To read an article on whether "Judges can recall orders passed in open courts", click on the following link:
http://epaper.indianexpress.com/c/2828670
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Sunday, May 11, 2014
Renouncing Islam can annul marriage: HC
Source: The Times Of India dared May 12, 2014
New Delhi: Interpreting a 75-year-old law, the Delhi high court has held that a woman who had embraced Islam after marriage but reconverted to her original faith can dissolve the marriage due to apostasy, which is defined as the renunciation or abandonment of one’s religious or political beliefs.
Granting divorce under the Dissolution of Muslim Marriages Act 1939 to Sultana (name changed), a division bench of Justices S Ravindra Bhat and Najmi Waziri clarified there is no requirement in such circumstances for a woman who leaves the pale of Islam to prove her act in a trial. The mere act of apostasy dissolves the marriage if she so desires.
KNOTTY ISSUE
A woman who converted to Islam then reconverted to Hinduism seeks divorce on the ground of apostasy
Husband seeks proof of her renunciation of Islam
HC rejects the husband’s contention that she needed to prove apostasy saying: “Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice.”
The bench went into the circumstances under which the pre-Independence Act was passed in 1939 to emphasize, if people come or are brought into Islam from a different religion, they should be permitted to go back for which there should be no bar. In such a scenario there must be an immediate dissolution of marriage.
The court was hearing an appeal filed by Sultana’s husband Asif challenging the grant of divorce by a Saket family court on her petition. Asif contested the act of Sultana’s reconversion to Hinduism and alleged she did it under pressure from her parents. Asif also cited Section 4 of the Dissolution of Muslim Marriages Act that deals with the “effect of conversion to another faith” to contend that Section 4 prohibits dissolution of marriage only on the ground of apostasy.
On her part the estranged wife argued that for her reconversion to Hinduism no evidence was required as her mere statement ‘ipso facto’ amounts to abjuration of Islam and its tenets. She also filed an affidavit admitting to her apostasy along with two fatwas from two muftis.
The court agreed with the trial court verdict and ruled that Section 4 has not altered the rule of Muslim personal law that apostasy dissolves a marriage. Rejecting Asif ’s argument that Sultana needs to prove the act of apostasy, HC added, “Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice. Manifestations of religious practices of a particular religion could lead to the inference of the person’s adherence to that religion. However, faith itself cannot be seen unless the person chooses to make it obvious, which in this case she has done.”
Renouncing Islam can annul marriage: HC
Abhinav Garg TNN
New Delhi: Interpreting a 75-year-old law, the Delhi high court has held that a woman who had embraced Islam after marriage but reconverted to her original faith can dissolve the marriage due to apostasy, which is defined as the renunciation or abandonment of one’s religious or political beliefs.
Granting divorce under the Dissolution of Muslim Marriages Act 1939 to Sultana (name changed), a division bench of Justices S Ravindra Bhat and Najmi Waziri clarified there is no requirement in such circumstances for a woman who leaves the pale of Islam to prove her act in a trial. The mere act of apostasy dissolves the marriage if she so desires.
KNOTTY ISSUE
A woman who converted to Islam then reconverted to Hinduism seeks divorce on the ground of apostasy
Husband seeks proof of her renunciation of Islam
HC rejects the husband’s contention that she needed to prove apostasy saying: “Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice.”
No need to prove apostasy to get divorce: HC
A woman married under Muslim personal law is not empowered, nor is she conferred a right to divorce her husband by apostatizing. All that the law states is that were a woman married under the Muslim personal law to apostatize, the marriage stands dissolved. In such circumstances, the woman is entitled to seek a decree of declaration that the marriage stands dissolved from the date of her apostatizing,” Justice Waziri said.The bench went into the circumstances under which the pre-Independence Act was passed in 1939 to emphasize, if people come or are brought into Islam from a different religion, they should be permitted to go back for which there should be no bar. In such a scenario there must be an immediate dissolution of marriage.
The court was hearing an appeal filed by Sultana’s husband Asif challenging the grant of divorce by a Saket family court on her petition. Asif contested the act of Sultana’s reconversion to Hinduism and alleged she did it under pressure from her parents. Asif also cited Section 4 of the Dissolution of Muslim Marriages Act that deals with the “effect of conversion to another faith” to contend that Section 4 prohibits dissolution of marriage only on the ground of apostasy.
On her part the estranged wife argued that for her reconversion to Hinduism no evidence was required as her mere statement ‘ipso facto’ amounts to abjuration of Islam and its tenets. She also filed an affidavit admitting to her apostasy along with two fatwas from two muftis.
The court agreed with the trial court verdict and ruled that Section 4 has not altered the rule of Muslim personal law that apostasy dissolves a marriage. Rejecting Asif ’s argument that Sultana needs to prove the act of apostasy, HC added, “Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice. Manifestations of religious practices of a particular religion could lead to the inference of the person’s adherence to that religion. However, faith itself cannot be seen unless the person chooses to make it obvious, which in this case she has done.”
Thursday, February 27, 2014
Can a woman outrage modesty of another?
Source: The Times of India dated 28.02.2014
‘Can a woman outrage modesty of another?’
Court Seeks To Know Legal Provision
Rosy Sequeira TNN
A division bench of Justice Naresh Patil and Justice V L Achliya on Thursday heard a petition by a family of six from a Borivli housing society, including the 78-year-old matriarch Sarlaben Shah, seeking to quash an FIR filed against them by neighbour Preeta Jain (55).
It started with a dispute over grilles that the Shahs fitted outside their ground-floor flat, which was opposed by their neighbours, including the Jain family. During an argument, Sarlaben’s granddaughter was allegedly assaulted and manhandled. On October 23, 2009, she lodged a complaint of molestation against Jain’s son and husband and an FIR was registered.
A few months later, on February 27, 2010, the Jains also got an FIR registered against the Shahs and the charges included molestation.
In the court, Shah’s advocate Pradeep Havnur questioned how two FIRs could be registered for the same incident. “It is absurd that a 78-year-old woman can be accused of molesting another woman,” he exclaimed. At that, the judges questioned if a woman could indeed molest another woman and what was the legal position. “This is a serious question. Can a woman molest another woman? Even scientifically? Because there are the allegations,” said Justice Patil. “Go through the law. If a woman does commit such an act, can she be tried under the available law for molesting a woman?”
On going through section 354 of the IPC, the judges noted that while the section began with the word “whoever”, it later went on to refer to the accused as a “he” and the victim a “she”. “Can a woman be accused of outraging the modesty of another woman under section 354? Get the legal position,” said Justice Patil to Havnur. The judges pointed out that even the amended section 354 A referred to an act committed by a man on a woman. While parting with the matter, the judges said housing societies must intervene and sort out such problems instead of parties filing cross-complaints and coming to court.
(Names of disputing parties changed)
SPAT AT BORIVLI SOCIETY
In 2009, the Shah family in Borivli fitted grilles outside their groundfloor flat, which was apparently opposed by some of their neighbours, including Preeta Jain’s family. During an argument, the Shah family matriarch’s granddaughter was allegedly assaulted and manhandled. They lodged a complaint of molestation against Jain’s son and husband on Oct 23, 2009. On Feb 27, 2010, the Jains lodged a counter-complaint, against the Shahs, one of the charges being molestation
Section 354 of Indian Penal Code
Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage her modesty, shall be punished with imprisonment which may extend to two years, or with fine, or with both
Sunday, February 23, 2014
Courts can try a person not booked by police, rules Bombay High Court
Source: The Times of India dated 24.02.2014
Mumbai: A trial court can use powers under the Criminal Procedure Code (CrPC) to initiate criminal proceedings against a person who may not have been booked by police in a case, the Bombay high court has said. Justice Revati Dere ruled that even if a person is not named as an accused in the police chargesheet, a court can launch prosecution against him at any stage of the trial. But it added that this power has to be used sparingly. The court’s order comes as a relief to Malabar Hill resident Mani Narayan in a 17-year-old case of assault and outraging her modesty (see box).
“It is well settled that once amagistrate takes cognizance of an offence, he can proceed against those offenders also who have not been sent up by the police and that absence of chargesheet is not a bar. The power of Section 319 of CrPC is not controlled by the result of investigation,” said Justice Dere. The court set aside as “premature” a sessions court order which while accepting that such powers were available to the magistrate had held that since it was an old case it would amount to abuse of the process of law.
The HC held that the delay in the case was not Narayan;s fault, but due to the fact that the accused were absconding for over a decade.
