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AG Wanted Judges To Scream No! Instead Got Their Nod! – By Mukesh Jhangiani

                                                                                                                                                  May 12, 2004

AG Wanted Judges To Scream No! Instead, Got Their Nod!

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A government lawyer, who persuaded some of India’s seniormost judges during emergency that they had no business to intervene even if policemen took innocent lives, suffered ”profound anguish,” a contemporary jurist has reported.

English: Picture Of Justice V.R.Krishna Iyer

Justice V R Krishna Iyer (Photo: Wikipedia)

According to former Supreme Court Judge V R Krishna Iyer, Attorney General Niren De had urged the ”extreme position” hoping to shock and rouse the judges ”to rage against that violent view.”
Four of the five Judges heard but ”did not furiously resist. I felt sad as a jurist but found success as Counsel,” was how De put it, Justice Iyer recalls in a new book titled ‘Leaves from My Personal Life.’
The four: then Chief Justice A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati. Justice Hans Raj Khanna was the sole dissenter and paid by being superseded by his junior, Justice Beg.
Experts say the episode raises questions about the country’s judicial system and establishment, and the real or potential havoc to which the society may be exposed in absence of accountability in administration, adjudication and courts.
As Justice Iyer sees it, the April 1976 Judgement ranks ”in disgrace with” an American Supreme Court pronouncement that Negroes were slaves to be owned, not humans who could own.
The so-called habeas corpus case– Additional District Magistrate, Jabalpur v Shivakant Shukla– arose out of appeals from eleven high courts which had held that, notwithstanding a presidential order under Article 359 of the constitution suspending the right to enforce fundamental rights, the higher courts could, in appropriate cases, entertain applications for habeas corpus.
In his argument, De focused on ‘liberty’ as provided in the Constitution, contending that the right to move a court having been  suspended, a detainee had no locus standi and a writ petition would necessarily have to be dismissed.
Justice Khanna pointedly demanded: ”Life is also mentioned in Article 21 and would Government argument extend to it also?” De replied, ‘Even if life was taken away illegally, courts are helpless.’
Justice Iyer says: ”This argument, by democratic standards, was unconscionably outrageous. Yes, but the judges were not outraged, save Khanna, the great dissenter. They merely listened, (unperturbed by) the prospect of monstrous mayhem on human rights and fundamental freedoms; and eventually upheld this shocking proposition in pronouncements at learned length.”
”Alas, the darkest hour of forensic downfall, except for the historic dissent of Justice Khanna, was when this disastrous jurisprudence marred our law reports,” writes Justice Iyer.
The judgement delivered on 28th April, 1976 is dubbed by the People’s Union for Civil Liberties ”the biggest blow to the Supreme Court– by the Supreme Court.”
The Supreme Court held that, as long as the presidential order was in force, the individual had no remedy against detention, even in cases where he could show that the detention was vitiated by mala fides or was ultra vires of the statute.
Although the judgement has not been overruled, its effect has been reduced substantially by a 1978 amendment to the constitution which made the rights to life and personal liberty– Article 21– non-suspendable during emergencies.

Hans Raj Khanna

Justice Hans Raj Khanna (Photo: Wikipedia)

Justice Iyer’s narrative underscores the importance of Judges never letting a lawyer or a litigant– no matter how mighty– sway them from the rule of law.
De’s confession came at a chance encounter shortly after the apex court bench held that under Emergency no person has any locus to move any writ petition for habeas corpus to challenge detention.
At a dinner attended by judges, writes Justice Iyer, De ”came up to me– I was sitting in a corner and sat to tell me something deeply sombre and pathetically confidential which he wanted to unburden and reveal to me to relieve his conscience.
”What was it about? You are a socially sensitive judge and can appreciate my profound anguish, he said. ‘What was the agony in my soul, which gave me sleepless nights? It was about my defense of the Emergency.
”I did not want a ghastly law which would banish judicial jurisdiction in the face of subjective executive violence. I thought of the strategy of shocking the judges into sanity, into rousing their revulsion, into reading down the deadly law, into claiming space for judicial invigilation as haven of human rights.
”So I urged the damned extreme position hoping that humanist jurisprudence would be the indignant robed reaction.
”So I pressed, against my heart but with the expectation of awakening the aghast protest of the Bench. If the police abused power the court would not sit and watch with cauterised conscience but would act in fiat justicia spirit– so, I thought, would be their response.
”I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel.
”Sir, frankly I passed through mental stress which I now confide in you because your conscience would have rebelled.”
”The narration ended, the dinner was over. And Niren De passed away not long after.”
Additional Solicitor-General Fali Sam Nariman had resigned from his post in protest a day after Emergency was declared on June 25, 1975.
Justice Iyer records: ”Nariman, the admirable and conscionable advocate resigned his post as Solicitor General. But I believed the Attorney General’s confessional version.
”Then why did he not give up his office? Good men, gripped by grave crises, sometimes cave in, maybe,” offers Justice Iyer.

