2nd issue MISSION JUSTICE 6tH october, 2012

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2th A fortnightly Magazine for Justice, Law and Activism

Mission Justice

SENIOR CITIZENS ACT

TREATMENT BY STATE

A NATIONAL SHAME

SEBI CHIEF APPOINTMENT

UNDER SC SCANNER

AIR INDIA AIRCRAFT

PURCHASE UNDER

SCANNER

IRCTC LOW

QUALITY FOOD

UNDER HC NOTICE

SC AGAIN BLOWS OF

THE RTI ACT TO LAY

IT ALMOST DEAD

GOVERNMENT RELIEVED BY CJI

BACKING GOVT. STAND ON

COAL GATE AND LATER A JUDGMENT

ON PERESIDENTIAL REFERENDUM

COVER STORY :SENIOR CITIZENS RIGHTS :

THE TALE OF MOCKERY

Whoever is born will be old and will die. That is natural and is certain. Whatwas young yesterday is old and what is young today will be old tomorrow.

Old age brings not only weak bones and disease but also brings a new erawhere a person may not be able to work and earn. He will need more care,more medicine. Ageing can be a boon if you consider the experience andwisdom and can be a burden if you consider the dependence on others.

The government who is bound to be ruling for the people has infact donenothing for old age people. The taxes are collected by the government forscams of the government and its officers, to meet expences and travels andluxuries of ministers and officer. That is the reality.

What pains me is that the government just potrays to have law by enactingan act, but does'nt implement it. This is the case of Senior citizen's act andthe government is a violator of law. No Chief Minister has the guts toaccepted responsibility. They only know how to take credit of anything thathappens and will get the photographs pasted in newspaper.

I am sure that today's youth will be tomorrows senior citizens and unless wedo something today we will face the same fate as these people face and weourselves will be responsible for it. My fight for the Senior citizens exposedme to the rot which the government has created and shameless they likecowards have no courage to do the right thing and just give lectures inseminars and conferences… SHAMELESS!!!

Siddharth Murarka

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Sanjeev Bhatia i heard this story from my law teacher.. DR D.D kohli ..... which he often use to tellus.......there was a french scholar.. who use to sit in the french courts with a pamphlet hanging on his neck...which read " reconciliation is better than mediation... and mediation is far better than litigation".. people useto make mockery of his gesture.. specially lawyers.... but now we have realised the blunder committed byour predecessors.... the dictum is highly appraised in legal fraternity.... and it someone is misusing it like asalways.. then there are remedies to it.. it ur not aware of them .. then plz dont hesitate to contact me.... pm.

Onhttp://www.facebook.com/groups/sonexpublishers/AtaurRehma Qureshi great i m very heppy after reading

Thank you for the magazine. Its very well produced and I quite like the matter there..specially the court news and PILmake good reading. The information seems quite up to date. I wish you all the best for future numbers and lookforward to seeing them and reading them...and I am sure others feel the same.

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INDEX

Lastest Judgments

Page 1 to 3

Page 4

NEWSEXPRESSING VIEWS

JUSTICE KUMAR MAY HEAD A GREEN

POST AFTER RETIREMENT

JUDGES RUSH FOR POST RETIREMENT

SCHEMES CRITICISED BY BJP Page 5

JAITLEY SLAMS SC ON CIC JUDGEMENT:

CLAMOUR FOR POST RETREMENT JOBS

AFFECTS IMPARTIALITY Page 6

GUJARAT HIGH COURT LAUNCHES

ONLINE BAIL APPLICATION SYSTEM

FOR PRISONERS Page 10

ONLINE SYSTEM FOR WRITS GETS

BOMBAY HC NOD Page 10

COURT NEWS

COURT JUDGEMENTS

SC WRITES LAW, WHICH CAN ONLY BE DONE BY PARLIAMENT, DIRECTS

GOVERNMENT ON WHAT LAW TO MAKE AND CREATES PLACEMENT

OPPORTUNITY FOR ITS RETIRED JUDGES, CASUALITY IS RTI WHICH

BOTHERS THE JUDGES THE MOST Page 11

SC BENCH HEADED BY CJI KAPADIA TAMES MEDIAON COMPLAINTS BY SAHARA Page 13

FUTURE BAIL. SC LAYS DOWN A NEW DOCTRINEPage 15

"IT's NOT OUR FAULT" THAT THE PETITIONERS ARE NOT BEING

HEARD ON REGULAR BASIS : SC WHILE DENYING BAIL TO

PRAGYA THAKUR Page 16

LAWYERS CAN'T BE SUED FOR WRONG ADVICE : SC

Page 16

SC QUESTIONS HOW NETAS HAVE COAL BLOCKS AT THE

TIME WHEN CJI QUESTIONS CAG REPORT ON

COALGATE IN A SEMINAR Page 17

SC FINDS GOVERNMENT FUNCTIONING ONLY

ON ITS INTERVENTIONSPage 19

Page 19CJI SLAMS GOVERNMENT FOR LAXITY IN

COLLECTING TAXES

SC DISMISSES PIL ON CAG POWERS Page 20

RTE: SUPREME COURT DISMISSES SCHOOLS PLEA

Page 21

AIR INDIA AIRCRAFTS LANDS IN COURT LENSES

Page 21

IN A RARE CASE OPEN COURT HEARING WILL TAKEPLACE ON REVIEW OF MAYAWATI CASE Page 22


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INDEX

COURT JUDGEMENTS

SEBI CHIEF APPOINTMENT IN LIMBO IN SC ANDPRANAB'S MAN IN TROUBLE Page 23

Page 23

Page 23

Page 24

Page 24

ALLAHABAD HC ORDER GAGGING

MEDIA QUASHED BY SC

ESSAR OIL GETS INTEREST RELIEF BY SC

EX MINISTER THOUGH NOT GRANTED BAIL ALLOWED

TO STAY IN HOSPITAL

CHARGES FILED AGAINST EX-JUDGES

KIN IN GRAFT CASE CBI TELLS HC

‘SPECIAL EXECUTIVE OFFICERS SHOULD

BE ABLE TO READ, WRITE' Page 25

Page 25

HC ISSUES NOTICE TO CENTRE ON POOR QUALITY

FOOD IN TRAINS

HC SANCTIONS CLOSURE OF RAJ TAVELS Page 26

Page 26

Page 26

CARTOONIST ASSEEM TRIVEDI'S ARREST FRIVOLOUS

AND ARBITRARY RULE HC

HC WARNS COPS FROM BEING JUDGES

REASSESSMENT OF REGISTERED AGREEMENT BY

STAMP DUTY DEPARTMENT IS TRAVERSING BEYONG

POWERS RULES BOMBAY HC Page 27

Page 27

POLICE COMMISSION AND CIVIC CHIEF SLAMMED

BY BOMBAY HC

DELHI HC BARS GODMAN FROM GIVING ILLOGICALABSURD IDEAS AND SOLUTIONS Page 28


THE TALE OF MOCKERY P 29

Abetment of suicide —

(2012 (9) LJSOFT (AUR) 142)

Acquisition of land

(2012 (9) LJSOFT (NAG) 75)

Acquisition of land

(2012 (9) LJSOFT (AUR) 110)

Corruption case

(See 2012 (9) LJSOFT (GOA) 1)

Counter-claim

(2012 (9) LJSOFT 16)

Criminal trial —

(2012 (9) LJSOFT (GOA) 103)

Customs House Agent

There must be mens rea or community of intention — Without knowledgeor intention there can be no abetment and the knowledge and intention must relate to the act said tobe abetted — In order to constitute abetment by instigation', there must be a direct incitement to dothe culpable act.

— Possession taken prior to acquisition proceedings — Petitioners not entitledto claim interest u/s 34 from the date of dispossession — State liable to pay the interest from the dateof passing of the award till the compensation was actually paid.

— Rental compensation — In the cases in which the Government Resolutionis applicable it is necessary that the Collector issues directions for payment of provisional and finalrental compensation without even waiting for the owner making an application seeking rentalcompensation.

— Public servant — Opinion given by C.V.C. in exercise of its powers ofsuperintendence cannot be simply discarded by the respondent by saying that the same is notbinding.

— Prima facie the question of limitation would not be relevant when anequitable set off is sought to be pleaded.

Conduct of accused — Prosecution has to stand on its own legs in order toprove the offence against the accused — False defence by the accused can be used in favour ofthe prosecution if there are circumstances pointing out to the guilt of the accused — Infirmity orlacuna in prosecution cannot be cured by false defence.

— Suspension of license — Enquiry report — Power of Commissionerto agree or disagree — Full Bench Reference — Under Regulation 22 the Commissioner is

Latest Judgments

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empowered to disagree with the findings recorded in the inquiry report and pass such orders as hedeems fit.

Re-examination of complainant has to be as per the normal procedure —Such re-examination cannot be done by permitting an affidavit to be filed in lieu thereof.

— Sentence in default of payment of compensation — Order to paycompensation may be enforced by awarding sentence in default — No illegality in the orderawarding sentence in default of payment of compensation.

Territorial jurisdiction — Marriage solemnised at Jammu outside the territories towhich the CentralAct extends — So long as the person remains Hindu by religion, the provisions ofthe Central Act would apply and can be invoked for dissolution of marriage subject to fulfilment ofone or more of the five factors specified in Section 19 — Petition filed before the Family Court atMumbai was not barred by law.

Acceptance of rent — Acquiescence — Waiver must be shown tohave been made with intention.

Violation of — Police have not obtained permission of the Magistrate todetain women after sunset in the Police Station — Proper procedure before conducting the raid notfollowed — Violation of the provisions of section 46(4), section 54, section 55A r/w Section 60 ofCr.P.C. — Fundamental rights of Petitioners underArticle 21 of the Constitution of India are clearlyviolated.

— Limitation — Application for protection order cannot be viewed as acomplaint of the offence u/s 31 of D.V. Act — Submission that the proceedings are hit by Section468 of Cr.P.C. is without any merit.

(2012 (9) LJSOFT (FB) 22)

Dishonour of cheque —

(2012 (9) LJSOFT 11)

Dishonour of cheque

(2012 (9) LJSOFT (SC) 32)

Divorce —

(2012 (9) LJSOFT 21)

Eviction proceedings —

(2012 (9) LJSOFT (NAG) 157)

Fundamental rights —

(2012 (9) LJSOFT 38)

Interim protection

Latest Judgments


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9. Election Petition –

10. Execution proceedings –

11. Registration of Trust –

12. Right of speedy trial

Rejection of nomination paper – There cannot be any disqualification u/s.14(1)(h) for not paying any sum other than the tax or fee due and recoverable by Panchayat. (2012(7) LJSOFT (NAG) 70).

Right to obstruct – Rule 102 has been deleted on 05.09.1983 as per

the BombayAmendment – Right of theAppellants was virtually nullified by applying the said Rule

102 which is non existent (2012 (7) LJSOFT 99).