HOPE FOR COMPLAINANT AFTER 16 YRS I n 1997, Mani Narayan alleged that watchmen of her Malabar Hill building obstructed her on the instructions of her society’s secretary, assaulted her and outraged her modesty. The FIR was lodged against two watchmen. Narayan, however, claimed that the police had not recorded her complaint properly and had not named as accused the secretary and other watchmen. In 1998, she moved a magistrate’s court to order further investigations. The two absconding accused were arrested only in 2008. In 2011, the magistrate rejected her plea. The sessions court too rejected her application and held that the trial court’s powers were not tenable as the case was old. Narayan then moved the HC
HC: Apply Section 319 sparingly
Merely on the ground that the case is an old one cannot justify holding that invoking of Section 319 of the CrPC will amount to abuse of the process of the law,” said the judge.
The HC however cautioned that the power under section 319 had to be used properly and only when the court was convinced that there was enough material available to convict the accused. “The court has to use the said power sparingly and primarily to advance the cause of criminal justice and not as a tool at the hands of the court to cause harassment to persons who are not involved in the commission of the crime,” said the judge adding that the provision should be invoked when from the evidence it appears that a person who has not been named by the police had committed the offence. The court said that the provision should be used “only on the existence of compelling reasons and should not be exercised where the possibilities of the summoned persons, being convicted are remote”.
Under Section 319, the court can initiate prosecution of a person who is not booked but against whom there is evidence that he has committed the crime. The court can summon such a person, order his arrest or detain him for the purpose of inquiry or trial.
Courts can try a person not booked by police, rules HC
Shibu Thomas TNN
Mumbai: A trial court can use powers under the Criminal Procedure Code (CrPC) to initiate criminal proceedings against a person who may not have been booked by police in a case, the Bombay high court has said. Justice Revati Dere ruled that even if a person is not named as an accused in the police chargesheet, a court can launch prosecution against him at any stage of the trial. But it added that this power has to be used sparingly. The court’s order comes as a relief to Malabar Hill resident Mani Narayan in a 17-year-old case of assault and outraging her modesty (see box).
“It is well settled that once amagistrate takes cognizance of an offence, he can proceed against those offenders also who have not been sent up by the police and that absence of chargesheet is not a bar. The power of Section 319 of CrPC is not controlled by the result of investigation,” said Justice Dere. The court set aside as “premature” a sessions court order which while accepting that such powers were available to the magistrate had held that since it was an old case it would amount to abuse of the process of law.
The HC held that the delay in the case was not Narayan;s fault, but due to the fact that the accused were absconding for over a decade.
HOPE FOR COMPLAINANT AFTER 16 YRS I n 1997, Mani Narayan alleged that watchmen of her Malabar Hill building obstructed her on the instructions of her society’s secretary, assaulted her and outraged her modesty. The FIR was lodged against two watchmen. Narayan, however, claimed that the police had not recorded her complaint properly and had not named as accused the secretary and other watchmen. In 1998, she moved a magistrate’s court to order further investigations. The two absconding accused were arrested only in 2008. In 2011, the magistrate rejected her plea. The sessions court too rejected her application and held that the trial court’s powers were not tenable as the case was old. Narayan then moved the HC
HC: Apply Section 319 sparingly
Merely on the ground that the case is an old one cannot justify holding that invoking of Section 319 of the CrPC will amount to abuse of the process of the law,” said the judge.
The HC however cautioned that the power under section 319 had to be used properly and only when the court was convinced that there was enough material available to convict the accused. “The court has to use the said power sparingly and primarily to advance the cause of criminal justice and not as a tool at the hands of the court to cause harassment to persons who are not involved in the commission of the crime,” said the judge adding that the provision should be invoked when from the evidence it appears that a person who has not been named by the police had committed the offence. The court said that the provision should be used “only on the existence of compelling reasons and should not be exercised where the possibilities of the summoned persons, being convicted are remote”.
Under Section 319, the court can initiate prosecution of a person who is not booked but against whom there is evidence that he has committed the crime. The court can summon such a person, order his arrest or detain him for the purpose of inquiry or trial.
Wednesday, February 19, 2014
SC Strikes A Blow For Uniform Civil Code
Source: The Times of India dated 20.02.2014
Muslim personal law can’t curtail right to adopt: SC
Strikes A Blow For Uniform Civil Code
Dhananjay Mahapatra TNN
New Delhi: In a landmark order indirectly pushing for the Constitution-suggested Uniform Civil Code, the Supreme Court on Wednesday ruled that personal law prohibition against adoption would not bar a Muslim from adopting a child if he chose the secular Juvenile Justice (Care and Protection of Children) Act route.
Giving the judgment on a PIL by Shabnam Hashmi nine years back, a bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and S K Singh said the JJ Act was a secular law which gave prospective parents the option to adopt a child. “A Muslim was always free to exercise his option either to adhere to the personal law prohibition against adoption or choose JJ Act route to take a child into his/her family,” the bench said, adding “To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution.”
Article 44 of the Constitution says, “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” The bench said, “The vision contemplated in Article 44 of the Constitution, that is a Uniform Civil Code, is a goal yet to be fully reached.”
The Muslim Personal Law Board had opposed Hashmi’s plea for a uniform adoption law that would prevail over all religious prohibitions. The board had given elaborate arguments against permitting Muslims to adopt children. The board had said Islam did not recognize an adopted child to be treated on a par with a biological child. “The Islamic law professes ‘kafla’ system under which the child is placed under ‘kafil’ who provides for the well-being of the child, including financial support, and this is legally allowed to take care of the child though the child remains the descendant of his biological parents and not of the ‘adoptive’ parents,” it said.
SHOWING THE 'SECULAR' WAY
The Muslim Personal Law Board prohibits adoption, says Islam does not allow an adopted child to be treated at par with a biological child
SC refuses to restrain a Muslim from adopting a child if he/she chooses the Juvenile Justice (Care and Protection of Children) Act route
However, the court also feels that the time is not ripe to lift the statutory right to adoption to the level of a fundamental right
The (Juvenile Justice Care and Protection of Children) Act is a small step in reaching the goal enshrined by Article 44 (Uniform Civil Code)... The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs
— Supreme Court Not time yet to make adoption a fundamental right, says SC
The board attempted to give legal recognition to its religious ‘kafla’ system by informing the court that even UN Convention of the Rights of Child recognized it as an alternative to child care contemplated under the JJ Act. The court, however, refused to restrain a Muslim if he/she chose to take JJ Act route to adopt on the grounds that faith did not permit it.
Writing the judgment, Justice Gogoi said, “An optional legislation (JJ Act) that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of Uniform Civil Code is achieved. The same can only happen by collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active today.”
The conflict in thinking fuelled by dictates of religions was also the reason why the court felt the time was not ripe to lift the statutory right to adopt to the level of a fundamental right. It said, “Conflicting view points prevailing between different communities as on date on the subject makes the vision contemplated in Article 44, that is a Uniform Civil Code, a goal yet to be fully reached and the court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution,” the court said.
Disappointed Muslim board may seek review
New Delhi: The SC decision on Wednesday to allow people of all religions, including Muslims, to adopt children, though it is not allowed under Muslim personal law, evoked mixed reactions from the community. While Syed Zafar Mahmood, former OSD to the Sachar Committee and Zakat Foundation of India president, called it the “best that could have happened”, the All India Muslim Personal Law Board (AIMPLB) said it was considering legal options against the judgment. The AIMPLB had vehemently opposed Shabnam Hashmi’s plea for a uniform adoption law in the SC. Pointing out that Prophet Muhammad encouraged adoption, Zafar Mahmood said, “The judgment dovetails the Islamic law with the law of the land. The SC, while clearly desisting from declaring it a fundamental right, has technically enabled Muslims to opt for adoption. This is the best that could have happened.” AIMPLB spokesperson Abdur Raheem Qureshi, however, said the judgment interfered with fundamental rights guaranteed under Article 25 of the Constitution. “We are mulling legal options, including seeking a review of the judgment,” he said. SQR Ilyas of the Welfare Party called the apex court judgment “unfortunate”.
Wednesday, January 29, 2014
Death Penalty and Clemency
To read Upendra Baxi's views on Clemency and Death Penalty in the Indian Express dated 30.1.2014, click on the following link:
http://epaper.indianexpress.com/c/2298409
http://epaper.indianexpress.com/c/2298409
Thursday, January 23, 2014
Legal dispute raises question over the right to facts
Source: The Times of India dated 24.1.2014
New Delhi: TV broadcaster Multi-Screen-Media (MSM), which operates Sony, sued Online companies Cricinfo and Cricbuzz and radio broadcaster Radio One for disseminating realtime scores and updates for the ongoing India-New Zealand cricket series, without having obtained a licence from Sony. This follows a similar suit by Star against Cricbuzz, OnMobile, and Idea Cellular, for providing SMS updates of matches for which BCCI had given broadcast rights to Star.
