When right to private defence is wrong

BY GEETA RAMASESHAN PUBLISHED IN  THE HINDU

A police claim of self-defence to justify encounter killings must be held to higher standards of proof as the force is armed and trained for combat.

The “encounter” deaths of five persons suspected of having carried out two bank robberies in Chennai is reminiscent of the Batla house encounter. It has once again focused attention on the practice of extrajudicial killings in Tamil Nadu. Reports in The Hindu indicated that the police got a tip-off about where the perpetrators were, after the photograph of one suspect appeared in the media. As a follow-up, the official version goes, policemen visited the premises where the five men were and asked them to surrender. They in turn fired on the police, which resulted in the five being shot dead. Such a construction poses many uncomfortable questions.

How was the man in the photograph identified as one of the five men in the house? Again, why did the police not wait for the men to surrender? At the time of firing there was nothing to indicate that those killed were involved in the heist. They were purported to have been identified by eyewitnesses after they were killed.

The official claim that the police had to exercise their right of self-defence as they were shot at raises more questions than answers. It sweeps under the carpet disturbing aspects about the modus operandi of the police, in instances when they seem to conduct themselves more like vigilante groups rather than as protectors of the law.

In all cases of encounter deaths, the practice is to claim that the killings were done in self-defence. Under the penal code, the right of private defence is available to all, and no distinction is made between the police and layman. However the taking away of life can be done only under exceptional circumstances. The person seeking the right of private defence must have a reasonable apprehension that the person who is killed, would have killed him or her, or caused grievous hurt, could commit rape, kidnapping or abduction.

Private defence or murder

As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.

But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.

However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.

NHRC guidelines

In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.

While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.

The Madurai based human rights organisation, People’s Watch, has documented at least 23 such instances in the past four years in Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.

A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.

(Geeta Ramaseshan is an advocate at the Madras High Court. E-mail: geetaramaseshan@gmail.com)

http://www.thehindu.com/opinion/op-ed/article2943201.ece?homepage=true

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Why is it so hard to budge a judge?

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

INDIAN EXPRESS 

 It was assumed by our Constitution makers that once a judicial committee finds a judge guilty of misbehaviour, Parliament would automatically endorse the finding of the judicial committee and pass the appropriate address to the president with the requisite majority. That was the assumption underlying this provision. Unfortunately, Parliament did not build up a convention on these lines. Therefore, the procedure became difficult and doubtful.

In former Supreme Court judge Justice V. Ramaswami’s case in 1993, the ruling party, the Congress under P.V. Narasimha Rao, did not issue a whip to the members and in fact, told them to abstain from the vote. Ramawami’s supporters prevailed on the party, and this abstention by the Congress defeated the motion, which set a very bad precedent, and earned a bad name for the party. That event has encouraged some judges to take a very rigid stand: not to resign even when serious allegations are made against them by responsible persons. It has had a negative impact on the minds of these people, as errant judges assume nothing will happen to them since impeachment is such a difficult procedure. This has been a serious setback to the independence and the credibility of the judiciary.

Thereafter, there have been a number of cases involving judges of against whom serious allegations of misconduct have been made. There have been cases where criminal prosecution was also initiated. Shamit Mukherjee of the Delhi high court and Nirmal Yadav of the Punjab and Haryana high court are examples. There have also been some cases where the Chief Justice of India did not give his permission to proceed; such permission is required in law. K. Veeraswamy, a former chief justice of the Madras high court, was prosecuted for having disproportionate assets. The real point is that because impeachment is difficult and uncertain, some judges behave irresponsibly.

In the Justice Soumitra Sen case currently before Parliament, a committee was set up, consisting of a sitting judge of the Supreme Court, Justice B. Sudershan Reddy, an eminent lawyer like F.S. Nariman, an eminent judge like Chief Justice Mukul Mudgal of the Punjab and Haryana high court. That committee found this gentleman guilty of retaining the monies of a client that he received as an advocate-receiver, and of holding on to that money in his account even after becoming a judge of the high court. He returned the money only later, after the high court ordered him to do so. This was considered to be misbehaviour on the part of the judge.