Deed of settlement – Husband of applicant was appointed as executor

of will –After his death his status as a Executor had come an end – Since rights of Executor were not

inheritable the legal heir of an executor would not get them – Wife of Executor had no right to

execute the Deed ( 2012 (7) LJSOFT 130).

– Illegal gratification – Gross delay in filing of charge sheet even against

the main accused – Act on the part of Investigating Officer was malafide and was acting with a bias

– His acts was an act of persecution rather than prosecution – Circumstances enough to draw

conclusion that the prosecution denied the petitioners their right of speedy trial – Proceeding

quashed (2012 (7) LJSOFT 93).

Latest Judgments


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JUSTICE KUMAR MAY HEAD A GREENPOST AFTER RETIREMENT

After directing the Government to amend RTI Act, JusticeKumar has been recommended by the CJI (who did not likeRTI being filed seeking information about his travels and

expences) to head as the chairperson of National Green Tribunal.Justice Swatanter Kumar, is a sitting Supreme Court Judge and isretiring on December 31. The recommendation of JusticeKapadia,who is retiring on September 29,has given rise to a muffleddiscussion in the inner circles of highest judiciary.

While it is conceded that Justice Kapadia was legally andtechnically correct in recommending Justice Kumar's name aschairperson of the NGT, it is felt that the recommendation for fillingthe NGT chairpersons post, which Justice Kumar could occupyonly from January 1,2013 if he decides to go to the Tribunal after hisscheduled retirement on December 31,2012,should have been leftto Justice Altamas Kabir, who would take oath as CJI on September29. Section 6(1) of the NGT Act provides that the chairperson shallbe appointed by the central government in consultation with theChief Justice of India.

The post had fallen vacant in February this year after Justice L SPanta resigned on deciding to take over as Lokayukta of his homestate Himachal Pradesh. Justice Kapadia had recommended thename of retired SC Judge R V Raveendran, but he had withdrawnhis consent for appointment as NGT chief. The NGT Act, notifiedon June 2,2010 said the apex green tribunal would consist of achairperson,10-20 judicial members and 10-20 expert members foreffective and expeditious disposal of cases relating environmentalprotection and conservation of forest and other natural resourcesincluding enforcement of legal right relating to environment andgiving relief and compensation for damages to persons and propertyand for matters connected therewith or incidental thereto. Thetribunal is headless since February this year. The appointmentseems too early and in eyes of storm as appointment beforeretirement and by a Chief Justice so well in advance raises manyeyebrows.

The fact is that CJI wasannoyed at MISSIONJUSTICE Applicationseeking information onhis so called official travel.Further, Justice Kumar'stravels to Delhi when hewas CJ of Bombay HighCourt is also being thesubject of MISSIONJUSTICE's RTI. Thesefacts and the timing ofcurtailing the RTI bytravelling much beyondp o w e r s a n drecommendation by CJIof Justice Kumar do raiseeyebrows.

Justice Swatanter Kumar

Page 4



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JUDGES RUSH FOR POST RETIREMENT SCHEMES CRITICISED BY BJP

After the CJI Kapadia battedfor PM on coalgate on theverge of his retirement the

BJP went all way out on the issue.The issue would have boiled out hadthere been no powers of contemptwith the bench. BJP president NitinGadkari called for a two-yearcooling off period before judges areconsidered for post-retirement posts,suggesting that the present systemadversely affected the independenceof the judiciary vis-à-vis thegovernment.

"He took potshots on the growing tendency among several judges (onthe verge of retirement), who try to speak and act friendly to thegovernment with an eye on cushy government assignments just afterretirement,"a release by the BJPlegal cell quoted Gadkari as saying.

Senior BJP leader and Leader of the Opposition in the Rajya SabhaArun Jaitley also articulated a similar position: "This clamour forpost-retirement jobs is adversely affecting the impartiality of thejudiciary of the country and time has come that it should come to anend.”

Jaitley called for a national judicial commission with representativesfrom the judiciary, government and society to look after mattersrelated to appointment of judges and complaints against judges.

Page 5

Nitin Gadkari

Arun Jaitley

CJI Kapadia



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JAITLEY SLAMS SC ON CIC JUDGEMENT: CLAMOUR FOR POST

RETREMENT JOBS AFFECTS IMPARTIALITY

In a start of serious thoughts about Judicial misdeeds and in morevocal aspect about Judicial ills, Senior Advocate and BJP leaderArun Jaitley accused judges of harbouring political ambitions,

rather than ensuring fair judicial practice. "The clamour for post-retirement jobs among judges is affecting the impartiality of thejudiciary," he said while addressing national lawyers' conference.

said Jaitley,adding that he was fully in favour ofincreasing the tenure of judges orsupporting pensions equal to lastdrawn salaries.

"

. In that time (the Emergency), this faultwas seen within the judiciary. We must not make this mistake intoday's time, and this is not a subject related to a particular party," saidJaitley who was backed by his party president Nitin Gadkari, whocalled for a cooling-off period of two years for judges afterretirement.

"For two years after retirement, there should be a gap (beforeappointment), because otherwise the government can directly orindirectly influence the courts and the dream to have an independent,impartial and fair judiciary in the country would never actualize," hesaid. "I say this with a lot of responsibility that even before they retire,it is decided for Supreme Court and high court judges as to whichCommission they will go and join," he added.

He added that it was important that the judiciary distance itself fromthe electoral circumstances of the day. "The tendency of judges tofollow the ballot box, to get carried with the times, has to be avoided.The judiciary is the lifeline of a democracy, and if people lose faith in

The former union law ministersaid post-retirement jobs arebeing created through judicialverdicts. "Pre-retirement judgesare influenced by a desire for apost retirement job,"

There are two kinds of judges:those who know the law and thosewho know the law minister

Page 6

Arun Jaitley

The former union lawminis ter sa id post -retirement jobs are beingcreated through judicialverdicts.“Pre-retirement judgesare influenced by a desirefor a post retirementjob," said Jaitley,



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it, they lose faith in democracy itself," Jaitley said.

Sharing his own experiences, the Leader of Opposition in rajya Sabhasaid, "When I was a minister I would be wary while meeting a retiringjudge that he should not hand me his bio data."

On judicial activism, Jaitley said courts should shed the mindset thatthey had to step in because other agencies were not doing their job. Hesaid that courts could only direct others to do their duty.

"Courts cannot frame laws, courts cannot administer the state, courtscannot fight terrorism," he said. "

Jaitley said.

The statements from BJPleaders comes close on the heelsof allegations made by Gadkarithat besides the CBI, thegovernment is now using thejudiciary as well to "blackmail"opposition parties.

Jaitley spoke in favour ofcreating a National JudicialCommission which would haverepresentatives of the judiciary,government and society to lookafter matters related toappointments and complaintsagainst judges.

I was reading a recent judgement,(what the government does we will see) that a judge should beappointed in Information Commission and the present lawshould be changed. It is indirectly a direction to Parliament...something which is not acceptable on the concept of separation ofpowers,"

Former Law Minister and member of India Against CorruptionShanti Bhushan also backed Jaitley, saying there is a need for aNational Judicial Commission in order to clean up the judiciaryand punish corrupt judges.

Page 7

Arun Jaitley

Shanti Bhushan

"

Jaitley said.

I was reading a recentj u d g e m e n t , ( w h a t t h egovernment does we will see)that a judge should beappointed in InformationCommission and the presentlaw should be changed. It isindirectly a direction toParliament... something whichis not acceptable on the conceptof separation of powers,"



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look for post retirement prospects, but there are many exceptionstoo,” Shanti Bhushan said.

Union Law Minister Salman Khurshid criticising Jaitley's statementsaid "

But this doesn't mean their integrity isbeing compromised. Arun Jaitley has been a law minister himself, sohe knows the facts," Khurshid said.

The dark ages begin with secrecy and greed. The same is applicableuniversally. Infact the best way out is to have uniform retirement ageof 65 for all Courts. Appointment of judges must be based on meritsfollowing Article 16 of the constitution and vacancies must be beforethey occur. If we have full strength of Judges then disposal will befast. Moreover in HC and SC all filings must be efilings and whenappeal occurs in SC the digital documents just needs to be sent to SCwith a sheet on what is missing or what is the appealable part in theorder. Review in SC must be done in open Court by another bench andcurative must stop as Review is done in open Court. For review onlysenior Counsel must be allowed to appear as they will ensure thatthere is no injustice.

We must also have minutes of appointment put on websites of Courtsand all expences of judges and all seminars and meetings attended byjudges must be put online. Infact rules of CPC, HC rules, Contempt ofCourt rules, RTI rules must be same for all Courts and once we followuniversal rules things will be different.

Post retirement appointments must stop and all tribunals must havecurrent judges only and after 65 if a judge is capable of working thenhe must join the arbitration and mediation panel and legal aidauthority or must be part of arbitration panels by trade associations. Ido not feel that there is any rule of once a judge, always a judge.

I am against political influence of any kind on appointments. Theinquiry and complaint against judges must also be available on publicdomain so that there is no room of gossips and the inquiry must be by apanel of advocates from different court and citizens of eminent

As a Law Minister, it's my job to have good workingrelationship with judges.

MISSION JUSTICE VIEWS –

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Shanti Bhushan



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II am against political influence of any kind on appointments. Theinquiry and complaint against judges must also be available on publicdomain so that there is no room of gossips and the inquiry must be by apanel of advocates from different court and citizens of eminentstature. All hearings must be public and all hearing must be videorecording. Definitely we will bring out a sheet on the reforms. Theearlier issue had put up how to have better justice without costinglawyers their money earning chances.

MISSION JUSTICE has been filing RTI on e-court funds,expences of Judges on travels, Collegium and appointments,expences on Courts, vacancies, passing of orders by SC withouthearing and shut doors disposal of Review petitions etc. and hasbeen at the receiving end for doing so, even by CJI Kapadia.MISSION JUSTICE assures all that we will continue our fight forcommon mans sovereign rights.

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CJI Kapadia

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COURT NEWS


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GUJARAT HIGH COURT LAUNCHES ONLINE BAIL APPLICATIONSYSTEM FOR PRISONERS

In a dramatic modern times implementation, and in a first of its kind,the Gujarat High Court has launched an online bail applicationsystem, made available to all convicts and undertrial prisoners ofSabarmati Central jail. Acting Chief Justice Bhaskar Bhattacharyainaugurated the pilot project and it is now operational through theGujarat High Court's website.The HC has mooted the idea ofinternet-based bail application to reduce the processing time it usedto take. The IT department of the HC has developed a specialsoftware for the purpose. In a phased manner, the old system of paper-based applications for bail, parole or furlough will be replaced by online system across the state.Asa pilot project, the facility has been made available to the inmates of Sabarmati Central jail inAhmedabad. Any undertrial/convict seeking bail has to submit his application to jailsuperintendent, who would file online application on his/her behalf. Every application will have aunique username and password to check the status. Thus all kinds of delay and latches will bestopped.On an average, the Gujarat High Court registry gets 50 bail applications every day fromundertrials and/or convicts from the different jails of the state through post.

