GERMANY OBSERVES RIGHT TO DIE

Germany’s highest court ruled Friday that it was not a criminal offense to cut off life-sustaining treatment for a patient.

The court overturned the conviction of a lawyer who last year was found guilty of attempted manslaughter for advising a client to sever the intravenous feeding tube that was keeping her mother alive, although in a persistent vegetative state. The mother had told her daughter that she did not wish to be kept alive artificially.

The verdict is likely to spur significant changes in the practice of assisted suicide and is certain to restart the debate over euthanasia and the right to die in Germany.

In its decision, the court clearly distinguished between “killing with the aim of terminating life” and an action that “let a patient die with his or her own consent.”

The ruling strengthens an individual’s right to die with dignity, since terminating life-sustaining treatments will no longer be a crime if patients have declared their wishes.

MANAGING GOVERNMENT’S LITIGATION THROUGH NLP

The Centre and states together account for 70% of the 3 crore cases pending in various courts in India -- or over 2.1 crore cases, making government the largest litigant in India.

Now, the Centre has formulated a National Litigation Policy (NLP), which will help both it and the states -- which are only too eager to adopt it -- shed this shameful tag in the next four years and decongest the dockets of the courts.
First and foremost, the policy, drafted by Attorney General G E Vahanvati and vetted by Moily, aims to make "appeal not mandatory in every case".

It will put in place a comprehensive mechanism that will impress upon the departmental heads not to go for appeals and litigation against citizens just to harass them. The "let the court decide" attitude will be given a go bye, NLP stressed.

In addition, it will provide efficient lawyers to the government departments by selecting them through a strict scrutiny and will remove any lawyer in the government panel if he or she is found to be asking for repeated adjournments.

Arbitration will be the main stay for the resolution of disputes with citizen and the entire process of arbitration would be made corruption free -- vetting of arbitration agreements and providing a clause that would warrant sacking of lawyers found delaying the process.

HIGHLIGHTS

* To transform the central government into an efficient and responsible litigant focussing only on core issues
* Conducting litigation in a time bound manner
* Ensure that good cases are won but bad cases not persevered with
* Every effort must be made to improve government representation
* Screening Committees to monitor every litigation
* All litigation to be conducted on the premise that citizens come first and government is not there to trample on fundamental rights
* Arbitration to be accepted as mainstay and all corruption in arbitration proceeding to be removed
* Arbitration agreements to be very carefully drafted. Every arbitration case to be monitored and lawyers who are found to delay arbitration should be sacked
* Appeal in every case must stop
* Government litigation share in all courts in India is 70% - to reduce it by 50%

AFSPA MIGHT BE AMMENDED

Notwithstanding opposition from the Army and faced with reports of fake encounters, the government is planning to go ahead with certain amendments in the Armed Forces Special Powers Act which includes handing over of an Army personnel in case of extra-judicial killings to the state authorities.

While of late, Army officials have been raising issues and even terming AFSPA as a ’holy book’, government sources feel that there was a need to give a fresh look to the Act and make it more humane.

The AFSPA gives the Army the powers to detain and, if the situation warrants, eliminate suspected terrorists when they are fighting insurgents without the fear of prosecution.

The Armed Forces (Special Powers) Act only in force in some areas in Kashmir and insurgency-affected states in the north east.

The Second Administrative Reforms Committee had suggested to the government replacing of the Act with an amended law which gives the Centre the right to deploy the Army or para-military forces in situations involving national security.

According to the sources, the amendments also include handing over of Army personnel, who allegedly indulge in fake killings, to the local police authorities for prosecution.

The issue of amendments has been regularly been raised by Jammu and Kashmir Chief Minister Omar Abdullah with several senior Central leaders including the Prime Minister and Home Minister P Chidambaram.

AIRLINE LIABLE TO PAY FOR DENYING BOARDING

With airlines flying out of their slowdown-induced financial troubles, the government seems to be finally turning its attention to the hapless passengers.

The Directorate General of Civil Aviation (DGCA) on Monday revived its over three-year-old plan of asking airlines to compensate flyers for wrongly denying boarding in overbooked flights and sudden cancellations that leave scores stranded across the country daily. Also, airlines including budget carriers— will be asked to provide meals, refreshments or even accommodation in case of delays if the regulator is able to translate its draft rule into reality this time by overcoming stiff resistance from powerful industry players.

Inviting public comments on these draft rules, DGCA has proposed three slabs of compensation in cases of forcible denial of boarding to those who have confirmed tickets and who report to airport in time, and sudden cancellations without prior information: up to Rs 2,000 for flights of an hours duration; up to Rs 3,000 for one to two hour-long flights and up to Rs 4,000 for longer flights. The other option for passengers would be to opt for alternate transport arrangements arranged by the airline or taking the next flight to their destination. Airlines shall first ask for volunteers to accommodate overbooked passengers who want to be on that flight.

However, airlines will not be liable to pay fines for delays or cancellations caused by events beyond their control like political instability, natural disaster, civil war, riot, strikes, ATC issues and unexpected flight safety shortcomings.

SEXUAL HARRASMENT BILL DRAFTED

Sweeping provisions proposed in a draft Bill aim to penalize firms that do not set up a sexual harassment complaints panel.

