NYAYA KIRAN - dslsa.org

NYAYA KIRANVOLUME - II ISSUE - II APRIL - JUNE, 2008

DELHI LEGALSERVICES AUTHORITY

Patron – in – ChiefHon’ble Mr. Justice A. P. ShahChief Justice, High Court of Delhi

Executive ChairmanHon’ble Mr. Justice T. S. ThakurJudge, High Court of Delhi

Chairman, Delhi High Court LegalServices CommitteeHon’ble Mr. Justice Manmohan SarinJudge, High Court of Delhi

Member SecretaryMs. Sangita Dhingra SehgalAddl. District & Sessions Judge

Address :Delhi Legal Services Authority,Central Office, Pre-fab Building,Patiala House Courts,New Delhi - 110 001.Tel. No. 23384638Fax No. 23387267, 23383014

Permanent Legal Services Clinic,Room No. 54 to 57,Shaheed Bhagat Singh Place,Gole Market, New Delhi.Tel. No. 23341111Fax No. 23342222Toll Free No. 12525

Website : www.dlsa.nic.inE-mail : [email protected]

Editorial Committee

ChairmanHon’ble Mr. Justice T.S. ThakurJudge, High Court of Delhi & ExecutiveChairman, Delhi Legal Services Authority

MemberHon’ble Mr. Justice S.N. DhingraJudge, High Court of Delhi

MemberHon’ble Dr. Justice S. MuralidharJudge, High Court of Delhi

Editor-in-ChiefHon’ble Ms. Justice Hima KohliJudge, High Court of Delhi

EditorMs. Sangita Dhingra SehgalMember SecretaryDelhi Legal Services Authority

ARTICLE SECTION

1. Constitutional Underpinnings of aConcordial Society- Hon’ble Mr. Justice M.N. Venkatachaliah Former Chief Justice of India

2. Mediation : As a Technique for AlternativeDispute Resolution System- Ms. Kuljit Kaur Head, Department of Law Guru Nanak Dev University, Amritsar

3. The Constitution (Seventy-Fourth)Amendment Act, 1992; Protection andPromotion of Democracy (Local Self-Government), Rule of Law & Human Rights- Dr. J.S. Singh, Sr. Lecturer Faculty of Law, University of Allahabad

JUDGMENT SECTION

1. Case of Sampanis and Others v. Greece(Decided on 05.06.08 by the EuropeanCourt of Human Rights)- Ms. G.M. Padma Priya Advocate, High Court of Delhi

2. T.N. Godavaraman Thirumulpad v.Union of India (UOI) and Ors. AndIn Re: Vedanta Alumina Ltd.[Decided on 23.11.07 reported as(2008) 2 SCC 222]- Ms. G.M. Padma Priya Advocate, High Court of Delhi

POETRY SECTION

1. Baad-e-Saba- Shri Alok Agarwal, ACMM, Delhi

FUNCTION REPORT

PRESS CLIPPING SECTION

STATISTICAL INFORMATION SECTION

INDEXPage No.

Message By Smt. Renuka ChowdhuryHon’ble Minister of Women & Child Development

Message By Smt. Sheila DikshitHon’ble Chief Minister of Delhi

Message By Shri Yudhbir Singh DadwalCommissioner of Police, Delhi

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MESSAGE

I am happy to learn that Delhi Legal Services Authority is going topublish its Newsletter “Nyaya Kiran” (April - June, 2008 Issue). Thecontents of the newsletter highlighting different activities of Delhi LegalServices Authority for the promotion of legal awareness among themasses will definitely ensure legal aid to all and more particularly to theweaker sections of the society.

I convey my best wishes to the team of Delhi Legal Services Authorityand wish them all success.

(RENUKA CHOWDHURY)

RENUKA CHOWDHURYMinister of State (Independent Charge)Ministry of Women & Child Development

MESSAGE

It gives me immense pleasure to know that Delhi Legal ServiceAuthority is bringing out next issue of its newsletter “Nyaya Kiran”.

I do hope that the newsletter would highlight its activities to ensureLegal Aid to the weaker sections of the society and give an exhaustiveaccount of various programmes organised for the promotion of LegalAwareness among the masses.

My best wishes for successful publication of the newsletter.

(SHEILA DIKSHIT)

SHEILA DIKSHITChief MinisterGovt. of NCT of Delhi

MESSAGE

It is commendable that the Delhi Legal Services Authority is comingout with its next edition of newsletter “Nyaya Kiran” shortly. The yeomanservice rendered by the Authority in providing free legal aid to the weakersections of society is already common knowledge in the National CapitalTerritory of Delhi. The newsletter will go a long way in informing widersections of people about the activities of the Authority. It is hoped thatmore and more people will come forward to seek their help.

We in the Delhi Police are commited to extending every possibleassistance to the Delhi Legal Services Authority in their efforts to servethe needy.

I wish the publication a great success.

(YUDHBIR SINGH DADWAL)

YUDHBIR SINGH DADWALCommissioner of Police

Delhi

Nyaya Kiran April-June, 2008

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ARTICLE SECTION

The 21st Dr. Kailashnath Katju Memorial Annual Lecture

CONSTITUTIONAL UNDERPINNINGS OF ACONCORDIAL SOCIETY

Hon’ble Mr. Justice M.N. Venkatachaliah*

Dr. Kailashnath Katju: The Lawyer & Statesman

It is given to very few to distinguish themselves in various fields ofcreative endeavor and leave their indelible impress on contemporary lifeand times. Dr. Kailash Nath Katju is one such rare pilgrim. Born in 1887,he obtained the Degree of Doctor of Laws of the Allahabad University in1919. Basically and essentially a lawyer Dr. Katju was a multifacetedpersonality whose interests and abilities traveled far beyond the law. Anerudite lawyer and a skilful advocate, he commanded a huge practice atAllahabad. He was known to argue first appeals with voluminous paperbooks just for 15 minutes on the point he was certain about and sitdown, confident of success in spite of hours of arguing by the oppositecounsel. As an extraordinary gifted advocate he picked up the essentialsof the case and kept the non-essentials in their proper place. It is a markof the most distinguished talent born out of supreme self-confidence.

His forensic abilities were also utilized in the famous INA trial wherehe along with Bhulabhai Desai, Tej Bahadur Sapru and Jawaharlal Nehruamongst others defended the INA heroes.

After the general elections under the Government of India Act, 1935he became a Minister in the U.P. Provincial Government headed by PanditGovind Allah Pant. It is said that on his first day as Minister the ICSSecretaries suspicious and skeptical about the abilities of the Indiansand wanting to test and tease the new minister left a bundle of files onhis table without any notings on them. They were to be seen and orderedby the Minister. But they did not realize that Dr. Katju was a busy andexperienced Advocate for whom it was not a big task to wade through a

*Former Chief Justice of India


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bunch of appeal papers running to hundreds of papers overnight andsuccessfully argue the matter the next day. Dr. Katju went through thefiles placed before him, made his notings and passed clear and preciseorders on each of them. They were all returned the same afternoonmuch to the astonishment of the Officers who felt ashamed.

Such was the measure of the man who thereafter was a member ofthe Constituent Assembly, Governor of Orissa and West Bengal, UnionLaw Minister and then Union Home Minister succeeding Sardar Pateland Rajaji and thereafter Defence Minister. From 1957 to 1962 he wasthe Chief Minister of Madhya Pradesh. In all these positions he acquittedhimself creditably. Lawyer, freedom fighter, administrator, statesmanKatju’s place amongst the first rankers is secure. Many hands havetoiled in building the edifice of free India. Dr. K.N. Katju’s contribution tothis has been substantial and significant.

There have been and still are many political personalities of highcalibre and character. But then, the general run of the quality of humanmaterial in India’s public life is greatly disappointing. It is perhaps unfairto these lesser mortals to be held up to a comparison with great oneslike Dr. Katju. After the death of Abraham Lincoln, a political commentatorremarked “The era of giants is over. The political scene is peopled withCharlatans, quick-buck artistes and from the muddled mediocre to thedangerously deranged” to the contemporary scene in Indian public lifeapart from honorable exceptions, much different?

I am indeed privileged to be here today to deliver the “Dr. KailashNath Katju Memorial Lecture”, and share with you some thoughts on theConstitutional underpinnings of a Concordial Society and the greatprinciple of fraternity enshrined in the preamble to the constitution.

II

Constitution: Vehicle of Nation’s Progress

The Constitution of a country is its supreme law and is regarded asthe vehicle of a nation’s progress. The purpose of good government isto bring about the security, welfare and happiness of the people. Platoasks: “What do men organize themselves into society for?” and heanswers: “To give the members of the society, all the members, and thebest chance of realizing their best selves.” It is the very purpose of social


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organization. All ‘human beings incomplete in themselves seek theirordainment of fulfillment and destiny in the enriching human companyand that institutions of democracy provides the richest and the mostprofound opportunities of that mutual enrichment’. When the Constitutionmakers, the leadership of Nehru, made Republicanism as one of thebasic principles, it was described as the ‘biggest gamble in history’. Inthe fifties of the last Century western-press was greatly skeptical ofIndia’s experiment with universal adult-franchise and of the survival ofIndian democracy. But the American Time (13th August 2007) on theoccasion of 60 years of Indian Independence, saluted Indian democracythough it was described as the biggest and rowdiest. Someone elsehad described it as ‘Robust’ though ‘Chaotic’.

The product of the vision of the makers of the constitution representsa high watermark of consensus in our history. Consensus andaccommodation form a significant and integral part of Indian culture andcornerstone of our constitutional democracy.

‘Values’ said Learned Hand ‘are ultimate; they admit of no reductionbelow themselves’. So too are certain irreducible constitutional valueswhich underpin the survival and success of constitutional order and aconcordial society. What are these values? What are the tools foreffectuating them? The basic values of the Constitution are reflected inthe Preamble, The Fundamental Rights and the Directive Principleswhich along with the Charter of Fundamental Duties may be said toconstitute the conscience of the Constitution.” The Preamble to theConstitution is a declaration of our faith and belief in certain fundamentalsof national life, a standard from which we must not Depart and a resolvewhich must not be shaken.” The emotive words ‘Justice, Liberty, Equality,Fraternity’ open up a vast music of hope. They are words of passion andpower and may be said to be the spiritual pillars of the constitution.These concepts along with Constitutionalism. Democracy and the Ruleof Law are the bedrock on which a conflict free society rests. Peace isthe fruit of Justice; Justice is the greatest interest of man on earth – it iswhat cements the fabric of a secure society.

III

Fraternity

Democracy may be defined as the dwelling place which man hasbuilt for the spirit of liberty. Democracy has wider moral implications


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than mere majoritarianism. Democratic polity must have the architectureof an inclusive society. Democracy involves hardship and unceasingresponsibility of every citizen without whose participation and contributionthere can be no democracy in any meaningful sense.

Pluralist societies are the result of irreversible movements of History.Pluralism is not a mere transient vestige of a historical Condition but apermanent feature of the public culture of modern democracies. India,in particular, is such a typical pluralist society – a Model of unity in themosaic of diversities. Law is perhaps the great integrating force andrespects for law and its institutions the only Assurance that can hold apluralist nation together. The function of Law and the choice of legalpolicies in a pluralist society are by far the most fascinating challengesto our civilization. These challenges Appeal to the immutable values of ahigh social order. Man’s capacity for a human law and human justice isput to its ultimate test. The question is whether civilizations on earthhave the moral maturity to accept the human person as the unit andmeasure of all things.

