decided to have regular get-togethers with the media, including the electronic media, so that we can all introspect and ourselves find out ways and means to rectify the defects in the media, rather than this being done by some government authority or external agency.

I propose to have such get-togethers once every two or three months, at which we will discuss issues relating to the media and try to think of how we can improve the performance of the media so that it may win the respect and confidence of the people.

If the media prove incorrigible, harsh measures may be required. But in my opinion, that should be done only as a last resort and in extreme situations. Ordinarily, we should first try to resolve issues through discussion, consultation and self-regulation. That is the approach which should be first tried in a democracy. I, therefore, request the Union government to defer the implementation of its recent decision regarding news channel licences, so that we can ourselves discuss the issue thoroughly, and ourselves take corrective measures.

Till now the function of the Press Council was only adjudication. I intend to make the Press Council an instrument of mediation in addition, which is in my opinion the democratic approach. For this purpose, I need help, cooperation and advice from the media.

India is passing through a transitional period in its history, from a feudal agricultural society to a modern industrial society. This is a very painful and agonising period. The media must help society in going through this transitional period as quickly as possible, and by reducing the pain involved. This they can do by attacking feudal ideas, for example, casteism and communalism, and promoting modern scientific ideas.

(This is the edited text of a speech delivered by Justice (retired) Markandey Katju, the new Chairman of the Press Council of India, on October 10 at a get-together with mediapersons at his residence in New Delhi. The full text is available at www.thehindu.com)

SOURCE: http://www.thehindu.com/opinion/lead/article2559712.ece

‘Judges must know their limits…they must not try to run the government’

Posted in GOVERNANCE, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE, LEGAL LUMINARIES by NNLRJ INDIA on October 21, 2011
JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

SHEKHAR GUPTA IN THE INDIAN EXPRESS

In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Supreme Court judge and now chairman of the Press Council of India, Justice Markandey Katju, talks about ‘judicial overreach’ and ‘media excesses’

My guest this week is the new chairman of the Press Council of India but more importantly a judge who is known to be a liberal lion of the bench. Justice Markandey Katju, you are somebody who combined a lot of native wisdom, literature, history and even Urdu poetry with your approach to justice.

Well, I have used Urdu poetry in many of my judgments. I will tell you just one where some OBCs beat up members of the Scheduled Caste and I thought this was highly objectionable, in fact it is a criminal offence. I began that judgment with a couplet from the great Urdu poet Firaq Gorakhpuri—“Har zarre par ek kaifiyat-e-neemshabi hai/ai sake-e-dauran yeh gunahon ki gharee hai.” It represents the transitional age in which we are living, transition from feudal agriculture society to modern society.

You gave one of the strongest judgments on honour killings.

Yes, I said death sentence must be given. These barbarians must be treated ruthlessly because we must help our society move forward into the modern industrial age and we must not be liberal with these feudal barbarians. We must hang them.

What’s your view on death sentence? Do you think it should be employed?

Yes, in certain situations. I am not a bloodthirsty person but when people do honour killings or policemen do fake encounters, girls are killed by pouring petrol on them, dowry deaths—should we be liberal with them or should we hang such people?

What about Rajiv Gandhi’s conspirators or the Afzal Guru case?

Frankly, I have not applied my mind to them. I have given a judgment that death sentence must be given in cases of fake encounters by policemen, in cases of honour killing, dowry death. Recently, I upheld the death sentence of a man who burnt his entire family.

And terrorism?

Provided you catch the correct culprit. The whole problem is that the police are not trained in scientific investigations, so on mere suspicion they bring in somebody. The point is that they cannot catch the real culprits so whomever they think may have committed the crime, they catch hold of them.

And then use torture.