An employer can be penalized with a fine of up to Rs 50,000 if it fails to do any of the following — set up an internal committee, act on recommendations of the inquiry report, take action against those found guilty of making a false complaint or providing false evidence and publish information relating to harassment cases in its annual report.

Apart from government organizations and the organized private sector, the proposed legislation covers sectors like the hospitality industry — including catering services and restaurants — NGOs, health services, coaching centres, domestic workers and those working in tailoring or beauty parlours.

The Bill also includes educational institutions, bringing students and researchers into the ambit of protection. The draft law provides that if any employer, after being convicted of an offence punishable under the Act, is again convicted for the same offence, the punishment will be three time greater than that imposed on the first conviction, subject to the punishment being the maximum provided for the offence.

The government or local autho-rity would also have the right to cancel or withdraw the licence to carry out business activity of the employer. The employer will be expected to provide a safe, working environment at the work place.

BLOGGER JUDGE GETS A RAP FROM SC

The Supreme Court on Friday yellow carded Justice D V Shylendra Kumar for his intemperate observations and interim orders berating Karnataka high court Chief Justice P D Dinakaran and said they were in defiance of the model code of conduct for judges framed by the apex court in 1997.

The SC also stayed all interim orders passed by the bench headed by Justice Kumar to show Justice Dinakaran in poor light during the hearing of a tax-related matter. The SC made it clear to the judge — famous for blogging his views about deficiencies in judiciary — that the CJ, as the head of the HC, had the sole prerogative to list matters before benches.

An SC vacation bench comprising Justices Deepak Verma and K S Radhakrishnan said Justice Kumar would do well to read SC’s December 2, 1997, judgment in the State of Rajasthan vs Prakash Chand case laying down guidelines about how judges should conduct themselves while deciding cases.

Hearing a petition filed by Karnataka HC against the intemperate language and observations of Justice Kumar, the bench stayed all interim orders passed by the HC bench though it clarified that there was no stay on the bench hearing the matter and deciding it.

Before parting with the matter, Justice Verma fondly recalled how he used to have coffee regularly with Justice Kumar and promised in court that he would continue to do so. When he asked for views of senior advocate Uday Holla, who argued for the HC, the counsel said observations of the bench pained him a lot as it harmed the judiciary’s image. However , he too disclosed his closeness to Justice Kumar saying he was his classmate.

But Justice Verma was his stern self during hearing of the HC petition. After dictating the order staying the HC bench’s interim orders and reminding Justice Kumar about the guidelines, he said, "This should serve the purpose and good sense must prevail."

Referring to Justice Kumar’s earlier blogs, Justice Verma said it virtually brought tears to his eyes. Justice Radhakrishnan said Justice Kumar’s observations were in complete breach of the 1997 judgment.

In the 13-year-old judgment dealing with Justice B J Sethna, an errant judge of Rajasthan HC, the apex court had warned, "All actions of a judge must be judicious in character. Erosion of credibility of the judiciary in the public mind for whatever reason is the greatest threat to the independence of judiciary . Eternal vigilance by the judges to guard against any such latent internal danger is, therefore, necessary lest we suffer from self-inflicted mortal wounds."

INDIA TO ADOPT US MODEL IN TACKLING DOMESTIC VIOLENCE

India is hoping to take a cue from the United States in tackling domestic violence cases.

In an effort to minimise state intervention in implementation of the Protection of Women from Domestic Violence Act (PWDVA), the Ministry of Women and Child Development (MWCD) has now mooted a proposal to encourage NGOs to provide assistance and shelter to victims.

As of now the Domestic Violence Act expects the state to appoint protection officers who coordinate between courts, police and support services for enabling women’s access to justice.

The programme envisages a domestic violence intake centre established by an NGO which is housed with-in the court premises and works in collaboration with police, prosecutors, NGOs and the court. The victims can approach a domestic violence intake centre or a police station and the victim is assisted in getting an ex-parte temporary protection order within two hours which is valid for 14 days. During the period the victim is provided with shelter, transport, legal assistance, custody of children depending on her needs.

A senior ministry official said that efforts were being made to involve more NGOs. "It has been seen that NGOs are sensitive to the victims’ needs and unlike state appointed protection officers are able to dedicate themselves completely to the implementation of the act," he said. The official added that the state and ministries would monitor
the implementation.

SURROGACY BILL OFFERS LEGAL WOMB BANKS

Renting a womb could soon become a completely legal and hassle-free experience, both for Indian as well as foreign couples looking for surrogate mothers in the country. As per thedraft Assisted Reproductive Technology (ART) Billslated to be tabled in Parliament next session,government accredited ART banks will maintain a database of prospective surrogates as well as store semen and eggs, along with comprehensive details of the donor.

Exploitation of surrogates by infertile couples, and vice versa, has been a serious concern ever since in-vitro fertilization (IVF) started in India. "But this will put an end to it. Infertile couples don’t have to go hunting for surrogate mothers. The bank will help them get one. As a result, the couple will have all information about her background and medical history before hiring her womb," said Dr R S Sharma, deputy director general of Indian Council of Medical Research (ICMR), who has been involved in the process of drafting the Bill.

These banks - both private and government - will be accredited by state boards. The board will also have a registration authority which will maintain a list of all IVF centres and monitor their functioning. "So far we didn’t have any law regarding surrogacy. This is a step towards legalizing surrogacy and fixing responsibilities of the parties involved in the process," said Dr Sharma.

