IRAN PLANS DEATH BY STONING FOR ADULTERY

Britain urged Iran to halt the execution of a woman who a rights group says faces death by stoning for adultery.

British Foreign Secretary William Hague commented on the case of 43-year-old Sakineh Mohammadi-Ashtiani, saying it would"disgust and appal" the rest of the world.

"Stoning is a medieval punishment that has no place in the modern world and the continued use of such a punishment in Iran demonstrates in our view a blatant disregard for human rights commitments which it has previously entered into," Hague told a news conference.

Turkish Foreign Minister Ahmet Davutoglu said, "We’re trying to work and consult on all these issues with our neighbour Iran, of course we have to see the file."

The case was also raised in Britain’s House of Commons, prompting speaker John Bercow to describe it as "a horrific, truly horrific matter".

"We in this house, I hope, are in favour of human rights, not of their grotesque abuse," he added. Human rights group Amnesty International said last week it feared that Sakineh Mohammadi Ashtiani, who has two children, could be "at imminent risk" of execution by stoning at any time for adultery.

It said she was convicted in 2006 of having had an "illicit relationship" with two men and received 99 lashes as her sentence.

The rights group said that, despite this, Mohammadi Ashtiani was subsequently convicted of "adultery while being married", which it said she denied, and was sentenced to death by stoning. Hague called on Iran to put an immediate stay on the execution and review the process by which Mohammadi Ashtiani was tried.

LIFE JACKETS MUST FOR ECONOMY FLYERS TOO: DGCA

It’s been a kind of ’apartheid’ that has till now been practised by airlines in India: while economy class passengers are told to hold on to their seat cushions in case the aircraft crashes into the sea, business and first class passengers are asked to take out the life jackets placed below each premium class seat. But now, the directorate general of civil aviation has sought to end this difference by making it mandatory for Indian carriers to have life jackets for every passenger — irrespective of the class he or she flies in.

The new rule is mandatory for Indian aircraft flying on overseas international routes and even domestic ones where a minimum of 50 nautical miles (90km) have to be flown over sea. This would include routes like Chennai-Kolkata and all flights to Port Blair from the mainland.

The ending of this ’apartheid’ was among the several steps listed by aviation authorities here in response to the US Federal Aviation Administration (FAA) team’s observations. The team is in Delhi currently to review whether the promises India made to upgrade aviation standards are actually being fulfilled or not. On Thursday, the civil aviation ministry said in a statement that DGCA would continue to remain in Category 1 of FAA’s International Aviation Safety Assessment Programme (IASA).

The concern had arisen after international authorities found about two years ago that though Indian aviation was growing by leaps and bounds, no steps had been taken to accordingly strengthen the regulatory mechanism to ensure safe flights. Things got so bad that FAA had threatened that it may downgrade India to lower categories of safety.

In fact, FAA complimented the steps that director general of civil aviation Nasim Zaidi and his team are taking to strengthen the regulatory mechanism now. "The FAA team stated that DGCA... has demonstrated amazing improvement in continuing to enhance and improve safety oversight system beyond expectations. The FAA concluded that India not only continues to meet FAA’s IASA Category-1 status but also... plays a leadership role for other nations in the Asia region in civil aviation sector," the ministry statement said.

2-WHEELERS MAKERS MUST GIVE HELMETS

The Supreme Court has made it mandatory for two-wheeler manufacturers to supply helmets that conform to the Bureau of India Standards while selling scooters and motorbikes to customers. The helmets will be sold through the dealers. A bench headed by Justice G S Singhvi on Wednesday dismissed a petition filed by Society of Indian Automobile Manufacturers (SIAM) that had sought reversal of a Delhi High Court judgment giving the direction.

The bench said helmets were for the safety of customers and declined to entertain the plea that the order would force customers to have a collection of helmets.

“The high court judgment obliges a customer to purchase a helmet whenever he buys a new two-wheeler. This is despite the fact whether he possesses one or not,” contended senior advocate P.S. Patwalia, appearing for SIAM. He added the direction amounted to legislation.

To this, the bench said in a lighter vein: “There is no harm in having more than one helmet. It comes handy in situations such as taking part in protests, dharnas or even defending oneself during a fight with wife.”