Instead of accepting the findings given by an impartial committee, Sen has chosen to challenge the findings in Parliament. This isn’t a healthy development. The Rajya Sabha has since voted for his impeachment. Now it all depends on the vote in the Lok Sabha. According to me, in principle, it is not a wise decision to make MPs the custodians of judicial ethics and judicial conduct. If they are to apply their own standards of probity to the misbehaviour of judges, they might find it difficult to find him guilty of serious misbehaviour warranting removal. Therefore, there should be another method for easier removal of a judge found to be guilty of doubtful integrity.

I suggest an amendment of the Constitution to incorporate a provision permitting the immediate removal of a judge who, in the opinion of the collegium of the Supreme Court is a person of doubtful integrity and doesn’t deserve to remain in office. He can be paid some compensation in lieu of the forsaking of service, instead of having to suffer him on the bench with doubts about his honesty in the minds of the public. The judicial system cannot afford to have such black sheep on its rolls.

If such a provision is made, it can be applied to public servants found to be of doubtful integrity. Proving corruption in a court of law is difficult because the bribe-giver and -receiver will thwart all attempts to prosecute them. The same problem arises with departmental enquiries. Even in those rare cases where prosecution succeeds, it takes a long time and by the time the decision comes, the judiciary would have suffered an irreparable loss. On the other hand, if such people are removed forthwith, on payment of some compensation, the system would be much healthier and will enjoy greater credibility.

Those inclined to accept gratification will also be under check for fear of removal forthwith if discovered. It will have a salutary effect even on the existing judges and will instill fear in their minds, so that they do not resort to corrupt ways, and remain honest. Of all the institutions, the judiciary especially cannot afford to have corrupt persons in its ranks. Therefore I strongly recommend such a provision being made in the Constitution. In that case, the impeachment procedure would become redundant.

There is a judicial accountability bill in the works, but well intentioned as it is, it does not go far enough, and does not have adequate teeth to deal with the problem effectively. There should be a provision for the suspension of a judge when complaints against him are being investigated. At the same time, we must take care to ensure that disgruntled litigants do not level false accusations against judges who might have decided against them. We have to protect judges from such baseless complaints. The judicial accountability bill will have the unintended effect of allowing false complaints to be made, which is not conducive to the independence of the judiciary. There is no provision for the speedy removal of an errant judge.

The Supreme Court has been trying an in-house procedure, but it is not a transparent one. There is a feeling that cases are pushed under the carpet for fear of adverse publicity. Therefore, there is a clear need for a transparent mechanism of accountability for judges. Even in the matter of declaration of assets in public, there was hesitation within the judiciary. It is necessary to ensure transparency in these matters in order to sustain the confidence of the people in the system.

The writer is a senior advocate in the Supreme Court, and an expert in constitutional law

http://www.financialexpress.com/news/why-is-it-so-hard-to-budge-a-judge/834013/0

The High Court of Judicature at Madras at 150

High Court Madras

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As the Court, which has many firsts to its credit, enters its 150th year and celebrations are being planned in a big way, it is high time a social audit was done on its performance.

JUSTICE CHANDRU

August 15, which we celebrate as our country’s birthday, is also incidentally the birthday of the Madras High Court. It was born 85 years before India got its Independence. The Indian High Courts Act, 1861 passed by the British Parliament enabled the colonial government to establish High Courts of Judicature in India. It merged the earlier Supreme Courts functioning in the Presidency Towns along with Sadar Adalats and established High Courts in the three Presidential Towns of Bombay (Mumbai), Calcutta (Kolkata), and Madras (Chennai). The Act authorised Queen Victoria to issue letters patent under the great seal of the United Kingdom to erect and establish High Courts of judicatures.