As the Supreme Court said quoting Dr. Ambedkar in the ConstituentAssembly.. “….. Fraternity means a sense of common brotherhood ofall Indians. In a country like ours with so many disruptive forces ofregionalism, linguism and communalism, it is necessary to emphasizeand re-emphasize that the unity and integrity of India can be preservedonly by a spirit of brotherhood. India has one common citizenship andevery citizen should feel that he is Indian first irrespective of other basis.”

It is this spirit of brotherhood that the Preamble refers to and itsawareness and practice so very essential today. Art 1 of the UniversalDeclaration of Human Rights, 1948 says : “All human beings are bornfree and equal in dignity and rights. They are endowed with reason andconscience and should act towards one another in a spirit ofbrotherhood.”

Fraternity is a political and social and even more a moral objective.Fraternity is not expressly reflected in any Article of the Constitution andindeed no constitutional and legal provision can generate any brotherlyfeeling. The spirit of fraternity or concord is something that has to begenerated by men-by their attitude and behaviour towards one anotherand in their social concerns. Provisions of law, however can and do helpfoster such feeling.


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IV

Constitutional underpinnings of Fraternity

There are constitutional underpinnings that foster a concordial society.The purpose of law in plural societies, as Lord Scarman said, is not theprogressive assimilation of the minorities in the majoritarian milieu; it isnot to extinguish the different groups but to devise means – political,social and legal of preventing them from falling apart. A true democracyis surely one in which the existence of the power of the many is conditionalon upon for the rights of the few.

India is intended to be an indestructible union with the units havingno power of secession. The constitutional document is formidable withan internal architecture of its own.

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Dilemma of Democracy

Dr. Konrad Adenauer, the former Chancellor of West Germany,remarked that in creating man, God had hit upon a very poor compromise.If he had made man more intelligent, he would have known how to behave;if he had made man less intelligent, he would have been easier to govern.This remark neatly sums up the dilemma of democracy. ‘BrothersKarmazov’ speaks of this dilemma. Whether to give people freedomand risk revolt and rebellion or gave them opiate of entertainment, circusand fun. Democracy has enriched our lives as no other political philosophyto done; but we have taken this great miracle for granted.

No virtue is absolute. De Tocqueville made the profound observationthat liberty cannot stand alone but must be paired with a companionvirtue: liberty and morality; liberty and law; liberty and justice; liberty andcommon good; liberty and civic responsibility.

As Acharya Kripalani said in the Constituent Assembly

“What we have stated in this Preamble are not legal and politicalprinciples only. They are also great moral and spiritual principles and if Imay say so, they are my mystic principles. In fact these were not firstlegal and constitutional principles, instead they were really spiritual andmoral principles. If we look at history, we shall find that because the


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lawyers and politicians made their principles into legal and constitutionalform, their life and vitality was lost and is being lost even today.”

“If we want to use democracy as only a legal, constitutional andformal advice, we shall fail. The whole country should understand themoral, the spiritual and the mystic implications of the word ‘democracy’.”

It is apposite to recall Dr. Ambedkar’s concluding speech in theConstituent Assembly.....

“What does social democracy mean? It means a way to life whichrecognizes liberty, equality and fraternity as the principles of life. Theseprinciples – liberty, equality and fraternity – are not to be treated asseparate items in a trinity. They form a union, a trinity in the sense that todivorce one form the other is to defeat the very purpose of democracy.Liberty cannot be divorced from equality; equality cannot be divorcedfrom liberty. Nor can liberty and equality be divorced from fraternity.Without equality, liberty would produce the supremacy of the few overthe many. Equality without liberty would kill individual initiative. Withoutfraternity, liberty and equality could not become a natural course of things.”

VI

Need for the spirit of National Oneness

The greatest need of the hour is to generate and sustain a sense ofnational identity. We have innumerable northerners and southerners,Tamilians and Bengalis, Punjabis and Marathis, but very few Indians. Itis imperative that we think and act as Indians first. All differences have tobe resolved within the framework of one nation and one country.

Our greatest problem today is fundamentalism which is the triumphof the letter over the spirit. Human personality can bloom fully andhumanism can take deep roots and have its efflorescence only in aclimate where all display an attitude of tolerance and a spirit of moderationwhich Learned Hand defined as “the temper which does not press apartisan advantage to its bitter end; it can understand and appreciatethe other side and feels an unity between all citizens.” This is incontradistinction to the spirit of fanaticism which, according to GeorgeSantayana consists in “redoubling your effort when you have forgottenyour aim.” The survival of the Rule of Law and an egalitarian society


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depends upon habits of consent and compromise which are attributesof a cultivated political society.

The essence of all religions is Humanism and advancement of humanwelfare. From the dawn of civilization India has been home to a varietyof faiths and philosophies all of which have co-existed.

We have an unrivalled tradition of religious freedom and tolerance.The view was also echoed by Dr. Arnold Toynbee who felt that theharmony of all religions is the only way to our growth and the alternativeto destroying ourselves. India taught the world tolerance and shelteredthe persecuted and the refugees of all religions and all nations. Theworld has to remember and learn this lesson and practice it to ensureour survival. John Staurt Mill in his “Liberty” refers to the way the Parseeswere welcomed to the Indian shore. However today parochial tendenciesand narrow fanaticism based on region and language as also communalpassions of religion and caste, all motivated dominated by short termpolitics gains are cropping up. This is a very alarming situation and canbe a sure recipe for chaos and national disintegration. Sardar Patel hadopined in 1948 that history had taught the hard lesson that regional andlinguistic separation imperiled national solidarity and unity.

VII

Fostering Fraternity : Provisions in the Constitution

There are express provisions in the Constitution which are designedto promote fraternity. India is an indestructible union of States. It is afederation with a distinct unitary flavor which has been described bypolitical scientists and constitutionalists in different ways.

Dr. Ambedkar highlighted in the Constituent Assembly the significanceof the expression “Union.” “What is important is that the use of the word“Union” is deliberate. The Drafting Committee wanted to make it clearthat though India was to be a federation, the federation was not the resultof an agreement by the States to join in a federation. Not being the resultof an agreement, no State has the right to secede from it. The Federationis a Union because it is indestructible. Though the country and the peoplemay be divided into different States for convenience of administration,the country is one integral whole, its people a single people living undera single emporium derived from a single source.”


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Towards this end there is only a single common citizenship (Art 5)unlike other federal Constitutions like the U.S.A which provide for dualcitizenship. The question was whether there can be domicile in a Stateor only one domicile in the territory of India. In D.P. Joshi vs. M.B (AIR1955 SC 334) the majority held that in India there can be ‘a domicile in aState’ for purposes other than citizenship. This was in the context of therules for admission exempting bonafide residents from payment ofcapitation fee. But the pronouncement of the Supreme Court in PradeepJain vs. Union of India (AIR 1984 SC 1420) takes the view that there isonly one domicile, viz. the domicile of the territory of India and there is noseparate domicile for a State. While Seervai supports the judgment inJoshi’s case and is critical of the judgment in Pradeep Jain, Basu,however says that the heresy of regional domicile as enunciated inJoshi’s case has been rightly demolished in Pradeep Jain which,according to him, reflects the correct position in law.

Further every citizen has the right to move freely throughout theterritory of India, to reside and settle in any part of the country, to ownproperty and to carry on any trade or business or occupation. (cf Art19).There is no express provision conferring such rights in the AmericanConstitution. But these are read into and sought to be secured by the14th Amendment. The Universal Declaration of Human Rights alsoexpressly recognizes and provides for such rights. Art 301 of theconstitution provides for free trade, commerce and intercoursethroughout the country. Moreover while the State has no religion, libertyof thought, expression, faith, belief and worship is guaranteed and iseffectuated by the provisions of Arts 25-29.

All these provisions seek to remove barriers amongst people ofdifferent regions, religions, cultures and languages and to foster a spiritof fraternity which alone can ensure a conflict free society. These are allfacets of the inalienable human rights which are incorporated in varioushistorical documents like The United Nations Charter, 1945; The UniversalDeclaration of Human Rights, 1948; The European Convention for theProtection of Human Rights and Fundamental Freedoms, 1950; TheInternational Covenants on Civil and Political Rights and on Economic,Social and Cultural Rights, 1966; The American Convention on HumanRights, 1969, to which the States of South America are signatories.

Freedom of thought and expression and dissent which are allprovided for in Art 19(1) (a) is again an important constitutional value


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which underpins a free and harmonious society. It helps to cultivate thevirtue of tolerance. Justice Cardozo observed that the freedom of speechis the matrix, the indispensable condition of nearly every other form offreedom. It is the wellspring of civilization and without it liberty of thoughtwould shrivel.

Constitution 16th Amendment, 1963 is effective from 06.10.1963 inpoint. It introduced various constitutional provisions like the ground of‘sovereignty and integrity of India’ in the reasonable restriction clauseand the duty to uphold sovereignty and integrity of India in the oath ofoffice to be made and subscribed to various constitutional functionaries.This was pursuant to the recommendation of the Committee set up bythe National Integration Council and chaired by Sir C.P. RamaswamyIyer in the wake of divisive and secessionist tendencies and activities insome parts of the country. It is also significant to mention that after thisConstitution Amendment the DMK Party gave up its ideology of secessionin the amended its party constitution. DMK leader Dr. C.N. Annaduraidisplayed great statesmanship when he unequivocally declared that theDMK once and for all gave up the demand for Dravidanadu and henceforthsolidly and sincerely stood for the sovereignty and unity of India. By theConstitution 42nd Amendment the words ‘unity and integrity’ of the nationwere introduced in the Preamble. It is necessary that all political partiesand organizations incorporate in their respective constitutions andmanifestos that they would uphold and foster fraternity among all people.

“Fraternity” was added in the Preamble because it was even thenfelt “that the need for fraternal concord and goodwill in India was nevergreater than now and that the particular aim of the Constitution shouldbe emphasized by specific reference in the Preamble”. The relevanceis far greater now. There is also the prime need for maintaining the unityand integrity of the country without which individual liberty and humandignity may not be of much avail. And unity can be achieved only if thereis a spirit of brotherhood among various sections of the people. All theseobjectives are therefore inter related and inter dependent and helppromote and foster one another. Economic and social inequalities rupturethe fabric of even society. Public goods such as education, health-care,human-security are not the rewards of economic development. Theyare not social gains of economic reforms; but are indeed economicgains of social reform. Fraternity makes economic good-sense too. Thisis true insurance for the good health of free-market economy.


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Tolerance of the beliefs, views and practices of others is imperativefor a harmonious living and a concordial society. Be it a religiousprocession or the screening of a film or the expression of a view point inspeech or writing must all have some space in our society. Nothing canbe put in straight-jacket or dictated.

“The best test of truth is the power of thought to get itself accepted inthe competition of the market.” This freedom includes not only freedomfor the thought we like but also freedom for the thought we hate. It is onlythus can a people grow and a society be cordial and conflict free. It issaid that to doubt one’s own first principles is the hall mark of a civilizedman.