The court added it was improper for it to interfere in an order that was meant for a public cause.

The Delhi High Court had on July 30, 2009, directed two-wheeler manufacturers to start selling helmets along with the vehicles. The direction came on a public interest litigation that asked the court to give directions to the companies to comply with one of the provisions of Motor Vehicles Act that mandates supply of helmets.

DUMP EGO WHEN HC MOVES PROBE TO CBI: SC TO STATES

The Supreme Court said the loud protests heard from states when a high court shifts probe of a case from the police to CBI had more to do with hurt ego than the alibi that it affected the morale of police force.

"Once the HC gives a view that the matter be investigated by the CBI in exercise of its constitutional powers, all objections of the state must come to an end," said a Bench comprising Justices Aftab Alam and R M Lodha while dismissing the Kerala government’s plea against the HC’s September 11, 2008 order asking CBI to probe a murder case. The state had challenged the HC order on the ground that it adversely affected the morale of the state police.

Least amused by the argument, the Bench said: "There are not one but dozen reports on what adversely affects the morale of the police. You will not find any of them mentioning HC orders as being an adverse factor. The morale of the police is adversely affected by actions of other kind which we do not want to say here."

Clearly, the Bench was hinting at the political interference in the affairs of the police noted in all the reports of committees appointed since the 1970s to suggest ways and means for reforms in the police force.

Having beaten the state’s argument hollow, the Bench dug in further saying: "If investigation is to be handed over to CBI, we don’t understand why should it be taken as an ego clash. Ultimately your interest is also to catch the culprit."

But, Kerala counsel and senior advocate L N Rao said it had become a trend with the HC to transfer cases to CBI from the state police as 30 cases were ordered to be investigated by the central agency in last year itself.

The Bench did not agree. "The courts do not order CBI probe as a matter of habit. This is not a routine power exercised by the HCs. Even statistically we find that several persons come to HCs with this request, but in hardly 1% or 2% cases did the HCs oblige," the Bench added.

Rao contended that in a recent judgment, the SC had held that the HCs could not routinely transfer cases to CBI. The case in hand related to the murder of one Mohammad Fazal by activists of CPM, the ruling party in the state. Rao argued that the probe could not be termed unfair or partial.

But the Bench said that the Kerala HC pointed out several lapses in theinvestigation justifying its decision to ask CBI to take up the probe. "Once the court exercises its constitutional power, the buck must stop there," the Bench said.

UIDAI WORKING TOWARDS DATABASE SECURITY CONCERNS

With the UPA government keen to roll out its ambitious plan of giving unique identity numbers to nearly a billion people, the Unique Identification Authority of India (UIDAI) is ready with a draft legislation to ensure data security and confidentiality of information. It has also proposed strict punishment for impersonation and breach of privacy, with fines ranging upto Rs 1 crore.

The draft bill proposes to make UIDAI a statutory body and provides for strict penalty for offences like disclosing identity information, impersonation, giving wrong biometrics and unauthorized access to data.

The draft law says that if any person "intentionally discloses, transmits, copies or otherwise disseminates any identity information collected in the course of enrolment or authentication to any person not authorised", he will be punished by imprisonment for a term which may extend to three years or with a fine which may extend to Rs 10,000.

In the case of a company, the fine may extend to Rs 1 lakh. Any person not authorised by UIDAI caught accessing Central Identities Data Repository (central databank) will be punished with imprisonment for a term which may extend to three years and will be liable to a fine which shall not be less than Rs 1 crore.

SOON, LAW TO TACKLE CHILD SEX ABUSE

India will soon have its first law to deal exclusively with child sexual abuse cases. The provisional draft of the bill, titled ‘Sexual Offences Against Children Bill, 2010’, seeks to substitute the word ‘rape’ with technical terms and cover several forms of abuse of both boys and girls, which now remain grey areas in the absence of a specific legislation. The proposed legislation calls for setting up of special courts, special public prosecutors and child-friendly proceedings.

"We have prepared a provisional draft in consultation with NGOs and experts, which will be forwarded to the ministry of woman and child development for inputs. We have not set a deadline to present the Bill in Parliament but we want to do it at the earliest, given the increasing number of child sexual abuse cases in the country," told Union law minister Veerappa Moily.