The cases have sparked an emerging question on whether any company can have ownership over facts (which cannot be copyrighted) and what implications it may have on rights over free speech and expression.
Sony argued that it has paid a significant fee to the New Zealand Cricket Board for the exclusive media rights, and that this includes ‘data rights’, amongst the broadcast TV and digital rights. Sony was granted an ex-parte adinterim order by the Delhi High Court on Tuesday, restraining the three companies from disseminating any realtime scores, live/contemporaneous audio commentary or even “exploiting or authorising the exploitation of cricket match-related material/information/ details including but not limited to current cricket score, ball-by-ball updates, score cards, score updates, alerts etc, contemporaneous with match situations/events”.
Meanwhile, the suit initiated by Star last year is slated to be heard by the Supreme Court in March. The most recent ruling in August, by a division bench of the Delhi High Court, set aside an earlier order and stated that neither Star nor BCCI can license rights that have not been established to exist. More importantly, the court cited the constitutional implications upon the right to freedom of speech, stating that the earlier order, which gave Star limited rights “would tend to insidiously, and in a creeping manner, denude the fundamental right to free speech and dissemination of topical information to members of the public.”
Cricbuzz, OnMobile and Idea Cellular had argued that Star’s claim was barred by Section 16 of the Copyright Act, 1957, which precluded it from claiming copyright or other similar un-enumerated rights, and that they had published match information after it entered the public domain, that it was purely factual and amounted to news. They claimed that their actions did not amount to free-riding on the efforts of Star, as they did not copy the content of the broadcast or provide access to audio or visual footage of the broadcast.
These three companies further argued that dissemination of information through SMS was in exercise of their free speech right under Article 19(1)(a) of the Constitution. Their right also extended to freedom to carry on business in dissemination of information to the public; both these rights could be restricted through reasonable restrictions enacted through law, which fell under Article 19(2) and not by common law.
These arguments succeeding in overturning the previous order of the Delhi High Court in March 2013, which had prohibited the three companies from disseminating contemporaneous ball-by-ball or minute-by-minute score updates/match alerts by SMS/MVAS for a premium without a licence from Star — but allowed them after a time lag of 15 minutes. However, “newsworthy information” (that is, who won the toss, scored a century, broke a record, etc.)
was allowed to be disseminated immediately and that no licence was required if the information was disseminated gratuitously.
This gave Star limited rights over cricket scores and introduced the “Hot News” concept to India, wherein a company was given exclusive rights to report information via mobile for a certain period of time, while the news was still “hot”.
BCCI is indifferent towards live scoreboard updates, which come under purview of ‘data rights’. On the legal dispute over the media rights, BCCI told TOI that it was a matter between the broadcaster or title rights holder and the website or mobile companies which are selling live updates. “We have nothing to do with it. This issue is between New Zealand cricket board and the MSM and BCCI has nothing to do with it,” a top BCCI official said on Thursday.
Globally, however, the precedent has been in favour of the digital companies. In the US, a 1996 ruling between the NBA and Motorola /STATS stated that the broadcasts of NBA basketball games, not the games themselves, are entitled to copyright protection, and therefore, disseminating facts did not infringe upon broadcast rights.
Moreover, analysts point out that at the heart of the matter is the pragmatic question of enforceability of such rights in a digital age where realtime information is increasingly and easily available. If real-time scores are ruled to be proprietary content, it would imply that consumers who post these on Facebook or Twitter, or send messages via SMS or Whatsapp, are infringing upon rights, by sharing realtime score updates with friends! This is also impossible to enforce practically, and may end up placing sites such as Cricinfo at a disadvantage, relative to smaller sites or blogs which are less likely to be subject to legal action. It would also be near-impossible to enforce on websites based outside of India, being available globally.
The implication of a ruling in favour of Star would also set a precedent for news businesses outside of sports, implying that the right to report facts (which cannot be copyrighted) around any event would reside with the event holder, and news organizations would require licences from event organizers to report on them. It could also lead to a situation where real-time cricket scores would not be available on any digital medium, if the rights holder chooses to not disseminate the scores. If the court rules in favour of the digital companies, it would allow them to continue to disseminate real-time match information, as they currently do.
All in all, however, the nub of the issue is whether any proprietory ownership is possible over information and facts in the first place. As the Delhi High Court order in August pointed out, “neither Star nor BCCI can be permitted to say that mentioning “mobile” rights and auctioning them, would i p s o f a c t olegitimize the parcelling away of right to disseminate information, w i t h o u t f i r s t e s - t a b l i s h i n g t h a t t h e r i g h t o r e x c l u s i v e d o m a i n o v e r s u c h r i g h t s e x i s t e d i n t h e f i r s t i n s t a n c e . ”
As pointed out by analysts that that time, this essentially means that before you l i c e n s e rights, you should first establish that they e x i s t.
Cricket scores: Legal dispute raises question over the right to facts
TIMES NEWS NETWORK
New Delhi: TV broadcaster Multi-Screen-Media (MSM), which operates Sony, sued Online companies Cricinfo and Cricbuzz and radio broadcaster Radio One for disseminating realtime scores and updates for the ongoing India-New Zealand cricket series, without having obtained a licence from Sony. This follows a similar suit by Star against Cricbuzz, OnMobile, and Idea Cellular, for providing SMS updates of matches for which BCCI had given broadcast rights to Star.
The cases have sparked an emerging question on whether any company can have ownership over facts (which cannot be copyrighted) and what implications it may have on rights over free speech and expression.
Sony argued that it has paid a significant fee to the New Zealand Cricket Board for the exclusive media rights, and that this includes ‘data rights’, amongst the broadcast TV and digital rights. Sony was granted an ex-parte adinterim order by the Delhi High Court on Tuesday, restraining the three companies from disseminating any realtime scores, live/contemporaneous audio commentary or even “exploiting or authorising the exploitation of cricket match-related material/information/ details including but not limited to current cricket score, ball-by-ball updates, score cards, score updates, alerts etc, contemporaneous with match situations/events”.
Meanwhile, the suit initiated by Star last year is slated to be heard by the Supreme Court in March. The most recent ruling in August, by a division bench of the Delhi High Court, set aside an earlier order and stated that neither Star nor BCCI can license rights that have not been established to exist. More importantly, the court cited the constitutional implications upon the right to freedom of speech, stating that the earlier order, which gave Star limited rights “would tend to insidiously, and in a creeping manner, denude the fundamental right to free speech and dissemination of topical information to members of the public.”
Cricbuzz, OnMobile and Idea Cellular had argued that Star’s claim was barred by Section 16 of the Copyright Act, 1957, which precluded it from claiming copyright or other similar un-enumerated rights, and that they had published match information after it entered the public domain, that it was purely factual and amounted to news. They claimed that their actions did not amount to free-riding on the efforts of Star, as they did not copy the content of the broadcast or provide access to audio or visual footage of the broadcast.
These three companies further argued that dissemination of information through SMS was in exercise of their free speech right under Article 19(1)(a) of the Constitution. Their right also extended to freedom to carry on business in dissemination of information to the public; both these rights could be restricted through reasonable restrictions enacted through law, which fell under Article 19(2) and not by common law.
These arguments succeeding in overturning the previous order of the Delhi High Court in March 2013, which had prohibited the three companies from disseminating contemporaneous ball-by-ball or minute-by-minute score updates/match alerts by SMS/MVAS for a premium without a licence from Star — but allowed them after a time lag of 15 minutes. However, “newsworthy information” (that is, who won the toss, scored a century, broke a record, etc.)
was allowed to be disseminated immediately and that no licence was required if the information was disseminated gratuitously.
This gave Star limited rights over cricket scores and introduced the “Hot News” concept to India, wherein a company was given exclusive rights to report information via mobile for a certain period of time, while the news was still “hot”.
BCCI is indifferent towards live scoreboard updates, which come under purview of ‘data rights’. On the legal dispute over the media rights, BCCI told TOI that it was a matter between the broadcaster or title rights holder and the website or mobile companies which are selling live updates. “We have nothing to do with it. This issue is between New Zealand cricket board and the MSM and BCCI has nothing to do with it,” a top BCCI official said on Thursday.
Globally, however, the precedent has been in favour of the digital companies. In the US, a 1996 ruling between the NBA and Motorola /STATS stated that the broadcasts of NBA basketball games, not the games themselves, are entitled to copyright protection, and therefore, disseminating facts did not infringe upon broadcast rights.