Intolerance, however, has not been wanting here or in other parts ofthe world and it takes various forms. Religious persecution has not beenuncommon. There was no separation between the Church and the State.Scientists were condemned and punished by the Church for assertingthat the earth goes round the sun. There were times in which Europeindulged in religious massacres e.g. The St. Bartholomew Day massacrein 1572 of Protestants, (called Huguenots) in France by the Catholics,the burning at the stake of Protestants, the massacre by the for theirresistance to Rome and the burning at the stake of Jews during theSpanish Inquisition. We may also mention the days of Cromwell, andthe mutual massacre of Catholics and Protestants in Germany duringthe thirty year war from 1618 to 1648. Reference may also be made tothe strict observance of the Sabath by the Puritans in the 17th centuryand intolerance of anything inconsistent with such observance. Thecontrasting tones of tolerance is reflected, for instance, in the Firmanissued Akbar notifying 12 days of the month of Badharva including 8days of the Paryushan as the period of abstinence during which no livingcreature would be slaughtered. Jawaharlal Nehru in ‘Discovery of India’says ‘Akbar’ success is astonishing for he created a sense of onenessamong the diverse elements.

We must also take note of the secularization of law and politics. Itmust be stated that the movement of political institutions and the legalsystems has been from the religious to the secular and in that course ithas absorbed good things from outside. The separation of the Churchfrom the State was achieved earlier in Europe and in the US later. In1844 the US Supreme Court declared that Christian religion is part ofthe common law and in 1892 the Court said that the USA is a Christian


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nation. The case State vs. John T. Scope in the 1920s severed the linkbetween Law and Christianity of Hindu personal law especially in themid 20th century has indeed been an amazing feet of reform. Personallaw of the Hindu showed the resistance of transformation from thedogmatic to the retread.

The Indian tradition of tolerance has been adverted to in variousjudgments. To quote Chief Justice S.R. Das in Re: the Kerala EducationBill : “……….. Throughout the ages, endless inundations of men ofdiverse creeds, cultures and races – Aryans and non Aryans, Dravidians,Chinese, Scythians, Huns, Pathans and Mughals have come to thisancient land from distant regions and climes. India has welcomed themall. They have met and gathered, given and taken and got mingled,merged and lost in one body. India’s tradition has thus been epitomizedin the following noble lines:

‘None shall be turned awayFrom the shore of this vast sea of humanity

That is India.’ Further in 1986 the Supreme Court said: “Our traditionteaches tolerance; our philosophy preaches tolerance; let us not dilute it”.

To quote Granville Austin: A Constitution, however living is inert. Itdoes not work. It is worked – worked by human beings whose conduct itmay shape whose energies it may canalize, but whose character itcannot improve and whose tasks it cannot perform.

The Supreme Court’s observations in its recent judgment in the caseof Himsa Virodhak Sangh (JT 2008(3) 421): ‘ These days unfortunatelysome people seem to be perpetually on a short fuse, and are willing toprotest often violently, about anything under the sun on the ground that abook or painting or film etc. has “hurt the sentiments” of their community.“These are dangerous tendencies and must be curbed. We are onenation and must respect each other and should have tolerance”.

VIII

Human Rights : The New Civilization

Human Rights, Democracy, Rule of Law, Pluralism are indivisible.These are the common heritage of mankind. The issue of individualrights which was basically a question between the inhabitants of a nation


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State and that State is now a concern of a citizen of the world against allarbitrary authority to be dealt with in the light of international charters. Sois the concept and concern of democracy and its institutions which gobeyond national boundaries. “Right knows no boundaries, and justiceno frontiers; the brotherhood of man is not a domestic institution.”

Accomodation is an attitude which has been described as the: “…..most notable characteristics in every field of Indian activity ….. is theconstant attempt to reconcile conflicting views or actions, to discover aworkable compromise, to avoid seeing the human situation in terms ofall black or all white……As India’s philosopher President SarvapalliRadhakrishnan has put it : Why look at things in terms of this or that?Why not try to have both this and that?”

Amartya Sen in his ‘Argumentative Indian’ speaks of the large traditionof heterodoxy in India. He says, heterodoxy “has a bearing not only onthe development and survival of democracy in India, it has also richlycontributed, I would argue, to the emergence of secularism in India, andeven to the form that Indian secularism takes, which is not exactly thesame as the way secularism is defined in parts of the West”. Dissentand heterodoxy” he observes “run through out the early documents, andeven the ancient epic Ramayana, which contains dissenting characters’.

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Role of Judiciary : Foundations of Judicial Review

In a constitutional democracy wedded to and governed by the rule oflaw, responsibilities of the judiciary arouse great expectations. JusticeFrankfurter remarked : “It is not a printed finality, but a dynamic process.Its applications to the actualities of Government is not a mechanicalexercise, but a high function of statecraft.”

The constitutional adjudications have the urgent task of defining orredefining from time to time the basic constitutional concepts in achanging and disparate world. Judicial policy is directed to themanagement within the constitutional parameters of the apparentconflicts in society. The exercise of democratic power on the one handand legal control of government on the other, pose seeminglyirreconcilable positions.


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It is said that an unfailing index to the maturity of a democracy is thedegree of its respect for the unwritten conventions. The silences of aconstitution are eloquent and they are constitutional device forming partof an advanced constitutional culture.

The measure of success in achieving all this may be regarded asthe measure of success of the working of the Constitution and inpromoting and sustaining constitutionalism. The role of the judiciary inprotecting individual rights and freedoms and promoting constitutionalvalues is not discretionary but obligatory.

Judicial Review essentially has its foundations in common law. Theearliest echoes of the power of Judicial review can be heard in thejudgment of Chief Justice Coke in Dr. Bonham’s case (1610) whereinhe said that the common law would control Acts of Parliament and aCourt could declare an Act of Parliament void if it was against ‘commonright and reason’. Edwin Corwin in his paper ‘The Higher Law Backgroundof American Constitutional Law’ Harward Law Review, XLII (1928-29)149 explains the great contribution of the common law tradition to theultimate development of judicial review in America. The dictum inBonham’s case became in Corwin’s words, “the most important singlesource of the notion of judicial review.” The principle is that all laws areto be tested on the touchstone of a higher law which in earlier termswas the Natural Law and the Common Law and whose role is todayordinarily filed by a constitutional document. The idea of a judicial reviewis anterior to the notion of a written Constitution.

In 1798 in Calder v Bull, Justice Samuel Chase drew support fromthe principles of higher law and judicial review to enforce extraconstitutional limitations on legislative power. And then in Marbury v.Madison, Chief Justice Marshall said : It is the duty of courts whenconfronted with a conflict between an act (i.e., a statute) of the mereagents of the people (i.e. of the ordinary legislature) and the act of thepeople themselves (to wit, the Constitution), to prefer the latter.

Today in countries with a written Constitution and an entrenched Billof Rights what obtains is Constitutional supremacy – a government ofenumerated powers with the judiciary constituted as the guardian of theConstitution and the arbiter of the function of all organs as granteesunder the Constitution. It is for the Court to uphold the constitutionalvalues and enforce the constitutional limitations. To ensure constitutional


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governance is of when executive power is part, therefore, part of theduty and function of the judiciary. In that sense judicial activism properlyunderstood is a duty, not an intrusion. The responsibility of accomplishingthe salutary goal of translating the constitutional promise into reality inmany spheres can not be outside the court’s purview as long as it doesnot degenerate with private benevolence and an amorphous generalsupervision of the executive government.

A recent, interesting and incisive discussion a Judicial Activism inthe House of Lords : a Composite Constitutionalist Approach by MargitCohn (2007) P.L.95. measures judicial activism against the backdrop ofdifferent functions of the judiciary and it is argued that activism shouldbe traced to the institutional role of the judicial branch. Constitutionalistsvalue judicial participation as an essential component of a full blownconstitutional democracy. There is a matrix of social and political forcesthat influence both the making of a judicial decision and its actual impactand effect on society. As the courts are entrusted with the role of protectionof essential constitutional values, activism is assessed against the valuethe courts are deemed to protect. When core values are endangeredjudicial protection of these values is an exercise of the legitimate andessential role entrusted to the judiciary.

There is the criticism that judicial activism is a slippery slope andmay mean the Court’s propensity to intervene in the governing process.However Dean Eugene Rostow says:

When the judges are carrying out the function of judicial review thefinal responsibility of the people is appropriately guaranteed by theprovisions for amendment of the constitution itself and the benigninfluence of time which changes the personnel of the Court. Given thepossibility of Constitutional amendments there is nothing undemocraticin having responsible and independent judges act as importantConstitutional mediators.”

(The Democratic Character of Judicial Review, (1952) 66, Harvard Law Review, 193).

It is inevitable that the legislatures tend primarily to reflect immediateinterests. But it is important and essential that long term interests andvalues be given due consideration. Until the legislature do so, the judiciaryseem to inherit the assignment by default; and if the assignment isjudiciously performed in the manner indicated by great judges, “The Court


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can be regarded,” to quote Robert McCloseky, “not as an adversary, butas an auxiliary to democracy.” Or as Justice Mathew put it, paradoxicalthough it might appear, the judiciary is both an ally of majoritarianismand its critic and censor.

‘Far from being antithetical, judicial review is essential to the promiseand performance of free government.’

Upholding constitutional principles and enforcing fundamentalfreedoms requires a robust activist approach. But it is important that inthis exercise a judge’s personal predilections and prejudices are noterected into constitutional principles. Judicial restraint is compelled notbecause of the lack of power but more because of want of judiciallymanageable standards and relative institutional competence. Theexpanding horizons of judicial review call for judicial statesmanship anda fine balance between activism and legitimacy. The ‘principal source oflegitimacy of the judicial process said Archbold Cox is the all importantbut fragile faith that courts apply to current legal problems andconstitutional controversies a continuing body of law’. A judge’s decisionmust bear out that ‘he began from recognized legal principles andreasoned in an intellectually coherent and politically neutral way to hisresult.’

The decision of a court must be a principled one, the court cannotbe functioning as a naked power organ. A principled decision is onewhich “rests on reasons with respect to all the issue in the case, reasonsthat in their generality and neutrality transcend any immediate result thatis involved. When no sufficient reasons of this kind are forthcoming foroverturning the value choices of the other branches of government orState, their value choices must survive.”

(vide Herbert Weschsler : Towards Neutral Principles of ConstitutionalLaw ((1959)73 Harvard Law Review 1)

Judicial review is a potent weapon but the judge should know hisown limitations and the limitations of the judicial process and that thelaw cannot offer relief from the ‘heartache and thousand natural shocksthat flesh is heir to.”

As Chief Justice Aharon Barak said : “Protecting the constitutionrequires balancing the different values ….It requires balancing between


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the principle of majority rule and values which even the majority may notundermine; between the needs of the collective and individual rights,between the rights of one individual and those of another. A Judge mustprotect and maintain this delicate balance, something which requiressome measure of activism and some measure of self-restraint”.

A passage from Basu’s Tagore Law Lectures appears apposite inthe context

“……how powerful and, therefore, onerous is the engine of JudicialReview at the hands of Judges of superior Courts and what depth ofknowledge and faith in Constitutionalism is indispensable for workingthat engine….it would be profitable for all of us to recollect whatBlackstone, himself a Judge of the superior Court, said over 200 yearsago, “Should a judge in the most subordinate jurisdiction be deficient inthe knowledge of the law, it would reflect infinite contempt upon himselfand disgrace upon those who employ him. And yet the consequence ofhis ignorance is very trifling and small : his judgement may be examined,and his errors rectified by other courts. But how much more seriousand affecting is the case of a superior judge, if without any skill in thelaws he will boldly venture to decide a question upon which the welfareand subsistence may depend …….where, if he chances to judge wrong,he does an injury of the most alarming nature, an injury without possibilityof redress.” It may be added that in the sphere of Constitutional Lawuninitiated decisions are likely…..to bring ……loss of confidence inJudicial Review, may, in the Constitution itself, upon which rests the lifeand breath of the Nation.