In a village if somebody comes to the police station and says that there has been a dacoity, the inspector asks who has committed it? Somebody says Kallu has committed such kinds of dacoity. So they will catch hold of Kallu and the poor child is beaten and under torture, he will confess to everything. Joan of Arc confessed to being a witch under torture. The crime is solved this way and the inspector’s job remains intact otherwise he might have been suspended. I don’t blame the police because they are not trained in scientific investigation, they are not given the equipment as in the West. All this is absent in India so it is done just by suspicion. Some bomb blast takes place, they catch hold of the local Muslims and young people and implicate them. The electronic media has played a very nefarious role in this. The moment a blast takes place, within a few hours of it, most TV channels start saying that an e-mail has come or an SMS has been received that the Indian Mujahideen has claimed responsibility or Jaish-e-Mohammad has claimed responsibility. An e-mail or an SMS can be sent by any mischievous person but in a very subtle way the impression goes that all Muslims are terrorists, all of them throw bombs. You are demonising Muslims and you know the level of alienation that has been created among them.

Do you have any views on Prashant Bhushan’s view (on Kashmir) or on how he was attacked for his views?

I condemn all kinds of violence but this must also be considered…if you say that Kashmir can secede, then the Nagas will say they can secede, Mizos will say they want to secede, Tamilians will say they want to secede. Where is the end? You know this is a country of immigrants. You must realise what is India—92-93 per cent of people living in India today are descendants of immigrants. We are like North America and because we are a country of immigrants, there is tremendous diversity and therefore we must be tolerant with each other and respect each other. At the same time, we must be united. Did Abraham Lincoln allow the southern states of USA to secede? They said that we have formed a Confederate States of America…separate government. Abraham Lincoln said you will not be allowed to secede. He went to war. There is so much diversity in India, if you allow Kashmir to secede, then everyone will talk of seceding. We must remain together, you must understand what is India.

Yes, there should be democratic ways of resolving disputes. A case came before me, a dispute between the state of Assam and the state of Nagaland. The border had not been demarcated so we appointed mediators. We appointed Sriram Panchu, one of the top mediators of the country, and Niranjan Bhatt, also a top mediator. You know, the Nagas said that for the first time they were being heard. They said the British never heard us, the Indian government never heard us and at least here are people who are appointed by the Supreme Court who are hearing our point of view and hopefully some consensus may emerge.

So you think that while conflict resolution should go on, it should not be pushed into the domain of re-writing of the Constitution?

No, we have to remain united. I don’t agree with the saying that you can secede.

So was he (Prashant Bhushan) wrong in saying that?

I think he was wrong.

But at the same time the attack on him was wrong.

The attack was wrong, you should not commit acts of violence.

Lately, we are seeing judges getting angry in the Supreme Court. In fact, they use the expression ‘we are getting angry’. You know, the one who wields the big stick must speak softly.

When I became a judge of the High Court in 1991, I started reading the Mahabharata and one part of the Mahabharata is called Shanti Parva. When the war ended, Bhishmah Pitamah was lying on a bed of arrows and Lord Krishna went to Yudhishthira and said, ‘Now the Kauravas have been killed and you are going to be the next king. On how to conduct yourself as a king, Bhishmah Pitamah is the best person to tell you and he is shortly going to give up his life. So this is the opportune time, go and ask him’. So Yudhishthira went and sat at his feet, he put one question, Bhishmah Pitamah gave the answer, a second question, an answer. So, the questions-answers are part of a volume called Shanti Parva and in that, one of the things Bhishmah Pitamah said was that the king should neither be too harsh nor too lenient, he should be a mixture of the two. Sometimes you have to be harsh against evil people, but sometimes you should be soft. If you are always soft, people will revolt against you and if you are always harsh, the public will run away so it has to be a combination of the two. When I read this, I thought this is what applies to a judge too.

But the anger that we are generally seeing is more of what the executive now complains about—obiter dicta.

I don’t want to comment about other judges but I became a judge in the Supreme Court in 2006 and shortly after, I gave a judgment in which I said that the judges must know their limits and not behave like emperors. They must not try to run the government; judges must not ordinarily encroach into the domain of the legislature or the executive. Judges must know their limits, they must be restrained, particularly in economic and social matters. When it comes to civil liberties and fundamental rights, then a judge must be an activist.

What worries you more—judicial overreach or media overreach?

There should not be any overreach. Both must act in a very restrained manner. I have great respect for the media. In my opinion, the media is absolutely essential in a democracy.

What’s worrying you about the media right now?