Moreover, analysts point out that at the heart of the matter is the pragmatic question of enforceability of such rights in a digital age where realtime information is increasingly and easily available. If real-time scores are ruled to be proprietary content, it would imply that consumers who post these on Facebook or Twitter, or send messages via SMS or Whatsapp, are infringing upon rights, by sharing realtime score updates with friends! This is also impossible to enforce practically, and may end up placing sites such as Cricinfo at a disadvantage, relative to smaller sites or blogs which are less likely to be subject to legal action. It would also be near-impossible to enforce on websites based outside of India, being available globally.
The implication of a ruling in favour of Star would also set a precedent for news businesses outside of sports, implying that the right to report facts (which cannot be copyrighted) around any event would reside with the event holder, and news organizations would require licences from event organizers to report on them. It could also lead to a situation where real-time cricket scores would not be available on any digital medium, if the rights holder chooses to not disseminate the scores. If the court rules in favour of the digital companies, it would allow them to continue to disseminate real-time match information, as they currently do.
All in all, however, the nub of the issue is whether any proprietory ownership is possible over information and facts in the first place. As the Delhi High Court order in August pointed out, “neither Star nor BCCI can be permitted to say that mentioning “mobile” rights and auctioning them, would i p s o f a c t olegitimize the parcelling away of right to disseminate information, w i t h o u t f i r s t e s - t a b l i s h i n g t h a t t h e r i g h t o r e x c l u s i v e d o m a i n o v e r s u c h r i g h t s e x i s t e d i n t h e f i r s t i n s t a n c e . ”
As pointed out by analysts that that time, this essentially means that before you l i c e n s e rights, you should first establish that they e x i s t.
Wednesday, January 22, 2014
Delay in disposing of mercy plea affects right to life: SC
Source: The Times of India dated 22.1.2014
New Delhi: In an unprecedented judgment, the Supreme Court on Tuesday freed 15 condemned prisoners, each awarded the death sentence for brutal multiple murders, from the fear of the hangman’s noose by commuting their punishment to life term on the grounds that the President had taken an inordinately long time to reject their mercy petitions.
The court came to the rescue of the 15, some of whom had been served with execution warrants, on two grounds—“inordinate, undue and unexplained” delay in disposal of their mercy pleas and
“non-consideration of their mental illness”.
The court also fixed a mandatory 14-day gap between the mercy petition being rejected and the convict being hanged to allow the prisoner to prepare for death and meet his family for the last time.
A bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh said, “Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death.”
Justice Sathasivam authored the 157-page judgment for the bench.
SPARED NOOSE
SC gives life to 15 after Prez okayed death
Says Delay And Mental Illness Valid Grounds
Dhananjay Mahapatra TNN
New Delhi: In an unprecedented judgment, the Supreme Court on Tuesday freed 15 condemned prisoners, each awarded the death sentence for brutal multiple murders, from the fear of the hangman’s noose by commuting their punishment to life term on the grounds that the President had taken an inordinately long time to reject their mercy petitions.
The court came to the rescue of the 15, some of whom had been served with execution warrants, on two grounds—“inordinate, undue and unexplained” delay in disposal of their mercy pleas and
“non-consideration of their mental illness”.
The court also fixed a mandatory 14-day gap between the mercy petition being rejected and the convict being hanged to allow the prisoner to prepare for death and meet his family for the last time.
A bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh said, “Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death.”
Justice Sathasivam authored the 157-page judgment for the bench.
SPARED NOOSE
- Suresh (60) and Ramji (45): Wiped out family of Suresh’s brother. In jail for 17 yrs. Delay in deciding on mercy plea | 12 years
- Bilavendran (55), Simon (50), Gnanprakasam (60), Madiah (64) | Veerappan aides. Jail | 20 yrs Plea delay | 9 yrs
- Praveen Kumar (55): Murdered 4 of a family. Jail | 15 yrs 9 mths Plea delay | 9.5 years
- Gurmeet Singh (56): Murdered 13 of a family. Jail | 26 years Plea delay | 7 years 8 months
- Sonia (30), Sanjeev Kumar (38) Killed 6 of family. Jail | 12 yrs Plea delay | 6 years
- Jafar Ali (48): Killed wife and 5 daughters Jail | 11 years 5 mths Plea delay | 9 years
- Shivu (31) & Jadeswamy (25): Rape-cum-murder of minor. Jail | 12 years Plea delay | 6.5 years
Delay in disposing of mercy plea affects right to life: SC
New Delhi: Commuting the death sentence of 15 convicts, Supreme Court Chief Justice Sathasivam said gravity and heinousness of crime committed by the condemned prisoners could not wipe out the ill-effects of undue and unexplained delay in disposal of their mercy petition which affected their right to life. “Indisputably, this court, while considering the rejection of the clemency petitions by the President, cannot excuse the agonizing delay caused to the convict only on the basis of gravity of the crime,” he said.
While 13 were spared the noose for delay in disposal of mercy petitions that ranged between six-and-ahalf years to 12 years, two others were saved from the gallows as the court found that they suffered from mental illness.
“The direction of United Nations International Conventions, to which India is a party, clearly shows that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this court in deciding whether in the facts and circumstances of the case of death sentence could be commuted to life imprisonment. To put it clear, insanity is a relevant supervening factor for consideration by this court,” it said.
The beneficiary of this judgment could be Devenderpal Singh Bhullar, who was handed down death penalty for his role in the bomb attack on then Youth Congress president M S Bitta in 1993 in which nine policemen were killed and 25 people were injured, including Bitta. Bhullar had pleaded for commutation of the death sentence on the grounds that he had undergone imprisonment for 20 years which was akin to a life term and that he had lost mental equilibrium in the despairing 11-year wait.
On April 12 last year, the apex court had rejected his plea for commutation of death sentence on the grounds of delay in disposal of his mercy plea by the President saying those convicted for acts of terrorism could not be given benefit of commutation on grounds of inordinate delay.
The bench headed by Justice Sathasivam said the ruling was against the logic of several previous judgments and hence could not hold its ground. “We are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases, including the offences under Tada,” it said.
This judgment could also be of vital importance to the Rajiv assassination case condemned prisoners – Santhan, Perarivalan and Murugan – who have moved court citing delay in disposal of their mercy pleas and the apex court two years ago had stayed their execution.
It also said a minimum 14-day gap should be there between intimation of rejection of mercy petition to the condemned prisoner and the date of execution. This time period would allow “the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs and have a last and final meeting with his family members and friends,” it said.
New Delhi: The Supreme Court on Tuesday directed all prison authorities to give a gap of 14 days between intimation of rejection of mercy petition to the condemned prisoner and his actual execution to allow him to prepare mentally to make peace with God, prepare his will and meet family and friends one last time.
It also was critical of the practice in certain jails to put a person in solitary confinement immediately after the trial court awarded death penalty after conviction and said a condemned prisoner could be put alone in a single cell only in the last 14 days of his life and not before that.
A bench headed by Chief Justice P Sathasivam found that some prison manuals did not provide for any minimum period between the President’s decision to reject a mercy petition being communicated to the condemned prisoner and his family members and the actual date of his execution. “Some prison manuals have a minimum period of one day while others have 14 days,” it said.
It said there was a need to provide a minimum gap of 14 days between receipt of communication of rejection of mercy petition and scheduled execution as it would allow the condemned prisoner:
• to prepare himself mentally for execution, to make peace with god, prepare his will and settle other earthly affairs
• to have a last and final meeting with his family members who might have to travel long distance, and
• to allow him to seek judicial redress of grievances against rejection of mercy petition.
The CJI-headed bench was peeved that the apex court’s direction for prison reforms, given in Sunil Batra case more than 35 years ago, were yet to be implemented.
The bench said, “This court in Sunil Batra case had held that solitary confinement or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison manuals of the states provide necessary rules governing the confinement of death convicts. These rules should not be interpreted to run counter to the above ruling and violate Article 21.”
The court also found that condemned prisoners could seldom afford legal assistance and their grievances almost never reached the judiciary for redress.
“Since this court has held that Article 21 (right to life) rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court (high court or the Supreme Court) for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of mercy petition and legal aid should be provided at all stages,” the bench said.
“Accordingly, superintendents of jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from informing the convicts,” it said.
While 13 were spared the noose for delay in disposal of mercy petitions that ranged between six-and-ahalf years to 12 years, two others were saved from the gallows as the court found that they suffered from mental illness.
“The direction of United Nations International Conventions, to which India is a party, clearly shows that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this court in deciding whether in the facts and circumstances of the case of death sentence could be commuted to life imprisonment. To put it clear, insanity is a relevant supervening factor for consideration by this court,” it said.
The beneficiary of this judgment could be Devenderpal Singh Bhullar, who was handed down death penalty for his role in the bomb attack on then Youth Congress president M S Bitta in 1993 in which nine policemen were killed and 25 people were injured, including Bitta. Bhullar had pleaded for commutation of the death sentence on the grounds that he had undergone imprisonment for 20 years which was akin to a life term and that he had lost mental equilibrium in the despairing 11-year wait.