These ART banks will be independent of IVF clinics. Oocyte (unfertilized egg) and semen preservation will be their main focus. "In the past few years, IVF clinics have mushroomed in the country. There is no check on their practices. There is no quality check on the semen and oocytes preserved by them and offered to infertile couples. These banks will have a proper system, where every minor detail about gametes and surrogates will be documented," said a senior doctor at AIIMS who too is involved in the drafting of the bill.

Experts say that once a bank is in place, it will maintain a database of surrogate mothers. A woman is allowed five live births, including her own children. "It has been seen that poor women sell their womb several times for money. This has a damaging effect on their body. The new bill clearly states that a woman can’t have more than five live births and donate oocytes more than six times in her life," said Dr Sharma.

Apart from bearing all the expenses of the surrogate during the gestation period, the couple can also give monetary compensation to her. The terms of this agreement will be left to the couple and the surrogate.

The bill proposes stringent rules for foreigners looking for surrogate mothers. It will be mandatory for foreign couples to submit two certificates - one on their country’s policy on surrogacy and the other stating that the child born to the surrogate mother will get their country’s citizenship. "They also have to nominate a local guardian, who will take care of the surrogate during the gestation period," said Dr Sharma.

ART experts are now eagerly waiting for the Bill to be presented in the next Parliament session and are hopeful that once passed, it will regularize the IVF industry in the country.

THE DEBATE OVER NUCLEAR LIABILITY BILL

The Nuclear Liability Bill

The bill deals with the liabilities in case of a possible nuclear mishap. The bill is necessary to activate Indo-U.S. Civilian Nuclear Agreement. As the U.S. nuclear reactor manufacturing companies will require the liability bill to get insurance in their home state. After this bill becomes an act, India will become a member of the international convention on liability in the civil nuclear arena.

Debate over the Bill

The bill is certainly debatable as it has certain clauses which indirectly let free the manufacturers and the builders of the nuclear reactors from any financial and legal liability.

Clause 6

According to the clause 6 of the nuclear liability bill, the maximum financial liability in case a nuclear accident occurs in nuclear reactors has been set at the rupee equivalent of 300 million special drawing rights (SDRs) which is equal to $458 million (Rs. 2,087 crore). The amount is considered meagre in comparison to the destruction caused by a nuclear accident. A same kind of law in U.S. has set the financial liability for such accident at $10.5 billion.

Clause 7

The clause 7 defines the share of financial liability for each of the culpable groups. It states that the operator will have to pay Rs. 500 crore and the remaining amount will be paid by the Indian government. This is considered as a ridiculous point as the operator will be the Nuclear Power Corporation of India Ltd. (NPCIL) which in itself is a government owned facility.

The operator can claim the liabilities form the manufacturer and supplier if it is mentioned in the contract. But the maximum amount payable by the foreign companies will be a very little sum of Rs. 500 crore. Ultimately, it is the Indian taxpayer who will have to give the money even when the accident has occurred due to others mistakes.

Clause 17

This clause deals with the legal binding of the culpable groups in case of a nuclear accident. It does allow only the operator (NPCIL) to sue the manufacturers and suppliers. The victims won’t be able to sue anyone. Practically, no one is considered legally liable because the recourse taken by the operator will yield only Rs. 500 crore at maximum.

Clause 18

Clause 18 of the nuclear liability bill limits the time to make a claim within 10 years. This is very less as compared to the long term damage that may be caused due to a nuclear accident.

Clause 35

Clause 35 extends the legal binding that the responsible groups may have to face. The operator or the responsible persons in case of a nuclear accident will undergo the trial under Nuclear Damage Claims Commissions and no civil court is given the authority. The country will be divided into zones with each zone having a Claims Commissioner. In the U.S. counterpart – the Price Anderson Act, the lawsuits and criminal proceedings goes under the U.S. courts.

Other Aspects of the Nuclear Liability Bill

Other than these clauses there are some general questions which are being raised upon the bill.

• The foreign made reactors will not be operated by the private companies but the operator will be NPCIL only. Thus the electricity produced will be state subsidized which indirectly is the taxpayer’s money. In case, private sector is allowed to operate, the electricity rates would be low due to the competition between different operators.
• Even finance ministry and environment ministry has raised question on this bill keeping in view the financial and environmental sustainability. A nuclear mishap can cause negative long term health and environmental effects.
• M V Ramana, an eminent nuclear scientist said that the Atomic Energy Regulatory Board (AERB) will take care of the quality of the imported enriched Uranium nuclear reactors. But, the board lacks expertise in such reactors.
• Since India has developed its nuclear technology in using natural Uranium and Thorium as a nuclear fuel through indigenous efforts, the import of enriched Uranium reactors is considered to slow down the process of nuclear research and development in India.

INDO-PAK LEGAL BATTLE ON KISHENGANGA PROJECT

India is bracing itself for a costly and cumbersome international arbitration case with Pakistan over the Kishenganga hydel project. After failing to persuade Pakistan to resolve the dispute at the government level, India on Wednesday named a judge of the Geneva-based International Court of Justice Peter Tomka and a Swiss international law expert Lucius Caflisch to represent it.