”Niren De was a serious, sound advocate who argued later for democracy and against gross misuse of Presidential Power of supersession of State autonomy, but failed.
”Anyway, the ADM Jabbalpur ruling ranks in disgrace with the Dred Scott case where the American Supreme Court pronounced that Negroes were slaves to be owned, not humans who could own.”
Justice Iyer cited the dissenting judgement of Justice James Richard Atkin on deciding between the citizens’ rights to know the basis of their detention in war time and the rights of the executive government in times of emergency to deprive citizens of their liberty without being held to account in the courts.
Justice Iyer says Justice Atkin ”has the last word in Liversidge v Sir John Anderson.”
Justice Atkin’s words: ”I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
”Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum…: “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
”In this country (England), amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
”It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
”In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I,” a 17th century British monarch regarded by many members in Parliament as a despot.
Justice Iyer warns: ”Our freedoms are in peril if our courts suffer (from) pusillanimity or arrogance.”
UNI MJ MIR RAI1030

Use Norms – Not Discretion – To Punish Crime: ARC – By Mukesh Jhangiani

                                                                                                         July 8, 2007

Use Norms – Not Discretion – To Punish Crime: ARC

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Government experts have called for guidelines ”so that sentencing across the country for similar offences becomes broadly uniform.”

Inconsistency in punishments judges award is among issues figuring in the latest report of the 2nd Administrative Reforms Commission on Public Order.

English: An unfair administrator barnstar

Justice v Discretion – A matter of balance (Photo: Wikipedia)

”To effectively deter crime, penalties must not be discretionary,” Commission Chairman M Veerappa Moily told United News of India Special Correspondent Mukesh Jhangiani.

According to the findings Moily gave Prime Minister Manmohan Singh last week, ”there is a view that in India there is a real problem arising from a lack of consistency in sentencing practices across the country.
”This is also compounded by broad executive discretion in commuting sentences and granting pardon,” the Commission said.
With Dr Singh’s approval, a 12-member Group of Ministers headed by External Affairs Minister Pranab Mukherjee was set up three months ago to consider the recommendations.
Feedback is yet to come.
The first such Commission headed by Morarji Desai functioned during 1966-70, but some of its key recommendations are yet to be implemented.
The Moily Commission underscored that sentencing guilty persons is an important and ultimate phase of the criminal justice system.
The trouble, experts say, is that not all laws specify a minimum punishment, which gives judges the leeway to let the guilty off with a slap on the wrist– undermining deterrence.
Thus offences like bribery and cheating are punishable under the Indian Penal Code with imprisonment ”which may extend to one year.” The fact that they are among the commonest crimes is a reflection of the level of deterrence law effects.
The IPC was enacted in 1860. But even the Biological Diversity Act 2002 makes contravention punishable with imprisonment ”which may extend to five years.” No minimum punishment.
”Criminal laws normally provide for a maximum sentence that may be imposed if an offence is proved,” the Commission said, adding that a minimum punishment is prescribed in only ”a certain category of offences.
”The courts have a wide discretion in deciding the quantum of punishment,” according to the Commission.
Advocates of such discretion say it ”is necessary in order to enable the judge to impose a punishment depending upon the circumstances of each case.” They say criminal courts do not have ‘total discretion’ in deciding the sentence and, for subordinate courts, the rulings of the High courts and the Supreme Court also act as guidelines.
They also argue that in a big and diverse country like India it may not be possible to codify each and every situation, and may be best to leave it to the courts’ judgement.
But critics say ”there are instances when such wide discretion has resulted in varying punishments for similar crimes in similar circumstances.”
They say there should be statutorily-backed guidelines to help judges arrive at the quantum of punishment in each case.
The Commission has recommended that the Law Commission lay down guidelines for Trial Courts ”so that sentencing across the country for similar offences becomes broadly uniform.” It has also recommended strengthening the training for trial court judges ”to bring about greater uniformity in sentencing.”
Western experience is that guidelines help ensure ”certainty and fairness” and avoid ”disparities” among defendants with similar records and criminal conduct, while allowing flexibility for mitigating factors.
Britain, for instance, set up a Sentencing Guidelines Council to frame or revise sentencing guidelines to which ”every court must… have regard.” In the United States, a Sentencing Manual and Table lay down a range in months within which the court may sentence defendants based on nature of their offence and criminal history.
Originally mandatory, the guidelines were made discretionary two years ago by a US Supreme Court decision, which cited Americans’ constitutional right to trial by jury.
Starting June 2006, the 2nd Commission has so far submitted five Reports:
— Right to Information – Master Key to Good Governance;
— Unlocking Human Capital – Entitlements and Governance – a case study;
— Crisis Management;
— Ethics in Governance; and
— Public order.
The Commission proposes to submit nine more and has been given a 7-month extension by the Union Cabinet up to March 31, 2008.
UNI MJ

 

Thousand-Wise, Billion-Foolish ? – By Mukesh Jhangiani

                                                                                                                February 20, 2005

Yashwant Sinha, Finance Minister of India

Yashwant Sinha, India’s former Finance Minister (Photo: Wikipedia)

Thousand-Wise, Billion-Foolish ?