On April 12 last year, the apex court had rejected his plea for commutation of death sentence on the grounds of delay in disposal of his mercy plea by the President saying those convicted for acts of terrorism could not be given benefit of commutation on grounds of inordinate delay.
The bench headed by Justice Sathasivam said the ruling was against the logic of several previous judgments and hence could not hold its ground. “We are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases, including the offences under Tada,” it said.
This judgment could also be of vital importance to the Rajiv assassination case condemned prisoners – Santhan, Perarivalan and Murugan – who have moved court citing delay in disposal of their mercy pleas and the apex court two years ago had stayed their execution.
It also said a minimum 14-day gap should be there between intimation of rejection of mercy petition to the condemned prisoner and the date of execution. This time period would allow “the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs and have a last and final meeting with his family members and friends,” it said.
After mercy plea is rejected, give 14 days to condemned: SC
Dhananjay Mahapatra TNN
New Delhi: The Supreme Court on Tuesday directed all prison authorities to give a gap of 14 days between intimation of rejection of mercy petition to the condemned prisoner and his actual execution to allow him to prepare mentally to make peace with God, prepare his will and meet family and friends one last time.
It also was critical of the practice in certain jails to put a person in solitary confinement immediately after the trial court awarded death penalty after conviction and said a condemned prisoner could be put alone in a single cell only in the last 14 days of his life and not before that.
A bench headed by Chief Justice P Sathasivam found that some prison manuals did not provide for any minimum period between the President’s decision to reject a mercy petition being communicated to the condemned prisoner and his family members and the actual date of his execution. “Some prison manuals have a minimum period of one day while others have 14 days,” it said.
It said there was a need to provide a minimum gap of 14 days between receipt of communication of rejection of mercy petition and scheduled execution as it would allow the condemned prisoner:
• to prepare himself mentally for execution, to make peace with god, prepare his will and settle other earthly affairs
• to have a last and final meeting with his family members who might have to travel long distance, and
• to allow him to seek judicial redress of grievances against rejection of mercy petition.
The CJI-headed bench was peeved that the apex court’s direction for prison reforms, given in Sunil Batra case more than 35 years ago, were yet to be implemented.
The bench said, “This court in Sunil Batra case had held that solitary confinement or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison manuals of the states provide necessary rules governing the confinement of death convicts. These rules should not be interpreted to run counter to the above ruling and violate Article 21.”
The court also found that condemned prisoners could seldom afford legal assistance and their grievances almost never reached the judiciary for redress.
“Since this court has held that Article 21 (right to life) rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court (high court or the Supreme Court) for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of mercy petition and legal aid should be provided at all stages,” the bench said.
“Accordingly, superintendents of jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from informing the convicts,” it said.
Tuesday, January 21, 2014
SC commutes death sentence of 15 convicts
"SC spares 15 waiting on death row due to
delay" - to read this article from the Indian Express dated 22.1.2014,
click on the following links: (Also includes "Guidelines for
Death Row")
http://epaper.indianexpress.com/c/2257607
http://epaper.indianexpress.com/c/2257616
http://epaper.indianexpress.com/c/2257637
http://epaper.indianexpress.com/c/2257607
http://epaper.indianexpress.com/c/2257616
http://epaper.indianexpress.com/c/2257637
Monday, January 20, 2014
‘ONLY HINDU WIDOWS CAN CLAIM INTEREST ON JOINT PROPERTY’
Source: The Hindustan Times dated 21.01.2014
‘ONLY HINDU WIDOWS CAN CLAIM INTEREST ON JOINT PROPERTY’
MUMBAI: Wives of coparceners are not eligible to claim any interest in the joint property of their Hindu Undivided Family (HUF), the Bombay high court ruled on Saturday. “Only a Hindu widow can claim the interest of her deceased husband in the coparcenary or joint family property for her maintenance,” said j ustice Roshan Dalvi.
Justice Dalvi was hearing a plea filed by Hiten Patel (name changed), who sought partition of the properties bequeathed to him by his deceased mother and mandatory injunction against his father to hand over the properties to him.
Hiten’s mother, who passed away on June 10, 2013, had, in a registered will dated July 2, 2011, bequeathed part of her i ndividual proper t i es and her share in the joint family properties to him. Being the sole beneficiary under her will, Hiten had also sought its validation.
However, justice Dalvi noted that the woman had passed away and her husband is still alive. Therefore, she could not acquire the right of a widow. “Consequently, she had no share and no bequeathable interest in any share,” the judge said and concluded that the bequest of “her share” was “wholly misconceived since her husband was alive on the date of her death and she was not a widow”.
The judge refused to issue any directive pertaining to the joint property of the family at Ahmedabad and the “monies in his mother’s share”. Justice Dalvi also restrained Hiten’s father from alienating a flat at Sion and shares held by his deceased mother.
Wednesday, January 15, 2014
Misuse of Anti-Rape laws
To read an article on Misuse of Anti-Rape laws in the country appearing in DNA newspaper dated 16.1.2014, click on the following link:
http://epaper.dnaindia.com/story.aspx?id=58349&boxid=32162&ed_date=2014-01-16&ed_code=820009&ed_page=1
http://epaper.dnaindia.com/story.aspx?id=58349&boxid=32162&ed_date=2014-01-16&ed_code=820009&ed_page=1
Rape tops juvenile crimes
Source: The Times of India dated 16.1.2014
Bangalore: While legal eagles and lawmakers debate over the quantum of punishment and benefit of age for juvenile offenders, an emerging trend begs for attention – the number of such offenders is on a steady rise in the country. Going by stats, 75,801 cases were registered against juveniles for various offences between 2010 and 2012. If this isn’t shocking enough, rape tops the table of heinous crimes committed by juveniles in the country.
The ministry of home affairs (MHA) assessed the data while looking at crimes like murder, attempt to murder, homicide not amounting to murder, rape and abduction. In the same period, an alarming 3,182 cases were registered against juveniles committing rape. What’s even more worrisome is that the statistical graph heads northward year after year. In 2010, 858 rape cases involved juveniles; this rose to 1,149 in 2011, and in 2012, the year Nirbhaya met with her brutal fate, 1,175 cases were reported.
Close on the heels of rape is murder. A total of 2,557 juveniles committed murder during the three years, with the highest number recorded in 2012 (990). 2011 and 2012 registered 888 and 679 cases, respectively.
There were 2,073 and 2,061 cases of people below the age of 18 involved in kidnapping and abduction, and attempted murder during the three years, while 134 of them committed homicide.
Overall, of the 75,801 cases registered during the three years, 10,007 were classified as heinous crimes, accounting for more than 13% of the total figure. While the reasons are many and varying, expert opinions converge at a point – there’s a problem with the way we interact with people.
Says Sudha Sitaram, a Bangalore-based sociologist: “Something is fundamentally wrong in the way we socialize. It seems flawed, allowing people to view women in a way that encourages them to hurt or even destroy them.”
Psychologist Sulata Shenoy, while arguing that an adolescent mind doesn’t worry about consequences, stressed on the need for sex education among children. “We keep turning a blind eye to the problem and think such things don’t happen in our society. But look at the statistics. We need to educate the youth about their sexual identity, disseminate information about how to deal with biological changes and protect themselves,” she said.
Times View:While crimes grow more heinous, and the age of offenders grows younger, it is time to ask a few questions and find answers. Is something wrong with the education system, home values, socializing and cultural mores, or even new-age entertainment? While it could be a bit of all these and other factors, our nature-nurture influences need to be changed subtly. Sex education both at home and in school is necessary for young boys. Our criminal justice system also needs a change: some harsh punishment could put fear into offenders, and deter crime.
Rape tops juvenile crimes
1,175 Such Cases Reported The Year Nirbhaya Died
Chethan Kumar TNN
Bangalore: While legal eagles and lawmakers debate over the quantum of punishment and benefit of age for juvenile offenders, an emerging trend begs for attention – the number of such offenders is on a steady rise in the country. Going by stats, 75,801 cases were registered against juveniles for various offences between 2010 and 2012. If this isn’t shocking enough, rape tops the table of heinous crimes committed by juveniles in the country.
The ministry of home affairs (MHA) assessed the data while looking at crimes like murder, attempt to murder, homicide not amounting to murder, rape and abduction. In the same period, an alarming 3,182 cases were registered against juveniles committing rape. What’s even more worrisome is that the statistical graph heads northward year after year. In 2010, 858 rape cases involved juveniles; this rose to 1,149 in 2011, and in 2012, the year Nirbhaya met with her brutal fate, 1,175 cases were reported.