India’s initial choice for legal representative was the Baglihar neutral expert, Raymond Lafitte and Prof Boisson de Chazournes. Tomka, was formerly a legal advisor to the Slovak foreign ministry while Caflisch is a professor at the Graduate Institute of International Studies in Geneva.

But Baglihar was probably an easier verdict, according to internal assessments in the government. For one thing, the Kishenganga project is not as advanced as Baglihar was, and Pakistan’s Neelum-Jhelum project is already under construction. Most important, the unknown of an international legal verdict is disquieting to the Indian system, hence India’s greatest effort will go into ensuring that Pakistan should not get a veto on forthcoming water projects in India.

For Pakistan though, the legal recourse is more political — in a note verbale (diplomatic missive) to India on May 17, Pakistan’s primary complaint appears is the fundamental structure of the treaty itself — questioning India’s right to divert water. Here, India is on more solid ground, because the Indus Waters Treaty is fairly clear on the subject, because it shows that Pakistan is taking a more political stance on water disputes rather than a technical one, which was India’s objection from the start.

Pakistan’s main disputes are __ first that India’s proposed diversion of the Kishenganga (its called Neelum in Pakistan) to another tributary, Bonar-Madmati Nallah “breaches India’s legal obligations under the treaty.”

Pakistan also objects to India’s decision to deplete the level of the reservoir level of the plant to “below the dead storage level (DSL)”. Its reason being that it says the treaty places strict limitations on drawdown of water.

What does Pakistan want?
First, to prevent India from proceeding on the project until the verdict. India doesn’t want to do this because it’s a financial liability and then the project could become threatened like the Tulbul project. Second, Pakistan wants a legal declaration that the diversion is a breach of the treaty. Third, that India should not draw down the water level of the reservoir. India says the treaty permits India to move water from one tributary to another after power generation. India will refute Pakistan’s contention of the depleted water destroying Pakistan’s agriculture activities, by showing that there is very little agricultural activity there anyway. Indian government sources said the NHPC had also kept a provision of an extra 150 cusecs of water to be released downstream for Pakistani use, if necessary.

But ultimately, the dispute resolution is political, because for Pakistan, water is an emotive issue at present, including their belief that India was stealing their water. Apart from Kishenganga, Pakistan also objects to the Uri II project and the Chutak and Nimoo-Bazgo projects on the tributaries of the Inddus.

According to the 1960 treaty, India is allowed to create storage capacity of 3.6 million acre feet on the Indus, Jhelum and Chenab, the three western rivers. India is nowehere close to this figure. India is also allowed to create 1.34 million acres of irrigation capacity but its still to be exploited.

INDUS WATER TREATY, 1960 FULL TEXT

SOON THERE WILL BE I.L.S. FOR LEGAL EAGLES

A complete overhaul of the Indian Legal Service is in the offing. The law ministry is preparing a cabinet note for this purpose so as to bring the ILS on a par with the civil services so that the best students out of law schools join the government.

It has started consultations with the department of personnel and training in this regard. A senior ministry official said recruitment will begin early through an entrance examination followed by an interview. Once selected, the officers will be sent for training to National Judicial Academy, Bhopal.

“A new training institute can also be created. We will ask the Indian Law Institute to structure a training programme. The training will be for two years,” the official said. Officers will be placed at various levels, from district courts to the state and central government.

“There will be enough flexibility in the service. An officer can decide to join the judiciary for a few years and then come back to the service. He can even go to the higher judiciary,” the official said.

There will also be provision for officers to go to Ivy League universities for further studies at government expense. The salary, the official said, would be on a par with other Group A services. At present, officers are recruited into the Indian Legal Service as and when needed. Most of them are law teachers or lawyers.

The official said two factors have led to the ministry’s decision to overhaul the Indian Legal Service. The first is that the new economy has led to a big rise in the demand for legal officers in various ministries and government bodies and the second is the lack of good legal draftsmen in the government.

The ministry is optimistic that lucrative salaries being paid by private law firms will not be a deterrent. “Law firms are mostly engaged in corporate cases. The main job there entails giving legal advice and preparing for cases. Government being the biggest litigant, the experience will range from cases related to economy to social sector and even political matters.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND FOR DIVORCE

The Cabinet will clear amendments to the Hindu Marriage Act on Thursday by including “irretrievable breakdown of marriage” as ground for divorce.

Under Section 13 of the Hindu Marriages Act, which provides for grant of divorce, a decree of divorces for separation can be given only on the grounds such as “cruelty”, “adultery” and “desertion”.

The lack of this provision was recently pointed out by the Supreme Court while hearing a petition filed by Union Power Minister Sushilkumar Shinde’s daughter, Smriti Shinde. A 2006 judgement, too, had voiced the need for legislative intervention on the issue.

“We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties,” the apex court had said in the 2006 order.

In the 2006 case, one Manju Sharma had “resolved to live in agony only to make life a miserable hell” for the husband. In a creative interpretation, the court treated the wife’s refusal to let go of the husband despite the irretrievable breakdown as an instance of mental cruelty on her part. “This type of adamant and callous behaviour leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty,” the court said while granting divorce on the ground of “irretrievable breakdown”.

In its 71st report submitted in 1978, the Law Commission had recommended introduction of breakdown of marriage as a ground for divorce in addition to “fault” grounds in the divorce law. In 1981, a Bill was introduced to give effect to “irretrievable breakdown” as a ground for divorce, but it did not find acceptance as some were of the view that unscrupulous husband would desert their wives by taking advantage of this provision.