 

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Authorities preparing India’s 2005 Budget have been urged to stop exempting dividends Indian and foreign promoters earn– to the tune of thousands of crores of rupees.

Virtually unnoticed by millions of toiling Indian taxpayers, hundreds– perhaps thousands– of promoters have netted thousands of crores of rupees free of tax over the past eight years.

Critics say in an economy which suffers from managerial and resource inadequacy and does not ensure citizens’ access to water, housing, jobs, an effective system of justice and other basics, such policies smack of a class bias.

On one hand, authorities tax wage earners and even productivity awards, and have cut provident fund interest.

On the other, lakhs of crores are sunk in non-performing assets– loans the rich haven’t repaid– and thousands of crores fly out as company reserves distributed to individuals are exempted.

According to a news report this week, some multinationals running operations in India have declared huge dividend payouts– windfalls for bulk shareholders abroad.

The joyride started in February 1997 with then Congress Finance Minister P Chidambaram abolishing dividend tax on recipients as part of what the market hailed as a ”dream budget.”

In fact, says one critic, this was the prospect that brought the cheer and the accolades.

Since then, governments– National Democratic Alliance as well as United Progressive Alliance– have– with one exception– exempted recipients, encouraging companies to declare higher dividends– or tax-free cash year after year.

One e-published source claims the average dividend payout from Indian companies moved up from 20 per cent to 25 per cent in financial year 2004.

According to India Infoline, a hundred companies paid Rs 4,334.18 crore dividends for 2003-04– up 54.1 per cent over the Rs 2,811.3 crore paid in the previous year.

Advocates of dividend tax exemption claim it eliminates double taxation of profits– in the hands of the company and again in the hands of shareholders.

But opponents say taxing dividends declared by companies is not the same as taxing recipients’ dividend income.

A 19th century United States court ruling held that ”the capital stock of a corporation, and the shares into which such stock may be divided and held by individual shareholders, are two distinct pieces of property.

”The capital stock and the shares of stock in the hands of the shareholders may both be taxed, and it is not double taxation,” US Judge Rufus Peckham declared in 1896 in Bank of Commerce v State of Tennessee.

Asked to comment, a top Indian economist, speaking on condition of anonymity, said, ”There is no valid argument against taxing dividend or to favour exemption, especially considering that even wage earners who take home far less, are taxed.”

Yet, through that single exemption, critics say, the NDA and the UPA governments between them have contributed to thousands of crores of rupees of revenue shortfall over the years.

One man who tried to end that spree was NDA Finance Minister Yashwant Sinha who allowed exemption in February 2001– but abolished it a year later.

In that budget speech– his last– Sinha confessed he was troubled by the ”inherent inequity” in the system which ”must go.”

മലയാളം: ജസ്വന്ത് സിംഹ്

Jaswant Singh (Photo: Wikipedia)

The inequity: ”Income is exempt in the hands of the recipient” and ”allows persons in the high-income groups to be taxed at much lower rates than the rates applicable to them.”

Sinha said, ”these issues have been troubling me over the past four years, and I am now convinced that the existing system must go.” He moved to abolish tax on dividends distributed by companies and levy it on ”such income… in the hands of the recipients.”

”Few are aware,” Sinha remarked in a newspaper interview in July 2002, ”that there are people in this country who have been earning anything between Rs 10 to Rs 20 crore by way of dividends. They have been earning in crores without having to pay any tax. You think it is unjustified to tax them?” he countered.

His previous Budget, Sinha went on, registered a revenue shortfall of Rs 40,000 crore, of which ”something like Rs 22,000 crore could be directly ascribed to concessions.”

Sinha’s public remarks notwithstanding, such qualms did not appear to weigh with either his NDA successor, Jaswant Singh, or UPA incumbent Chidambaram.

In a telephone interview this week, Sinha told UNI he believed that ”all income should be treated alike from the point of view of tax.”

He said ”the hue and cry that followed the 2002 budget was largely on account of the fact that I re-introduced tax on the dividend. Many opinion makers invest in stocks and resented the tax.”

But the exemption was reintroduced in 2003 on expert advice supplied by a group led by Dr Vijay Kelkar, an economist and former International Monetary Fund executive director.

The group recommended exempting dividend both in the hands of shareholders as well as companies distributing it.

Singh was petitioned by the Legal Cell of All India Tax Payers’ Association which spelt out the incongruity in taxing everyone– even agriculturists– but exempting dividends to promoters.

Palaniappan Chidambaram (1)

Palaniappan Chidambaram (Photo: Wikipedia)

The Association warned that letting huge tax free sums accumulate in the hands of industrialists would increase the gap between rich and poor– violating Article 14 and the spirit of Article 39 (b) and (c) of the Constitution.

Those Articles provide for equality before law and forbid pursuit of economic policies that result in concentration of wealth to common detriment.

The Association said the move for full fledged exemption had not even found takers in the US.