The court at the time of its establishment was required to discharge cases with “justice, equity and good conscience.” Though the charter for the establishment of the High Court of Madras was issued on June 26, 1862, the Madras High Court was inaugurated on August 15, 1862. After its initial functioning at the present Chennai Collectorate, it moved to the present campus in 1892.

The High Court initially administered its jurisdiction only within the Presidency town. Its jurisdiction got extended to the entire Presidency subsequently. Being the High Court established by the Act of the British Parliament, it had the power to issue prerogative writs. The power to issue writ in the nature of habeas corpus was curtailed by Section 491 of the Cr.P.C. (1898). After the enactment of the Government of India Act, 1935, the power to issue habeas corpus writ was restored. Subsequent to the enactment of the Constitution (1950), the High Courts were recognised by the Constitution and the power to issue writs, orders or directions was conferred on it under Article 226. The power under Article 226 became a potent weapon in the hands of citizens as against acts of States to keep it under check. It was held to be part of the basic structure of the Constitution. No constitutional amendment can divest that power [L. Chandrakumar’s case – (1997)].

After the States Reorganisation, many parts of the Madras Presidency went away to form Andhra Pradesh, Karnataka, and Kerala. Those High Courts were called the Andhra Pradesh High Court, the Karnataka High Court, and the Kerala High Court, and named after those States. But the name of the Madras High Court remained unchanged notwithstanding Madras becoming Chennai. It is incongruous that even after the establishment of the Madurai Bench of the Madras High Court (2004), it is still called the Madras High Court. It is high time it was called the Tamil Nadu High Court.

Since 1892, many changes have taken place. The beach opposite to the High Court, popularly known as High Court Beach, disappeared thanks to Port Trust cornering the place. The Light House beaming its light over the city, which was housed within the High Court building, was closed. It is ironical to have facade lighting arrayed to see the old Light House in the evenings. But within the High Court, many things have remained unchanged: the Silver Mace bearers going in front of the judges to the Court, lawyers and others addressing judges as My Lords and Lordship and wearing colonial robes (black coat and gown). Even women judges are to be called My Lord and Her Lordship. Even after the Bar Council of India resolution No.58/2006, dated April 9, 2006, lawyers continue to address the court with honorifics such as My Lords. Strangely, though there is no law prescribing robes for the judges, they adorn the same attire and refuse to change the customary practice.

As the Court enters its 150th year and celebrations are being planned on a big scale, it is high time a social audit was done on its performance. The 150 years period will have to be necessarily split up into two parts, that is, the colonial and the post-colonial period. At the time of its establishment, judges were solely appointed by the Crown, two-thirds of the vacancies were to be filled up by English and Irish barristers and bureaucrats drawn from the covenanted civil services. Judges had to serve during Her Majesty’s pleasure. While the Government of India Act, 1935 provided some changes, it was only after the Constitution was adopted in 1950 that a constitutional framework for High Courts was evolved.

Any study on this institution must cover the functioning of the Court under the colonial government to know its role during the two World Wars and how far it had acquitted itself. There were instances when lawyers who participated in the freedom struggle were punished and had their names removed from the bar roll. The cases of detenues’ appeals during World War II were dealt with by British judges in a secret manner and records relating to appeals under the Public Safety Act are yet to be explored by historians.

Undoubtedly, the Madras High Court is the first in many respects. It is the first High Court whose judges have declared their assets and put it up at the official website. The judges have also adopted the “statement of values” evolved by the Supreme Court (1997). The judiciary here represents a wider cross section of society compared with many High Courts in India. The Madras High Court tops in the rate of disposal of cases in India. But the ever-increasing load of cases has created problems of space not only for lawyers and litigants, but also for the system of keeping records and maintaining them. The number of Tribunals created has taken away the powers of the High Court. The systematic deprivation of the High Court’s power is not conducive either to the independence of the judiciary or to the rule of law.

Even after 61 years of the Constitution, the High Court is still not allowed to have Tamil as the additional court language. Though the Court gave its consent in the year 2006, the presidential notification is nowhere in sight. The colonial practice of having a summer vacation and working 210 days in a year is clearly a huge waste of human resources. It is high time the courts functioned like any other public offices round the year. Being sentinels of justice, the doors of the courts should never remain closed. They can be operated in such a way that leave can be granted on a rotational basis to judges.