X

EPILOGUE

Learned Hand says that it is difficult to answer how the spirit ofmoderation and tolerance and faith in the sacredness of the individualare bred and fostered. They are the last flowers of civilization, delicateand easily overrun by the weeds of our sinful human nature…….Theymust have the vigour to withstand the winds and weather of an indifferentand ruthless world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field,


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into the market place, into the factory, into the council room, into theirhomes, they cannot be imposed, they must be lived…..They are thefruit of the wisdom that comes of trial and a pure heart.

Equally telling are the wise words of Justice Frankfurter:

“…..The tendency of focusing on constitutionality is to makeconstitutionality synonymous with wisdom…..Such an attitude is a greatenemy of liberalism. Particularly in legislation affecting freedom of thoughtand freedom of speech, much which will offend a free-spirited society isconstitutional. Reliance for the most precious interests of civilization,therefore, must be found outside of them vindication in courts of law.Only a persistent positive translation of the faith of a free society into theconvictions and habits and action of a community is the ultimate relianceagainst unabated temptations to fetter the human spirit.... suchtemptations will have their way, if fear and hatred are not exercised....Without open minds there can be no open society. And if society be notopen the spirit of man is mutilated and becomes enslaved. “

As Seervai says – a fair and even handed executive administrationcan do more to promote fraternity than any constitutional or legalprovision.

Governance is the key mechanism for translation of constitutionalexpectation into reality. A ‘sick administration’ which suffers ‘organizationaldropsy’ will be a poor vehicle for translating human rights phrase intoreality. Democratic governance and human development have anintimate inter relationship. Good governance is the largest input in thefight poverty. Participatory decisions are at the heart of humandevelopment.

The idea of India comprises many facets. Indian civilization isunderpinned by certain eternal and enduring verities. India must believein herself and set a trial blazing humanism in development pattern. Thesingle most important legacy of ancient India is the tradition of tolerance,respect for diversities, accommodation of pluralism and reverence oflife. This is our lesson of humanism which should continue to be realand achieved through the medium of constitutionalism.

Einstein once said: “The world is a dangerous place not because ofthose who do evil but because of those who look on and do nothing.”The alternative to tolerance and peaceful co-existence is chaos and


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catastrophe. It is a lesson that mankind has not yet learnt but which itcannot afford to forget. There is no doubt that a race weary of its ownbloodshed and divisiveness will ultimately have to grope its way to asystem which offers the only chance for happy survival and that surelyis the confluence of constitutionalism and humanism-to endeavor tousher in a freer and fairer world, a lasting foundation for any constitutionalorder.

These are issues and concerns that call for an active debate anddiscourse by the people at large. That would be a fitting tribute to the lifeand work of men like Dr. K. N. Katju.

“When in any field of human observation, two truths appear to conflict,it is wiser to assume that neither is exclusive and that their contradiction,though hard to bear, is part of the mystery of things.” (Literature andDogma, Times Literary Supplement (London) Jan 22 1954, 51).

Thank you for Patience.

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MEDIATION: AS A TECHNIQUE FORALTERNATIVE DISPUTE RESOLUTION SYSTEM

Ms. Kuljit Kaur*

INTRODUCTION

‘A diplomat is a person who can tell you to go to hell in such a waythat you actually look forward to the trip’.

Caskio Stinnett

“Like old clocks, our judicial institutions need to be oiled, wound upand set to true time”. These words of lord wolf Chief Justice of Englandthough were said years ago are but apply completely in the presentscenario when times are changing fast and the system has to be set totrue time.

Over the years, more cases have accumulated in our courts thanour courts can decide within reasonable time. The litigant whose caseis not worth a contest has developed a mind-set that there is nothingwrong in delaying justice, either by compelling the other party to go to acourt of law or by himself moving the Court and keeping the issuesubjudice. The litigant is today fairly sure that justice to his opponent,even if it cannot be denied ultimately, can be delayed as long as possible,may be for years. Unfortunately, successive Governments haveneglected the judiciary. The number of Courts have not increased atleast upto a basic minimum requirement and everybody finds it easy toblame the judiciary for the backlog. The judiciary is no doubt accountable,but there are other players who control the purse. It has been rightlysaid that the judiciary has neither the purse nor the sword.

The problem of overcrowding of dockets is not peculiar to our countrynor is peculiar to our times. Such problems have been and are faced byalmost every country in the world. Necessity became the mother ofinvention in several countries. Hence Alternative Dispute Mechanismswere evolved and adopted, initially, there has been some resistancefrom the Bar. Judges, known for their conservatism, as usual, were alsosomewhat lukewarm in their approach to ADRs in the beginning.

* Head, Department of Law, Guru Nanak Dev University, Amritsar.


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The Indian civil justice system features a civil service of courtadministrators, an independent judiciary, a rich supply of professionallegal talent and a modern procedural code. However, the system alsoexhibits a general failure to manage effectively the dispute resolutionprocesses of a democratic, socially diverse and newly market-orientedsociety1. Specifically, inefficient court administration systems, excessivejudicial passivity in an adversarial legal process, and severely limitedalternatives to a protracted and discontinuous full trial frustrate severallimited alternatives to a protracted and discontinuous full trial frustrateseveral goals of the adversarial process itself. Inefficiency in courtadministration denies timely access to legal dispositions. Excessive partycontrol places those seeking legal redress in an unequal position becauserespondents can abuse and delay the resolution procedures withimpunity. Finally, the unavailability of alternatives to litigation clogs thesystem. Many cases awaiting judgment are no longer contentious andlong-awaited judgments are often difficult to enforce.

The typical life span of a civil litigation presents a sad picture. Recordsof new filings are kept by hand and documents filed in the courthouseare frequently misplaced or lost among other papers. Lawyers crowdthe courtroom and wait for their cases to be called. Even when called,judicial attention is frequently deferred by innumerable adjournments:the witness is not available, the party is not present, the lawyer has notarrived, or a document is not yet available. When the case is heard, aJudge orally summarizes testimony for a court reporter. There is littlelikelihood that this Judge will be the same one to issue a decision becauseJudges are transferred more quickly than legal depositions are made.

Streamlining procedures which enable the Judge to frame the issuesare rarely effectuated. Likewise, sanction power to impose costs forfrivolous conduct is seldom exercised. Interim injunctive relief is routinelygranted, but long delays in hearing the contentions of those enjoinedpersist. Commonly made interlocutory appeals fracture the case intomany parts and effectively stay the trial. The absence of alternatives tolitigation makes a full, discontinous trial necessary, regardless to howlong a full trial may take. Once a judgment is reached, the truly hardwork of enforcement and execution begins. These compoundingproblems engender despair among pessimists and overwhelm evendedicated optimists, while public tolerance appears to be waning. As adaunting symptom and aggravating cause of these problems,widespread and profound backlog and delay currently undermine the


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fundamental priorities of a law-based society. Backlog and delay in theresolution of civil disputes in India erode public trust and confidence inlegal institutions, and act as significant barriers to India’s chosen path tosocial justice and economic development. The inability to enter final legaldecisions within a reasonable time renders state action functionallyimmune, turns obligations to perform contractual duties into effectiverights to breach with impunity and devalues remedies eventually provided.In sum, the inability to resolve disputes in a timely manner evisceratespublic and private rights and obligations.2

India is not alone in such a condition; backlog and delay plague awide variety of legal systems. Nor is this problem new. Therefore, backlogand delay have been political and economic implications for Indian society.If India fails to face and meet these challenges, it will not be able torealize fully its legal commitment to democratic and liberal economicpolicies. All Agree that this crisis calls for the careful adaptation ofworkable solutions.3

The closing years of the 20th century witnessed a significant changeall over the world towards resolving the problems of disputants.Alternativedispute methods were found to be a good substitute for the conventionaljudicial adjudication. Most countries have accepted arbitration,conciliation and mediation as the best ADR techniques for resolution ofcivil disputes, particularly those relating to money suits, injunction, specificperformance of contracts and suits involving commercial transactions.In the Indian context, if money suits and claims pertaining to propertyrights are referred to arbitration or conciliation, it would reduce the filesof the various Courts by about 50 percent. The Arbitration4 andConciliation Act, 1996 also contains provisions relating to conciliation incontractual matters arising out of legal relationship.

The globalisation of economy and competitive market policy haswitnessed a tremendous increase in trade, commerce and industriesas a result of which disputes relating to commercial transactions andbusiness have increased in large proportion. The business communityand the industrial entrepreneurs cannot afford to indulge in protractedlitigation and therefore, prefer to get their disputes resolved through ADRrather than moving a Civil Court for justice. Disputants want expeditiousdisposition of their cases and innovation of ADR methods has proved aboon to the disputants in civil matters.


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TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION SYSTEM

There are various techniques of the ‘ADR’ system. The main objectof the alternative dispute resolution system is to avoid litigation and settledispute, which has arisen, it has to be settled outside the courtroom bywhich they save time and cost. The various methods of ‘ADRS’ are:

1. Negotiation

Negotiation is the most obvious way of resolving disputes withoutthe need for court intervention. Negotiation is effective if the parties areparties are prepared to cooperate with each other and can agree theissues in dispute. It is most successful where there are externalconstraints placed on the parties, such as costs, lack of time andresources to resolve the disputes. However, negotiation alone as ameans of resolving disputes may not work if the parties have poornegotiation skills, unrealistic expectations of the outcome or where thereis a power imbalance the parties as is often the case between a bankand a debtor.

2. Arbitration

Arbitration is the process by which parties by agreement refer theirdispute to an impartial their person or panel, selected by the parties togive a decision on their dispute. The decision or award, although theresult of a private agreement, may be recognized and enforced by legalproceedings in the national courts where enforcement is sought.

Whilst arbitration and mediation have a number of features incommon such as relative informality where compared to litigation, privacyand ability to choose the mediator or arbitrator, the main featuredistinguishing arbitration from the mediation is the adjucdicatory natureof the arbitration. However, some matters are non arbitrable or difficultto arbitrate and certain matters are may be subject to restriction or acomplete ban. Depending on the circumstances arbitration can beexpensive, particularly institutional arbitration and the procedure agreedupon by the parties may be just as lengthy as litigation.

3. Adjudication

Adjudication is the process whereby the disputants or theirrepresentatives present proofs and reasoned arguments to a third party


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who is to find the facts and apply an external, normative standard (law)to determine the winner and the looser. The adjudication process iscompetitive method. It results in the zero sum outcome (one wins at theexpenses of the other). It is the formal, elaborate and expensive.

4. Expert Determination

Expert determination is the process where the parties appoint anexpert to consider their issues and to make a binding decision andappraisal without necessarily having to conduct an enquiry followingadjudicatory rules.

5. Private Judging

Private judging is the process where the court refers the case to areference chosen by the parties to decide some or all of the issues, orto establish a specific fact.