There is a perception that it is going overboard. To give you an example, in 2009, when the Lok Sabha elections were held, this paid news scandal took place on a very large scale. Just three days ago, a senior lady politician told me she was contesting elections and that one leading newspaper came and demanded Rs 18 lakh for favourable coverage and (said) that if you don’t give it, then (you’ll get) adverse coverage.

Tell us a bit more about your danda remark, which obviously has raised people’s hackles. The last thing we expect in your hands vis-a-vis the media is a danda.

I am a totally democratic person. I believe in the method of discussion, consultation, persuasion. If the media has done something wrong, the first attempt should be to resolve the matter in a democratic method and in that connection every two months or so, I am going to hold meetings with all of you. Let’s resolve all the issues by the democratic method. If, despite our best efforts, you prove to be incorrigible, then the danda will be used. I will keep it in reserve.

What is the danda?

Bin bhaye hovat na preet (without fear there is no love). Have you read the Ramcharitmanas? Bhaye aapke upar hona zaroori hai (you should have fear). Don’t think you can do anything you like. You are accountable. In a democracy, all institutions, including the media, are servants of the people.

But there is danger in it. Today you are a liberal judge, tomorrow under a more problematic government, there might be a more problematic head of the Press Council. If these powers are given, they can be misused.

There is never a 100 per cent guarantee.

Are you very exercised about media excess?

Yes, very much. I will give you one example—the judge of a High Court where I was chief justice was known to be a very upright young man. On two consecutive days, a TV channel showed his picture like a criminal, next to the picture of a notorious criminal, and the allegation was that he had grabbed some land. I made a personal and thorough inquiry and it was all false. Now see how demoralising it is.

But the laws that are available, the law of libel, we know it takes a long time, but isn’t it a better way forward to strengthen the law of libel, decriminalise it and like the British law, make the civil law stronger?

All this is really unnecessary, we will hold discussions.

I am asking you a much larger question: do you believe that the law of libel should be decriminalised or not?

I have not really considered it. I don’t intend to consider it for it’s unnecessary. I am a democratic person. I would like to sit with all of you, not only print media but the electronic media too, discuss the issues. Suppose people are criticising some issues, I will bring it to your notice. We should be respected by the people. The media must get the respect of the people. We are accountable. I am accountable to the people. You think as chairman of the Press Council, I can do anything I like? I am also a servant of the people, you too are. We should be proud to be servants of the people. So we will resolve matters by democratic methods, discussions, negotiations, but as I told you, I will keep the danda in reserve.

Have you had some difficult brushes with the media?

I respect the media. The media has played a historical role in the progress of mankind but you should continue doing it, you must serve the people. Yeh nahi ki bas aap apne malik ko serve karein, aapko junta ko bhi serve karna hai (you shouldn’t serve just your bosses, you have to serve the people too). I have nothing against the corporates, there is nothing wrong in making money but you must be socially responsible too.

All I can say is that we are much happier to have you as a guardian of the media than a danda wielder from the government side.

You must understand that the Press Council is an independent body, we are not subordinate to the government, it’s a statutory body.

But its role has been whittled down greatly by, if I may be honest with you, some very political chairman.

I will not comment on any of my predecessors but as far as I am concerned, I am a servant of the people and that is the only title I want.

We started this with a Urdu couplet that was in a different context. Will you give us one as a parting message to your new charge, which is Indian journalism?

I have used so many couplets. There is one couplet which I wrote in a judgment and somebody came from Lahore and said that lawyers there are quoting it. It is right in the beginning of the judgment, it is a couplet by Faiz Ahmed Faiz whose centenary we are celebrating this year. Baney hain ahel-e-hawas muddai bhi, munsif bhi/kise wakil karen, kise munsifi chahen. It means that selfish people have become the plaintiff and the judge. Kise wakil karen, kise munsifi chahen: whom should we make a lawyer, whom should we go to for justice?

And you think that applies to the media a little bit right now?

It’s a couplet written by Faiz at the time of martial law.

But is it a caution to the media?