Last week, the petitioners again represented to the authorities, urging withdrawal of exemption of tax on dividends in recipients’ hands, saying it amounts to discrimination between a common taxpayer and industrialists.

The Association says the dividends declared by companies end up in the pocket of the private management controlling the majority of shares, adding to individual incomes.

It says ten or twelve per cent tax companies must pay to declare dividend is not much price for promoters to transfer company reserves to individual accounts.

Individuals in control of companies can thus help themselves to more and more tax free income– increasing the gap between rich and poor and possibly undermining companies and jobs, it says.

UNI MJ RA GR1013

Cutting 2/3rd Undertrial Cases By Mid-2010 – By Mukesh Jhangiani

                                                                                                     November 26, 2009

English: SVG version of the coat of arms of th...

CIArb Coat of arms (Photo: Wikipedia)

Cutting 2/3rd Undertrial Cases By Mid-2010

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – A move to cut two thirds of undertrial cases by the middle of next year was announced by Law and Justice Minister M Veerappa Moily today.

The announcement may mean freedom for many of 170,000 Indians in jail for periods longer than entailed by petty offences they are alleged to have committed.

The plight of such undertrials has evoked concern for years, without much remedy at hand given the painfully slow system of justice at work.
Dr Moily spoke about the plan at two separate events in the Capital, one marking the National Law Day and another opening an India Chapter of a United Kingdom-based arbitration institute._
Addressing the Bar Council of India, a statutory body of a million lawyers across the nation, Dr Moily regretted the Justice system’s failure to give every citizen equal protection of law.
Advocates celebrating the day were reminded that ”a necessary corollary to the guarantee of the rule of law is Article 14 of the Constitution.”
The Article says: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
”Unfortunately, Justice delivery system in its working in India has not been able to guarantee this protection to every citizen– man, woman and child,” Dr Moily noted.
Dr Moily estimated the number of undertrials in prisons in India at more than 300,000– 70 per cent of the jail population, which means only 30 per cent inmates are serving sentences after conviction.
Roughly 200,000 inmates have been in jail for several years, essentially because of delays in the justice delivery system, officials say.
The second event was the opening of the India chapter of the London-based Chartered Institute of Arbitrators (CIArb) for ”faster resolution of pending court cases.”
Declaring the Chapter open, CIArb Director General Michael Forbes Smith stressed ”assured level of training and experience” and maintaining the highest standards of professional conduct in the practice of private dispute resolution.”
The 94-year old Institute with 11,000 members across more than 100 countries is a ”not for profit, UK registered charity working in the public interest through an international network of 31 Branches and Chapters.
Indian courts have close to 31 million cases pending, a factor many litigants find discouraging, as indeed do many businesses contemplating to invest in India owing among other things to a promise of cheaper labour.
Indian Arbitration yet to pick up Arbitration is an alternative way to settle disputes, but despite ripe grounds– court delays and huge arrears– it has yet to pick up in India.
A good many arbitral awards are known to have ended up in courts again, rendering the alternative not much of one.
Investors are often known to decline a resort to Indian rbitration.
As one of the speakers at the opening pointed out, arbitration in India does not appear to have emerged as a cost-effective and speedier alternative to courts.
Retired Chief Justice of India J S Verma told audience it’s ”quite disturbing” to know the fees of some professionals, as indeed how much richer, more affluent some judges are ”post-retirement.”
Justice Verma, introduced as one of the few Judges who accepted no post-retirement office of profit, stressed that arbitration was not intended to make ”us richer after we retire… The mindset has to improve.”
Asked how arbitrators who violate ethics are dealt with, the CIArb Director General told United News of India Special Correspondent Mukesh Jhangiani that a conduct panel goes over complaints.
Depending on merit, a case may be referred to a disciplinary tribunal and possibly result in debarment, Smith said. But he could not immediately recall such instances.
He said complaints are sometimes made by disappointed parties seeking to appeal the arbitrator’s award by means of a personal attack on the ability or competence of an arbitrator.
UNI MJ KJ

Eliminate Mismanagement To Raise Bottomline: Security Gurus – By Mukesh Jhangiani

                                                                                                          September 10, 2006

Ramalinga Raju, Founder and Chairman, Satyam C...

Satyam Computer Services founder & ex-chairman B Ramalinga Raju (Photo: Wikipedia)

Eliminate Mismanagement To Raise Bottomline: Security Gurus

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Posting guards at gates is no longer sufficient security– businesses must be protected from within, two award-winning Indian security professionals say.