NAD BILL PROPOSED BY HRD

All educational institutions — schools to universities — will have to mandatorily lodge the academic records (certificates and marksheets of class 10, 12, graduation, etc) of their students with a National Academic Depository (NAD) proposed to be set up through an Act of Parliament.

The HRD ministry’s National Academic Depository Bill, seeking to establish and maintain a national database of academic records in an electronic format, has been circulated for further consultation. Once it is set up, the NAD will be able to curb frauds like forging of certificates and marksheets and help the institutions by reducing their burden of preserving the academic records.

The Bill proposes that the National Academic Depository (NAD) — to be appointed by the government — will have to provide online access or a physical copy of the authenticated certificate within three days of request to individuals or companies. An academic institution will have to pay a registration fee to NAD and also annual charge for the maintenance of the records.

US SUPREME COURT ON MIRANDA WARNING

Miranda Warning;

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?"

The supreme court of USA IN A 5-4 decision has ruled that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations.

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a January 10, 2000, murder in Michigan. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

But justice Anthony Kennedy said that wasn’t enough. "Thompkins did not say that he wanted to remain silent or that he did not want to talk to police," Kennedy said in a statement. "Had he made either of these simple, unambiguous statements, he would have invoked his ’right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent."

IPL BID FIASCO: THE AMBIGUOS ESCAPE MECHANISM BY PAWARS

Agriculture minister Sharad Pawar and his daughter Supriya Sule’s defence that City Corporation’s participation in the bid for the Pune franchise of IPL in March was in the personal capacity of its MD Aniruddha Deshpande will not stand scrutiny of law, legal experts said on Friday.

"The company is a legal entity. Once it buys the bid document and submits it in its name, there is no escaping the liability and the question of personal capacity bidding in the name of City Corp does not arise. The personal capacity defence is untenable in law,’’ senior advocate Mukul Rohatgi told TOI.

Moreover, Section 2(26) of the Companies Act clearly specifies that a managing director of a company shall ‘‘exercise his powers subject to the superintendence, control and direction of its board of directors’’. In light of this, Rohatgi was of the view that Deshpande’s statement — ‘‘The tender was bought in the name of City Corp. The board did not agree to the bid but permitted me to use the company’s name for bidding purposes’’ — hinted at an arrangement between the company and the MD.

Another senior advocate Diljeet Titus said, ‘‘If there was an arrangement between the company and its managing director to the effect that the company would lend its name for the MD to bid in a personal capacity, then too the involvement of both the firm and its managing director would be assumed from such an understanding.’’

Other experts agreed with Rohatgi and Titus and said City Corp needs to answer some questions:

* Who paid for buying the bid document? — If the answer is City Corp, then the company cannot now wriggle out of the muddle by citing personal capacity of the MD, they said.

* Did the MD return the bid money to the company immediately after March 22 after being unsuccessful in getting the Pune franchise? Or did he return it to the company after the controversy broke out? Why did the board of directors not protest against Deshpande misuing the company name for personal benefit? — This would require a thorough examination, they said.

* If some discrepancies were detected in the bid documents warranting action under Company Law, could City Corp be allowed to say that though the document was bought in its name, it was only the MD who was liable in his personal capacity? — Even if it is in personal capacity of MD, as City Corp bought the bid document, both the firm and its MD would be jointly liable, experts said.

* Did the bid document specify that it was being submitted in Deshpande’s personal capacity? — If it was not specified that Deshpande bid in his personal capacity, then the company alone would be liable, whatever be the statements made now on behalf of the owners of City Corp, they said.

* As the bid document said nothing about personal capacity of the MD, was the board resolution ante-dated? — Ante-dating of a board resolution is a serious offence under the Companies Act and IPC. This can only be found out by a probe either by the Registrar of Companies, SEBI or the serious frauds investigation office (SFIO) in the corporate affairs ministry, they said.

Section 628 of the Companies Act 1956 provides for up to two years imprisonment for making any false statement in any returns, report, certificate, balancesheet, prospectus, statements or other documents relating to a company. A false statement would also attract provisions of the IPC — Section 463 (forgery), 464 (making a false document and 477A (falsification of accounts).

JUDICIAL ACTIVISM IN GAUHATI HIGH COURT, EMAIL=PIL

In a rare case, the Gauhati High Court has turned an email complaint about violation of National Council of Teacher Education norms into a Public Interest Litigation (PIL).

The email by one Jitendra Sharma to the Chief Justice of Gauhati HC, Justice R S Garg, pertained to violation of the NCTE norms in admission to the Bed programme. Sharma pointed out that NCTE by a gazette notification of August 31, 2009, had said that a candidate should have at least 50% marks either in the bachelor ‘s degree, master’s degree or any equivalent qualification for admission into B.Ed. However, Dibrugarh University, Sharma wrote to Justice Garg, issued a notice prescribing 45% marks in major or in aggregate at the bachelor’s degree or 45% marks in the master’s degree which is contrary to the instructions issued by NCTE.

He had requested the HC to intervene and quash the university’s notice. Sharma also told the HC that any deviation from NCTE norms is illegal. The HC has issued notice to the state government, Dibrugarh University and the Centre to reply within four weeks.