It’s a caution to everybody, not just to the media. It’s caution to judges, caution to bureaucrats. We are all servants of the people, we all have to behave in that manner.

On that cautionary note, may we have many more such conversations and not many admonitions. But as I said, you are such a liberaliser, that we feel completely safe with you.

Transcribed by Ipsita Mazumdar

SOURCE: http://www.indianexpress.com/news/judges-must-know-their-limits…they-must-not-try-to-run-the-government/861189/0

Making the law easier for the common man

Posted in CONSTITUTION, DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE, SUPREME COURT by NNLRJ INDIA on October 19, 2011
SC JUDGES IN A PROGRAMME

SC JUDGES IN A PROGRAMME

N R MADHAVA MENON IN THE HINDU

The Restatement of law seeks to identify and remove the ambiguities surrounding the legal principles, and clarify the law for its better adaptation to the needs of society.

One of the reasons for popular dissatisfaction with the administration of justice is the uncertainty of law which sometimes results in miscarriage of justice. The multiplicity of interpretations, the inadequacies of legislative drafting, ambiguities in policies and the variety of languages in which transactions are made add to the confusion and make repeated litigation inevitable. The use of simple English is now being canvassed in Common Law countries for legislative drafting and legal documentation. In the United States, complex and ambiguous laws have been simplified, codified and re-stated by the American Law Institute for the convenience of the legal community and the litigant public. In India, the problem persisted, alienating people from the law itself and providing litigants and advocates their heyday to often delay and manipulate the process to their advantage. The rule of law and access to justice have been in jeopardy in the circumstances.

On October 11, Chief Justice of India S.H. Kapadia released three Restatement volumes in New Delhi on three different legal subjects prepared by a committee headed by senior Supreme Court judge R.V. Raveendran (since retired) and published by the Indian Law Institute. The volumes are on various themes which have for long been discussed in the public domain without any clarity or certainty on where the law stands for guidance of the people who are supposed to know it in any case. It is doubtful whether the lawyers and judges who are the experts to advise the litigants are themselves clear on the various issues involved.

The Restatement Series, which the Supreme Court started with, included Legislative Privileges, Contempt of Court and Public Interest Litigation. The event marked a quiet revolution in the simplification, clarification, consolidation and dissemination of the law authoritatively. It is all the more significant that the project was initiated without any public funding and through the voluntary contribution of time and expertise by the contributors, consultants, editors and publishers. Even the printers and distributors have agreed to price the publications in the public interest at the bare cost of paper, ink and printing. Soon it may be available free in digital form as well.

What is Restatement and how does it help the public? According to Mr. Justice Raveendran, Restatement is intended to be an authoritative neutral statement of the law on the subject, identifying and removing uncertainties and ambiguities surrounding the legal principles and clarifying the current law for its better adaptation to the needs of society. The subjects are areas of Indian law where there is need for clarity and simplicity benefiting not only the legal community but, more importantly, civil servants and the general public.

The method of producing the Restatement is not the usual one adopted in writing books or drafting documents. The Restatement Committee deliberated on the choice of subject from the point of the public interest, the legal doctrines and principles involved, the issues that deserve clarification, the uncertainties or ambiguities to be removed and the structure of presentation to serve the multiple consumers of the Indian law. Care has been taken to avoid views and opinions on what the law ought to be and to make the propositions purely based on statutes and judicial pronouncements so that the Restatement is an authoritative reproduction of current law which can be acted upon by lawyers and judges whenever differing judgments from different jurisdictions offer diverse interpretations on the same issue. Thus, it can save judicial time and expedite disposal of cases. Lawyers may not have to carry or cite multiple decisions or run the risk of overlooking judgments; nor need judges be afraid of being misguided by overruled propositions or amended statutory provisions.

The Restatement draft involved two revisions — first when it was sent for critical feedback among selected expert consultants and, second, when the revised text was scrutinised by the editorial committees consisting of judges, jurists and academics. The concern all through has been to ensure clarity and accuracy and, to a large extent, the three volumes fulfil these objects. These Restatements are thus an easily accessible, clearly understandable, non-technical statement of the current law otherwise spread into many constitutional provisions, voluminous statutory texts, innumerable judicial pronouncements — sometimes conflicting and confusing. If they are translated into vernacular languages, the general public will have free access to understand the law, which is fundamental for access to justice.