ONLINE SYSTEM FOR WRITS GETS BOMBAY HC NOD

The Bombay High Court division bench of Justice Sharad Bobde and Justice Rajesh Ketkardirected that the system to upload writs/orders of bails and acquittals on the court's websiteshould be made operational as early as possible. The PIL filed by the Unique Juris Forum saidthe present mode of communicating writs of acquittal/release of convict /appellant is time-consuming and results in illegal detention. It urged direction to use modern modes includingfax, internet, etc. to curb delays. On September 7, 2011 the HC had directed that till its website'sCase Management Information System becomes fully functional, the writs should be sent byspeed post.


We sincerely feel that all systems must go online. From filing cases to Court fees andobjections, the interaction between lawyers and department must also stop and we musthave every possible thing online. This will help draft and file appeals very fast as there hasto be just a request for transfer of papers set online to appeal Court and just memo ofappeal needs to be filed. But that will curb corruption which the Government will neverlike and so will be hated by Court staff.

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COURT NEWS


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Court Judgements

SC WRITES LAW, WHICH CAN ONLY BE DONE BY PARLIAMENT, DIRECTSGOVERNMENT ON WHAT LAW TO MAKE AND CREATES PLACEMENTOPPORTUNITY FOR ITS RETIRED JUDGES, CASUALITY IS RTI WHICHBOTHERS THE JUDGES THE MOST

Laws are made in Courts and not in Parliament to serve selfinterest of Judges. The doctrine is in

The Court directed that only aserving or retired chief justice of a high court or a judge of theapex court would be appointed as the Chief InformationCommissioner (CIC) to head the panel at the Centre and statelevel to decide complaintsas well as appeal under theRight to Information Act( R T I ) , 2 0 0 5 .

and the Judge is rewardedby recommendation to a post retirement chair as a Judge.The Apex Court headed by Justice Swatantra Kumar delivered ajudgment which overturned the parliamentary powers to makelaws and instead of 540 plus persons just 2-3 people will beincharge of making laws.

The bench of Justice Kumarand Justice Patnaik held thatthe Central and StateInformation Commission

are judicial bodies and should function in a bench consistingof two members with one of them necessarily being a personwith judicial background to be called as judicial member.Passing a slew of directions, the court interpreted theprovisions of theAct.

“We are of the considered view that the competent authorityshould prefer a person who is or has been a judge of a highcourt for appointment as Information Commissioners. Chief Information Commissioner at theCentre or State level shall only be a person who is or has been a chief justice of a high court or ajudge of the Supreme Court of India,” the bench said.

The apex court, while deciding a PIL challenging Sections 12 and 15 of the RTI Act, 2005 relatingqualification for members to the commissions, directed the government to amend the law to ensureinclusion of person with judicial background as its member for “effective and better”administration of justice.

“The various provisions of this Act are clear indicators to the unquestionable proposition of lawthat the Commission is a judicial tribunal and not a ministerial tribunal. It is an important cog and ispart of court attached system of administration of justice unlike a ministerial tribunal which is moreinfluenced and controlled and performs functions akin to machinery of administration,” the benchsaid.

The Court directed that only aserving or retired chief justice ofa high court or a judge of theapex court would be appointedas the Chief InformationCommissioner (CIC) to head thepanel at the Centre and statelevel to decide complaints as wellas appeal under the Right toInformation Act (RTI), 2005.

Justice Swatantra Kumar

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COURT NEWS


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Court Judgements

The court, which refused to term those provisions of the RTI Act as unconstitutional, laid downthe qualification of a judicial member saying that he or she should be a person having at 20 yearsof practice of law with experience in social work. It went ahead to bring out another result fromwhat was the issue before the Court and selfishly served the causes of the Judges in dual format ason one hand there will be opportunity for retired Judges, who can continue to enjoy thehospitality at cost of the people and travel at their won wimps at cost of commonman. The secondis that the Courts have been one of the biggest offenders of RTI and have preferred to sit even onits own causes under the act. Even a single application simply asking information of travel of CJIhas been criticized in open Court in non presence of the information seeker to potray him as avillain. Thus, what the Apex Court has done is to install its own person so that the informationseeker is attacked on all fronts by the deemed PIO (CJI himself said he replies to each and everyquery), then the appellate authority who is also Judicial member to the commission which will

have a judge to then ofcourse the bench. This is indirect killing ofRTI, by Judiciary for dual benefit of Judiciary.

The appointment of judicial member would be undertaken inconsultation with the Chief Justice of India (CJI) and Chief Justice ofrespective high courts in case of states, the court said.

The Central and State Information Commissions have dualjurisdiction –appellate as well as supervisory and investigativeauthority – as imposed penalty and recommended disciplinaryaction against those public information officers who failed torespond to the queries made under theAct.

“The commission is not administrative simpliciter but isquasijudicial in nature. It exercises powers and functions which areadjudicatory in character and legal in nature,” the court said.

Directing for bringing amendment into the transparency law, the bench said, “The terminologyused by the legislature, such as 'mass-media' or 'administration and governance', are terms ofuncertain tenor and amplitude. It is somewhat difficult to state with exactitude as to what class ofpersons would be eligible under these categories.”The Sub-Section (5) of Section 12 of the Act dealing with the eligibility criteria for appointmentto the post of the Chief Information Commissioner and Information Commissioners stated thatthe persons of eminence in public life with wide knowledge and experience in law, science andtechnology, social service, management, journalism, mass media or administration andgovernance would be appointed to the posts.

The decision of the Supreme Court bringing in key changes in the appointment ofInformation Commissioners and working of transparency panels has come under criticismfrom legal experts and RTI activists.

In an unintended consequence of the Supreme Court judgment on RTI act, a "judicial tribunal"headed by a former Supreme Court judge or high court chief justice will be reporting annually tothe executive, which in turn will table that document in the legislature.

This statutory mandate under Section 25 of the RTI Act has been overlooked by verdict whileordering at least a 50% reservation for retired judges in the information commissions at the

“The commission is nota d m i n i s t r a t i v es i m p l i c i t e r b u t i squasijudicial in nature.It exercises powers andfunctions which area d j u d i c a t o r y i ncharacter and legal innature,” the court said.

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Court Judgements

SC BENCH HEADED BY CJI KAPADIA TAMES MEDIA ON COMPLAINTSBY SAHARA

The Supreme Court five-judge bench headed by Chief Justice SH Kapadia laid down a constitutional principle where aggrievedparties can seek from appropriate court the postponement of thepublication of court hearings and a decision taken on a case-by-case basis.

The court, however, refrained from framing broad guidelines forreporting of sub-judice court matters, saying it cannot be done"across the board."

The bench observed that freedom of speech and expression is notan absolute right under the Constitution and the journalistsshould understand the 'lakshman rekha' so that they do not crossthe line of contempt. A said it was laying down the constitutionalprinciple which will allow the aggrieved parties to seek fromappropriate court the postponement of the publication of court

hearings.

"We are not framing guidelines but we have laid down constitutional principle and appropriate writcourts will decide when the postponement order has to be passed on case-by -case basis," the benchalso comprising justices D K Jain, S S Nijjar, Ranjana Prakash Desai and J S Khehar said.

"Hence, guidelines on media reporting cannot be framed across the board," the bench said.

While propounding the doctrine of postponement of publication of court proceedings, the benchsaid it is a preventive measure and not a prohibitive and punitive measure. It further said thattemporary ban on publication of court proceedings isnecessary to maintain balance between freedom ofspeech and fair trial for proper administration ofjustice.

The bench said the postponement of publication ofcourt proceedings would be required where there is asubstantial risk of prejudicing the trial andadministration of justice.

Further the CJI, who read the judgement, saidreasonable restrictions on reporting of courtproceedings were needed for societal interest and thisdoctrine of postponement is one of "neutralising technique".

The apex court has undertaken the exercise of framing guidelines after receiving complaints ofbreach of confidentiality during the hearing of a dispute between Sahara Group and market

CJI Kapadia

Justice D K Jain

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regulator SEBI.

The issue of breach of confidentiality came up when certain documents regarding the disputebetween Sahara and SEBI were leaked to the media.

However, once the hearing had started from March 27, the court had expanded its ambit and gaveopportunity to other possible elites who in the recent past had felt aggrieved due to the publicationand broadcast of sub-judice matters.

The constitution bench relied on a catena of judgements from foreign countries like United States ofAmerica, England, Canada, Germany, Australia and New Zealand along with the judgements ofIndian courts to arrive at a conclusion that postponement of publication of court proceedings incertain cases was necessary to strengthen the balance between free speech and fair trial for properadministration of justice.

It clarified that the order on postponement of publication of courtproceedings has to be passed by the writ court subject to the twin testof necessity and proportionality. The postponement of publicationhas to be for short duration without disturbing the essence of theproceeding.

During earlier hearings, the bench had permitted all parties to presenttheir views and subsequently the Press Council of India, the EditorsGuild of India, the National Broadcasters Association and somenational dailies and individual reporters had argued in the caseopposing any regulation on media reporting.

. However, the bench had said it wanted to have a proper balancebetween Article 21 (Right to Life and Liberty) and Article 19 (1)(a)(Freedom of Speech andExpression) of the Constitution.

It had observed that its intervention is required to safeguard administration of justice in the absenceof any specific law to regulate legal reporting and had came out with the idea of temporary ban onsub-judice matters which was opposed by journalist groups.

What is interesting is that SAHARA lost its cause in Apex Court and thereafter gave full pageadvertisements in newspapers blaming all except Judges to be at fault and all to bemisrepresentations. It portrayed that the Judges were misguided in believing the other parties andthus wanted to show that the judgment was wrong and Judges got carried away by the opponents.This was insulting as if the Judges were dummies and did not understand law and it was gettingpublic sympathy against the order of the Apex Court and the same has definitely missed the eyes ofthe Judges as I have to believe.

While majority of the parties were of the view that the apex courtdid not have inherent powers to lay guidelines on the issue whichfalls in the domain of legislature

While majority of theparties were of the viewthat the apex court did nothave inherent powers tolay guidelines on the issuewhich falls in the domainof legislature.

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FUTURE BAIL. SC LAYS DOWN A NEW DOCTRINE

Famous and media highlighted case andcapacity to hire a big counsel can pave wayfor a new law which is needed for you. Thisis what the result in Ayushi case is. In a firstof its kind order, the Supreme Court bench ofJustices A K Patnaik and J S Khehar, afterhearing senior advocates Harish Salve and KV Vishwanathan, who argued that NupurTalwar deserved to get parity with her co-accused husband, who has been on bail forthe last four years, and that there was remotepossibility of the trial concluding byDecember 31, granted post-dated bail toNupur Talwar in the case of the murder of

her daughter Aarushi and domestic help Hemraj, putting her at par with husband Rajesh Talwar, whohas been on bail in the case since July 11, 2008.