Sharma had earlier written to the university that fixing the eligibility criterion at 45% was illegal. NCTE sources also said that dilution of the eligibility condition was illegal and that it would take appropriate action. “Under the Right to Education Act, there is a lot of emphasis on the quality of teachers. The new law will have no impact unless there is a seminal change in the quality of teachers,” an NCTE official said.

NCTE has already decided that in the next 2-3 years, B.Ed will become a two-year course, instead of the current one year, and the Diploma in Education course will be phased out.

IM DECLARED A TERRORIST ORGANIZATION

Thegovernmentof India has declared the Indian Mujahideen (IM) as a "terrorist organization" formally on Friday, adding it and all its branches to the list of Unlawful Activities (Prevention) Act, 1967.

The group IM-a shadow outfit of the banned Students Islamic Movement of India (SIMI) and Pakistan-based Lashkar-e-Taiba has been involved in a number of terror acts in different cities during 2007-10 in India.

An order issued by the Home Ministry under the Act, thegovernmenthas banned 34 groups and declared them terror outfits. Initially, the list carries the chief groups including ULFA, LTTE, LeT, Jaish-e-Mohammed, Hizbul Mujahideen, Al-Qaeda, Al Badr, CPI (Maoist) and Khalistani and northeastern insurgent groups.

The formal declaration IM as a "terrorist organization" will help the police to go against the group in getting orders from the court to seize any land, house or any movable and immovable properties belonging to the members along with its associate groups. The activities of the group came into light after the terror strike in Varanasi on February 23, 2005.

DIRECTORATE FOR REVAMP OF COUNTRY’S LEGAL EDUCATION

Law education in the country is in the process of change with intensive training programmes, rigorous screening tests for admission, regular freshers’ course for advocates and better standards of education across law schools.
The newly set up directorate of legal education in India, that will shoulder the responsibility of all things concerning law education, will prepare an action plan on the subject for the next decade.
The directorate, set up in Delhi, will start functioning on Monday (January 4) bringing under its umbrella all the 950 odd law colleges in India, said Prof. V.B. Coutinho from Karnataka, who was appointed as its first director.
“Reforms in legal education have been awaited for long and are a necessity. There has been no directorate to look into this for over 60 years now. The standard of legal education needs to be upgraded along with training of faculty and advocates,” said Prof. Coutinho who is also member of the Karnataka Knowledge Commission. “For this, working on the syllabus is among the agenda. We will invite law faculty from top international universities such as Harvard, Warwick and Columbia, to name a few, to exchange knowledge with the faculty here. Advocates will be encouraged to take refreshers’ courses through the academy of advocates that will be set up,” Prof. Coutinho added.
Established by the Bar Council of India as recommended by the Supreme Court, the directorate will bring together more collaboration between the academia and advocates. This, to ensure that legal knowledge also progresses in the country, said Prof. Coutinho who has 30 years of experience in the legal field.
“The legal knowledge committee comprising the country’s top-most legal experts will review and suggest the way ahead. New methods of teaching and a new set of subjects is the key. Areas such as intellectual property law, humanities and women’s rights along with environmental law that is important today will be included. A new set of criminal law will also be looked into,” added the director.

BCI OPPOSES SIBAL’S NCHER BILL,2010

The Bar Council of India(BCI) on Monday, on the apprehension that its task as an apex regulatory body for legal professionals could be impinged, opposed the Human Resource Development(HRD) minister Kapil Sibal’s move to support the National Commission for Higher Educationand Research (NCHER) Bill, 2010.

Both the NCHER Bill and the ForeignEducationPromoters Bill were opposed unanimously in a meeting of BCI and state Bar Councils.

In a press release issued by BCI chairman S N P Sinha, the apprehension of the bodies regulating the professional conduct of lawyers was apparent.

The press release said that, "As is done in the case of medical and agriculturaleducation, the members demand that legaleducationmust be deleted from the purview of the NCHER Bill."

Being surprised at thedevelopment, the HRD minister assured that he is always open for the discussions as has been demanded by the BCI and state Councils upon the Bill.