Calling for special courts and special prosecutors in every district to try such cases, the draft proposes that evidence from the child be recorded within a month of the court taking cognizance and the trial be completed within a year.

At present, cases of sexual offences against children are being tried under the Indian Penal Code, which does not always take into consideration the age of the victim. With such offences attracting only such sections that deal with rape, unnatural offences and outraging the modesty of a woman, many sexual offences against children, especially those against boys, were not getting a focussed trial, it was felt.

The draft proposes to prosecute child sex offenders mainly under five heads —penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault and sexual harassment.

While penetrative sexual assault covers all kinds of penetration using body parts or objects, the other acts come under sexual assault. Sexual harassment covers abuse of a child using gestures and spoken words.

The term ‘aggravated’ is prefixed to offences when the perpetrator is a person who wields power by virtue of being in a position of authority or trust or when the victim has a mental or physical disability. It recommends punishments ranging from three years in jail for ‘sexual harassment’ to life imprisonment for ‘aggravated sexual assault.’

The proposed special courts for offences against children would also hear cases pertaining to child abuse as defined under the Information Technology Act, which includes abuse through the internet and child pornography. "The bill proposes to also cover IT-aided crime against children. It will be a comprehensive law to protect children against all forms of sexual abuse," the law minister said.

While the proposed bill defines a person below the age of 18 as a child, it permits sex between people above the age of 16 years if it meets 14 conditions that define consent.

A NEW PLAY "LAW" SET FOR BHOPAL GAS LEAK VICTIMS AS AUDIENCE

Contrary to the claim made by former Union Carbide counsel Fali Nariman, the government’s move to hold a retrial in the Bhopal gas case, on the higher charge of manslaughter punishable with a 10-year term, will not violate the right to double jeopardy protection.

For, Section 300 of the Criminal Procedure Code (CrPC) — ironically, the very provision cited by Nariman in his media interviews — bars anybody from being tried again on the same facts “while such conviction or acquittal remains in force”. The ultimate objective of the curative petition due to be filed by the government before the Supreme Court is to set aside the June 7 trial court verdict, sentencing the Bhopal accused to two years on the mild charge of death caused by a rash or negligent act.
The conviction by the trial court will automatically cease to be in force once the Supreme Court allows the curative petition challenging the 1996 decision of the bench headed by the then Chief Justice of India A MAhmadi. For, the trial court verdict was determined by the 14-year-old apex court verdict, which had rather controversially reduced the liability of Bhopal gas accused from the charge of culpable homicide not amounting to murder (manslaughter) under Section 304 Part II of the Indian Penal Code (IPC) to that of death caused by a rash or negligent act under Section 304A IPC.

Since the 1996 verdict left little scope for the trial court to convict the Bhopal accused for manslaughter, the group of ministers headed by P Chidambaram rightlyconcluded that a regular appeal against the June 7 judgment before the Madhya Pradesh high court would not suffice. The Cabinet agreed with the GOM’s recommendation that the penalty for the world’s largest industrial disaster cannot go beyond the two years imposed by the June 7 verdict without first removing the shackles placed by the 1996 Supreme Court judgment.

If the curative petition works, it will override the 1996 Supreme Court verdict and that in turn will result in, as a natural corollary, the setting aside of the June 7 convictions under the lesser offence of rash or negligent death. So, when a fresh trial is held in such an eventuality on the more serious charge of manslaughter, it will in no way violate the double jeopardy rule recognized around the world.

Nariman’s attack on the government’s attempt to reprosecute Keshub Mahindra and other Bhopal accused has raised eyebrows not only because of its misleading logic about double jeopardy but also because of its sheer impropriety. For, Nariman himself had contributed to the 1996 judgment, in his capacity as counsel for Union Carbide India Limited’s managing director V P Gokhale.

The 1996 verdict quotes Nariman and other counsel arguing that there was no question of the accused having done any act “with the knowledge that they were likely by such act to cause death”. This was the basis on which the Ahmadi bench had then rejected the CBI’s allegation that the Bhopal gas accused knew about the faulty design of the plant and the deficiencies in its operation.

NLP GETS TOUGH ON PILs AGAINST PROJECTS

Petitioners contemplating PILs against ongoing projects on environment grounds might want to do a rethink. The government’s new litigation policy calls for petitioners to be slapped with costs for stoppage of projects that are in public interest.