Close on the heels of rape is murder. A total of 2,557 juveniles committed murder during the three years, with the highest number recorded in 2012 (990). 2011 and 2012 registered 888 and 679 cases, respectively.
There were 2,073 and 2,061 cases of people below the age of 18 involved in kidnapping and abduction, and attempted murder during the three years, while 134 of them committed homicide.
Overall, of the 75,801 cases registered during the three years, 10,007 were classified as heinous crimes, accounting for more than 13% of the total figure. While the reasons are many and varying, expert opinions converge at a point – there’s a problem with the way we interact with people.
Says Sudha Sitaram, a Bangalore-based sociologist: “Something is fundamentally wrong in the way we socialize. It seems flawed, allowing people to view women in a way that encourages them to hurt or even destroy them.”
Psychologist Sulata Shenoy, while arguing that an adolescent mind doesn’t worry about consequences, stressed on the need for sex education among children. “We keep turning a blind eye to the problem and think such things don’t happen in our society. But look at the statistics. We need to educate the youth about their sexual identity, disseminate information about how to deal with biological changes and protect themselves,” she said.
Times View:While crimes grow more heinous, and the age of offenders grows younger, it is time to ask a few questions and find answers. Is something wrong with the education system, home values, socializing and cultural mores, or even new-age entertainment? While it could be a bit of all these and other factors, our nature-nurture influences need to be changed subtly. Sex education both at home and in school is necessary for young boys. Our criminal justice system also needs a change: some harsh punishment could put fear into offenders, and deter crime.
Lokpal Bill, 2013
Indian Express dated 15.01.2014
Source: http://indianexpress.com/article/opinion/columns/our-poorly-written-lokpal/#sthash.qGCJPVRx.dpuf
The quality of parliamentary debate in India has always been lamented. When it comes to matters of lawmaking, the art of asking the right questions about substance is rare enough; the art of having a real debate about style and form is practically extinct. This is true of primary laws passed by Parliament or by state legislatures, and also of subordinate legislation issued by regulators. The outcome is that Indian laws are often poorly drafted, requiring frequent amendments and tedious judicial clarification.
A case in point is the 2013 version of the Lokpal and Lokayuktas Bill, as passed by both houses of Parliament. Considerable time was spent debating substantive issues, but the bill’s drafting style was ignored. Some innocuous (but classic) examples of poor drafting that the bill exhibits are gathered here.
Matters of grammar, punctuation, political correctness (gender neutral, anyone?), and plain sloppiness aside, the bill is complex and unreadable for many reasons. There is the problem of ambiguity, where a provision invites more than one possible meaning. For example, one subsection empowers the lokpal to authorise agencies to search and seize documents, that, “in its opinion” are useful for an investigation, if it “has reason to believe” that such documents are secreted in any place. Later, in another situation, the lokpal must record reasons for its belief in writing. While tests in jurisprudence may conclude that belief and opinion are to be treated the same, and that both have to be reduced to writing, this text of law prompts many questions: (a) Since “belief” and “opinion” are used in the same sentence, are they intended to mean different things? (b) Does the lokpal not have to record reasons for its belief in writing unless specifically asked? (c) Do opinions not have to be recorded in writing at all? And so on. Clarity and precision, two essential principles of the rule of law, cannot be co-opted by allusion.
Phrases common in law but increasingly regarded as archaic, and open to ambiguity and misuse, are omnipresent, such as “without prejudice to…” and “provided that…”. A perennial legal favourite, “notwithstanding xyz” (implying that “xyz” will be ignored and overridden), appears over a dozen times. (The American Law Division of the Congressional Research Service that serves the legislative needs of the US Congress describes “notwithstanding” aptly as “the statutory equivalent of a parent telling a child… ‘I really mean it’”, and therefore, regards it as superfluous.) Courts still have to decipher “xyz”, and examine why it is not applicable in context. Further, a blanket “notwithstanding” provision does not always mean that everything else in the universe can be ignored — the real test is to discover which laws continue to apply.
The bill, like so many others, also fails to strike a satisfactory balance between the over-vague and the over-precise. On one hand, it seeks to establish the principles on which the lokpal will function, and keeps the text appropriately vague — the lokpal website will display the complaints status “from time to time”. But it also micromanages the institution, providing the method to calculate the salary reduction of a lokpal member if the person receives a pension.
Consequently, the true legal effect of a provision can be understood only after wading through a maze of double negatives, convoluted and verbose phrasing, and numerous cross-references. All this when straightforward sentences would have sufficed. Imagine the number of court-hours that are devoted to such exercises. Amidst the quibbling that follows, the original object of the law — in this case, a speedy disposal of corruption cases against public servants — gets conveniently forgotten. Whom, then, do we blame for judicial delays? The courts applying the law, or the legislators making the law?
Poorly written laws are not specific to India, and indeed, the world over, transformative changes are taking place to overcome precisely this problem. For example, the UK, whose legal legacy we frequently bemoan, has set up the “good law initiative” to make legislation less difficult for people to understand and easier to access in the digital age.
But straightening out the language is hardly the main problem. Beleaguered by process issues, human resource constraints and the lack of guidance and instruction, it is no surprise that laws in India are drafted the way they are.
The Indian lawmaking system allows practically any person to draft the first version of a legislative text (the Jan Lokpal Bill, for instance). Before it reaches Parliament, though, any draft law must go through due process of vetting and testing for soundness and consistency. This last exercise is usually carried out by the law ministry. But India has no manual or document that offers guidance on drafting a law, or on testing for soundness and consistency. The ministry is understaffed and ill-equipped to carry out these essential tasks. And professional drafters in this country are ill-trained and few and far between. For subordinate legislation, such as regulations issued by regulators, there is no equivalent oversight by the law ministry. And you would be hard pressed to find the last instance of regulations being debated in Parliament, despite being tabled before both houses. The quality of subordinate regulations, therefore, stands to be doubly worse than that of primary laws.
A poorly drafted legal text will not only have immediate impact in the form of ambiguity and uncertainty, but will also require years of philological unravelling to understand the original legislative intent. Members of the legislature (Parliament and states), executive (law ministry) and the judiciary (the Bar and the higher courts) can all contribute to improving this sorry state of affairs. But nobody seems to want to make a beginning. For how, then, as Dickens famously put it, would law make business for itself?
Sumathi Chandrashekaran is a legal consultant at the National Institute of Public Finance and Policy, Delhi
Our poorly written Lokpal
The 2013 bill passed by Parliament is sloppy, complex and unreadable.Source: http://indianexpress.com/article/opinion/columns/our-poorly-written-lokpal/#sthash.qGCJPVRx.dpuf
The quality of parliamentary debate in India has always been lamented. When it comes to matters of lawmaking, the art of asking the right questions about substance is rare enough; the art of having a real debate about style and form is practically extinct. This is true of primary laws passed by Parliament or by state legislatures, and also of subordinate legislation issued by regulators. The outcome is that Indian laws are often poorly drafted, requiring frequent amendments and tedious judicial clarification.
A case in point is the 2013 version of the Lokpal and Lokayuktas Bill, as passed by both houses of Parliament. Considerable time was spent debating substantive issues, but the bill’s drafting style was ignored. Some innocuous (but classic) examples of poor drafting that the bill exhibits are gathered here.
Matters of grammar, punctuation, political correctness (gender neutral, anyone?), and plain sloppiness aside, the bill is complex and unreadable for many reasons. There is the problem of ambiguity, where a provision invites more than one possible meaning. For example, one subsection empowers the lokpal to authorise agencies to search and seize documents, that, “in its opinion” are useful for an investigation, if it “has reason to believe” that such documents are secreted in any place. Later, in another situation, the lokpal must record reasons for its belief in writing. While tests in jurisprudence may conclude that belief and opinion are to be treated the same, and that both have to be reduced to writing, this text of law prompts many questions: (a) Since “belief” and “opinion” are used in the same sentence, are they intended to mean different things? (b) Does the lokpal not have to record reasons for its belief in writing unless specifically asked? (c) Do opinions not have to be recorded in writing at all? And so on. Clarity and precision, two essential principles of the rule of law, cannot be co-opted by allusion.
Phrases common in law but increasingly regarded as archaic, and open to ambiguity and misuse, are omnipresent, such as “without prejudice to…” and “provided that…”. A perennial legal favourite, “notwithstanding xyz” (implying that “xyz” will be ignored and overridden), appears over a dozen times. (The American Law Division of the Congressional Research Service that serves the legislative needs of the US Congress describes “notwithstanding” aptly as “the statutory equivalent of a parent telling a child… ‘I really mean it’”, and therefore, regards it as superfluous.) Courts still have to decipher “xyz”, and examine why it is not applicable in context. Further, a blanket “notwithstanding” provision does not always mean that everything else in the universe can be ignored — the real test is to discover which laws continue to apply.