It will be interesting to know that the contributors of the three volumes include busy lawyers such as K.K. Venugopal and Gopal Subramaniam, of course, ably assisted by a number of bright young lawyers practising in different courts. S. Sivakumar, Research Professor of the Indian Law Institute, co-ordinated the preparatory work and oversaw the production of the volumes in a uniform format.

Congratulating the Supreme Court Project Committee and the Indian Law Institute, the Chief Justice of India said this ambitious project would publish Restatements on various important topics in future and Justice Raveendran would continue to be its Chairman even after his retirement. Justice Raveendran, in turn, announced a list of topics which would engage the priority attention of the Committee for preparation of further Restatements in the coming years.

But it is sad that a major project of great public interest in reaching the law to people at the instance of the highest court has gone unnoticed by the government, the media and civil society. Though it is not the function of judges, the interest and investment they have put in the effort will be appreciated by civil society as the project brings more Restatements on laws affecting the daily lives of common people. What the government can do is to support the project with funds, undertake translations of the volumes in all official languages and reach them to people through panchayats and other local bodies so that the rule of law prevails with the removal of ignorance. In fact, if the grass-roots courts proposed under the Gram Nyayalaya Act have to function through an informed conciliatory process, both parties should have an authoritative knowledge of the laws that regulate their transactions, and understand the rights and obligations under them. Even the gram panchayats can function effectively without bureaucratic dependence only when the law and the Constitution become unambiguously familiar to the elected representatives. Looked at from this perspective, the Supreme Court’s Restatement of Indian Law Project is nothing short of a rule of law revolution in the making, possibly heralding the success of democracy and constitutional governance.

The law governing contempt is shrouded in mystery despite there being a statute and innumerable pronouncements by the Supreme Court clarifying its scope. Yet the common people and journalists are uncertain about the principles involved, the scope of the statute and the constitutional limitations on contempt power. Similar is the case with the privileges of elected representatives of the State Assemblies and Parliament. Such a situation in the functioning of two important institutions of governance is prejudicial to democracy and the rule of law. This is what the two Restatements attempt to redeem by clarifying the current law on the subject. Of course, the law can change with changes in society and Restatements may need to be updated whenever new editions are planned. Furthermore, Restatement can never act as a substitute for professional advice if and when legal action is required. Yet they help to avoid problems and to solve problems effectively as and when they arise.

Public Interest Litigation is a legal tool invented by the Indian judiciary for giving a voice to those vast masses who would otherwise have not been able to access justice because of ignorance, incapacity and the way the system works. For that very reason, it is a part of the jurisprudence of the masses which they ought to know for seeking justice. In the absence of any statute on the subject, the law has to be articulated from judicial practice and pronouncements over the last several decades and more. This is what the Restatement on the subject has done for the lasting credit of the Indian justice system. If Restatements are brought out on the Right to Education, Health, Food, Work, Clean Environment and a corruption-free government, the common man can hope to be less prone to exploitation and more empowered to seek remedies under the law.

(Professor N.R. Madhava Menon, a former Vice-Chancellor of the National Law School, Bangalore and Kolkata, is a Member of the Restatement of Indian Law Project Committee of the Supreme Court.)

SOURCE: http://www.thehindu.com/opinion/lead/article2549316.ece

Executive Summary of Changes made in the National Sports Development Bill, 2011

Posted in LEGISLATIONS by NNLRJ INDIA on October 17, 2011

NSFs to be Public Authority Under RTI Act /  Age & Tenure Norms to Stay / Executive Body to have 25 Percent Athletes & Elections to be Conducted in Fair & Transparent Manner through Secret Ballot

The Union Minister for Youth Affairs & Sports ( I/C) , unveiled the revised draft National Sports Development Bill , 2011 here today.  Giving the details of modifications made in the Bill at a press conference, the Minister  said that efforts have been made to streamline the Bill, while retaining its basic principles of transparency, good governance and de-control from Government intervention. Serious consideration has been given to remove the perception that the Sports Ministry was seeking to directly interfere in sports.  He further informed that the draft Bill has also been sent to Indian Olympic Association and all recognised National Sports Federations by post and e-mail seeking their comments/suggestions within two weeks.