Work stoppages by lawyers are another evil that has crept in. Even after the Supreme Court’s judgment in Harish Uppal’s case (2003), the High Court continuously lost 30 to 40 days due to work stoppage by lawyers in the last few years.The role of lawyers is an essential adjunct for proper maintenance of the court system. Unbecoming scenes that are witnessed in courts are largely on account of lack of proper training in law and ethical values. The justice delivery system depends on the quality of the Bar. The improvement of legal education in the country must be taken up as a priority.

All stakeholders must ponder over the ills plaguing the justice delivery system and strive for a people-oriented justice delivery system. This is the imperative need of the time when the entire nation debates on the Judges’ Accountability Bill and vociferous cries are heard for inclusion of the higher judiciary under the Lok Pal‘s ambit. With mounting arrears and a huge backlog of cases, we are sitting over a volcano. The latest statistics given to the press by the High Court reveal that there are more than 400,000 civil cases and around 50,000 criminal cases pending for disposal.

In the words of the Supreme Court of India: “People in India are simply disgusted with this state of affairs, and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases. We request the authorities concerned to do the needful in the matter urgently to ensure speedy disposal of cases if the people’s faith in the judiciary is to remain” (See: (2007) 11 SCC 37). The Supreme Court once again warned that “many people have started thinking that justice will not be done in the courts due to the delays in court proceedings. This is indeed an alarming state of affairs” (See: (2007) 14 SCC 452).

The top priority must be to find effective ways and means in bringing down the pendency so that people at large and litigants in particular are assured of a proper and prompt justice delivery system.

“To none shall we deny justice
To none shall we delay justice
To none shall we sell justice”

The ‘Magna Carta’ in which these words are found was repealed by an official Act of Parliament, yet it must reverberate in our zeal for justice and must not be forgotten in the year-long festivities to celebrate the High Court’s 150th year.

(Justice K. Chandru is a Judge of the Madras High Court.)

http://www.thehindu.com/opinion/lead/article2357419.ece?homepage=true

Let us amend the law, it is only fair to women

THE HINDU / JUSTICE DR  A R LAKSHMANAN

This refers to the article “A law that thwarts justice” ( The Hindu , June 27, 2011) by Ms. Prabha Sridevan, former Judge of the Madras High Court. I have analysed it and am in agreement with the views expressed by the author for my own reasons.

As Chairman of the Law Commission of India, I took up for consideration the necessity of amending Section 15 of the Hindu Succession Act, 1956 which deals with the general rules of Succession in the case of female Hindus dying intestate — not having made a will before one dies — in view of the vast societal changes that have taken place.

The Hindu Succession Act, 1956 is part of the Hindu Code which includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

The Hindu Succession Act made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband’s property as also to her father’s property. The Act was amended in 2005 to provide that the daughter of a co-parcener in a joint Hindu family governed by the Mitakshara Law shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

Scheme of succession

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu.

Source of acquisition

The group of heirs of the female Hindu dying intestate is described in 5 categories as ‘a’ to ‘e’ of Section 15 (1) which is illustrated as under:

In a case where she dies intestate leaving property, her property will firstly devolve upon her sons and daughters so also the husband. The children of any pre-deceased son or daughter are also included in the first category of heirs of a female Hindu;

In case she does not have any heir as referred to above, i.e., sons, daughters and husband including children of any pre-deceased sons or daughters (as per clause ‘a’) living at the time of her death, then the next heirs will be the heirs of the husband ;

Thirdly, if there are no heirs of the husband, the property would devolve upon the mother and father ;

Fourthly, if the mother and father are not alive, then the property would devolve upon the heirs of the father which means brother, sister, etc ;

The last and the fifth category is the heirs of the mother upon whom the property of the female Hindu will devolve if in the absence of any heirs falling in the four preceding categories.