MEDIATION: Its concept

“…Both were happy with the result, and both rose in publicestimation… I realized that the true function of a lawyer was to uniteparties riven asunder. The lesson was no indelibly burnt into me thata large party of my time during the twenty years of my practice as alawyer was occupied in bringing out private compromises of hundredsof cases. I lost nothing thereby –not even money; certainly not mysoul.”

Mahatma Gandhi5

An evaluation of the usefulness of mediation in light of core objectivespresupposes an awareness of what it is and the specific value it offers.Futhermore, an effective adaptation of mediation to a set of new conditionsfirst counsels separate treatment of a wide variety of features clusteredunder the mediation rubric. Separate treatment of these processes andtechniques underlines the view that many, if not all, of these features areseverable from the rest. Severability allows for more creative designsand experiments to overcome problems encountered in the applicationof mediation to legal disputes.

Mediation can be described as a search for a consensual solutionfor a dispute through negotiation with the help of a third party facilitator.


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Certain values govern the approach to the exercise of mediation. Mediatoris only a facilitator. He is not an adjudicator. He does not deliverjudgements. He does not indulge in apportioning blame on either party.He does not look backward. The focus is not on the past events. Hisagenda is only to promote the prospects of a settlement by developingoptions. The exercise is participatory in character. Parties involvethemselves in the mutual give and take which is essence of negotiation.Negotiation involves exchange of information before bargainingcommences. Information improves access to justice. Bargaining is aprocess of exchange of demands or offers for counter demands orcounter offers. The needs of both are in focus. To win at the expense ofthe party is exploitation and it is not the objective of mediation. The ethicsof challenge which informs the adversarial proceedings in court litigationis totally eschewed in mediation. Often creative bargaining in mediationenlarges the pool and enables the parties to achieve satisfaction. Themediator may identify alternatives and move the parties in the directionof a solution when they are stalled. He is, in short, a catalyst. He doesnot dictate solutions. He does not even pressurize the parties to preferconciliations to conflict. That is a value which the parties have to bring tothe negotiating table. Otherwise, mediation would be a non-starter.

The development of the mediation in India holds enormous promise.In particular, the neutralizing communication skills and powerfulbargaining strategies of facilitated negotiation can strengthen thesystem’s capacity to bring justice to the society. Despite thedemonstrable value of these techniques, however, several largeobstacles block the path to mediation in India.

Finally, notwithstanding these obstacles, a series of short-termincentives (judicial evaluation schemes, lawyer compensationmethodologies, litigants in defense of dispute resources) further motivateresistance to mediation, thus producing a social dilemma in which criticalactors view their professional or personal, short-term interests aspotentially inconsistent with the system’s long-term objectives. In makingcritical choices on how best to navigate around these obstacles, issues,and tradeoffs, the country (through this national conference and manyother similar regional and local encounters) is engaged in a set of nationaldeliberations that seek to resolve conflicting views and positions onmediation within the Indian justice system. The debate over mediation inIndia, therefore, simultaneously engages legal actors at two levels:


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mediation of specific legal conflicts and mediation of system-wideconflicts over the shape, scope, and timing of mediation reform itself.

MEDIATION: As a Technique

I. STRUCTURE OF THE MEDIATION PROCESS

As currently practiced in much of the world, mediation exhibits severaldefinable stages. The structure creates an efficient convention formediation and parties to follow in multiple iterations; however, adjustmentsmay be desirable, indeed even necessary in many cases. Mediation inIndia, for example, report the frequent need to conduct mediation in aseries of shorter sessions. Nonetheless, it may be useful to outline themajor stages of the mediation process: preparation, introduction, jointsessions; private caucusing; and the agreement phase:6

(i) Preparation

In the preparation phase, the mediator, is selected (whether by thecourt as part of an annexed process from a panel of eligible neutrals, orby the parties themselves in a private mediation). In the absence ofstatutory rules that govern the confidentiality of the mediation processor in the event of a private mediation in which the neutral is compensated,a mediation agreement must be negotiated. Provisions may include thetime, place and duration of the mediation, as well as the terms of theneutral’s engagement. In some mediations, the parties prepare shortstatements or memoranda or supply key documents to the mediator tosave time by acquainting the neutral with the case.

(ii) Introduction

In the first session, the mediator attempts to set a positive tone,relaxed atmosphere, basic structure and ground rules for the mediation.The neutral often begins with a self-introduction of mediation experienceand credentials. The parties and lawyers introduce themselves. Themediator then explains the process, the limited role of the neutral, explainsthe restrictions of confidentially, disposes of any administrative mattersand solicits questions from the parties before proceeding.


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(iii) Joint Sessions

The joint session focuses on input from the parties (and theirattorneys) on the nature of the dispute and attempts to explore anyearly avenues for settlement. Parties usually tell their stories (and maybe listening to one another for the first time since the conflict erupted).The lawyers may discuss how they see the case from a positional pointof view. The mediator may use several communication techniques(reframing agenda setting) to confirm comprehension of the factual andlegal background and the emotional postures of the parties. Unless thecase can be settled in the joint session the mediator will ask the partieswhether they would be willing to go into private caucuses.

(iv) Private Caucuses

In the private caucus, the mediator is often able to gain a deeperunderstanding of the problem. The parties are freer to discuss theirviews candidly, sharing information they would not convey to the otherlitigants, acknowledging weaknesses in their legal positions, identifyingand prioritizing their interests, and exploring settlement options that wouldbe difficult to discuss directly with the other party). Mediators may alsouse ATNA (alternative to a negotiated agreement) strategies to conducta form of reality testing and to achieve a more rational perspective onthe resolution of the conflict.

(v) Agreement

Assuming the parties have reached an agreement in either privateor subsequent joint sessions, the mediator will transition into theagreement phase. The terms of settlement will be articulated and furtherclarified. The mediator will facilitate the drafting of the agreement, ifnecessary, as well as efforts to transfer consideration and dismiss claimssimultaneously, thus minimizing the low risk of non-compliance with theconsensual agreement. The mediator may also be interested in remaininginformed about any necessary future exchanges as part of a settlement,e.g. transfers of custodial children from one spouse to another.

II. NEGOTIATION TECHNIQUES

Negotiation is exercise of pressure from positions of power. Whenthere is disparity in power between the parties, negotiations are notmeaningful. Not fair. Unequal negotiations can never achieve a fair


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settlement. That is the reason why the mediator looks upon it as one ofhis duties to annul the disparity before it taint the result. The mediatorshould be able to identify the views and values of the conflicting parties,if he is to fruitfully assist them in the negotiations. He cannot do this, ifhe is not to enrich the effort with his own values. A sterile approach isbond to be futile. It will rule out sensitivity on the part of the mediator. Butthe mediator has to caution himself against allowing his own viewsblocking the search for other solutions agreeable to the parties. He hasto be sensitive to the preference of the parties.

Example : A 15 year old boy, studying in tenth standard in a localschool, earned a few rupees by distributing a daily newspaper in theearly hours of the morning. His employer acquired the agency of a weekly.He wanted the employee to distribute the weekly in the afternoon hours.The student-employee was averse to it, as it would clash with his schoolhours. But he badly needed the additional coins that it would bring his ashe was very poor. Yet, he did not want to give up his schooling. Hesought the help of the mediator as the employee threatened to discontinuehis services and engage another young man who would be able to sparethe requisite afternoon hours. Right to enhance the quality of life is partof right to life, a constitutional value. If the contractual obligations can beadjusted in such a way as to avoid a clash with a constitutional value,mediation should facilitate it, unlike a strictly legalistic approach. Flexibilityis the strength of mediation. It is the task of the mediator to sensitize theemployer to these dimensions. Such values must inform and enrich allinterpersonal relationships.

The employer took an attitude before the mediator as though he wasasked to do charity by adjusting his hours of work to suit the employee’sneeds. “I pay and he has to deliver his services as I stipulate”, he told themediator. In such a context, the mediator painstakingly explained to theparties how right to education is human right. It has to be honoured inthe employer-employee relationship also. Here the employee helpedhimself to find the means to attend the school. It would suffice if theemployer avoided frustrating the commendable self-reliance of theemployee. In doing this, the mediator sensed the ambition of the youthas regards his future and set out to assist him in realizing it. The mediatorcannot be faulted on this account. He was only bringing to bear on hisefforts a value cherished by the society. The employer agrees to try toaccommodate, as an experiment for a couple of months. Then, heconfirmed it.7


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In mediation, the mediator cannot and should not isolate himselffrom any reciprocity in relationship with the disputants. It is triangularengagement, the disputants on either side and the mediator. The mediatoris a fellow experience of the emotions hopes and frustrations that theparticipants are exposed to.

III. THE VALUE OF NEUTRALISING COMMUNICATIONS SKILLS

Beyond the negotiation techniques employed by an effective mediator,several communication techniques are useful tools of facilitation. As innegotiation strategies, none is a sure-fire way to settle a dispute; however,each one alone has the ability to bring the parties further together byneutralizing the emotionally harsh and irrationally exaggerated behaviourand perspectives of the parties and to transform the frequently self-defeating aspects of their conflict (particularly where they have an interestin preserving or enhancing a relationship) into a mutually beneficialsettlement.8

1. Establishing Joint Communication

Mediations reestablish joint communication between the parties inthree significant ways. First, particularly in private mediation, the partiesmay have to communicate about logistics for the mediation itself (e.g.timing, exchange of documents, confidentiality agreements, etc.)Second, the mediator brings the parties together and in the first jointsession, they hear from one another their varied points of view (andoften those of their attorneys). Third, as the mediator moves from privatecaucusing into the settlement or agreement phase, the parties frequentlybegin to speak directly to one another. Joint communication of eachvaried kind is obviously no guarantee to settlement; however, this onefactor may be key to bringing parties together where resistance tocommunicating with one another further escalates the conflict. Example:A lawyer from Hyderabad relayed a story about a married couple engagedin a serious conflict. The husband had decided to donate one of hiskidneys to his mother, without having consulted with his wife. The wife,who had no substantive disagreement with his decision, was offendedby her husband’s failure to confer in advance of such an importantdecision. The couple grew estranged and could not speak to one anotheras a result of the conflict. A family lawyer asked them to come to hishouse. He placed them in a room together and then abruptly left. Thecouple sat silent for a long time, then began to yell at each other, and


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after some time began to talk (and listen). Finally, they were able toovercome their conflict. This was no mediation. The lawyer only facilitatedthe meeting of the couple, their joint presence, short of communication,which only came later. However, this anecdote shows that even theestablishment of a meeting (nothing more) can help bring parties togetherto resolve their disagreements.

2. Establishing Tone

An effective mediator establishes a positive tone and environmentconducive to settlement by behavior in a professional confident,purposeful, open, constructive, and socially engaging manner. By settingan example, the mediator may encourage through body language andemotional tones the kind of behavior expected in session. Again, thiscan have a neutralizing impact on the more negative, insecure, close-minded, destructive, and resistant behavior frequently encountered inadversaries.

3. Active Listening

Both as a necessary tool for effective facilitation and as a way ofacknowledging the viewpoints of each side, active listening is an essentialquality of a good mediator. It allows for a more accurate comprehensionof the dispute, the ability to distinguish dispositive or helpful fromirrelevant or unhelpful comments, positions from interests, less importantsinterests from higher priority ones. Again, active listening also signals tothe parties that what they have to say is important, and that can encouragethe parties to listen actively to one another as well.