The bill, like so many others, also fails to strike a satisfactory balance between the over-vague and the over-precise. On one hand, it seeks to establish the principles on which the lokpal will function, and keeps the text appropriately vague — the lokpal website will display the complaints status “from time to time”. But it also micromanages the institution, providing the method to calculate the salary reduction of a lokpal member if the person receives a pension.
Consequently, the true legal effect of a provision can be understood only after wading through a maze of double negatives, convoluted and verbose phrasing, and numerous cross-references. All this when straightforward sentences would have sufficed. Imagine the number of court-hours that are devoted to such exercises. Amidst the quibbling that follows, the original object of the law — in this case, a speedy disposal of corruption cases against public servants — gets conveniently forgotten. Whom, then, do we blame for judicial delays? The courts applying the law, or the legislators making the law?
Poorly written laws are not specific to India, and indeed, the world over, transformative changes are taking place to overcome precisely this problem. For example, the UK, whose legal legacy we frequently bemoan, has set up the “good law initiative” to make legislation less difficult for people to understand and easier to access in the digital age.
But straightening out the language is hardly the main problem. Beleaguered by process issues, human resource constraints and the lack of guidance and instruction, it is no surprise that laws in India are drafted the way they are.
The Indian lawmaking system allows practically any person to draft the first version of a legislative text (the Jan Lokpal Bill, for instance). Before it reaches Parliament, though, any draft law must go through due process of vetting and testing for soundness and consistency. This last exercise is usually carried out by the law ministry. But India has no manual or document that offers guidance on drafting a law, or on testing for soundness and consistency. The ministry is understaffed and ill-equipped to carry out these essential tasks. And professional drafters in this country are ill-trained and few and far between. For subordinate legislation, such as regulations issued by regulators, there is no equivalent oversight by the law ministry. And you would be hard pressed to find the last instance of regulations being debated in Parliament, despite being tabled before both houses. The quality of subordinate regulations, therefore, stands to be doubly worse than that of primary laws.
A poorly drafted legal text will not only have immediate impact in the form of ambiguity and uncertainty, but will also require years of philological unravelling to understand the original legislative intent. Members of the legislature (Parliament and states), executive (law ministry) and the judiciary (the Bar and the higher courts) can all contribute to improving this sorry state of affairs. But nobody seems to want to make a beginning. For how, then, as Dickens famously put it, would law make business for itself?
Sumathi Chandrashekaran is a legal consultant at the National Institute of Public Finance and Policy, Delhi
When Laws can be Used to Deny Others Justice
Source: The Economic Times dated 15th Jasnuary 2014
Can justice be denied to a person, just because she had earlier held a judicial office? The concept of ideal justice ought to transcend all caste, creed, sex, religious and national considerations. It would, therefore, not be fair to argue that justice should elude a former judge if any allegation is levelled against him. Such fundamentalism can strike a blow on the independence of the judiciary, the basic feature of India’s Constitution. Such arguments aim at browbeating all sitting judges. All sitting judges will be retired judges one day. Any possibility of fear instilled in the mind of a sitting judge would be dangerous for the system. All sitting judges have an obligation to maintain the independence of the judiciary at all costs. It can be nobody’s case that an errant judge — sitting or retired — ought not to be dealt with appropriately. But can a belated one-sided allegation, howsoever grave the allegations, made before a forum not competent to deal with the same, seek a mob-lynch verdict? In Justice Ganguly’s case, the Supreme Court recorded what it did, based only on the allegations levelled by the complainant. I do not think the Supreme Court committee gave any finding. If the full Supreme Court has decided not to entertain any such complaint in the future, that must be respected. Perhaps the full court’s decision is an admission that such a complaint ought not to have been entertained in the first instance. Indeed, the apex court cannot be converted into an investigating machinery or a prosecuting agency of the state. Nothing definite can be stated on the allegations without a trial. And a trial has to be in a competent court of law, arising out of an FIR. Let me not be too legalistic about the scope, purport and ambit of amended Sections 354A, 354B, 354C, 354D of IPC, hurriedly enacted without debate in the aftermath of the Nirbhaya crime. Today, questions are being raised as to the wisdom of enacting such lethal provisions. I don’t know whether this would have the desired effect. What I apprehend, however, is that some innocent persons may possibly be made victims of the law, either deliberately or otherwise. Law, as Samuel Johnson said, is the ultimate result of human wisdom, acting upon human experience, for the benefit of the public. I am not convinced that the amended IPC 354 satisfies the test of law laid down by the British statesman. What we need is justice, and not addition to a plethora of extant laws. We also need honesty of purpose on the part of those administering the law. In India we have too many laws but very little justice. And about justice delivered by the administrators, less said the better. Curiously, both the accused judges have always enjoyed great reputation of judicial independence. It is too much of a coincidence that such judges, with a tremendous reputation of judicial impartiality, should have been accused of wrongdoings in discharge of non-judicial function. The Supreme Court of India has been an inconvenient institution to the powers that be. There can possibly be a larger conspiracy to belittle and downgrade the Supreme Court, which is by far the best functional institution of India today. The faith of the common man in the Supreme Court has remained undiminished despite motivated attacks made from various quarters. The Bar has an overriding responsibility to protect the majesty and dignity of the judiciary. Let the law take its own course for any allegations levelled against judges. There are proper fora for ventilating grievances for every aggrieved person. Anyone can file an FIR against any person and the police has no choice but to investigate impartially and take the matter to its logical end. But to attempt to burden our Supreme Court to deal with individual complaints would be against the very basic tenets of the rule of law. Despite allegations levelled against judges, the Supreme Court remains a shining example of rectitude, independence and impartiality. Let us not attempt to destroy the last bastion of hope for the common man. Let us not destroy our democracy!
The writer is senior advocate, Supreme Court of India
When Laws can be Used to Deny Others Justice
Bishwajit BhattacharyyaThe writer is senior advocate, Supreme Court of India
Thursday, January 9, 2014
Hindu Marriage Act is Applicable Only If Both Spouses Are Hindu
Source: The Times of India dated 10.1.2014
Mumbai: A decade after a Mulund resident went against her parents’ wish and married her childhood sweetheart, a Christian boy, the Bombay high court has dismissed her plea to annul the marriage under the Hindu Marriage Act.
A division bench of Justice Vijaya Kapse Tahilramani and Justice V L Achliya said the Act was applicable only when both the spouses are Hindus.
“The provisions of Hindu Marriage Act can be applicable when both the spouses are Hindus and their marriage is performed according to Hindu rites. The marriage has to be valid within the meaning of the Act. It is also necessary that at the time of filing a divorce petition, both the spouses are Hindus by religion, except if one of them is seeking divorce on the grounds that the other person had converted to another religion,” said the bench while upholding a family court order, refusing to entertain a petition filed by Nilanjana Simha seeking her marriage to Rajesh D’Souza be declared null and void under the Hindu Marriage Act.
The court said Rajesh, who is now settled in Hyderabad, was a Christian at the time of the marriage and still one.
Nilanjana claimed she married Rajesh under Hindu rituals in 1999. Her lastditch plea to the court that her husband had concealed the fact that he was a Christian was also thrown out.
The judges pointed out that in her petition, she had said her parents and her husband’s parents were family friends and her family had opposed their wedding as they belonged to different religions. The HC further referred to Rajesh’s surname, (D’Souza), “which is distinctly Christian and can never be a Hindu surname”.
“Not only (Nilanjana) mentioned in the divorce petition that she did not know at the time of the marriage that Rajesh was not a Hindu but it is also evident that from his surname and other facts, it was clear to her that (her husband) was a Christian at the time of the marriage. It is too late in the day to contend that her consent to the marriage was obtained by fraud,” said the bench.
“Now Nilanjana cannot contend that Rajesh had concealed the fact from her that he was a Christian and therefore, she is entitled to a decree of nullity on the grounds that her consent was obtained by fraud by concealing the fact that he was a Christian,” the court said.
(Names changed to protect the couple’s identity)
HC refuses to end marriage under Hindu Act
Says The Law Applicable Only If Both Spouses Are Hindu
Shibu Thomas TNN
Mumbai: A decade after a Mulund resident went against her parents’ wish and married her childhood sweetheart, a Christian boy, the Bombay high court has dismissed her plea to annul the marriage under the Hindu Marriage Act.
A division bench of Justice Vijaya Kapse Tahilramani and Justice V L Achliya said the Act was applicable only when both the spouses are Hindus.