This is the general rule of succession, but the Section also provides for two exceptions which are stated in Sub-Section (2). Accordingly, if a female dies without leaving any issue, then the property inherited by her from her father or mother will not devolve according to the rules laid down in the five entries as stated earlier, but upon the heirs of father. And secondly, in respect of the property inherited by her from her husband or father-in-law, the same will devolve not according to the general rule, but upon the heirs of the husband.

The Hindu Succession Bill, 1954, as originally introduced in the Rajya Sabha, did not contain any clause corresponding to Sub-Section (2) of Section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The intent of the legislature is clear that the property, if it originally belonged to the parents of the deceased female, should go to the legal heirs of the father.

So also under Clause (b) of Sub Section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property. The fact that a female Hindu originally had a limited right and after acquiring the full right, would not, in any way, alter the rules of succession given in Sub Section (2) of Section 15.

The 174 {+t} {+h} Report of the Law Commission also examined the subject of “Property Rights of Women; Proposed Reforms under the Hindu Law” and had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions.

The basis of inheritance of a female Hindu’s property who dies intestate would thus be the SOURCE from which such female Hindu came into the possession of the property and the manner of inheritance which would decide the manner of devolution.

The term ‘property’ though not specified in this Section means property of the deceased heritable under the Act. It includes both movable and immovable property owned and acquired by her by inheritance or by devise or at a partition or by gift or by her skill or exertion or by purchase or prescription. This Section does not differentiate between the property inherited and self-acquired property of a Hindu female; it only prescribes that if a property is inherited from husband or father-in-law, it would go to her husband’s heirs and if the property is inherited from her father or mother, in that case, the property would not go to her husband’s, but to the heirs of the father and mother.

This is very aptly illustrated by the following illustration:- A married Hindu female dies intestate leaving the property which is her self-acquired property. She has no issue and was a widow at the time of her death. As per the present position of law, her property would devolve in the second category, i.e., to her husband’s heirs. Thus, in a case where the mother of her husband is alive, her whole property would devolve on her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid down in case of a male Hindu dying intestate, i.e., if the father of her deceased husband is alive, the next to inherit will be her father-in-law and if in the third category, the father-in-law is also not alive, then her property would devolve on the brother and sister of the deceased husband.

Thus, in the case of the self-acquired property of a Hindu married female dying intestate, her property devolves on her husband’s heirs. Her paternal and material heirs do not inherit, but the distant relations of her husband would inherit as per the husband’s heirs.

The case for change

The Hindu Succession Act, 1956 was enacted when, in the structure of the Hindu society, women hardly went out to work. There has been a vast change in the social scene in the past few years and women have made progress in all spheres. The consequence is that women are owning property earned by their own skill. These situations were not foreseen by the legislators.

If that is so, what is the impact of these socio-economic changes? Do they warrant any change in the law of succession in relation to the property of a female Hindu dying intestate? What is the fallout of a gradual disintegration of the joint Hindu family and the emergence of nuclear families as a unit of society over the years in the context of law of succession governing the issue at hand?

A fundamental tenet of the law of succession has been the proximity of relation in which a Successor stands to the person who originally held the property that may be the subject matter of inheritance in a given case. The fact that women have been given the right to inherit from her parental side also assumes relevance in the present context. These developments and changes lead to competing arguments and approaches that may be taken in re-defining the law of succession in case of a female Hindu dying intestate. Thus, three alternative options emerge for consideration, namely:

1. Self-acquired property of a female Hindu dying intestate should devolve first upon her heirs from the natal family.

2. Self-acquired property of a female Hindu dying intestate should devolve equally upon the heirs of her husband and the heirs from her natal family.

3. Self-acquired property of a female Hindu dying intestate should devolve first upon the heirs of her husband.

The third option may be taken first as this can be disposed of summarily. The option essentially means continuation of the status quo. We have seen earlier that socio-economic changes warrant corresponding changes in the law as well.