SC BLAMES HCs FOR DELAY IN JUSTICE

Apex Court Finds 2,280 Cases Of Rape, Murder Stayed By HCs

Ever wondered why so many accused in heinous crimes - murder, rape, kidnapping and dacoity - roam around for years before the law catches up with them?
This question bothered the Supreme Court a lot and it found that the High Courts were mainly responsible for such a sorry state of affairs. For, they have stayed the proceedings in these cases and forgotten all about them for years.
As many as 2,280 cases relating to murder, rape, kidnapping and dacoity have been stayed by HCs at various - FIR, investigation, framing of charges and trial - stages and then left in the limbo, possibly allowing the accused to remain at large on bail.
A Bench comprising Justices G S Singhvi and A K Ganguly sought assistance from Solicitor General Gopal Subramaniam for collating data on cases relating to the four categories of heinous crimes which have been stayed by HCs after it found an identical situation pointed out in a petition filed by Imtiaz Ahmed, where the Allahabad HC had stayed a criminal case since April 2003.
The efforts by the SG to collate such cases threw up startling facts:
Murder cases stayed at various stages by HCs were 1,021 (45% of the total cases), rape cases 492, kidnapping cases 550 and dacoity 217
As many as 41% of the 2,280cases were pending for 2-6 years and 8% for more than 8 years. Of a total of 178 cases pending for more than 6 years, 97 were murder cases
Calcutta High Court appears to be the most liberal when it came to staying cases relating to heinous crimes accounting for 31% of the 2,280 cases. Allahabad High Court was not far behind having stayed 29% of the cases
In most of the cases across the HCs, the duration for which the case is pending varied from 1 to 4 years. It is seen that 34 out of 201 cases in Patna HC and 33 out of 653 cases in Allahabad HC were pending for more than 8 years
After perusing the enormity of the situation and having regard to the case in hand that related to Allahabad HC, the Bench headed by Justice Singhvi requested the counsel for the High Court to furnish data about the number of cases which have been stayed atthe stage of investigation or trial and listed the matter for further hearing on July 9.
The report was submitted to the court by Subramaniam, who took assistance of Dr Pronab Sen and Dr G S Manna, secretary and deputy director in the ministry of statistics and programme implementation, in studying the data supplied by various HCs.
The SG, in the concluding part of the report, said “the fact-finding exercise by the Supreme Court has revealed a problem of serious dimension” and suggested that the apex court would be well within its jurisdiction to direct the HCs to dispose of the matter within a year from the date of grant of stay in cases relating to heinous crimes.
If a case was not disposed of within a year, the concerned judge must record the reasons which should be communicated to the concerned chief justice of the HC, Subramaniam suggested.

DINAKARAN’S TRANSFER; PREZ DECISION SOON

The file containing a two-month-old proposalby the Supreme Court collegium headed by Chief Justice of India to transfer Justice P D Dinakaran as Chief Justice of Sikkim High Court has gathered momentum and a decision from the President is expected soon.
The proposal, sent to law ministry by the collegium in the first week of April, gathered speed on Thursday after rumours about Justice Dinakaran, who had recused himself fromjudicial work, resuming normal functioning set the Karnataka High Court abuzz.
Law ministry sources said the proposal to transfer the Karnataka HC chief justice, against whom an impeachment motion is pending in Rajya Sabha, would get the necessary approval from authorities soon.
This means the other components of the proposal — transferring Uttarakhand HC Chief Justice J S Khehar to Karnataka HC as chief justice — would also be approved by the government and given effect to along with the order transferring Justice Dinakaran to Sikkim HC.
With impeachment motion pending against Justice Dinakaran, the Rajya Sabha chairman has appointed a three-member committee headed by Supreme Court judge Justice V S Sirpurkar to inquire into the alleged corruption charges levelled against him.
With corruption charges being inquired into, Justice Dinakaran could not have been sent to a major HC, forcing the collegium to zero in on Sikkim HC, which has a strength of just three judges. In comparison, the sanctioned strength of Karnataka HC is 50 judges.
On the flip side, there is very little judicial work in Sikkim HC, which has a total pendency of 88 civil and criminal cases. In contrast, Karnataka HC has a pendency of 156,030 cases.
Justice Khehar, who was sworn in as chief justice of Uttarakhand HC on November 29 last year, would now become chief justice of Karnataka HC.

TEST AWAITS FOR FRESH LAW GRADUATES

Law graduates passing out from this year and intending to take up legal practice will have to pass an all-India Bar examination to be conducted by the Bar Council of India on December 5.

Every graduate after enrolment as lawyer in the respective State Bar Council will have to clear this examination, which will test skills and basic knowledge critical for a new entrant to the profession.

It is intended to check for eligibility, rather than expertise, BCI Chairman and Solicitor-General Gopal Subramaniam said here on Wednesday, after launching the BCI’s Vision Statement 2010-2012, which addresses the challenges before the legal profession and creating solutions.

The examination would be held once in six months and anyone failing in the first test could re-appear.

A legal consultancy firm, Rainmaker, will assist the BCI in conducting and managing the test in nine languages and in preparing the material for the test, for which it would collect Rs. 1,300 from each candidate.?

Mr. Subramaniam said: ?The Indian legal profession consists of approximately 11 lakh registered advocates, around 1,000 law schools and approximately 5 lakh law students. Every year, approximately 60,000 law graduates join the legal profession.?

Asked whether the BCI had taken permission from the Human Resource Development Ministry for conducting the test, Mr. Subramaniam said the council, as a statutory body, was not dependent on its approval.

On entry of foreign lawyers, Mr. Subramaniam said the BCI was opposed to it. Unlike in other countries, in India there was a standard of practice maintained by lawyers and they were not governed by earning money alone. The stage of allowing foreign lawyers has not yet come. The BCI was open to a debate on this issue.

KASAB APPEALS TO BOMBAY HIGH COURT

Mohammad Ajmal Amir Kasab, the lone surviving Pakistani gunman, who was sentenced to death for his role in the 26/11 Mumbai terror attacks, has filed an appeal in the Bombay High Court challenging the verdict and sought a legal aid panel to fight his case.

It has been reported that Kasab filed the appeal through the jail authorities and his plea for a lawyer has been forwarded to the High Court Legal Services Committee (HCLSC).

The HCLSC would now present Kasab’s plea for a lawyer before Acting Chief Justice J N Patel, who is patron in chief of Maharashtra State Legal Services Authority and senior Judge and Chairperson of HCLSC, Justice Ranjana Desai.