The apex court said she would be released on bail on September25, by when the prosecution must complete examination of anyother witness crucial to proving its case during the trial. But itclarified that the trial court would release her on bail on that dayeven if the CBI fails to complete examination of witnesses.

Nupur, who has been in custody for nearly five months hadsought parity with her husband, co-accused in the doublemurder case. The bench left it to the trial court's discretion when it came to specifying bail conditionsfor Nupur's release from jail

Earlier in April, the Supreme Court had refused to stay the non-bailable arrest warrants issued by thetrial court against Nupur and had asked her to surrender. She had surrendered onApril 30 and has beenlodged in judicial custody. The apex court on June 7 this year had rejected her plea for review of itsJanuary 6 order directing her to face trial along with her husband. The Ghaziabad magistrate hadsummoned both Rajesh and Nupur as accused in the case on February 9, 2011.

The petition requested the court to consider the statutory provisions advising the courts to give specialconsideration to women in bail matters.Earlier the magistrate had summoned the husband-wife duo in the Aarushi-Hemraj murder case,while rejecting the CBI's final report requesting closure of the case for want of evidence against anyperson. The trial court had in a detailed order said the circumstantial evidence pointed the needle ofsuspicion to the couple, mainly on the basis of 'last seen with' theory.

Thus it seems now that the Bench has decided to take on the making of Laws.

Rajesh and Nupur Talwar

CBI fails to completee x a m i n a t i o n o fwitnesses.

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"IT's NOT OUR FAULT" THAT THE PETITIONERS ARE NOT BEINGHEARD ON REGULAR BASIS : SC WHILE DENYING BAIL TOPRAGYA THAKUR

The Apex Court bench of justices H L Dattu and C K Prasad refused to grant interim bail to ex-Armyofficer Shrikant Prasad Purohit, Pragya Thakur and other accused in the 2008 Malegaon blast case.Senior advocate U R Lalit appearing for the accused contended they have been behind bars for foury e a r s a n d t h e i r p e t i t i o n s a r e n o t b e i n g h e a r d b y t h e a p e x c o u r t b u tthe bench while declining the interim bail said that "it's not our fault" that the petitions are not beingheard on a regular basis, after the state government sought adjournment of the case and accordinglyadjourned the case for three weeks.

LAWYERS CAN'T BE SUED FOR WRONG ADVICE : SC

At a time when it is the norm to seek legal opinion prior to taking a decision, the Supreme Court hascome to the rescue of lawyers by ruling that they cannot be prosecuted for rendering wrong advice ifthere is no link between them and perpetrators of a fraud or offence.

But the court said the advocate's opinion must be bona fide, asall legal practitioners owe "an unremitting loyalty to theinterests of a client and it is the lawyer's responsibility to act ina manner that would best advance the interest of the client".

A bench of Justices P Sathasivam and Ranjan Gogoi gave thisjudgment while dismissing the CBI's appeal against anAndhra Pradesh High Court order quashing criminalproceedings against an advocate for rendering legal opinionon genuineness of title deeds for sanction of loans, whichresulted in a multi-crore loan fraud involving a nationalizedbank.

Writing the judgment for the bench, Justice Sathasivam said,"Merely because his opinion may not be acceptable, he cannotbe mulcted (punished) with criminal prosecution,particularly, in the absence of tangible evidence that he associated with other conspirators. At themost, he may be liable for gross negligence or professional misconduct if it is established byacceptable evidence but cannot be charged for the offence under Section 420 (cheating) and 109(abetment) along with other conspirators without proper and acceptable link between them."

"A lawyer does not tell his clientthat he shall win the case in allcircumstances. Likewise, aphysician would not assure thepatient of full recovery in everycase. A surgeon cannot and doesnot guarantee that the result ofsurgery would invariably bebeneficial, much less to theextent of 100% for the personoperated on," the bench said.

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The court drew a parallel between lawyers and other professionals like doctors and said none of themcould guarantee success - either in litigation or in treatment.

"A lawyer does not tell his client that he shall win the case in allcircumstances. Likewise, a physician would not assure thepatient of full recovery in every case. A surgeon cannot anddoes not guarantee that the result of surgery would invariablybe beneficial, much less to the extent of 100% for the personoperated on," the bench said.

"The only assurance which such a professional can give or canbe given by implication is that he is possessed of the requisiteskill in that branch of profession which he is practicing andwhile undertaking the performance of the task entrusted to him,he would be exercising his skill with reasonable competence.This is what the person approaching the professional canexpect," the court said.

“Judged by this standard, a professional may be held liable for negligence on one of the two things -either he did not possess the requisite skill which he professed to have possessed or he did notexercise, with reasonable competence in the given case, the skill which he possessed," it added.

Quoting an earlier judgment, the court said it was not necessary for every professional to possess thehighest level of expertise in that branch which he practiced. It quoted another judgment of the SC, inwhich it had ruled that "mere negligence unaccompanied by any moral delinquency on the part of alegal practitioner in the exercise of his profession does not amount to professional misconduct".

SC QUESTIONS HOW NETAS HAVE COAL BLOCKS AT THE TIME WHEN CJI

QUESTIONS CAG REPORT ON COALGATE IN A SEMINAR

The Supreme Court bench of Justices R M Lodha andAR Dave asked theCentre to explain in eight weeks its policy guidelines on coal blockallocation and the actual process adopted for 194 coal mines which havebeen faulted by the Comptroller and Auditor General for causing unduegains to private players. "This is not distribution of state properties in asmall way. It is mines of largesse, not even tonnes of largesse. By the way,is it a mere coincidence that so many politicians, their relatives orsupporters were benefited in the 194 coal block allotments,". The remarkfrom the bench, which can potentially add sting to the opposition's quiverover Coalgate and give jitters to the beneficiaries of controversialallocation of coal blocks, came on a PIL filed by advocate M L Sharma

“Judged by this standard, aprofessional may be held liablefor negligence on one of the twothings - either he did not possessthe requisite skill which heprofessed to have possessed or hedid not exercise, with reasonablecompetence in the given case, theskill which he possessed," itadded.

Justice R M Lodha

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urging the court to cancel the 194 allocations on the grounds that the process was arbitrary, illegal,unconstitutional and against public interest.

The justices, who appeared to be aware of not just the magnitude of the "scam" but also the namesthat have been generating headlines in connection withCoalgate, had some searching questions for the solicitorgeneral: something that led many to wonder whether the stagewas being set for a judicial intervention which may surpass inscale the apex court's monitoring of the CBI's investigationinto the 2G scam.

In fact, the judges did not agree with Nariman when heargued that while the petitioner had based his PIL on the CAGreport, the findings of the federal auditor could not be deemedto be final until they had been scrutinized by Parliament's PACand debated by the two Houses. No intervening in PAC'swork, says SC.

Justices Lodha and Dave said the logic did not work in the caseof Coalgate. "We are not on the correctness of the CAG report. But will it be wrong for a petitioner torely on the CAG report to question the correctness of government's action?" the bench said, adding,"The question before the court is two-fold—whether there was illegality in the allotment of coalblocks and what action be initiated under criminal laws? We are sorry. The PAC's exercise on the CAGreport is different from the court's process. We do not want to encroach into PAC's exercise. This is amatter which requires explanation from the govt.”

When the SG said the CBI was alreadyinvestigating the matter, the bench said, "We knowthe CBI is already investigating. That is why weare limiting the notice to the coal ministry to thepetitioner's first prayer which is for cancellation ofthe coal block allotments. This is not a distributionof state properties in a small scale." While askingwhether it was a coincidence that many politicianswere alleged beneficiaries of coal blockallotments, the bench said, "Many may not beinvolved in the irregular allotment. We do notknow. Some may perfectly deserve. It is for thegovernment to answer all these questions whetherguidelines were followed for an objective scrutiny.

The SG said his concern was that the court shouldnot duplicate the exercise being undertaken by the Parliament Accounts Committee headed by BJP'sMurli Manohar Joshi, which is scheduled to take up the CAG report on coal block allotment onSeptember 20.

A Raja (2G Scam)

Murli Manohar Joshi

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SC FINDS GOVERNMENT FUNCTIONING ONLY ON ITS INTERVENTIONS

The Supreme Court sought details of steps taken by the Centre to check the price of 348 drugs on theNational List of Essential Medicines (NLEM) and said the government must consider the old methodof price control while specifying the cost of these medicines.

The bench did not forget to take note that the new Drug Price ControlOrder, which was to fix retail price of NLEM medicines, was based onaverage pricing formula. Under the new formula, the price of theessential drug would be fixed taking into account the average price of allmanufacturers with 1% market share in each segment.

The court said though the judiciary need not govern the country, it muststep in whenever required and suggested that the government needed tokeep in mind the benefits of the 1995 Drug Price Control Order, underwhich the production cost, transport, marketing and minimum profitwere taken as major components while calculating the retail price ofessential drugs.

"It (government) gets going only when we step in. The court does not run the government. It steps inwhen it becomes essential and unavoidable," Justice Singhvi observed.

In the last two years, the court has repeatedly asked the government to spell out a mechanism to bringunder price control regime essential medicines which are used by poor patients to fight ailments liketuberculosis, diarrhea, heart disease and malaria. Petitioner NGO — All India Drug Action Networkhad alleged that though the NLEM had 348 drugs, prices of only 37 medicines were controlled by theNational Pharmaceutical PricingAuthority.

"It (government) getsgoing only when we stepin. The court does notrun the government. Itsteps in when it becomese s s e n t i a l a n dunavoidable," JusticeSinghvi observed.

CJI SLAMS GOVERNMENT FOR LAXITY IN COLLECTING TAXES

In a matter where the court could have dismissed the appeals on the ground of undue delay withoutexplanation, by the government in filing it, the bench of Justice Kapadia saved the day for governmenteven when law was against it as it felt that it was consciousthat “once a matter is dismissed on the ground of delay, ithas a ricocheting effect”.

The Supreme Court has directed the Union finance and lawministries to act fast and effectively in plugging theloopholes in government's litigation machinery, so that lawsuits related to Rs 58,636 crore demands towards taxes aredisposed of expeditiously. The issue relating to the inertia inthe government's tax machinery and its legal administrationin expeditiously filing the appeals involving tax disputes with the influential and the rich had been

“once a matter is dismissed on theground of delay, it has aricocheting effect”.

Justice Kapadia

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brought to the attention of the two ministries and attorney general in the past too.