“The provisions of Hindu Marriage Act can be applicable when both the spouses are Hindus and their marriage is performed according to Hindu rites. The marriage has to be valid within the meaning of the Act. It is also necessary that at the time of filing a divorce petition, both the spouses are Hindus by religion, except if one of them is seeking divorce on the grounds that the other person had converted to another religion,” said the bench while upholding a family court order, refusing to entertain a petition filed by Nilanjana Simha seeking her marriage to Rajesh D’Souza be declared null and void under the Hindu Marriage Act.
The court said Rajesh, who is now settled in Hyderabad, was a Christian at the time of the marriage and still one.
Nilanjana claimed she married Rajesh under Hindu rituals in 1999. Her lastditch plea to the court that her husband had concealed the fact that he was a Christian was also thrown out.
The judges pointed out that in her petition, she had said her parents and her husband’s parents were family friends and her family had opposed their wedding as they belonged to different religions. The HC further referred to Rajesh’s surname, (D’Souza), “which is distinctly Christian and can never be a Hindu surname”.
“Not only (Nilanjana) mentioned in the divorce petition that she did not know at the time of the marriage that Rajesh was not a Hindu but it is also evident that from his surname and other facts, it was clear to her that (her husband) was a Christian at the time of the marriage. It is too late in the day to contend that her consent to the marriage was obtained by fraud,” said the bench.
“Now Nilanjana cannot contend that Rajesh had concealed the fact from her that he was a Christian and therefore, she is entitled to a decree of nullity on the grounds that her consent was obtained by fraud by concealing the fact that he was a Christian,” the court said.
(Names changed to protect the couple’s identity)
Wednesday, January 8, 2014
Science wins over Indian Evidence Act, 1972
Source: The Times of India dated 9.1.2014
New Delhi: A nascent 30-yearold scientific advancement fought a pitched battle against a 142-year-old law in the Supreme Court and registered a decisive victory, bludgeoning a presumptuous provision in the colonial era Indian Evidence Act, 1872. Truth prevailed, but an innocent girl child got bastardized.
An emotionally-scarred SC bench stayed firm on ‘truth’. It said: “When there is conflict between conclusive proof envisaged under law and that based on scientific advancement accepted by the world community to be correct, the latter must prevail over former.”
As a result of this SC ruling, DNA tests to ascertain parenthood of children born out of subsisting marriages will now become a judicially acceptable legitimate exercise.
Nandlal was married to Lata in 1990, but he claimed they have lived separately since 1991. Lata claimed she had been living intermittently with Nandlal. A girl child was born to them in 1996 when their marriage was subsisting, even though they were estranged. The wife sought maintenance for herself and daughter.
The husband resisted paying maintenance to the child saying he was not her father. But a Maharashtra court granted Rs 1400 — Rs 900 for the wife and Rs 500 for the child — citing a section of the Evidence Act which says that a child born during subsisting marriage be presumed as the couple’s legitimate offspring as long as the husband had access to the wife.
On appeal, the SC ordered a DNA test as desired by Nandlal to prove the child’s paternity. Two separate tests threw up the same result: Nandlal was not the father.
This posed a legal dilemma for a bench comprising Justices C K Prasad and J S Khehar. But they overcame the conflict between science and law.
The court said: “We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. ‘Truth must triumph’ is the hallmark of justice.”
Science beats 142-year-old law, leaves girl ‘fatherless’
Dhananjay Mahapatra TNN
New Delhi: A nascent 30-yearold scientific advancement fought a pitched battle against a 142-year-old law in the Supreme Court and registered a decisive victory, bludgeoning a presumptuous provision in the colonial era Indian Evidence Act, 1872. Truth prevailed, but an innocent girl child got bastardized.
An emotionally-scarred SC bench stayed firm on ‘truth’. It said: “When there is conflict between conclusive proof envisaged under law and that based on scientific advancement accepted by the world community to be correct, the latter must prevail over former.”
As a result of this SC ruling, DNA tests to ascertain parenthood of children born out of subsisting marriages will now become a judicially acceptable legitimate exercise.
Nandlal was married to Lata in 1990, but he claimed they have lived separately since 1991. Lata claimed she had been living intermittently with Nandlal. A girl child was born to them in 1996 when their marriage was subsisting, even though they were estranged. The wife sought maintenance for herself and daughter.
The husband resisted paying maintenance to the child saying he was not her father. But a Maharashtra court granted Rs 1400 — Rs 900 for the wife and Rs 500 for the child — citing a section of the Evidence Act which says that a child born during subsisting marriage be presumed as the couple’s legitimate offspring as long as the husband had access to the wife.
On appeal, the SC ordered a DNA test as desired by Nandlal to prove the child’s paternity. Two separate tests threw up the same result: Nandlal was not the father.
This posed a legal dilemma for a bench comprising Justices C K Prasad and J S Khehar. But they overcame the conflict between science and law.
The court said: “We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. ‘Truth must triumph’ is the hallmark of justice.”
Monday, January 6, 2014
Persons flying for business are not consumers according to Central Mumbai District Consumer Forum
You are not a consumer when flying for business, says forum
Hindustan Times (Mumbai)
Jan 7 2014
of the Consumer Protection Act, 1986, defines a consumer as any person who buys goods or services or one who uses such goods a person who obtains goods for resale or for any commercial purpose purpose excludes the use for earning livelihood the...read more...
Wednesday, January 1, 2014
Kapila Hingorani, 'Mother of Public Interest Litigation' Dies
Source: The Times of India dated 2.1.2014
New Delhi: Kapila Hingorani, who more than three decades ago became the first woman lawyer to file a PIL on behalf of undertrial prisoners in Bihar, earning the title ‘the Mother of PILs’, has passed away. She was 86.
In her nearly 60-year practice as advocate, she and her three practicing lawyer children — Aman, Priya and Shweta — fought more than 100 cases in the SC through PILs. PILs may have become a fad these days, but the 1979 case she fought for Hussainara Khatoon remains a pioneering effort as a true harbinger of justice to the voiceless.
The court, in 1979, laid down important guidelines on undertrial prisoners in the Khatoon case. It said: “A procedure which keeps large number of people behind bars without trial for long, cannot possibly be regarded as ‘reasonable, just or fair’ so as to be in conformity with the requirement of Article 21 (right to life)… Speedy trial is of the essence of criminal justice and, therefore, delay in trial by itself constitutes denial of justice.” Importantly, the SC, for the first time, talked of the necessity of free legal aid to poor persons.
Eight years after the judgment, the National Legal Services Authority was constituted under the Legal Services Authorities Act, 1987, to provide free legal services to weaker sections of society and to organize Lok Adalats for amicable settlement of disputes.
The second most important PIL, which Hingorani herself filed in the SC, related to denial of salary — accrued over four to 94 months — to thousands of Bihar government employees. She alleged that hundreds of government employees had died of penury-actuated poverty.
On Tuesday, the ‘Mother of PIL’ may have breathed her last, but she has left behind a rich legacy of selfless pro-bono fights for the underprivileged and a mighty weapon in the form of PILs.
Kapila Hingorani, Mother of PILs, dies
Dhananjay Mahapatra TNN
New Delhi: Kapila Hingorani, who more than three decades ago became the first woman lawyer to file a PIL on behalf of undertrial prisoners in Bihar, earning the title ‘the Mother of PILs’, has passed away. She was 86.
In her nearly 60-year practice as advocate, she and her three practicing lawyer children — Aman, Priya and Shweta — fought more than 100 cases in the SC through PILs. PILs may have become a fad these days, but the 1979 case she fought for Hussainara Khatoon remains a pioneering effort as a true harbinger of justice to the voiceless.
The court, in 1979, laid down important guidelines on undertrial prisoners in the Khatoon case. It said: “A procedure which keeps large number of people behind bars without trial for long, cannot possibly be regarded as ‘reasonable, just or fair’ so as to be in conformity with the requirement of Article 21 (right to life)… Speedy trial is of the essence of criminal justice and, therefore, delay in trial by itself constitutes denial of justice.” Importantly, the SC, for the first time, talked of the necessity of free legal aid to poor persons.
Eight years after the judgment, the National Legal Services Authority was constituted under the Legal Services Authorities Act, 1987, to provide free legal services to weaker sections of society and to organize Lok Adalats for amicable settlement of disputes.
The second most important PIL, which Hingorani herself filed in the SC, related to denial of salary — accrued over four to 94 months — to thousands of Bihar government employees. She alleged that hundreds of government employees had died of penury-actuated poverty.
On Tuesday, the ‘Mother of PIL’ may have breathed her last, but she has left behind a rich legacy of selfless pro-bono fights for the underprivileged and a mighty weapon in the form of PILs.
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