We may now take up the first option. The protagonists of this approach contend that the general order of succession reflects a gender bias. It will be relevant to refer to a passage in Pradhan Saxena – Succession Laws and Gender Justice in Re-defining Family Law in India by Archana Parasar, Amit Dhanda, New Delhi.

The supporters of the said approach contend that the joint family system has slowly eroded and that an increasing number of nuclear and semi-nuclear families have replaced the traditional Mitakshara Hindu joint family system. Women are also becoming more economically independent. With the growth of the nuclear family, a married woman’s dependency on her natal family and continued closeness to it is much greater today even if it was not so earlier. Most married women would prefer that their parents should be the more preferred heirs to inherit her property if her children and husband are not alive. She would also prefer that her sister and brother have a better right to inherit her property than her brother-in-law and sister-in-law.

Accordingly, it is urged that Section 15(1) should be modified to ensure that the general order of succession does not place a woman’s husband’s heirs above those who belong to her natal family like her father and mother and thereafter, her brother and sister. It is contended that when a man dies intestate, his wife’s relatives do not even figure in the order of succession despite the manner in which he may have acquired the property. In view of this, parity is sought in the case of a female by applying the same rules as applicable to male’s property.

Accordingly, it is suggested that it would be better to amend Section 15(1) to specify the general rules of devolution, which will apply not only to self-acquired property by a woman, but also to other property acquired through her family, gifts, etc. The only proviso which would then be needed would be the property that a woman acquires from her husband’s family.

The second option in this regard is that the property of a female Hindu dying intestate devolves upon the heirs depending upon the source from which, the said property was acquired by her, the self-acquired property of such female be simultaneously inherited by her heirs both from the husband family as well as the natal family in equal share. The fact remains that in spite of her closeness to and dependence on her natal family, her relations with her husband’s family are not separated and uprooted in entirety. She continues to be a member of her husband’s family, getting support from it in all walks of life. One cannot afford to ignore the ground realities in this regard. The social ethos and the mores of our patriarchal system demand that the existing system should not be totally reversed as claimed by the protagonists of the first option. Lest, there may be social and family tensions which may not be in the overall interest of the family as a whole and as such, ought to be avoided. In any case, it is open to the female Hindu to bequeath her property the way she likes by executing a Will.

Conclusions

In the present scenario, when amendments are made to the effect that women have been entitled to inherit property from her parental side as well as from husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

If this amendment is brought about, the effect will be as under:

A married Hindu female dies intestate leaving self-acquired property at the time of her death, the only surviving relatives being her mother-in-law (L) and her mother (M).

Pre-Amendment

As per the present law, her property would devolve entirely on ‘L’ and ‘M’ will not get anything from her property.

Post Amendment

By the proposed amendment, her mother-in-law and mother should equally inherit her self-acquired property.

A married Hindu female dies intestate leaving self-acquired property and she has no heirs as per Clause ‘a’ of the Schedule, the only surviving relatives are her husband’s brother and sister (BL & SL) and her own brother and sister (B&S).

Pre-Amendment

As per the present law, her property would normally devolve upon ‘BL’ and ‘SL’. ‘B’ and ‘S’ do not inherit anything from her in this property.

Post Amendment

By the proposed amendment, her own brother and sister should equally inherit along with her brother-in-law and sister-in-law.

The above amendment, suggested by me as Chairman of 18 {+t} {+h} Law Commission as early as in June 2008 in the public interest, is still pending with the Union Law Ministry.

(The writer is a former Judge of the Supreme Court of India and former Chairman, Law Commission of India. His email id is jusarlakshmanan@ gmail.com)

Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

Manmohan ignored ruling on CAG’s rights

Manmohan Singh, current prime minister of India.