Recently, a bench headed by Chief Justice SH Kapadia noticed with concern that an appeal filed bythe director of IT International Taxation, Mumbai, against CitiBank NA for recovery of Rs 90 crore was delayed by 694 days(about two years). Infact the revenue department had moved theBombay high court against the tax tribunal's order after 450days. It was delayed by 658 days in filing appeals and re-appeals in another tax arrears case.

The revenue department did not file any affidavit explaining thedelay in moving the apex court even though the Court haddirected to do so. The judges were dismayed by the apathyshown by the government and its senior law officers towards itsdirections. Asking the two ministries to wake up and act, thejudges passed a significant order that also hints at themysterious attitude of the taxation and legal departments whenthey are faced with cases relating to the huge revenue loss. “In alarge number of cases, we find a peculiar phenomenon. Incases, where huge revenue or tax demand from the department is involved, invariably, there isinordinate delay in filing appeals before the high court and this court,” said the judges and added “Wedo not know the reason why such inordinate delays take place only in matters of stakes. This aspectneeds to be looked into. This aspect has been brought to the notice of the attorney general as well asthe ministry of law in the past,”

According to the comptroller and auditor general (CAG), 90% of the country's income tax (I-T)arrears are owed by just a dozen individuals, led by Pune-based stud farm owner Hassan Ali Khan. Itnoted that these demands are “unrealisable 100%”.

“We do not know the reasonwhy such inordinate delaystake place only in matters ofstakes. This aspect needs to belooked into. This aspect hasbeen brought to the notice ofthe attorney general as well asthe ministry of law in thepast,”

SC DISMISSES PIL ON CAG POWERS

The Supreme Court Bench headed by R M Lodha dismissed as “misconceived” a public interestpetition that had sought a declaration that the Regulations on Audit and Accounts, 2007, framedunder the Comptroller & Auditor General's (Duties, Powers and Conditions of Services) Act, 1971,empowering the CAG to conduct a performance audit was violative of the Constitution. The Benchremarked auditing of a firm should not be confused with the constitutional function entrusted toCAG. “He is not a munimji (accountant),” the bench remarked.

Rejecting all contentions invoking constitutional provisions, the bench observed it was for theParliament to consider, accept or reject the CAG's findings.” The petitioner, Arvind Gupta,contended CAG has no power and authority under Article 149 of the Constitution and under the Actto conduct a performance audit. The performance audit is in effect authorising the CAG to review orassessment of a scheme or policy of the government, which is beyond the constitutional authoritygiven to the CAG.

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Referring to the coal allocation controversy, the petition stated the CAG had audited the existingpolicy guidelines in respect of the allocation of captive blocks by examining official communicationbetween various Union government and state government functionaries. The CAG estimates forindicative revenue loss to exchequer is in respect of 57 mines allocated to private parties are basedon mere assumptions, the petition said.

RTE: SUPREME COURTDISMISSES SCHOOLS PLEA

A bunch of review petitions filed bythe Society of Unaided PrivateSchools and private schoolsindependently was dismissed by aSupreme Court bench headed by chiefjustice SH Kapadia. There isgenerally no hearing of Reviewpetitions and the same is buried inclosed chambers of Judges withoutany hearing. The reading or nonreading of the papers is a secret andthe Lordship need not give anyreason, hear anyone, explain any oneand can dismiss it in one line order incase of Review Petitions. No one seesJustice being done to the Reviewpetitions.

Now, the schools are planning to file acurative petition, said DamodarGoyal, founder of the NationalFoundation for Promotion andProtection of Private Education.

The SC is of the view that thelegislation ought to be viewed as“child-specific” where the interests ofthe institution must take a back seat.

AIR INDIA AIRCRAFTS LANDSIN COURT LENSES

The Supreme Court A bench of justices H L Dattu and C KPrasad issued notice to the Centre and Air India on a pleaseeking a CBI/SIT probe into alleged irregularities,including purchase of aircraft for the national carrier andgiving up of profit making routes to private airlines, whenPraful Patel was CivilAviation Minister and sought responsefrom the government, the national carrier and CBI on apetition filed by an NGO, Centre for Public InterestLitigation, alleging that various decisions taken during thetenure of Patel were meant to benefit private airlines andcaused huge loss toAir India.

The NGO, in its petition, has referred to several of Patel'sdecisions, including the "massive" purchase of 111 aircraftfor national airlines costing about Rs 70,000 crores, taking alarge number of planes on lease, giving up profit-makingroutes and timings in favour of private airlines and themerger ofAir India and IndianAirlines.

The NGO approached the apex court challenging a Delhihigh court order dismissing its plea into the allegedirregularities. The high court had refused to pass any order onthe NGO's plea for a probe into Air India's fleet expansionprogramme and its decision to purchase 111 planes at awhopping Rs 67,000 crore, saying that the Public AccountsCommittee (PAC) of Parliament is already looking into it."A responsible committee like PAC is looking into thematter and we are not giving any direction at this stage butexpect PAC to look into the matter from all angles...," thehigh court had said. The high court had held that such atransfer was valid as the company being a juristic persondoes not have a caste and, therefore, any transfer made bya Scheduled Caste person would not be hit by Section42(b) of the Act.

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IN A RARE CASE OPEN COURT HEARING WILL TAKEPLACE ON REVIEW OF MAYAWATI CASE

The review petitions are normally decided by judges in their chambers andlitigants and their counsel are not allowed to be present there. However, theSupreme Court agreed to hear in open court a plea for review of itsjudgement, which had quashed the disproportionate assets case againstformer UPChief Minister Mayawati.

The review petition was filed by Uttar Pradesh native Kamlesh Verma whowas an intervener in the case filed by Mayawati in the apex court forquashing of the DAcase against her.

Seeking review of the July 6 judgement, the petitioner has contended in hispetition that the apex court had decided the case merely on technical groundswithout appreciating the evidence collected by the CBI against Mayawati.

"The judgment under review belies the requirement of the public policy that cases of corruption bypublic servants cannot be dealt with by courts with a technical approach. The public policy ratherrequired that even if there was some technical flaw in the investigation, the same could not have beengiven precedence over the overwhelming evidence collected by the CBI against Mayawati," thepetition said.

"This court could not have simply let the accused go scot-free, thus, rendering the evidence nothingmore than bundles of waste paper," the petition said. In a major relief to BSP supremo Mayawati, theSupremeCourt had on July 6 quashed a nine-year-long disproportionate assets case against her andhad pulled up the CBI for exceeding its jurisdiction by lodging an FIR against her without anydirection from it.

The apex court had said the DA case against Mayawati was "unwarranted" and the agency proceededagainst her without properly understanding its orders which were confined to Taj Corridor caserelating to the release of Rs 17 crore by UPgovernment allegedly without sanction.


It is said that Justice must be seen to be done. When the Review is done in chambers of the Judges noJustice is seen to be done. When review is not done in open Court no one knows which Judge readwhat, what was the reason of dismissal and grounds. Infact in MPID case the Judge merely passed anorder saying that in a petition of Tamil Nadu state they have seen the MPID case and hence no party isallowed to argue. Then the review was also dismissed without reason. If review is done in open Courtthen there is no reason for having extra constitutional provisions of curative. In light of allegationagainst judiciary of non integrity and corruption in many cases it is necessary that all processincluding review become transparent and there must be no scope of baseless and false allegationsagainst the Judiciary. We need to evolve a system which enhances faith of the common man in thesystem and there must be satisfaction for the procedure and fairness in Justice.

Mayawati

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SEBI CHIEF APPOINTMENTIN LIMBO IN SC ANDPRANAB'S MAN IN TROUBLE

The Supreme Court issued notice to theCentre and Securities and ExchangeBoard of India Chairman U.K. Sinha ona public interest writ petitionchallenging his appointment. A Benchof Justices S. S. Nijjar and H. L.Gokhale also directed that Omita Paul,Secretary to the President, beimpleaded as a party in the quowarranto petition and issued notice toher as she was involved in theappointment. It, however, refused toissue notice to the Centre on the plea fora CBI inquiry.

PetitionerArun KumarAgrawal allegedthat Ms. Paul had bent rules to facilitateMr. Sinha's appointment, bypassingother eligible candidates. Mr. Sinha wasthe only candidate who did not apply forthe post but was hand-picked throughthe search route, the petitionercontended. Also, he said, Mr. Sinhafailed to fulfil one of the eligibilityconditions: the SEBI Chairman shouldbe a person of high integrity. A whole-time SEBI member, in his complaint toPrime Minister Manmohan Singh, saidthe thenAdvisor to the Finance Ministerand Mr. Sinha were acting on behalf ofcertain companies, Mr. Agrawalpointed out.

ALLAHABAD HC ORDER GAGGINGMEDIA QUASHED BY SC

A Supreme Court bench of justices H L Dattu and C K Prasad quashed

the Allahabad High Court order which had prevented media from

reporting on the controversy related to alleged Army units' movement

towards Delhi on January 16 amid the then prevailing row over erstwhile

Army Chief V K Singh's date of birth and allowed the plea of Press

Council of India which had challenged the order saying that court cannot

impose such a ban on media as it violates the freedom of speech. The

bench said "We are of the opinion that the high court should not have

passed the order as the prayer before it was entirely different and it was

inconsonance with the prayer made by the petitioner," the bench said.

The court also took into account its recent Constitution bench judgement

which had said press can only be directed to postpone the reporting for a

certain period. The Centre also said it was against the high court's order

and it should be quashed.

The high court's order was passed on a PIL which said a national daily

and a news magazine had reported on movements of theArmy units from

Agra to Delhi when the Singh's age row controversy was at peak. The

petitioner had said the reports were against national interest. The PCI

had approached the apex court saying the order was in violation of the

fundamental right under Article 19(1) (a) of the Constitution, granted to

the media and every citizen of the country.

ESSAR OIL GETS INTEREST RELIEF BY SC

The Apex Court ruling has cut the tax bill of a subsidiaryof London-listed Essar Energy by USD 327 million, in adevelopment that the company said drew a line under itstax problems. Essar Energy has been wrestling with a taxcase at its majority-owned Essar Oil for nine months.The Supreme Court removed some of the harsherdemands made on the company by the Gujarat stategovernment, to whom the monies are owed. The Courtruled that that Essar Oil did not owe Gujarat USD 327million in interest on its tax bill, and allowed thecompany to repay the USD 939 million it owed in tax ininstallments over two years.

"The Supreme Court judgement brings to an end thedeferred sales tax repayment issue in respect of EssarOil," Essar Energy said in a statement.

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EX MINISTER THOUGH NOTGRANTED BAIL ALLOWEDTO STAY IN HOSPITAL

The Aurangabad bench of the Bombayhigh court rejected the bail plea ofSuresh Jain, former housing minister andprime accused in the Rs 169 croreJalgaon Municipal Corporation housingscam, but has allowed him to stayanother three weeks in hospital.