Wrong managers, wrong human resource policies and neglect of fire, pilferage and other risks were among factors cited by Kunwar Vikram Singh and Ravinder Kishore Sinha as causes of losses companies incur.
Singh and fellow security professionals assembled this week to felicitate Sinha, who was honoured last month by Security Association of Singapore for having promoted ”globally” the concept of ‘Total Loss Control’.
A few days ago, Singh was reported to have been honoured by the World Association of Detectives at Tokyo, Japan for having caught in New Delhi a man wanted by Interpol for a multi-million dollar fraud in Singapore. He is president of a Central Association of Private Security Industry.
Sinha, the executive chairman of an International Institute of Security and Safety Management, acknowledged that the TLC concept drew on an old wisdom: A penny saved is a penny earned.
He recalled how the Steel Authority of India once turned down a Rupees five crore security package proposed by an executive because it did not want to reduce the bottom line.
But SAIL changed its mind once it was explained how the expense would pay for itself many times over and add to the bottom line through savings.
In India, security affairs are still largely identified with the notion of ‘chowkidari,’ Sinha said, adding that it involved in fact a lot more.
Sinha remarked that managements have hitherto been skeptical about such measures, but new laws in the air are changing that.
They include Private Security Agencies (Regulation) Act 2005 and a Bill in the works to regulate private investigation industry.
He said securitymen were traditionally hired to guard businesses against outsider threats– whereas threats lurk within. ”Sources of losses are sitting well within an organisation.”
He pointed to the enormous risks that companies run, for instance, not taking care of fire hazards — as three per cent of India’s Gross Domestic Product goes up in smoke every year.
He said businesses– even the best of business schools– often define profit as total revenue minus total expenditure, but overlook ”unnecessary costs, elimination of which adds to the bottom line or profit.”
Singh cited a multinational he did not name, some of whose senior officials hired unqualified kin and engaged in other questionable practices. ”Once we made our report, the needful was done.”
Sinha and Singh said besides mismanagement and corrupt practices, such costs arise from inadequate security and safety, workplace waste, drug abuse, and can be cut down by taking preventive and reactive steps involving investigation and intelligence work.
In reply to questions, Sinha said corruption at various levels was a growing threat, but it could only be countered when the top management took interest.
Asked if employees seeking to legally oppose such goings-on could hire their services, Sinha replied: ”We assist anyone with a legitimate stake, and employees are stakeholders.”
Sinha said the idea was to identify all kinds of sources of losses and ”develop an integrated counter-measure.”
Sinha said every organisation had essentially two kinds of energies or forces at work– positive and negative. The latter must be checked to turn things around.
UNI MJ AB KP1109

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Jana To Industry: Change Must Promote National Interests – By Mukesh Jhangiani

Portrait of Jana Krishnamurthi

K Jana Krishnamurthi (Photo: Wikipedia)

                                                                                                             September 6, 2002

Jana To Industry: Change Must Promote National Interests

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Industry Representatives seeking an overhaul of labour and other laws were impressed upon by Law and Justice Minister K Jana Krishnamurthi today that ”the change must not only benefit you, but also promote the national interests.”

Opening a conference on legal reforms sponsored by the Federation of Indian Chambers of Commerce and Industry and the Bar Association of India, Mr Krishnamurthi told the hosts his Government ”will welcome any suggestions from you for any change in law.”

But the Minister underscored that ”one factor which has to be kept in mind is that while recommending a change in provisions of law governing the field which FICCI represents… a ground rule must be observed– the change must not only benefit you, but also promote the national interests.”

A discussion paper prepared for the ‘National Conference on Legal and Judicial Reforms– the Bird’s Eyeview on Balancesheet and Projections’ argued for scrapping the Essential Commodities Act, overhauling labour laws and spelling out ”as early as possible” an exit policy– a euphemism for provisions for industry to fire employees it no longer considers needed.

The paper also questioned the practice of the nation’s biggest litigant– the Government– just ”sitting pretty” when it came to implementing judgements or simply filing appeals.

Mr Krishnamurthi dwelt at length on the ancient concept of Dharma which sets individuals in a range of groupings such as family, community, region, period, profession, nation, universe and so on.

”All these are arranged in such a way that one does not come in conflict with the other, but each is in harmony with the other. If there is a conflict, then a wider Dharma takes precedence,” he said.

The Law and Justice Minister stressed that ”the modern law must also a take a cue from this ancient concept of ours.”

He acknowledged that industry, commerce and trade must have their own laws to promote growth of these sectors, but cautioned that ”care will have to be taken to see that these laws, which promote the interests and advancement of these groups, do not come in conflict with the laws intended for promotion of good and advancement of other groups in the society or the society as a whole.”

He made it clear that ”group interest must yield to the interest of the nation as a whole.”

Thanking the Minister for his remarks, FICCI President Rajendra S Lodha said the tone for the Federation’s functioning was set by Mahatma Gandhi some seven decades ago in terms of the concept of trusteeship, from which the organisation had not deviated ”too much.”

Earlier, Krishnamurthi spoke of applying information technology in courts to substantively solve the problem of as many as 24 million pending cases in various subordinate and higher courts across India.

He emphasised designing a judicial database which would facilitate this process by providing such data as the number of cases filed daily under criminal or civil heads, the section of the Act under which cause of action is invoked or advocates appearing for the parties.

He said non-utilisation of judges who retire after the age of 60 or 62 years was a colossal waste, especially when there are some 1800 vacancies in subordinate courts for want of suitable candidates and suggested involving them in arbitration sort of alternative mechanisms of resolving disputes.