4. Acknowledgment

Acknowledgment is one of the most important communication skillsin effective mediation. Acknowledgment may be the most critical meansto breaking the vicious cycle of human conflict. To acknowledge theviews of one party or another is not express any judgment (either positiveor negative) but to register that the view has been heard and understood.Acknowledgment of one party by another (without apology) often defusesa conflict by allowing the combating parties to feel that their voice hasbeen heard.


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5. Sequencing : Agenda Setting;Deferring Redirecting

Effective mediators control the sequencing of what is discussed bysetting the agenda, deferring, and redirecting. They may postpone thediscussion of positions until they explore interests. They may advancethose topics they believe are more likely to bring the parties together.For example, instead of focusing a separated couple on what led to theirconflict, a mediator might ask the parties to give a description of theirchildren. The ability to adjust the sequence provides the mediator withenormous flexibility to move in fruitful directions based on input from theparties. Effective mediators also choose the most appropriate momentfor giving an overview of the conflict. If the parties are lost in the trees oftheir allegations and cross-allegations, the mediator helps them to riseabove the woods to clarify what the dispute appears to be about fromthe neutral’s point of view.

6. Changing the Messenger

In conflict relationships, even close ones, suggestions by one partyare automatically discounted by the other. The very same suggestionmay come from a third party and be far more readily accepted. Mediatorsare bale to supply that role. They can solicit ideas from one side, andcommunicate those suggestions to the other, without attribution, andthus without any reactive discounting by the recipient. Changing themessenger thus can advance acceptance of the message, andconfidential private caucusing allows the mediator to play this importantrole of a go-between.

CONCLUSION

Through the combination of these various strategies, techniques,and phases, mediation may offer many benefits to the system and theparties. Mediation may take both routine and very difficult cases out ofthe bottleneck, thus relieving pressure. Through the internalization ofthese techniques, mediation may prevent the underlying conflict or theneed to go to court and advance compliance with the law in general.Finally, even where mediation does not result in a final settlement, andthe dispute remains in trial, the joint communication established and theclarification of the nature of the dispute, if not an actual narrowing of theconflict, makes the trial proceed much more efficiently.


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For the litigants, mediation may save time, money, and aggravation,as well as preserve (even enhance) relationships or sever ones in whichthey are locked. Participants in mediation comparatively experience highlevels of satisfaction with the process and outcomes which they alonedetermine. Beyond savings and satisfaction, however, parties have abetter chance in general to make forward-looking, durable, win-winsolutions that are consistent with their underlying and multifacetedinterests.

REFERENCES

1. Similar arguments in relation to the United States adversarial system havebegun to emerge. See Carrie Menkel-Meadow; The Trouble with the AdversarySystem in a Postmodern, Multicultural World, 38 Wm. And Mary L. Rev. 5(1996), 1 Inst. Study Legal Ethics 49 (1996), passim.

2. See Robert Moog; Delays in the Indian Courts.., Why the Judges Don’t TakeControl, 16 Just. Sys. J. 19, 22-30 (1992). Moog cites various structuralconstraints, including a three-year judicial rotation system and an imbalanceof power between Judges and attorneys in favour of the attorneys, as themajor impediments to case management approaches in India.

3. These goals include the attraction of foreign investment. Despite thedisadvantages imposed by the backlog and delay problem, many multinationalinvestors frequently point to the Indian legal system as a distinctive advantagein attracting foreign investment. See U.S. Businessmen Enthused by LegalSystem in India, Reuters, December 8, 1995 (quoting Paul Griesse, U.S.Chairman of the Indo-U.S. Joint Business Council: “A legal remedy is availableto [multinational corporations] in India, a well-defined legal system to protecttheir investment”).

4. Part III, Sections 61 to 81 of the Arbitration and Conciliation Act, 1996.

5. Mahatma Gandhi, An Autobiography : The Story of My Experiments withTruth, 134 (6th ed.1965).

6. H.E. Chodosh N.J. Bhatt, F.Kassam, ‘Mediation in India : A Toolkit’, Feb.2004, U.S. Educational Foundation in India, Fulbright House, New Delhi.

7. N.R.. Madheva Menon; ‘Clinical Legal Education’, Eastern Book Company,Lucknow, 1998

8. H.E. Chodosh, N.J. Bhatt, F.Kassam, ‘Mediation in India : A Toolkit’, Feb.2004, U.S. Educational Foundation in India, Fulbright House, New Delhi.

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THE CONSTITUTION (SEVENTY-FOURTH)AMENDMENT ACT, 1992: PROTECTION

AND PROMOTION OF DEMOCRACY(LOCAL SELF-GOVERNMENT), RULE OF

LAW AND HUMAN RIGHTS1

Dr. J. S. Singh2

1. Introduction

Part IX-A of the Constitution deals with the Municipalities. It wasinserted by the Constitution (Seventy-fourth) Amendment Act, 1992popularly known as Nagarpalika Amendment Act, 1992. From theStatement of the Objects and Reasons of the amendment, it is clearthat a need was being felt for long for establishing some constitutionalnorms in order to provide some uniformity and respectability to the systemof local self-government. It is submitted that the Amendment wouldprovide constitutional sanction to the democracy at the grass root levelby inserting in the Constitution the provisions relating to urban localbodies.

For the first time, the Bill was introduced in the House of the Peoplein 1989. However, it failed to get the support of the requisite majority inthe Rajya Sabha. The States had also objections over certain provisionsof the Bill. Later on, the Bill was referred to the Select Committee. Aftercertain modifications, the Bill was introduced in the House of the People,and later on, passed by the Parliament. The Act provides constitutionalguarantee to basic and essential features of the self-governingdemocratic institutions in urban areas. It provides for regular elections,reservations of seats to Schedule Castes, Scheduled Tribes andWomen. The Bill also provides devolution of finance and administrativepowers. The basic objectives of the Act are to establish local self-government at grass root level and to protect and promote democracy,rule of law and human rights in the country.

2. Pious Ideals of Mahatma Gandhi to establish Ram Rajya andthe Provisions of the Directive Principles of State Policy underthe Constitution

The aims and objectives of the Amendment is to implement theprovisions of the Directive Principles of State Policy and specially Article


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40 of the Constitution. Article 40 provides that the State shall take stepsto organize village panchayats and endow them with such powers andauthority as may be necessary to enable them to function as units ofself-government. The mandate of the Constitution was implemented bypassing the Constitution (Seventy-fourth) Amendment Act, 1992. TheAct would assist to implement the dreams of Mahatma Gandhi to establishlocal self-government at grass root level.

Mahatma Gandhi was influenced by Ram Rajya. Bhagwan Ram isconsidered the ideal of Hindu culture and civilization. He is recognizedas God. He established an ideal ruling system which is called RamRajya. In his rule, people were happy. No one was poor, unhappy andhelpless. There was principle of equality and rule of law. His ideals ofRam Rajya is described by Goswami Tulsidas in his pious work ‘RamCharit Manas’ in very beautiful words:-

^^jke jkt cSBs =SyksdkA gjf"kr Hk, x, lc lksdkAc;: u dj dkgw lu dksbZA jke izrki fo"kerk [kksbZAA

cjukJe fut fut /kje fujr csn iFk yksxApyfga lnk ikofga lq[kfga ufg Hk; lksd u jksxAA

nSfgd nSfod HkkSfrd rkikA jke jkt ufga dkgqfg O;kikAAlc uj djfga ijLij izhrhA pyfga Lo/keZ fujr Jqfr uhrhAApkfjm pju /keZ tx ekghA iwfj jgk liusagq¡ v/k ukghaAA

jke Hkxfr jr uj v: ukjhA ldy ije xfr ds vf/kdkjhAAvYie‘R;q ufga dofum ihjkA lc lqUnj lc fc:t ljhjkAA

ufga nfjnz dksm nq[kh u nhukA ufga dksm vcq/k u yPNughukAA**3

Further, Article 38 of the Constitution directs the State to secure asocial order for the promotion of welfare of the people. It provides thatthe State shall strive to promote the welfare of the people by securingand promoting as effectively as it may a social order in which justice,social, economic and political, shall inform all the institutions of thenational life. The provisions of the Article try to provide “justice, social,economic and political” to the people of India provided in the Preamble.It is submitted that the provisions of the 74th Amendment would assist toprovide economic, social and political justice to the people of India. Itwould assist to establish Ram Rajya as assumed by Mahatma Gandhi.


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3. The Important Provisions of the Seventy-fourth AmendmentAct 1992: An Evaluation

The Constitution Seventy- fourth Amendment has been added inPart IX- A of the Constitution. It consists of Articles 243-P to 243-PG,total eighteen sub-Articles. Further, Twelth Schedule (Article 243-W) hasbeen added with it. The Amendment came into force w.e.f. 1.6.1993. Itwould be relevant to discuss the important provisions of the Amendment.Article 243-P deals with definitions. According to it “Committee” means aCommittee constituted under Article 243-S. “District” means a district in aState. “Metropolitan area” means an area having a population of ten lakhsor more comprised in one or more districts and consisting of two ormore Municipalities or Panchayats or other contiguous areas, specifiedby the Governor by public notification to be a Metropolitan area for thepurposes of this Part. “Municipal area” means the territorial area of aMunicipality as is notified by the Governor. “Municipality” means aninstitution of self-government constituted under Article 243-Q.“Panchayat” means a Panchayat constituted under Article 243-B.“Population” means the population as ascertained at the last precedingcensus of which the relevant figures have been published. The otherprovisions of the Amendment may be discussed under followingheadings:

(a) Composition and Constitution of Municipalities

Articles 243-Q - 243-S deal with constitution and composition ofMunicipalities and Wards Committees etc. Clause (1) provides that thereshall be constituted in every State –

(a) a Nagar Panchayat (by whatever name called) for a transitionalarea, that is to say, an area in transition from a rural area to anurban area;

(b) a Municipal Council for a smaller urban area; and

(c) a Municipal Corporation for a larger urban area, in accordancewith the provisions of Part IX-A;

However, a Municipality may not be constituted in such urban areaor part thereof as the Governor may, having regard to the size of thearea and the municipal services being provided or proposed to beprovided by an industrial establishment in that area and such other


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factors as he may deem fit, by public notification, specify to be anindustrial township.

In this Article, “a transitional area”, “a smaller urban area” or “a largerurban area” means such area as the Governor may, having regard tothe population of the area, the density of the population therein, therevenue generated for local administration, the percentage ofemployment in non-agricultural activities, the economic importance orsuch other factors as he may deem fit, specify by public notification forthe purposes of Part IX-A.

Article 243-R deals with composition of Municipalities. Clause (1)states that all the seats in a Municipality shall be filled by persons chosenby direct election from the territorial constituencies in the Municipal area.For this purpose each Municipal area shall be divided into territorialconstituencies to be known as wards. Further under clause (2) theLegislature of a State may, by law, provide –

(a) for the representation in a Municipality of

(i) persons having special knowledge or experience in Municipaladministration;

(ii) the members of the House of the People and the members ofthe Legislative Assembly of the State representingcon-stituencies which comprise wholly or partly the Municipalarea;

(iii) the members of the Council of States and the members of theLegislative Council of the State registered as electors withinthe Municipal area;

(iv) the Chairpersons of the Committees constituted under clause(5) of Article 243-S; provided that the persons referred to inparagraph (i) shall not have the right to vote in the meetings ofthe Municipality;

(b) the manner of election of the Chairperson of a Municipality.