Jain has been in various hospitals sinceMarch 19, underwent a bypass surgery atBreach Candy and is now admitted toJaslok hospital. He was arrested onMarch 10. The latest medical report didnot mention any serious disease and Jainappeared normal. Jain's advocate UdayLalit had pleaded that he be allowed tostay in hospital for another three weeksand the judge agreed.

Jain's bail was rejected on the groundsthat there exists a strong case against himand his deep involvement at variousstages of the offence is established. Thecourt said a number of witnesses hadstated about the exact role played by Jainin the entire offence. In its order theCourt is learnt to have mentioned thehurdles created by the accused since theoffence was registered. This included alaw and order problem after the thenmunicipal chief Pravin Gedam filed anFIR, threats of dire consequences issuedto the investigating officer in open court,the attack on the Jalgaon civic surgeon.

CHARGES FILED AGAINST EX-JUDGESKIN IN GRAFT CASE CBI TELLS HC

Bombay High Court was informed by Central Bureauof Investigation that it has filed a chargesheet in thebribe case filed against the lawyer-daughter of a retiredhigh court judge .The chargesheet does not include the name of ManishaMhase-Thube, daughter of S B Mhase, who is presidentof Maharashtra State Consumer Disputes RedressalCommission. It has been filed against advocate SunilShirole and three others.

A division bench of Justice Sharad Bobde and JusticeRajesh Ketkar heard a public interest litigation urgingthe court to monitor the probe. CBI arrested Manishaand two others for allegedly demanding Rs 30 lakh toget a favourable order in the national commissionthrough her father.Shinde told the court that the chargesheet was filed onWednesday in the Sessions Court. He said the samplesof voices sent for re-testing to the Central ForensicScience Laboratory, Chandigarh, have been calledback.Shinde submitted an affidavit by G S Bagul, Inspectorof Police, CBI-ACB, stating that the investigation is inprogress and the disclosure of any evidence is likely toprejudice it. Bagul stated that CSFL, Delhi opined thatthe voice appears to be of Hemalata Mane. Also, that asthe case is very sensitive and prima facie, there appearsto be involvement of some senior persons from thejudiciary,'' CBI wanted to be extra-cautious beforecoming to any conclusion and thus sought a secondexpert opinion.

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HC ISSUES NOTICETO CENTRE ONPOOR QUALITYFOOD IN TRAINS

Five years after nudgingthe Indian Rail CateringTrad ing Corpora t ion(IRCTC) to improve thequality of food served ont r a i n s a n d r a i l w a yplatforms, the Delhi highcourt has admitted a freshpublic interest litigation(PIL) on the issue andissued notices to railwaysministry, railway boardchairman and heal thministry.

The PIL has demandedmore effective measures toensure that unadulteratedand hygienic food wasm a d e a v a i l a b l e t op a s s e n g e r s a l l e g i n g“ n o t h i n g m u c h h a schanged” despite earliercourt orders.

The court, while passingorders in a similar PIL inAugust 2007, had asked theIRCTC to take drastic stepsto improve the quality ofcatering services. TheIRCTC had repeatedlycome under fire for poorcondition of its kitchens inrailway stations, pantrycars in trains, includingShatabdis and Rajdhanis,during the hearing of theearlier PIL.

‘SPECIAL EXECUTIVE OFFICERS SHOULDBE ABLE TO READ, WRITE'

In what could be the reality of maska polish politics the state governmentinformed the Bombay High Court that the only eligibility for a person to beappointed as a special executive officer (SEO) in Maharashtra seemed to bethat he should know to "read and write". The revelation came in response toan order of the court, asking the state to spell out the qualifications andprocedure for appointing an SEO.

The matter had come under the court's scanner after it noticed defects in testidentification parades and dying declarations recorded by the SEOs in anumber of criminal cases. Additional public prosecutor Rajeshree Gadhvi,representing the state, and advocate Arfan Sait, who was appointed by thelegal aid cell, informed the court that following another HC order, the statehad in 2009 withdrawn the powers of conducting identification parades andrecording dying declarations from SEOs. The judges questioned as to whatwould happen to such proceedings conducted by SEOs prior to 2009.In the affidavit filed by Pradeep Darade, secretary, general administrationdepartment, the state said that in 2007, the minimum qualification requiredfor appointment of an SEO was the Secondary School Certificate. However,in 2008, the rules were changed and "made clear that the person to beappointed as SEO should be able to read and write". The appointments werepolitical as the SEOs were selected by the guardian minister "afterdiscussion with local leaders, if required". The collector publishes the finallist of SEOs—two per thousand voters—after receiving approval from thegovernment.The court pointed to irregularities committed by SEOs. "While dealing withcriminal appeals, we have often noticed that there are serious deficienciesand defects in the functioning of some of the special executive officers,especially in conducting the test identification parade and recording of dyingdeclarations. At least in two cases, we have found that SEOs, who hadconducted test identification parade, were bold enough to admit before thecourt that there were completely unaware of the guidelines incorporated inthe criminal manual for holding the parade," observed the court. The judgespointed to an instance when it found that the SEO was working with a builderas an electrician.

MISSION JUSTICE VIEWS:

It is sad to say that the system is rotten deep under and the political classseems to be just interested in its own causes. The Courts have suo motopowers and to correct all injustice plenty of opportunity is present. But thecollegium has failed and has never been able to meet even the sanctionedstrength of Judges. To be honest it is a system of chaos and we all are toblamed for it.

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HC SANCTIONS CLOSURE OFRAJ TAVELS

After the demise of the owner last month, Shree Raj Travels andTours has been ordered to be wound up, for incapacity to pay itsdebt and liability. The company that Lalit Sheth had built andnurtured for close to four decades was a brand name amongtourists. The company had debts in excess of Rs 40 crore and thechances of repaying them after Sheth's suicide appeared slim,said counsel Birendra Saraf, who represented one of thecreditors.There were many creditors who had earlier filed petitions towound up the travel firm. In most cases, Sheth had settled theclaims or had made preparations to do so. His troubles reallybegan in mid-2000 when he launched a business in inter-statebus transport. He spent crores to buy Volvo buses and makelavish lounges. The business never took off as planned and hesuffered huge losses.

Debts started piling and in 2008-09, three more winding uppetitions were filed by Thailand-based Path Finders TravelCompany, Destinations of the World and Rail Europe to recovertheir dues. Path Finders' counsel Saraf said his clients servicedRaj Travels' clients locally with hotel bookings and travel plans.It claimed dues of Rs 5 crore in 2009.Saraf on Wednesday told the court that "with the main drivingforce of the company no more, the likelihood of getting anypayment is virtually impossible". Counsel for Destinations ofthe World, Dinyar Madon, whose claim was for Rs 5 crore, alsopointed to the financial difficulties Sheth's firm was in and RailEurope's counsel Girish Kedia said his dues were worth about65,000 Euros.Counsels for Raj Travels, opposed the winding up petitions,saying earlier too, the company was hit by a "temporaryfinancial business loss", which could be overcome. They saidthey had paid off other creditors, including HDFC Bank, andsaid the accounts of Path Finders and DOTW were disputed.They pointed out that Rail Europe had failed to invoke a bankguarantee of 44,000 Euros issued to it and now could not seekrelief from court.When HDFC had filed a winding up case against Shree RajTravels and pursued it doggedly in 2009, the amount due to itwas Rs 13 crore plus interest. Eventually, it ended in an out-of-court settlement in April 2011 with Sheth paying around Rs 6crore. The State Bank of India, a secured creditor of Raj Travels,has about Rs 30 crore due to it, including Rs 17 crore as theprincipal amount. But it has the firm's properties charged to itand did not want the firm to be wound up. But the judge—afterhearing them all—felt a winding up case was made out.

HC WARNS COPS FROMBEING JUDGES

Bombay High Court division bench ofJustices A M Khanwilkar and A R Joshirecently, while hearing a habeas corpuspetition filed by Navi Mumbai residentSalim Khan came down heavily on policefor trying to play a judge and forcesettlement in disputes. In two recent cases,the court warned the force of strict actionfor summarily taking sides and imposingits verdict.

"Such conduct inevitably impinges uponthe rule of law. It is nothing short of abuseof police powers," said the bench.

In another matter the Court pounced on thecops acting for money on behalf of wifeand who forced a man to hand overcustody of his two children to hisestranged wife, following her complaint.The bench fumed saying that "It is not thebusiness of the police to ask the oppositeparty to forcibly hand over the children tothe complainant party,"

CARTOONIST ASSEEMTRIVEDI'S ARREST FRIVOLOUSAND ARBITRARY RULE HC

"We live in a free society,'' reminded theBombay high court on Friday even as itlambasted the state for "arbitrary'' and"frivolous" arrest of political cartoonistAseem Trivedi for sedition under theIndian Penal Code's Section 124A.

The court said, "Parameters need to belaid down for application of sedition,otherwise there will be seriousencroachment of a person's libertyguaranteed to him in a civil society."

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Court Judgements

POLICE COMMISSION AND CIVICCHIEF SLAMMED BY BOMBAY HC

A Bombay high court division bench of JusticeDhananjay Chandrachud and Justice Amjad Sayed whilehearing a plea filed by the state, seeking permission topark vehicles on the playground on four immersion daysand two of Navratri came down heavily on the civic chiefand police commissioner for not complying with its orderto resolve the parking issue for Ganesh immersion atShivaji Park.Lst year the HC had directed the two officials to sit withthe petitioner to find a solution to the parking issue. TheHC on May 5, 2010 had declared Shivaji Park a silencezone and barred parking of vehicles. The Petitioner’slawyer said that the BMC and police were movingapplications seeking permission instead of complyingwith the court's order. The judges questioned why themeeting directed by the court was not held. "Why is yourcommissioner not meeting them?Are they untouchables?You don't have time," asked Justice Chandrachud. Headded, "You will face the consequences for breaching thecourt's order. The commissioner is the servant of thesystem. You are not some overlord. The attitude has tochange now. You are not living in some colonial era," saidJustice Chandrachud. The judges said every yearapplications are moved at the last moment. They directedthat the meeting should be held immediately.

REASSESSMENT OF REGISTEREDAGREEMENT BY STAMP DUTYDEPARTMENT IS TRAVERSINGBEYONG POWERS RULESBOMBAY HC

T h e B o m b a y H C t h r o u g h J u s t i c eDharmadhikari was irked at the stamp dutydepartment which traversed beyond theirpowers in reassessing a registered agreement.The Court quashed and set aside an orderpassed by the department on July 16, 2011demanding additional stamp duty of Rs 64crore from engineering firm Larsen and Toubro(L&T). L&T had signed a "developmentagreement" with Cidco and paid a stamp duty ofRs 18 crore in 2008, but the department termedthe agreement as a lease. In 2011, the stampduty department made a demand for additionalRs 64 crore as stamp duty. The demand was forthe development of an integrated complex atthe Seawoods-Dharave railway station at NaviMumba which L&T had won with its bid of Rs1,809 crore and signed an agreement withCidco in 2008. The controversy arose over thenature of instrument executed by Cidco infavour of L&T.In his order on the petition filed by L&Tchallenging the higher levy, Justice S CDharmadhikari said, "By paying the leasepremium to the extent of 60% and handing overpossession, no rights are created, much less of alease. The two parties have executed adevelopment agreement with the limitedpurpose of construction and development ofland. They have executed this agreement withcreation of lease in future and until that lease iscreated and further a document executed in thatbehalf, L&T have been given a conditionalright to sell the commercial portion."