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THE HINDU

In 2005, Madras HC said watchdog could brief media

In questioning the propriety and legality of the Comptroller and Auditor-General holding a news conference on its 2G report, Prime Minister Manmohan Singh ignored not only past precedents but also a court ruling upholding the CAG’s right to do so. In his interaction with a group of editors on Wednesday, Dr. Singh criticised the press meet held by the CAG in early January after the report on 2G spectrum irregularities was tabled in Parliament. He said: “It [has] never been in the past that the CAG has held a press conference. Never in the past has the CAG decided to comment on a policy issue. It should limit the office to the role defined in the Constitution.”

But a 2005 judgment of the Madras High Court, upholding the right of CAG and its functionaries to brief the media on the contents of reports prepared by them and presented before the relevant Legislature, leaves no ambiguity on this count. In P.G. Narayanan vs CAG (W.P.No.23408 of 2004 [2005] RD-TN 714), the High Court dismissed the contention of the petitioner, an MLA belonging to the ruling AIADMK, that the Tamil Nadu Accountant-General had ‘misused his authority’ by going to press on an audit report pertaining to the State. The court noted that the CAG had stated in his affidavit “that specific instructions have been given by him to all the Accountant-Generals (Audit) of the States to explain the salient features of the Audit Report to the Press to make the public know about the same after the Audit Report is placed before the respective Legislative Assemblies.”

The veiled criticism by the Prime Minister of the institution of the CAG reflects the unease within the government over the recent CAG reports raising questions of serious irregularities in several deals. The example of the CAG report on the telecom spectrum policy, which gave different estimates for the notional loss to the exchequer on the 2G front, illustrates the point best.

Besides questioning the correctness of the CAG in interacting with the media, Dr. Singh raised two other issues related to the institution. The Prime Minister said the CAG had no jurisdiction to examine issues on policy matters and also contended that the supreme audit institution of the country should take into account the ‘uncertain’ environment under which the government is compelled to take decisions.

“We live in a world of uncertainty and ex-post whether it is the Comptroller and Auditor-General, whether it is a parliamentary committee then they analyse post facto. They have a lot more facts which were not available to those who took the decision … We take decisions in a world of uncertainty and that’s the perspective I think Parliament, our CAG and our media must adopt if this nation is to move forward.” CAG sources declined to respond to the Prime Minister’s comments.

But speaking to The Hindu in the past, they rejected the allegation that the 2G report went beyond their mandate in any way.

Green Tribunal: SC lifts stay, body to function from May

INDIAN EXPRESS

New DelhiThe National Green Tribunal, a judicial body that will exclusively deal with environmental issues, is likely to start functioning from May with the Supreme Court lifting a stay imposed by Madras High Court on rules of appointment of its members. The apex court stayed the High Court’s order and directed the Ministry of Environment and Forest (MoEF) to “keep all rules and regulations in place by May 6” and inform the bench about its status, so that the body may start functioning. A bench comprising justices G S Singhvi and A K Ganguly also indicated that even if some deficiencies remain in the rules, the court will pass orders to the effect that petitions may be filed and interim orders may be sought from the green tribunal with immediate effect after May 7.

The bench passed the orders on a petition by MoEF seeking transfer of the case, challenging rules for appointment of members of National Green Tribunal, from Madras High Court to the apex court. The Centre had sought transfer of the case on the ground that the apex court was already hearing a matter related to non-appointment of expert and judicial members for NGT, due to which the only environment appellate body has remained non-functional since it came into existence on October 18, 2010.

The case was initiated in 2005 by environmental activist Vimal Bhai, challenging environment clearance granted for execution of 600 MW Loharinag-Pala hydroelectric power project at Uttarkashi in Uttarakhand. Since then the case is pending due to non-appointment of members for National Environment Appellate Authority (NEAA). With NGT coming into existence, NEAA ceased to exist but the problem of non-appointment of members continued and rendered NGT non-functional. The apex court had on December 16 last year directed the Centre to appoint expert and judicial members for the tribunal and make NGT functional in one month.