He also underscored the need for a National Judicial Commission empowered for selecting judges of High Courts and Supreme Court.

The Minister told participants about Fast Track Courts aimed at reducing the number of pending criminal cases, especially those relating to undertrials long in prison and said he firmly believed that “any citizen of India should not be deprived of his freedom more than a minute than the law requires.”

Currently, more than 200,000 undertrials languish in custody pending adjudication, costing the exchequer Rs 430 crore annually for maintenance of remand prisoners alone, the conference was told.

Mr Krishnamurthi also spoke of setting up Law Schools along the lines of Indian Institutes of Technology and Management, which have become world famous brand names by virtue of the quality of graduates they have produced over decades.

In his welcome address, Mr Lodha called for new enactments to keep pace with changes in such areas as Taxation Laws, Company Law, Labour Legislation, Standards of Weight and Measures (Packaged Commodities) Rules, 1977.

Mr Lodha suggested consulting the Law Ministry before filing an appeal, taking multi-pronged corrective actions to overcome delays, encouraging entrusting judicial work to administrative or quasi judicial tribunals and referring more cases to arbitration.

Bar Association President F S Nariman stressed need for judges to push cases towards speedy conclusion and suggested setting up Supreme Court benches in various zones and hiring judges who retire at 61 or 62 as ad-hoc judges in the high courts.

UNI MJ AR HS2139

Don’t Tempt Citizen To Take Law Into His Hand: Prez – By Mukesh Jhangiani

                                                                                                               February 23, 2008

English: President of India

President Pratibha Patil (Photo: Wikipedia)

Don’t Tempt Citizen To Take Law Into His Hand: Prez

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Stressing the need for ”incorruptible justice,” President Pratibha Patil today cautioned against tempting the common man ”to take law into his own hand.”

”We cannot allow a situation where the common man is tempted to take law into his own hand and subscribe to the deviant culture of the lynch mob,” she said inaugurating a conference on Judicial Reforms.
She was emphatic that ”the formal adjudicatory machinery has to reign supreme.”
Noting that India’s judicial administration is not without ”blemishes,” Mrs Patil stressed the need to ”introspect whether our judicial machinery has lived up to” expectations.
She asked her audience, made up mostly of judges and lawyers, not to be ”touchy” and face issues squarely.
”Time has come when we as stakeholders, without being unduly touchy and sensitive to criticism… collectively introspect the causes of the ills of judicial administration and find solutions squarely,” she said.
The event presided over by India’s Chief Justice K G Balakrishnan was addressed among others by Law and Justice Minister Hans Raj Bhardwaj and Bar Council of India chairman Gopakumaran Nair.
The two-day conference organised by a Confedration of Indian Bar to discuss the ”disquieting” delay in delivery of justice has more than half of Supreme Court judges listed among speakers.
India’s justice system has in recent years been a focus of much public debate and comment over such concerns as delays, huge backlogs, shortage of judges, unending judicial vacancies and opacity, especially in the area of judicial hiring and accountability.
Alluding presumably to numerous conferences and seminars on reforming the justice system that appear to get nowhere, President Patil remarked: ”We talk incessantly about delays.”
”But now the time has arrived to launch a crusade against the scourge of arrears. Both the Bar and the Bench as equal partners in the administration of justice must address themselves to this problem.”
”Admittedly,” the President went on, ”the realm of judicial administration is not without its own share of inadequacies and blemishes.
”Time has come when we need to seriously introspect whether our judicial machinery has lived up to its expectations of walking the enlightened way by securing complete justice to all and standing out as the beacon of truth, faith and hope.”
Touching on a key issue, Mrs Patil said, ”case disposals are excruciatingly time consuming. This agonising delay has rendered the common man’s knock on the doors of justice a frustrating experience.
The issue of delay in courts has been debated for decades, without much avail. Experts believe lawmakers must take an initiative to sharpen laws and make them truly deterrent.
Mrs Patil called for making legal procedures ”simple, streamlined, rational, easily understandable and commonsensical.”
She reminded members of her erstwhile tribe that lawyers were trustees of justice and ”must set high standards of probity and rectitude.”
On another key area, she said citizens’ access to law ”remains limited due to prohibitive costs of quality legal advice. It is commonplace to hear that law has become the luxury of the rich.
”Legal aid can go a long way in helping the indigents secure justice,” she said adding that the present system ”needs to be improved.”
She reminded that alternative dispute resolution mechanisms need to be encouraged, but ”cannot aspire to substitute the formal courts.”
She said she recently came across the Karnataka High Court’s Bangalore Mediation Centre where 86 mediators had settled more than 1,000 cases in a year, taking an average 131 minutes per case– which ”is worthy of emulation.”
Justice Balakrishnan concurred that Judicial Reforms was a subject ”so much of talked about but too little done.”
Balakrishnan said India had a nationwide network of more than 14,000 courts– about 12,500 judge working strength– dealing with 40 million cases.
He said each judge handled on an average nearly 4,000 cases, which ”is too high as compared to the average load per-Judge in other countries.”
He acknowledged that ”the general impression of the people is that a large number of cases are being delayed and, if any case is filed, it would take years to get a relief.
”This impression about the performance of Indian Judiciary is not fully correct,” Justice Balakrishnan asserted, but went on to acknowledge that some 60 per cent cases were more than a year old.
He said 90 per cent of delayed cases were pending in subordinate courts.
He suggested setting up a national planning and management system for administration of justice and added that the Bhopal-based National Judicial Academy was preparing a case management system to avoid delays.
He also suggested:
— Legislative reform to remove the bottlenecks that adversely affect adjudication;
— Strengthening the Bar;
— Strengthening legal education;
— Legislative reform to strengthen judges’ powers to control judicial processes to ensure just and efficient outcomes in line with international reforms; and
— Satisfactory framework for judicial accountability.
He offered the suggestions as ”broad outlines” to be discussed and designed by competent people.
Justice Balakrishnan also drew attention to a source of overcrowding in courts.
”In a large number of cases pending in Courts, especially in higher Courts, government is one of the parties either as defendant or as appellant.”
He blamed such litigations on lack of proper governmental administration, pointing out that if authorities took impartial decisions, citizens would not normally be driven to litigation.
”Lack of proper and good governance largely contributes to the number of cases in subordinate courts,” Justice Balakrishnan said.
”When it comes to disposal of cases, the delay is disquieting,” Confederation president Pravin Parekh said, citing case arrears now close to 30 million.
He counted 46,926 cases pending in the apex court, 37,00,223 cases pending in high courts and 2,52,85,982 cases pending in district and subordinate courts.
The seminar will be attended by some 1400 delegates, including 14 sitting judges of the apex court, which has a strength of 26.
UNI MJ KD KN2045