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Court Judgements

DELHI HC BARS GODMAN FROM GIVING ILLOGICAL ABSURDIDEAS AND SOLUTIONS

In a blow to the absurd idea guru Shri Nirmal Baba, the Delhi High Court barred him with directionsto refrain from giving any kind of absurd or illogical solutions to disciples. This is likey to put an endto media ridicule. To tell people to eat Masala Dosa or Paani Poori to overcome their miseries, are thekind of solutions which are highly irrational and unacceptable to commonsensical notions, bound toresult in backlash by the media, court observed.

The HC restrained a media portal publishing any defamatory material against Nirmal Baba anddirected him to confine his discourse to all such kind of teachings through which life of common mancan improve in the right direction.

In a 22-page judgement, Justice Kailash Gambhir came down heavily on the Baba, who had sought adirection to stop Hindi portal bhadas4media from posting alleged defamatory articles, for suggesting"highly irrational" and "weird" solutions to disciples like "to eat rabri' and 'masala dosa to overcometheir miseries" and said they are bound to result in backlash by the media and other such agencies.

The court, while granting conditional injunction against the web site, said filing of defamation suit isa right of Baba and "but the same cannot be allowed to become a lethal weapon in sabotaging thefreedom of the press."

"It is a fit case for the grant of a conditional injunction. The defendants (website andYashwant Singh)are restrained from licensing, writing, publishing, hosting or advertising any defamatory materialagainst the plaintiff (Baba) on their website or through any other print/electronic media to defame thereputation of the plaintiff.

"Subject to the condition that the plaintiff (Baba) also restrains himself in future from giving any kindof absurd or illogical solutions to his disciples and others, and, confines his discourses to all such kindof teachings through which the life of common man can improve and improve in the right direction,"the court said


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Court Judgements


THE TALE OF MOCKERY

Siddharth Murarka, Advocate High Court

Recently there is a Writ Petition in the Bombay High Court, wherein the Bench headed by Hon'ble Justice

Shri Sharad Bobde has been taking on the government for the cause of the Senior Citizens. The Senior Citizens who

have toiled in the yester years, have directly or indirectly contributed to the development of the economy. Very sadly

after a particular age they are usually thrown out of their houses by their own children. The children forget that these

are the very parents who have sacrificed themselves and their happiness for bringing them up. If they are not thrown

out of home at times many are neglected and treated as servants. There are endless stories of old age citizens having

beaten up by their own sons / daughters / daughter in laws / son in laws for money and property.

Old age resemble wisdom and earlier it was considered as god's blessings, if the house is having senior

citizens. But now things have changed and it has become a fashion to neglect or ignore old age parents and if found


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Cover Story

that they are not physically capable of contributing to the family, they are also likely to be thrown out from their

own homes. Some of them die of pain, some are on streets begging or living beggars life and some are living at

old age home at the mercy of the others. These yesterdays years are treated as unwanted part of the society and

left to fate at destiny. Even the government have done very little for these people, whose tax money has funded

the running of the government.

There is a provision in law under the Code of Civil Procedure Code 1973 that parents can claim

maintenance against their own children. However, the same is time consuming and expensive. Fortunately, in

2007, the government of India passed an Act – Maintenance and Welfare of Parents and Senior Citizens Act,

2007. The Act was meant to provide more effective provision for

maintenance and welfare of parents and senior citizens guaranteed

and recognized in the Constitution of India and for matters

connected thereto and incidental thereto.

The act was passed with a view to put an obligation on

those inherent the property of old aged citizens. It was with a view

to provide setting up old age homes and maintenance to the

indigent older person.Apart from this, the act was to provide better

medical facilities to the senior citizens and for institutionalisation

of a suitable mediclaim for the life and property of old age person.

Further, the act also provide for setting up old age homes in every

district.

If perusal of the act is done, we will find several good

features, which if implemented will go a long way to serve the

purpose of its existence.

Thus, the issue is to ensure that the senior citizens

live normal life.

The application for maintenance can also be made by any person or voluntary organization registered

under the provisions of Societies Regulation Act, 1960. In fact the maintenance tribunal can also take suo moto

cognizance of the same.

.

There is provision of issue of warrant for levying

Section 4 has provided that the senior

citizens include parents, grand parents and even childless

senior citizens, who are unable to maintain himself / herself,

from his or her own earnings or property, such parents can file an application u/s. 5 of said Act. Such

application can be filed by parent / grandparent against one or more of their children / grand children,

who are not minors.Asenior citizens can file a complaint against a relative, who is the legal heir of the said

senior citizen and is in possession of all property of the senior citizen. The age of the senior citizen has

provided as 60 years and above in para 2 (h) of the saidAct.

The tribunal has power to order children or relatives to make a monthly allowance

for interim maintenance of such senior citizen and such application of interim maintenance u/s. 5(4) has

to be dispose off within a period of 90 days from the date of service of the notice to the children or relative

The Respondent children / grand children or relatives can also implead other persons liable to maintain

parent / grand parent in the application for maintenance.

The tribunal has power to order

children or relatives to make a monthly

allowance for interim maintenance of such

senior citizen and such application of

interim maintenance u/s. 5(4) has to be

dispose off within a period of 90 days from

the date of service of the notice to the

children or relative The Respondent

children / grand children or relatives can

also implead other persons liable to

maintain parent / grand parent in the

application for maintenance.

.


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Cover Story

the amount due in the manner provided for levying fine and for sentencing the person for whole or part of each

months allowance which remains unpaid after execution of the warrant. Thus, the powers are given to the tribunal

so that they can ensure that no senior citizen is made to live on begging or borrowing.

The maintenance order under this act shall have same

force and effect as the order passed under Chapter IX of

Criminal Procedure Code, 1973 and has to be implemented

accordingly. However, it is clarified that a senior citizen cannot

have maintenance under this act, as well as Criminal Procedure

Code, 1973, both simultaneously. This surely must have been

inspired from the fact that now a days in family dispute women

claims maintenance under various laws in different courts.

. It is provided that the appellate tribunal shall make an

endeavour to pronounce the order from one month from the receipt

of the appeal. Thus, aggrieved child has no option but to approach

Hon'ble High Court in Writ Petition.

Such a clause is a dire of

infringement of lawyers right to represent. It is wonder as to how a

senior citizen aged around 80 having bed ridden or unable to

maintain himself and also having mental problems will be able to

represent himself to the tribunal. No thought has been given on this

issue. It reveals non application of mind and an encroachment upon

the advocates rights. What is shocking that as reported in a

newspaper 'MINT' on 24.08.2012, one Mr. Krip is a first citizen in Maharashtra whose case heard by the Tribunal.

Section 7 of the Act provides that the State Government shall (which means mandatory) within a

period of 6 months from the date of commencement of this Act by notification in official gazette constitute

each or sub division one or more tribunals and such tribunals shall be presided over the officer not below

the rank of Sub Divisional Officer of the State. The act received the accent of the President on 29.12.2007

and was gazetted on 29.12.2007 and hence the period for

establishment of tribunal was 29.06.2008.

Under section 15 of the act the State Government is bound to

constitute a tribunal for each district to hear the appeals

against the orders and such tribunals shall be presided over

by the officer not below the rank of District Magistrate.

Under section 16, appeals are to be filed within 60 days from

the date of order and there is provision of condonation of

delay. What is interesting is that the provision for appeal u/s.

16 provides for appeal by the senior citizen or parent for a

parent and no such remedy is provided to the children

Section 17 of the act provides that no authority can be

represented by the legal practitioner.

Under section 15 of the act the State

Government is bound to constitute a

tribunal for each district to hear the

appeals against the orders and such

tribunals shall be presided over by the

officer not below the rank of District

Magistrate. Under section 16, appeals are

to be filed within 60 days from the date of

order and there is provision of

condonation of delay. What is interesting is

that the provision for appeal u/s. 16

provides for appeal by the senior citizen or

parent for a parent and no such remedy is

provided to the children


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Cover Story

however, it is reported that he was represented by Advocate Sunder

Navalkar and was defended by Advocate Kranti Sathe. How the same

was allowed is now not known. Earlier also the case was reported in same

paper and the lawyers are now famous.

Let us forget this issue and concentrate on the rights of the senior

citizens.

This is similar to concept of public prosecutor.

Under section 18, the State Government has to designate

district social welfare officer or a officer not below this rank, by

whatever name called, as a maintenance officer to represent parent if

he / she so desire

during proceedings before the tribunal / appellate

tribunal.

Under section 19 of the act in a phased manner,

beginning with at least one in each district, an old age

home to accommodate at least 150 senior citizens, who

are indigent, has to be established.

Under section 20 of theAct, the State Government

has to ensure that the government hospitals or hospitals

partially funded by the government, shall provide beds

for senior citizens. TheAct provide for separate queue for

senior citizens.

The most important feature of the act is u/s. 21 of

the Act, whereby the government has to take measures for publication and advertisements for welfare of

the senior citizens. The State Government is duty bound to give mass publicity to the promotion of this act,

through public media includes television, radio and print at regular intervals. The State and Central

Government officers, Police Officers and members of judicial services are to be given periodic sensitization

and awareness training on the issue relating to the Act. In fact effective co-ordination between the services

provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare

has to be undertaken.

U/s. 22 of the act, the State Government may confer such powers and impose duty on District

Magistrate, as may be necessary to ensure that the provisions of the act are properly implemented. The

section 23 declares transfer of property void, by way of gift or otherwise if the transferee is enable to provide

such senior citizen basic amenities and physical needs. The tribunal has been empowered to declare the

transfer void and the transfer of property shall be deemed to have been made by fraud or coercion or undue

influence, in case the transferee is not able to maintain the transferor.

Under section 24 of the act, if a person having a care or protection of the senior citizen, leaves such

person to any place, with a view to abandon such senior citizen, he may have to undergo 3 months

imprisonment or fine of Rs. 500 or both and the offence has to be tried under the provisions of Cr. P. C.

The State and Central Government

officers, Police Officers and members of

judicial services are to be given periodic

sensitization and awareness training on the

issue relating to the Act. In fact effective co-

ordination between the services provided by

the concerned Ministries or Departments

dealing with law, home affairs, health and

welfare has to be undertaken.