Summary of broad changes made in the Bill:

The discretion of the Government to recognize National Olympic Committee and National Sports Federation has been eliminated. In the event the Central Government feels that these criteria have not been met or there is any other discrepancy/dispute, the Central Government can refer the matter to an Independent Appellate Sports Tribunal [Section18(4) & Section 23];

 A provision of deemed registration has also been inserted in the Bill in order to avoid duplicity of work. A certificate of registration once issued would continue to be in force until the time such a registration is suspended or cancelled by the Appellate Sports Tribunal [Section 19 & 22];

 In order to retain funds for the development of sports in the country, a provision has been made that all penalties that are levied by the Appellate Sports Tribunal would vest with the National Sports Development Fund Scheme; [Section 50]

Whereas at one end transparency has been sought to be inculcated by the applicability of the provisions of the Right to Information Act, 2011 to the sports federations, an exclusion clause has also been provided to protect certain information which are peculiar to sports, which may be used by our competitors against our athletes. These are:

a.  Queries pertaining to selection, appointment or exclusion of athlete, coach, trainer or physiotherapist when it for participation in an athletic competition;

b. Queries pertaining to the quality of performance of an athlete in an athletic competition;

c.  Queries relating to medical health and fitness of an athlete;

d.  Queries relating to whereabouts of an athlete;

e.  Queries pertaining to information which is confidential under the NADA code.

It is however to be noted that this exception in the Right to Information Act does not bar the aggrieved party in initiating action against any erring party whether it is the Sports Authority of India, National Olympic Committee, National Sports Federation or the Central Government. [Section 47]

 In order to streamline the Bill, the offices of the Sports Ombudsman and the National Sports Development Council have now been removed. The office of the Sports Ombudsman has been removed in order to accommodate the formation of the Indian Court of Arbitration for Sports by the Indian Olympic Association. The other duties of these bodies have either been allocated to the National Sports Federation itself or the Appellate Sports Tribunal;

The sport sector worldwide is structured in a very peculiar way, where the Court of Arbitration for Sports based in Lausanne has an exclusive jurisdiction to decide certain disputes. In order to retain this worldwide structure a provision has been inserted in the Bill excluding the jurisdiction of the Appellate Sports Tribunal in these cases; [Section 28]

 The independence of the Appellate Sports Tribunal has sought to be ensured in totality. Therefore the power to appoint the Chairperson and other members of the Appellate Sports Tribunal has been granted to an independent Selection Committee which is to be chaired by the Chief Justice of India or his nominee and also has a representation from the National Olympic Committee. The discretion to remove a member of the Appellate Sports Tribunal now vests with the Chief Justice of India who would be conducting a enquiry according to a specific procedure laid down by him; [Section 30 & 35]

Clarity has been inducted in the provisions of the Bill, which now bars the Minister in charge of department of sports or any other official of the department of sports in the Central Government or an officer of the Sports Authority of India to contest election in a National Olympic Committee or the National Sports Federations for a period of five years; [Section 24(3)]

Specific clause has been inserted in the anti doping provision to exclude applicability of those provisions of the WADA/NADA Code to which an International Federation is not subject.  This has been done since NADA functions under the WADA Code and if at the International level there are certain provisions of the WADA Code to which the International Federation is not subject, then the logical corollary is that those provisions should not be administered by NADA on the sport of that National Federation.  [ Section 15(1)]

 The eligibility criteria for the National Sports Federation to get recognition have been reduced for instance the criteria stating that the National Sports Federation should have been in existence for three years has been deleted. This has been done in order to promote new sports which are developing/being actively played in India to be recognized by the Government; [Section 20]

The detailed provision requiring the approval of the Central Government for the formulation of the Long Term Development Plan and the appointment of an Government Observer to monitor the adherence to this LTDP has been removed, in order to secure the autonomy of the sports federations;