Scholar’s Challenge To Apex Court Globalisation ! – By Mukesh Jhangiani

                                                                                                                        August 11, 2006

   

Dr. Upendra Baxi, at NUALS

Prof Upendra Baxi (Photo: Wikipedia)

Scholar’s Challenge To Apex Court Globalisation !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Carnage witness Zahira Sheikh’s imprisonment reflects ”dual… standards” of access to justice manifest since globalisation, according to an Indian law scholar.

The view was voiced by Prof Upendra Baxi last weekend in a conference where participants were invited by Prime Minister Manmohan Singh to critically examine issues of the day.

Speaking on Access to Justice in a Globalised Economy, Prof Baxi cited half a dozen judicial orders he said erected a ”wall of difference” between ”globalised and de-globalised Indian citizens”.

A former Delhi University Vice Chancellor, Prof Baxi has served as Professor of Law at Delhi University as well as Warwick University in England and authored a large number of professional books and other publications.

The SC orders covered India’s accession to the World Trade Organisation, the $470 million Bhopal Gas disaster settlement, rejection of temps’ bid to regularise jobs, Narmada dam construction, demolitions and Best Bakery case.

Prof Baxi said the ”structural adjustment” of judicial role began with the apex court’s very stance on world trade conditionalities.

It was ”comprehensively urged” before the Court that India’s accession to the WTO ”violated not just Part 111 provisions but also the basic structure of the Constitution.

”The Court, overall, asked the petitioners to return to its powers as and when any such deleterious impact became more manifest!”

It ”did not even seek to match the blood-group of the WTO agreements, especially the TRIPS– Trade-Related Aspects of Intellectual Property Rights– with Parts 111 and IV of the Constitution.

”May I suggest that we read this decisional stance as the first step towards the structural adjustment of judicial review power, process, and activism?”

”A second momentous development towards the structural adjustment of judicial role and activism,” he said, occurred ”through the entirely unconscionable and unconstitutional judicial orders decreeing the infamous Bhopal settlement”– or what he called an instance of victims ”re-victimised”.

He said the Court not merely reduced the compensable amount from the ”Indian government computed US $3 billion to $470” million but also granted the Union Carbide full immunity from criminal proceedings.

It surrogated ”the Indian government as a fully-fledged clone of that multinational, and all its world-wide affine, in regard to all civil action, Indian and world-wide!

”Twenty-one years since, and I cannot speak of this without a lump in my heart, the catastroph(e) victims remain staggeringly re-victimised.”

He said a third story concerned the ”determined reversal of the proud labour jurisprudence of the Supreme Court itself.

”The juristic and juridical labours of” Justices VR Krishna Iyer, D A Desai, O Chinnappa Reddy, M P Thakkar, K Subba Rao, P B Gajendragadkar, Mohammed Hidyatuallah ”are now reversed by many a hurried stroke of insensitive judicial pen!

”A 2006 decision of the Supreme Court even goes so far as to ‘overrule’ without specific naming all prior judicial decisions.

”This judicial adventurism, there is no other appropriate way of naming this after all, remains an entirely unaccountable and rather unprecedented judicial technique in the annals of the Commonwealth judiciary!