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Cover Story

Summarily by a magistrate. Such offences are cognizable and bailable. In fact u/s. 27 the Civil Court has no

jurisdiction to try or passed any injunction orders in respect of the matters to

which provisions of thisAct applies.

It is shameful on the part of the government and proved a crusification

of section 21

From 2008 to almost

2010 and 2011, the said Government slept over the act and did nothing.

In fact when I realised that I was unable to get an idea of implementation of the

Act, I had filed RTI Application with the Chief Minister's Office. I wanted to know the

details of maintenance and Appellate tribunals. Further I wanted to know the details of

maintenance officers and old age homes. The said application was transferred by the

PIO of the C.M. to the social justice department, Mantralaya. Very unfortunately, no

reply was received from the said department and an appeal u/s. 19(1) was filed. Just

prior to the appeal date, I received certain replies. It contained the notification of Maharashtra Government dated

17.11.1995 and another notification dated 1999. Further, a notification dated 28.04.2002 and a few other

notifications was also attached. Some of these all are illegitimate copies and Xeroxed in huroried manner. The

copy of the act was sent to me with copies of the rules.All these reflects the poor attitude of the government and its

officers and clearly shows lack of interest and knowledge in the officers towards the RTI Act and rights of the

senior citizens. Unrelated documents prior to issue of this Act was given to me by the social justice department.

This is a waste of paper and resources.

. Let as examine the constitution of senior citizens act in Maharashtra. As per notification issued by

Revenue and Forest Department (which I expected from social justice department) dated 28.09.2010, the

Government of Maharashtra has constituted tribunals for each sub – division of all Districts and has appointed sub

divisional officers to be the adjudication of the officers of the tribunal. Further, the government has appointed

concerned District Magistrates to be the Presiding Officer of the Appellate Tribunal. Vide notification dated

04.05.2011, the State of Maharashtra has designated Special District Social

Welfare Officer as a maintainance officer. Vide notification dated 23.06.2010,

the Social Justice and Special Assistance Department has made certain rules.

There is proposed of conciliation officer for the purpose of conciliation

between the parties. What is interesting under rule 14 is the maximum

allowance which can be ordered to the opposite party shall be subject of

maximum Rs. 10000 p.m.

Under chapter 7, the State has notified State Council and District

Council of senior citizens and the chairman is the minister of the state

government is in charge of welfare of senior citizens. The members consist of

secretary of department of state government dealing with disabilities, health,

senior citizens welfare etc. The Director in charge of senior citizen of the

welfare is the ex-officio secretary of the said council.

Now, let us analyse the performance of the State Government with regard to theAct.

The Notification with regard to the

social justice has also been issued by the revenue and forest department and the fact that the PIO was unable to give

It is shameful on the part

of the government and

proved a crusification of

section 21.

If we go through the

entire system in India, there is

no consistency in senior citizen

age, which vary from 60 – 65

years. According to me the

definition of senior citizen must

be put up and must be defined in

the General Clauses Act and the

must be constant for all acts.


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Cover Story

proper and timely information clearly shown the lack of interest in implementing the Act. When our Chief

Minister's photograph and that of Sonia Gandhi and Prime Minister appears in each advertisement, the question is

that do they have the courage to share the blame or will they point

fingers to department, opposition, judiciary etc.

.

According to me the definition of senior citizen must be put up and

must be defined in the General Clauses Act and the must be constant

for all acts. This will reduce the need to define it in Railways,Airlines,

insurance, income tax etc.

The State Government as well as the Central Government has

failed to act for the senior citizens and it is timed with the same needs

to be looked into.

Thus,

there is blowing hot and cold simultaneously. It is the duty of State and Central Government to ensure that medical

facilities and mediclaim policies are available to senior

citizens at a very reasonable price. Exorbitant mediclaim

premium and medical charges makes a senior citizens look

upon children for support. At times senior citizens who is

not having children, are made to undergo trauma of

spending a chunk of their pensions on mediclaim premiums

and the mediclaim providers can refuse the renewal at any

stage. Apart from reduced premium there should be

reasonableness in process of the claim. The P.S.U. insurers

have put stringent conditions like sending information to

their T.P.A. just before their admission and also insist on

filing of claim within 7 days. The T.P.A. generally does not

correspond with the insured and at times deduct certain

amounts as per their wills and fancies without giving explanation. This has happened with me and my father did not

fight for deductions with the Insurer as he was not capable for following up. What more mockery is needed.Also let

me tell you that no information was given on health care facility by state government. The old age homes have been

handed over to NGO's with them getting land at throw away prices. I wont be surprised if it is another scam. No old

age home seems to be established to implement the Act. I must say now democracy is Tax Common Man, by

If we go through the entire system in India, there is no

consistency in senior citizen age, which vary from 60 – 65 years

Under section 20 of the Act, medical support for the senior

citizens has to be provided. Let me tell you from my experience,

my father who has been paying mediclaim charges right from the

early 1990, without any gap, is now supposed to pay the Public

Sector Unit (P.S.U.) insurance companies several times more

premium and I heard many senior citizens complaining of lack of non renewal of mediclaim policies.

Under section 20 of the Act,

medical support for the senior

citizens has to be provided. Let me

tell you from my experience, my

father who has been paying

mediclaim charges right from the

early 1990, without any gap, is now

supposed to pay the Public Sector

Unit (P.S.U.) insurance companies

several times more premium and I

heard many senior citizens

complaining of lack of non renewal

of mediclaim policies.


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government and for government.

. In fact on 22.08.2012, the ministry of social justice

issued advertisement on Rajiv Gandhi in Hindustan Times (and may be other papers) and I would like to remember

it as ministry of social publicity of Rajiv Gandhi. This reflects the poor attitude of the Government and its

departments. The bureaucrats forgets that some day they will also grow old and politicians are sure that till the time

they are alive, they will be funded by the public funds and do not have to spend for the Tribunals. When anything or

any achievement, the Chief Minister and / or Prime Minister and / or UPAChairperson, Ministers get the credit and

in each advertisement their photographs are published. But when it come to take responsibility and taking blame,

no one have guts to come forward. Such irresponsible people can never be termed as mass leaders and are only be

dummy sitting on the chair. I have recorded letters even to the Prime Minister with regard to helpless children, but

they have gone deaf ears as all are busy in either dirty politics or their travels abroad or in telling people not to go by

rumours or are busy in covering up scams.

I am sure that this article may, if given some information to some people and my article will be giving the

Act more publicity than the entire effort of the government. I know that I may have offended a few, who have a

choice either to feel offended or to take courage to apology for their inaction and will rectify their error

immediately and if so their sins may be pardoned by God. In doing so

.

The state government has never taken any measures to give publicity to the provisions of the Act

through television, radio or print at regular intervals. This can be clearly seen from the facts with the

Bombay High Court Judges were not aware of the status of the Tribunals and in fact the Advocate

representing the state did not have any idea. The government has money to spend on the advertisement of

Rajiv Gandhi's anniversary, Indira Gandhi's anniversary, on inauguration of bridges, on yearly

achievements of government and also on praising of local leader, but does not cares to give publicity to the

Act, the tribunals or provided for training to the police

I want to state to comply with section 4 ©

and (d) of RTIAct, where in the policy is put up for public debate and also thereafter everything is available

online. Today a search will not give you all details of the notifications and other details clearly reflecting

murder of RTIAct by state.

I am not aware if the Rules were laid in the Assembly as per section 32 of this Act. All this and more

are now a mystery and I need a team of just 2 lawyers students to take this cause forward

PROTEST:

FOR HAPPY ELDERS


Mission Justice

Quotes

A man who is honest and is having integrity does not seek protection of his humble past,

but lets his work speak his character. A dishonest man needs to remind people of his past,

his humble beginning and give examples of his honesty.

A Judge of integrity does not change his attitude towards the government when he is duefor retirement as his integrity is tested only when he knows that his integrity may cost himpost retirement job.

A Judge is not a judge but a diplomat when he travels to other Courts and functions andseminars to build his personal relations or to attempt to educate people on the point, which hefeels is right or wrong.

Only a bad Judge would criticize another person in open Court in non presence of that personabout that person or his work or his conduct which affects the Judge himself.

When Judges love secrecy, they will go all way out to ensure that transparency is killed.They can even make laws which is in the domain of the Parliament and can also sit anddecide their own causes.

Judicial system is not about lawyers and Judges, but is about the Justice which common mangets or the injustice they face on account of bad egos of Judges.

When a Judge fumes on accountability and claims that he is not accountable to thecommon man then be sure that however clean he may seem to be, but in reality is the mostcorrupt and dishonest man.

SIDDHARTH MURARKA, Advocate, Bombay High Court

You can fool all the people some of the time, and some of the people all the time, but youcannot fool all the people all of the time.

ABRAHAM LINCOLN, speech, 1856

I have always found that mercy bears richer fruits than strict justice.

ABRAHAM LINCOLN, speech, 1865

There is not a more fatal error to young lawyers than relying too much on speechmaking.

ABRAHAM LINCOLN, notes for a lecture, Jul. 1, 1850?

“


Mission Justice

Quotes“see in the near future a crisis approaching that unnerves me and cause me to tremble for safety ofmy country; corporations have been enthroned, an era of corruption in High Places will follow, andthe Money Power of the country will endeavor to prolong its reign by working upon the prejudicesof the People, until the wealth is aggregated in a few hands, and the Republic destroyed.

ABRAHAM LINCOLN, letter to Col. William F. Elkins, Nov. 21, 1864

Those who deny freedom to others deserve it not for themselves.

ABRAHAM LINCOLN, letter to H.L. Pierce, Apr. 6, 1859

“Judges ought to be more learned than witty, more reverend than plausible, and more advised than

confident.Above all things, integrity is their portion and proper virtue.”

“It is the function of a judge not to make but to declare the law, according to the golden mete-wand

of the law and not by the crooked cord of discretion.”

“A judge's duty is to grant justice, but his practice is to delay it: even those judges who know their

duty adhere to the general practice”

Character is doing the right thing when nobody's looking. There are too many people who

think that the only thing that's right is to get by, and the only thing that's wrong is to get caught.

~J.C. Watts

If you have integrity, nothing else matters. If you don't have integrity, nothing else matters.

~Alan Simpson

“Seven Deadly Sins Wealth without work Pleasure without conscience Science without humanity

Knowledge without character Politics without principle Commerce without morality Worship

without sacrifice.” ―

“Laws and principles are not for the times when there is no temptation: they are for such moments

as this, when body and soul rise in mutiny against their rigour ... If at my convenience I might break

them, what would be their worth?” ― ,

Francis Bacon Quotes

Edmund Burke Quotes

Jean de la Bruyere Quotes

Mahatma Gandhi

Charlotte Brontë Jane Eyre

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2nd issue MISSION JUSTICE 6tH october, 2012

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