Article 243-S deals with constitution and composition of WardsCommittees, etc. It says that there shall be constituted WardsCommittees, consisting of one or more wards, within the territorial areaof a Municipality having a population of three lakhs or more. However,the Legislature of a State may, by law, make provision with respect to-–


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(a) the composition and the territorial area of a Wards Committee;

(b) the manner in which the seats in a Wards Committee shall befilled.

Further, a member of a Municipality representing a ward within theterritorial area of the Wards Committee shall be a member of thatCommittee. Where a Wards Committee consists of- -

(a) one ward, the member representing that ward in the Municipality; or

(b) two or more wards, one of the members representing suchwards in the Municipality elected by the members of the WardsCommittee, shall be the Chairperson of that Committee.

However, the provisions of this Article shall not be deemed to preventthe Legislature of a State from making any provision for the constitutionof Committees in addition to the Wards Committees.

In Saij Gram Panchayat V. State of Gujrat1 a Division Bench of theGujrat High Court considered the nature of Article 243-Q of theConstitution. Certain area comprised in a Gram Panchayat was notifiedas industrial area under Gujrat Industrial Development Act, 1962. Bysubsequent notification such area was notified as notified area.

Speaking on behalf of the Court K. Sreedharan, C. J. held that thearea covered by the Notification to be the industrial area could never betreated as a rural area. It must fall within the category of transitionalarea. In that view of the matter, such a notification notifying the industrialarea as a notified area under Section-16 of the Gujrat IndustrialDevelopment Act, was not violative of Article 243-Q of the Constitution.

It is submitted that the learned Chief Justice made correctinterpretation of the Gujrat Industrial Development Act, 1962 and heldthat the impugned Notification was not violative of Article 243-Q of theConstitution. Against the judgment, an appeal was filed before the Hon’bleSupreme Court where the observations of the learned Judge wereaccepted with approval. The appeal was filed in the name of Saij GramPanchayat V. State of Gujrat2 where a Division Bench of the SupremeCourt held that conversion of a Panchayat area into Municipal Area andits declaration by notification was not contrary to Parts IX and IX-A ofConstitution brought into force by 73rd and 74th Amendments.


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It was held that the Gujarat Municipalities Act, 1962_was amendedon 20-8-1993 in view of the insertion of Part IX-A in the Constitution.Section 264-A was substantially amended. It now provided that “for thepurpose of this chapter notified area means an urban area or part thereofspecified to be an industrial township area under the proviso to CI. (I) toArt. 243-Q of the Constitution of India.” Thus, as a result of thisamendment in the Gujarat Municipalities Act, an industrial area underthe Gujarat Industrial Development Act, which was notified under S. 16of the Gujarat In-dustrial Development Act would become a noti-fied areaunder the new S. 264-A of the Gujarat Municipalities Act and would meanan industrial township area under the proviso to CI. (1) of Art. 243-Q ofthe Constitution of India. Therefore, no-tification dt. 7-9-1993 issued underS. 16 of the Gujarat Industrial Development Act declaring Industrial Areaas notified area under S. 264-A of the Gujarat Municipalities Act andexcluding the notified area from Saij Gram Panchayat under S. 9(2) ofthe Gujarat Panchayat Act, 1961 was not contrary to Parts IX and IX-A ofConstitution brought into force by 73rd and 74th Amendments.

It was held that the Gujarat Industrial Development Act operated in atotally different sphere from Parts IX and IX-A of the Constitution as wellas the Gujarat Panchayats Act, 1961 and the Gujarat Municipalities Act,1962 - the latter being provisions dealing with local self-Governmentwhile the former being an Act for industrial development, and orderlyestablishment and organisation of industries in a State. The industrialareas which had been notified under S. 16 of the Gujarat IndustrialDevelopment Act on 7-9-1993 were notified as industrial areas underthe Gujarat Industrial Development Act long back in the year 1972. Theseindustrial areas had been developed by the Gujarat IndustrialDevelopment Corporation and they could hardly be looked upon as ruralareas covered by Part IX of the Constitution. It was only such industrialareas which could be notified under S. 16 of the Gujarat IndustrialDevelopment Act, 1963. If by a notification issued under S. 16, theseindustrial areas were deemed to be notified areas under the GujaratMunicipalities Act and were equated with industrial townships under theproviso to CI. (I) of Art. 243-Q, the constitutional scheme was not violated.In fact, under Chap. 3 of the Gujarat Industrial Development Act, 1962,the Gujarat Industrial Development Corporation had been given power,inter alia, to develop land for the purpose of facilitating the location ofindustries and commercial centres. It had also been given the power toprovide amenities and common facilities in such areas including provisionof roads, lighting, water supply, drainage facilities and so on. It may do


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this either jointly with Government or local authorities or on an agencybasis in furtherance of the purposes for which the Corporation wasestablished. The industrial area thus had separate provision for Municipalservices being provided, by the Industrial Development Corporation.Once such an area was a deemed notified area under the GujaratMunicipalities Act, 1964, it was equated with an industrial township underPart IXA of the Constitution, where municipal services might be providedby industries. There was no violation of a constitutional provision in thisscheme.

It is submitted that the learned Judge made valuable observations.Part IX and Part IX-A of the Constitution are complimentary andsupplementary to each other. They are not contrary to each other. Thelearned Judge approved the decision of the Gujrat High Court3 and heldthat there was no violation of the principle of natural justice in this case.

(b) Reservation of Seats (Article 243-T)

Article 243-T deals with reservation of seats. Clause (1) providesthat seats shall be reserved for the Scheduled Castes and the ScheduledTribes in every Municipality. The number of seats so reserved shall bear,as nearly as may be, the same proportion to the total number of seats tobe filled by direct election in that Municipality as the population of theScheduled Castes in the Municipal area or of the Scheduled Tribes inthe Municipal area bears to the total population of that area and suchseats may be allotted by rotation to different constituencies in aMunicipality. Clause (2) states that not less than one-third of the totalnumber of seats reserved under clause (1) shall be reserved for womenbelonging to the Scheduled Castes or as the case may be, the ScheduledTribes. Clause (3) lays down that not less than one-third (including thenumber of seats reserved for women belonging to the Scheduled Castesand the Scheduled Tribes) of the total number of seats to be filled bydirect election in every Municipality shall be reserved for women andsuch seats may be allotted by rotation to different constituencies in aMunicipality. The officers of Chairpersons in the Municipalities shall bereserved for the Scheduled Castes, the Scheduled Tribes and womenin such manner as the Legislature of a State may, by law, provide. Thereservation of seats under clauses (1) and (2) and the reservation ofoffices of Chairpersons (other than the reservation for women) underclause (4) shall cease to have effect on the expiration of the periodspecified in Article 334. The Legislature of a State may make provision


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for reservation of seats in any Municipality or offices of Chairpersons inthe Municipalities in favour of backward class of citizens.

In case of Saraswati Devi V. Smt. Shanti Devi4 a Division Bench ofthe Apex Court reversed the decision of the Punjab and Haryana HighCourt.5 Speaking on behalf of the Court Dr. A. S. Anand, J. held thatwhen the thrust of the Rule is that offices of the Presidents inMunicipalities must go by rotation to members belonging to the specifiedcategories, it would necessarily mean in the context of parent Article243-T of the Constitution of India and Section 10(5) of the Act that theconcerned elected members of the Municipal Committee must havegot elected on the seats available to General category candidates orScheduled Castes category candidates or Backward Classes categorycandidates or General women category candidates by rotation. The veryconcept of rotation presupposes that for the contest of Presidentshiponce by rotation a reservation is made for members elected from aparticular category only those members can contest for Presidentshipas in the instant case the post of President of Municipality was subjectedto double reservation of being available only to an elected member whowas a Schedule Caste woman she must have been elected on theScheduled Castes seat from the ward reserved for such ScheduledCastes candidates. As admittedly only three wards, were reserved formembers belonging to Scheduled Castes and even out of three wards,only one ward from which the appellant was elected was reserved forSchedule Castes women and as President’s post was reserved for beingfilled up by a member belonging to the category of Scheduled Casteswomen who had been elected on such a seat, the Respondent whowas elected as a member not on any seat reserved for Scheduled Casteswomen but on a seat reserved for General category of women wasobviously out of the arena of contest for the post of the Presidentship ofMunicipality. Appellant was the sole candidate elected on reserved forScheduled Castes women. It could not be said that the words’ membersbelonging to’ as employed in Rule 70 (4) of the Election Rules wouldbring in all the elected members belonging to Scheduled Castes intoone category to enable them to contest for the post of President.

It is submitted that the learned Judge made narrow and strictinterpretation of the Haryana Municipal Election Rules, 1975and Article243-T of the Constitution. The aims and objectives of the reservationpolicy is to protect and promote the interests of the weaker section ofthe community and it should be given wide and expansive interpretation.


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The provisions relating to reservation should not be construed narrowand strict sense. Later on, the observations of the learned Judge wereoverruled by the Hon’ble Supreme Court.

In case of Kasambhai F. Gandhi V. Chandubhai D. Rajput6 a threeJudge Bench of the Supreme Court held that a member from reservedcategory could seek election for the post of President under clause (4)even though he was elected as member from an unreservedconstituency. It is not necessary that he should be elected from a reservedcategory.

In this case the only question which arose for consideration beforethe Court was whether the appellant, who belongs to a backward classbut had been elected to the Jambusar municipality from an unreservedseat, could stand for election for the post of President of the Municipalitywhich was reserved for a backward class candidate or whether thecandidate for that post could only be a person who was elected to themunicipality from a seat which was reserved for the backward class.

The learned Judge held that Councilor of municipality who belongsto a backward class but had been elected to the municipality from anunreserved seat, could stand for election for the post of President of theMunicipality which was reserved for a backward class candidate. It wasnot necessary that the candidate for that post could only be a personwho was elected to the municipality from a seat which was reserved forthe backward class. There is no indication or suggestion in Article 243-T or in the Act that in case the office of the President is required to befilled by a member who is a Scheduled Caste, Scheduled Tribe,Backward Class or a woman, then only a member who has been electedfrom a reserved seat can stand for election. In other words, for thepurpose of election to the post of President the reservation which iscontemplated by the Act is only to the effect that the person electedshould belong to the category of Scheduled Caste, Scheduled Tribe,Backward Class or woman, as per the roster. Conceivably an electedmember may fall within two or more categories and, in this way, may bein a position to seek re-election as envisaged by Section 33 of the GujaratMunicipal Act. If this was not so, and with the category changing everyyear, as per the roster, Section 33 will become redundant. The legislativeintent, therefore, clearly was that one person, whether elected fromreserved or general seat, but who belongs to the category out of whichthe President was to be elected, could seek re-election as envisaged by


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Section 33 of the Act. The rules framed under the Act also do not containany provision that only members elected to the reserved seats would beeligible to stand for election of the President when, as per the roster, theoffice was required to be filed by a person belonging to a particularcategory. The learned Judge observed:

“The idea of providing reservation for the benefit of the weakersections of the society is not only to ensure their participation in theconduct of the affairs of the municipality but it is also an effort toimprove their lot. The reservation ensures that the specified minimumnumber of persons belonging to that category become members ofthe municipality. If because of their popularity a larger number ofScheduled Castes, Scheduled Tribes, Backward Classes or womenget elected to the municipality then the number of reserved seatsthat would be welcome. When the idea is to promote the weakersections of the society, and to improve their lot, it would becontradiction in terms if members belonging to that section aredebarred from standing to the office of the President because sucha candidate is popular enough to get elected from a generalconstituency. It is a fundamental principle of democratic election thata person who is more popular is elected, popularity being measuredby the number of votes which the person gets. The language ofvarious legal provisions do not in any way suggest, expressly or bynecessary implication, that even though a person who belongs to areserved category and is popular enough to get elected from ageneral constituency should be barred from contesting the electionof the President when that office is to be filled only by a reservedcategory person”.10

It is submitted that the learned Judge adopted wider and extensiveapproach than the approach of the Gujrat High Court. He reversed thedecision of the Gujrat High Court8 and overruled the earlier decision of aDivision Bench of the Apex Court in the case of Saraswati Devi V. ShantiDevi.9 He made a wide interpretation of Article 243-T of the Constitutionand the Gujrat Municipalities Act, 1964. He expressed the idea to promotethe weaker section of the society and to improve their lot. The approachof the leaned Judge would improve the roots of democracy, rule of lawand human rights in the country.