Earlier on May 6, Kasab’s defence lawyer K. P. Pawar said the decision about appealing to the High Court against the death sentence would be taken after consultations with the convict. A Mumbai Special Court on May 6 sentenced Kasab to death on four counts.

Judge M L Tahiliyani awarded death sentence for Kasab on-waging war against India, murder, conspiracy to murder, and participating in an act of terror under Unlawful Activity Prevention ct (UAPA).

Judge Tahaliyani felt that Kasab’s crime fell under the judicial definition of ’rarest of rare’.

Kasab, who is the 52nd prisoner on death row in India, was also awarded life term on five other counts.

EC TAKES BSP TO SC OVER SYMBOL

The Election Commission has moved the Supreme Court complaining that Bahujan Samaj Party, headed by UP chief minister Mayawati, was adopting stalling tactics in petitions seeking cancellation of its election symbol ‘elephant’. The EC said BSP had repeatedly stonewalled the commission’s queries on details of the number of statues of elephants and that of Mayawati installed at public/private places using government funds between 2007 and 2010 along with photographic evidence. It urged the apex court to direct BSP to furnish all relevant information sought by the commission in relation to the charges levelled by petitions, which accused the ruling party of installing a large number of statues of Mayawati and elephants on public expense.
In the petition filed by advocates Ravi Kant and Sukumar, the EC said BSP had taken a stand that EC had no jurisdiction to ask for any information despite the body being constitutionally mandated to conduct and supervise elections, which included allotment of election symbols and arbitrating any dispute relating to it.
The BSP had told EC that statues of elephants constructed by the state government out of its state budget were not similar to the election symbol of the party. Taking umbrage to such a stand,the EC told the apex court that it appeared as if BSP had itself decided the issue whether or not the elephant statues were a replica of its election symbol or not without bothering to furnish basic information sought by the commission.
The ruling party further told EC that the construction of statues was an action taken by the state government to implement the decision of the state legislature. “The political party cannot be penalized for actions of the government,” it had said.
Rejecting this contention, EC had written to the state on April 21 stating that its stand was untenable and that the party and the government would do well to assist the EC in providing the requisite information. But there was no response from the government, EC told the court.

PIL DUE ON AMBIGOUS JEE INSTRUCTIONS, FINALLY ARRIVES

JEE-2010 was not the first time that ambiguous instructions created confusion for the candidates. A close look at the JEE since 2006, when questions were first made available, reveals that it has been quiet frequent.

In fact, senior lawyer Prashant Bhushan, who is arguing a PIL on anomalies in the JEE, says he has been receiving a number of phone calls from parents and students who claim they did not get the expected result.

“Our plea is that candidates should be allowed a carbon copy of the answer sheet that they can take out. After the JEE, IIT should provide the answer key so that a student knows exactly how much he is going to score,” he says.

Ambiguous instructions relate to Multiple Choice Questions which have one or more correct answers without having any negative marking for selecting a wrong choice.

In 2006, questions carrying 72 marks had one or more correct answers without attracting any negative marking for a wrong choice. In 2007, such questions rose to 108 marks. In 2008, there was a marginal decline to 102 marks. In 2009 and 2010, questions carrying 96 and 93 marks, respectively, had oneor more correct answers without any negative marks.

In fact, after 2008 JEE, IIT itself published the questions and the answer key. It was found that for many questions all the options were correct. Therefore, it was possible for a candidate to get full marks by darkening all the bubbles.

When the matter came to light after this year’s JEE, IIT-Madras, which conducted this year’s JEE, told the Delhi High Court, which is seized of a PIL on the exam, that if any of the choices in such a question was found to be a wrong choice, the candidate would get zero.

The PIL has been filed by Rajeev Kumar of IIT-Kharagpur. As per the evaluation scheme submitted before the court, a candidate will get zero because he darkened a wrong choice along with correct answers.

SC SCOLDS POLICE FOR PLAYING WITH LAW

A day after expressing concern over Delhi Police allowing murder convicts to roam free when they should be in jail,the Supreme Court on Tuesday discovered that the malady extended to Punjab and might well be in vogue in other parts of the country.A vacation bench comprising Justices G S Singhvi and C K Prasad was livid when it found that petitioner Charan Singh,whose conviction by the trial court for throwing acid on others had been confirmed by the Punjab and Haryana high court,was still free and had not been put behind bars by police.
It is a matter of surprise that despite the trial court convicting the accused and the high court confirming the conviction four months ago,the police has not yet arrested the convict and put him behind bars, the bench said and directed senior superintendent of police,Ludhiana,to immediately arrest Charan Singh and submit a report to the apex court.
The bench said such laxity on the part of the police had made the criminal justice system suspect in the eyes of the public.Those who have clout,they flout the law, it said.
Criminal law has become an ass in the eyes of the public.We have an agency which is to arrest an accused after he is pronounced guilty by the court.If that is so,then how is it possible that the convicts are not arrested the bench said.
Trying to sensitise law enforcing agencies to the grave fallout of such inaction,the Bench said,In this,case acid was thrown on several persons who are scarred for life.Their lives are ruined.Yet,the convict is roaming free. The Bench said Singhs appeal challenging the HC verdict of February 2 would be heard only after the SSP of Ludhiana filed a report stating that the appellant had been lodged in prison.