This approach is a prominent part of the National Litigation Policy (NLP) announced recently by law minister Veerappa Moily and is a response to PILs that lack merit. Though a majority of PILs challenging projects are ultimately dismissed, they succeed in delaying work.

The NLP drafted by attorney-general G E Vahanvati says, "PILs challenging public contract must be seriously defended. If interim orders are passed stopping such projects, then appropriate condition must be insisted upon for petitioners to pay compensation if the PIL is ultimately rejected."

The policy, the government argues, is meant for those petitioners who rush to courts with PILs to merely get publicity immediately after a controversy over a social, political or legislative issue. Critics, however, are likely to argue that the policy will curb public spirited actions.

"It must be recognized that several PILs are filed for collateral reasons, including publicity, and at the instance of third parties. Such litigation must be exposed as being not bonafide," the NLP stressed.

However, NLP does not envisage all PILs as ill-intentioned or bad in law and talks about the need for government to adopt a balanced approach. "On the one hand, PILs should not be taken as a matter of convenience to let the courts do what government finds inconvenient," it said.

A good example of the government turning to the courts to bail it out was the reference on the Ayodhya issue sent by the President to the Supreme Court, immediately after the December 6, 1992 demolition of the disputed shrine. The reference sought an opinion on whether a Ram temple pre-existed the Babri mosque.
The SC had returned the reference without offering an opinion.

The NLP recognizes that an increase in the number of PILs in high courts and the Supreme Court stemmed from a perception that the government was not doing what it was supposed to do or due to a lethargic bureaucracy. "This perception must be changed," it says. The proposal to link costs with dismissal of PILs is, however, bound to be controversial.

US SUPREME COURT LIMITS GUN CONTROL BY STATES

The US Supreme Court struck down a Chicago handgun ban in a far-reaching ruling that makes it unconstitutional for states and local governments to restrict the right of Americans to own guns.

In a major victory for gun rights activists, but a bitter blow for those seeking to maintain gun controls in the United States, Justice Samuel Alito said the constitution was clear on the right to bear arms for self-defense.

The 5-4 majority ruling extended to all cities and states the Supreme Court’s 2008 landmark affirmation that Americans have the constitutional right -- as enshrined in the Second Amendment -- to own weapons, including handguns.

The National Rifle Association hailed Monday’s ruling, saying it "marks a great moment in American history."

Gun control advocates however immediately slammed the ruling, pointing to statistics that show on average 30,000 deaths -- including some 12,000 murders -- by shooting each year in the United States, where according to some estimates roughly 200 million guns are in circulation.

The Washington-based Violence Policy Center (VPC) stated, matter-of-fact: "People will die because of this decision."

In announcing the court’s majority opinion, however, Alito noted that since the Chicago handgun ban was enacted 28 years ago, the city’s murder rate by handguns actually increased.

Since the 2008 ruling -- a case originating out of the nation’s capital, called District of Columbia v. Heller -- cities with strict gun laws such as Chicago had resisted the decision.

They argued it had not made clear that the Second Amendment principle applied to local laws and states.

But in its decision on the case McDonald v. Chicago, the top court upheld the appeal that gun rights activists lodged against Chicago’s handgun ban, overturning restrictions and other gun registration elements they said impeded gun ownership.

In the majority opinion, the court maintained "self-defense is a basic right" and recalled how its 2008 ruling found "individual self-defense is ’the central component’ of the Second Amendment right."

The court acknowledged that the Bill of Rights -- the Constitution’s first 10 amendments -- originally applied only to the federal government.

But it ruled the 14th Amendment’s "due process" clause -- enacted after the US Civil War -- holds that the Bill of Rights protections such as the Second Amendment’s right to keep and bear arms must be also applied to the states.

The court, however, also employed a key caveat against the possibility of a total restriction of gun controls, which was used in the 2008 decision -- recognizing "the right to keep and bear arms is not ’a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’"

The court also said its ruling in Heller and applied for Monday’s decision "did not cast doubt" on longstanding gun regulations, like the prohibition on felons and the mentally ill owning weapons, and laws forbidding firearms in "sensitive places" like schools and government buildings.

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.