”The learned Justice who writes the principal opinion even goes so far as to suggest that his predecessors laboured under a misimpression that ours was a socialist constitution!

”This eminent judge compelled a momentous jurisprudential anxiety for me; I scoured the histories of recent amendments to find whether some recent constitutional amendments had after all deleted this 42nd Amendment insertion to the Preamble to the Constitution!

”Allow me to bring to you the good news that this preambulatory recital has survived the ravages of contemporary Indian globalisation! The bad news is that now for the Supreme Court of India this makes not a tattle of difference!

”I am not saying at all the later Justices may not feel free to dissent from their predecessors. Nor am I saying that the predecessors may claim any prophetic wisdom over the future of constitutional development.

”However, I do wish to suggest with the fullest constitutional sincerity that in doing so they remain fully accountable at the bar of public reason. And in this they seem now altogether to collectively fail.”

Prof Baxi said a fourth instance of structural adjustment of judicial power was furnished by the Supreme Court’s ”meandering jurisprudence” concerning the Narmada Dam construction.

”At one decisional moment, we are told that the height of the dam may not be raised without the most solicitous regard for the human rights, and human futures, of the ousted project affected peoples.

”At another decisional moment stands enacted the unconstitutional pari passu principle under whose auspices submergence may actually occur with some indeterminate regard for relief, rehabilitation, and resettlement.

”At a third moment, the affected peoples stand somehow assured of that the Court is not powerless to render justice to the adversely affected peoples even as submergence occurs.

”Who knows what a fourth moment may after all turn out to be? The present writing on the judicial wall fully suggests the possibility that the Court may terminally declare that the tasks of relief, resettlement, and rehabilitations stand almost fully and magically accomplished!”

Prof Baxi said,”A fifth horrid story of the structurally adjusted judicial role and ‘responsibility’ stands now furnished by the judicially mandated/mediated sanction for the urban demolition drives that cruelly impose themselves on the bloodied bodies of the urban impoverished.

”Some recent judicial performances go so far as to fully suggest a total reversal of human rights to dignity and livelihood, which the Court itself since the Eighties indeed not too long ago so painstaking evolved.

”The enforced evacuees stand denied all rights of constitutional due process, including access to their erstwhile meagre belongings.

”The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation– including the only ‘passport’ they posses by way of pattas, their inchoate ‘title’ deeds, and prominently their ration cards) stand maliciously and wantonly destroyed.

”Not too long ago during the 1975-76 imposition of the internal Emergency, such happenings were poignantly described as emergency excesses.

”Today, these somehow constitute the badges of good governance!”

Prof Baxi said the sixth instance concerned ”the harsh way in which the Indian Supreme Court dealt with the ‘contempt’ committed by Zahira Sheikh.”

Here was ”an eye-witness to the destruction by arson of her own kin… by the Hindutva mobs,” treated ”as news/views ‘commodity’ in hyperglobalising Indian mass media… as a resource appropriated by local politicians and by some activists alike” and as a target of ”human rights and social movement activism.”

Prof Baxi saw Ms Sheikh as ”overall… a deeply traumatised victim of organised political catastrophe” compelled by the force of circumstance to make contradictory statements.

That is what finally decreed ”her fate as a contumacious Indian citizen worthy only of the most severe punishment in the annals of contempt jurisprudence.”

Prof Baxi noted how the same Court had remained ”largely lenient in its regard for Kalyan Singh for an objectively presented far worse egregious contumacious conduct.

”It also remained lenient for Aurundhati Roy, an NBA– Narmada Bachao Andolan– activist marshalling the power of International Union of Journalists, and Shiv Shankar, a former Union Law Minister, for a while marshalling the power of judicial elevation.

”Both of these remained far more contumacious; yet they were thought eligible for the otherwise rather relaxed standards of contempt jurisprudence. Yet, the Supreme Court leaned heavily on Zahira.

”How may we understand this judicial asymmetry in our, or indeed in any access talk save by the fact that that high political status was simply not available to Zahira?”

”To depict the scenario thus is not to present any mean-mouthed mode of attributing any class differential in access to justice.

”I only seek to service with the highest order of responsibility in discharging my citizen responsibility acting under my Part IV-A fundamental duties of Indian citizens, by highlighting differential practices of access to justice under the Indian Constitution.

”In the same spirit, some of us have now approached the President of India for pardoning Zahira; we know that this may not happen, although in a proud 50+year Indian democratic development this, it ought to.

”But this much remains clear: accesses to justice claims remain differentially distributed by the apex Court. Its ire at ‘contumacious’ conduct by public citizens is increasingly met by different standards for some de-globalised compatriots.

”The wall of difference thus erected between globalised and de-globalised Indian citizens seems to enact some contradictory, dual, even multiple, standards of differential access to justice.”

He said ”I sincerely hope… I (am) wrong in saying this. At the same moment, surely, all this should give us some pause in our parrot-like or His Globalising Master’s voice-type talk concerning ‘access to justice’.”

UNI MJ RP DS1110

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