 The provision for registering playing fields with the National Playing Fields Association of India has been removed. Instead the duty has now been enjoined upon the Central Government and the National Sports Federations to secure the availability of playing fields to the athletes; [Section 3 & 12(b)]

 A duty has been enjoined upon the coaches, guardians and other support personnel to prevent unethical practices in sports like doping, fraud of age and sexual harassment; [Section 15,16 &17]

 The Central Government has undertaken a duty to specifically promote Paralympic and Special Olympic Sports; [Section 3(2)(f)]

The Central Government has also undertaken a duty to make provisions for continuing education of the athletes, healthcare and pension for the athletes. [Section 3(2)(e)]

Shri Maken further stated that it is the endeavor of the Government to make India a prominent player on the global sporting arena. This can only be done when transparency, unbiased decisions, democratic elections and joint development of sports is inculcated. The Bill seeks to align the sports movement in a structured way that the Central Government, Sports Authority of India, National Olympic Committee and the National Sports Federation can work together for the overall promotion and development of sports. The Bill recognizes that at the core of sports development are the athletes and effort is being made by the Bill to give them a say in running the sports as well as secure better welfare measures for them.

The revised draft for National Sports Development Bill has been uploaded on the web site of this Ministry: http://www.yas.nic.in for comments/suggestions within 15 days of its publication, i.e. up to 29.10.2011.  The comments/suggestions may be sent to Joint Secretary (Sports), Ministry of Youth Affairs and Sports, Room No.504 “B”, Shastri Bhavan, New Delhi or through Email at js-sports@nic.in.

Book on Kesavananda Bharati case to be released on Tuesday

Posted in CONSTITUTION, SUPREME COURT by NNLRJ INDIA on October 17, 2011

J VENKATESAN IN THE HINDU

A 13-judge Bench of the Supreme Court, the largest so far, decided the Kesavananda Bharati case after hearing arguments by eminent lawyers spread over 66 days. The judgment, delivered by a majority of 7:6 on April 24, 1973, held that Parliament could not alter the basic structure of the Constitution by an amendment. Chief Justice of India S.H. Kapadia will release a book dealing with this case at a function here on October 18. The senior advocate and former Solicitor- General, T.R. Andhyarujina, has written the book, explaining the culmination of a struggle for supremacy over the power to amend the Constitution between Parliament and the government on the one hand, and the Supreme Court on the other.

Mr. Andhyarujina says: “This book is a gripping story of the conflict and tensions in the Kesavananda Bharati case and its aftermath, which has not been disclosed so far. It is based on the author’s recollection and [the] detailed notes maintained by him as counsel in the case, and on later interviews by him with some of the judges in the case.” The book reveals that prior to the hearing, the government attempted to influence the court by appointing judges who it expected would decide in its favour. It shows the preconceived views of some of the judges on Parliament’s power to amend the Constitution, the internal conflicts and factions among the judges, and the charged atmosphere in the court till the delivery of their judgments.

In the words of Mr. Andhyarujina, the battle began when the Supreme Court, in the Golak Nath case in 1967, held that fundamental rights could not be amended by Parliament. Parliament and the government were not reconciled to the ‘view by majority’ in the Kesavananda case and were determined to get it overruled. On the day of the judgment (April 24, 1973), the government superseded three senior-most judges, who had decided against the government and appointed Justice A.N. Ray as the next Chief Justice on the retirement of Chief Justice S.M. Sikri. In 1975, with the help of Mr. Ray, the government tried in vain to reverse the majority view in the Kesavananda case by another Bench of 13 judges.

However, during the emergency, the government nullified the Kesavananda case judgment by the 42nd amendment, but this was overruled in the Minerva Mills case in 1980, when Y.V. Chandrachud was the Chief Justice. Mr. Andhyarujina says the purpose of the book, coming as it does after 38 years of the event, was “an interaction of constitutional law with the politics of the day; the story of the Kesavananda case requires to be widely known.” Though such an exercise is being done in the United States, it has not been done in respect of any leading case in India, hence his attempt.

http://www.thehindu.com/news/national/article2543671.ece

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