However, even as the appointment process was on, the Madras High Court stayed the rules for appointment of judicial members of NGT on a plea by a law student, M Naveen Kumar. Centre then sought transfer of the case from the high court to the Supreme Court.Additional Solicitor General Indra Jaisingh during the previous hearing on Monday informed the court that five judicial and six expert members have been selected and MoEF had also finalised the rules of NGT’s functioning. “If the stay order is vacated, six judicial benches will become operational,” Jaisingh had submitted before the court.

On court’s query on Thursday about the amount of time required to make NGT functional, Jaisingh sought two-week time saying, “The selection (of five judicial members and six experts) are likely to be approved by the Appointment Committee of Cabinet (ACC).” The National Green Tribunal was established on October 18, 2010 with retired Supreme Court judge Justice L S Panta as its chairperson. The tribunal was supposed to have circuit benches across the country but no other member was appointed apart from its chairman. After Australia and New Zealand, India is the third country to have such an institution.

National Green Tribunal (NGT)

The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.

The Tribunal’s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal is mandated to make and endeavour for disposal of applications or appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other 4 place of sitting of the Tribunal.

THE RELEVANT ACT AND NOTIFICATIONS ISSUED ARE AS UNDER:-

Stamp out khap panchayats: court

J. Venkatesan in THE HINDU

Casteism is one of the main causes holding up the country’s progress

Calling a person by caste name, if used with intent to insult, is an offence under SC/ST Act

Society regarding a section of its own countrymen as inferior is simply unacceptable


New Delhi: While deprecating the caste system in the country, the Supreme Court has declared illegal ‘khap panchayats’ which often decree or encourage honour killings or other institutionalised atrocities against boys and girls of different castes and religions who wish to get married or have married.

“This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal,” a Bench of Justices Markandey Katju and Gyan Sudha Misra said on Tuesday.

Sentence upheld

The Bench upheld the sentence of two-year imprisonment, including six months’ imprisonment under the SC/ST (Prevention of Atrocities) Act, 1989, awarded by a trial court to Arumugam Servai, who called a member of a Scheduled Caste community by his caste name, ‘Pallan‘. It dismissed his appeal against a Madras High Court judgment.

Writing the judgment, Justice Katju said: “The word ‘Pallan’ no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone. Even calling a person ‘Pallan,’ if used with intent to insult a member of the Scheduled Caste, is, in our opinion an offence under the SC/ST PoA Act.”

Jefferson’s ringing words

The court quoted Thomas Jefferson in the American Declaration of Independence, 1776 saying “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator by certain inalienable rights that among these are life, liberty, and the pursuit of happiness.”

The Bench said: “Over two centuries have passed since Thomas Jefferson wrote those memorable words, which are still ringing in history, but a large section of Indian society still regards a section of its own countrymen as inferior. This mental attitude is simply unacceptable in the modern age, and it is one of the main causes holding up the country’s progress.”

Two-tumbler system

The Bench also expressed its anguish over the two-tumbler system prevalent in many parts of Tamil Nadu. “This system is that in many tea shops and restaurants there are separate tumblers for serving tea or other drinks to Scheduled Caste persons and non-Scheduled Caste persons. In our opinion, this is highly objectionable, and is an offence under the SC/ST Act, and hence those practising it must be criminally proceeded against and given harsh punishment if found guilty. All administrative and police officers will be accountable and departmentally proceeded against if, despite having knowledge of any such practice in the area under their jurisdiction, they do not launch criminal proceedings against the culprits.”

Condemning honour killings and khap panchayats, the Bench directed the administrative and police officials to take strong measures to prevent such atrocious acts. “If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government concerned is directed to immediately suspend the District Magistrate/Collector and the SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not prevent the incident if it has not already occurred but they have knowledge of it in advance, or if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as, in our opinion, they will be deemed directly or indirectly accountable in this connection.”

The Bench directed that a copy of this judgment be sent to all Chief Secretaries, Home Secretaries and Directors-General of Police in all States and Union Territories, and circulated to all officers up to the level of District Magistrates and SSP/SP for strict compliance. A copy would also be sent to the Registrars-General/Registrars of all High Courts who would circulate it to all judges.