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(c) Duration of Municipalities etc.

Article 243-U deals with duration of Municipalities etc. Clause (1)states that every Municipality, unless sooner dissolved under any lawfor the time being in force, shall continue for five years from the dateappointed for its first meeting and no longer. However, a Municipalityshall be given a reasonable opportunity of being heard before itsdissolution.

Clause (2) lays down that no amendment of any law for the timebeing in force shall have the effect of causing dissolution of a Municipalityat any level, which is functioning immediately before such amendment,till the expiration of its duration specified in clause (1). Clause (3) providesthat an election to constitute a Municipality shall be completed, -

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the date ofits dissolution.

However, where the remainder of the period for which the dissolvedMunicipality would have continued is less than six months, it shall not benecessary to hold any election under this clause for constituting theMunicipality for such period.

In case of State of Maharashtra V. Deep Harayan Charan13 a DivisionBench of the Apex Court considered the ambit and scope of theexpression “unless sooner dissolved under any law for the time being inforce” under Article 243-U of the Constitution.

On behalf, of the appellant, State of Maharashtra, it was argued thatonce a Municipal Council was constituted, then its duration should befive years in accordance with the constitutional provisions contained inArticle 243-U and, therefore, in the event the writ application wasdismissed and the State Government constituted a Corporation, theMunicipal Council would continue to function. It was held that underSection 341 of the Maharashtra Municipal Councils, Nagar Panchayatsand Industrial Townships Act, 1965, when the whole of the local areacomprising a municipal area ceased to be a municipal area, with effectfrom the date on which such local area ceases to be a municipal area,the Council constituted for such municipal area shall cease to exist orfunction and the Councilors of the Council shall vacate office. The learnedJudge observed:


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“Article 243-U of the Constitution unequivocally indicates that everyMunicipality, unless sooner dissolved under any law for the time being inforce, shall continue for five years from the date appointed for its firstmeeting and no longer. The expression “unless sooner dissolved underany law for the time being” would bring within its sweep the provisions ofSection 341 of the Maharashtra Municipal Councils, Nagar Panchayatsand Industrial Township, Act 1965 and therefore the moment theCorporation is constituted in accordance with law, the elected MunicipalCouncil would cease to function and so also the Councilors, thoughelected will have to vacate the office”.11

The Apex Court affirmed the decision of the Bombay High Court.The Apex Court directed the Bombay High Court to dispose of the writpetition within a period of three months. The Court expressed hope thatState Election Commission on whom the burden of holding the electionis cast, would discharge its obligation faithfully. It is submitted that theHon’ble Apex Court affirmed faith in the democratic institutions and ruleof law which would improve the lot of the country.

In case of the State of Maharashtra V. The Jalgaon MunicipalCorporation15 a Division Bench of the Supreme Court held that in caseof abolition of Municipal Council and it’s place constitution of MunicipalCorporation, Article 243-U does not apply. Article 243-U deals withduration of Municipalities, etc. The word Municipality in Article 243-Umeans duration of Municipality of same type and its succession by sameMunicipality.

The Court reserved the decision of the Bombay High Court16.Delivering the judgment of the Court R. C. Lahoti, J. held that hitatus isan unavoidable event which must take place in the process of conversionof Municipal Council into a Municipal Corporation, and Article 243-U cannot be relied on for challenging hitatus in conversion. The learned Judgeobserved:

“The use of expression ‘a municipality’ in sub-Article (3) of Article243-U in the context and in the setting in which it is employedsuggests and means the duration of the same type of municipalitycoming to an end and the same type of successor municipality takingover as a consequence of term of the previous municipality comingto an end. Article 243-U cannot be applied to a case where the areaof one description is converted into an area of another description


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and one description of municipality is ceased by constituting anothermunicipality of a better description. Article 243-U(3) cannot bepressed into service to base a submission on that an election toconstitute a Municipal Corporation is required to be completed beforethe expiry of duration of a Municipal Council”.17

The learned Judge referred two English cases Russel V. Duke ofNorfolk18 and Lloyd V. Mc Mahon16. He referred Article 243-Q which dealswith constitution of Municipalities. He held that a mere change in theconstitution of the local self government does not necessarily entaildiscontinuance of development projects. Successor MunicipalCorporation shall take over on going projects of previous MunicipalCouncil. The learned Judge observed:

“A mere change in the constitution of the local self-governmentdoes not necessarily entail discontinuance of development projectsand there is no reason to apprehend, that they would not becontinued. A change in governance is involved at every election thoughthe administration continues with Municipal Council. At the time ofan election certain development works would be pending in progresswhich would naturally be taken over by the successor MunicipalCouncil. Just as any new Municipal Council would take over theongoing projects initiated by the predecessor Municipal Council soalso a Municipal Corporation newly brought into being shall takeoverthe continuing projects of previous Municipal Council. Every changein mode of governance needs some readjustments. Need forswitching over from Municipal Council to Municipal Corporation modeof administration is occasioned by growth of population and prosperityin any particular urban area”.20

It is submitted that the learned Judge made valuable observationsregarding the importance of local self-government. He made importantobservations that change in governance of local self-government doesnot entail discontinuance of development projects. However, regardingthe elections of local self-government, the observations of the learnedJudge may be criticized. The election of the local self-government mustbe held within a period of five years under Article 243-U of the Constitution.Mere change of boundaries of population and amenities of the people,the election process should not be postponed for a longer time. Since,democracy and ‘rule of law’ are basic structure of the Constitution,therefore, to postpone election for a longer time would affect aims and


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objectives of local self-government. It is submitted that the approach ofthe Bombay High Court was correct, where it was held that elections ofthe local self-government should be held within time under Article 243-Uof the Constitution.

In a leading case Anugrah Narain Singh V. State of U.P.18 a DivisionBench of the Allahabad High Court held that a Municipality or a NagarPanchayat should function for a period of five years from the dateappointed for its first meeting. It’s election should be held before theexpiry of the duration. However, if the elections are not held before theexpiry of the duration of municipalities due to unavoidable reasons,beyond the control of State Government, it should at any cast be heldwithin a period of six months.

He stated that the growing tendency of the persons who are at thehelm of affairs in the State and who have taken oath of office as per theforms set out in the Third Schedule, to do right to all manner of people inaccordance with the Constitution and the law, to blindly follow thedirections given by another authority, often lead to a situation, like thepresent one where a constitutional crisis my occur, which could havebeen avoided. The learned Judge referred the observations made in theopening part of the judgment by the Apex Court in the case of GanpatLadha V. Shashikant Vishnu Shinde22 and observed:

“If the quest for certainty in law is often baffled, as it is accordingto Judge Jerome Frank in “Law and the Modern Mind”, the reasonsare mainly two: firstly, the lack of precise formulation of even statutorylaw so as to leave lacunae and loopholes in it giving scope to muchavoidable disputation: and, secondly, the unpredictability of the judicialrendering of the law after every conceivable as well as inconceivableaspect of it has been explored and subjected to forensic debate,Even the staunchest exponents of legal realism, who are apt to treatthe quest for certainty in the administration of justice in accordancewith law, in an uncertain world of imperfect human beings, to bepractically always futile and doomed to failure, will not deny thedesirability and the beneficial effects of such certainty in law as maybe possible. Unfortunately, there are not infrequent instances wherewhat should have been clear and certain, by applying well establishedcanons of statutory construction becomes befogged by the vagaries,if one may use a possibly strong word without disrespect, of judicialexposition divorced from these canons.”


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The learned Judge held that with a view to strengthen the institutionof self-Government, the Parliament by the Constitution (Seventy FourthAmendment) Act, 1992, which was made effective from 1.6.1993,inserted Part IX-A in the Constitution of India. It provided for the constitution,composition, duration of municipalities, constitution and composition ofwards, committees etc., reservation of seats, disqualification ofmembership, the power, authority and responsibility of municipalities,the power to impose tax by, and the funds of, the municipalities, audit ofaccounts, elections and many more things. While inserting Article 243-U in the Constitution of India the paramount consideration of theParliament was that a municipality should function in every NagarPanchayat a smaller urban area or a larger urban area for a period offive years from the date appointed for its first meeting unless soonerdissolved under any law for the time being in force. In the event themunicipality has been dissolved, sub-clause (b) of clause (3) of Article243-U provided election to a municipality before the expiration of a periodof six months from the date of its dissolution with a rider that if theremainder of the period of the dissolved municipality is less than sixmonths, then election for constituting the municipality for the remainderperiod is not necessary. However, in the event the term of the municipalityhas expired, then election to constitute the municipality has to becompleted before the expiry of its duration as per sub-clause (a) of clause(3) of Article 243-U of the Constitution of India.

The learned Judge referred the provisions of Article 243-U of theConstitution and observed:

“Every municipality unless sooner dissolved shall continue forfive years from the date appointed for its first meeting and no longer.The period of five years starts from the date appointed for its firstmeeting and moment the period of five years comes to an end theduration of that Municipality will also come to an end. The Parliamenthad used the words “no longer” in clause (1) of Article 243-U of theConstitution of India to which some meaning has to be assigned.The natural meaning which can be ascribed to the said phrase isthat the duration of the Municipality cannot extend even for a singlesecond beyond the stipulated five years period from the dateappointed for its first meeting. The words “no longer” has been usedin the negative sense and, in view of decision of the Apex Courtreferred to above its is mandatory and therefore, in any event theduration cannot extend beyond the stipulated period. The plea that


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sub-clause (a) of clause (3) of Article 243-U be read as proviso toclause (1) of Article 243-U of the Constitution of India and that theterm of a Municipality shall continue till the election to constitute anew Municipality has been completed is wholly misconceived and isliable to be rejected.23"

The learned Judge further observed:

“It appears that the framers of the Constitution wherever theywanted that holder of the elected office should continue till hissuccessor takes charge, have made specific provision in this regardin the Constitution itself. Reference may be invited to clause (c) ofthe proviso of Article 56(1) of the Constitution of India which saysthat the President shall, notwithstanding the expiration of his term,continue to hold office until his successor enters upon his office.Likewise, in the case of Vice President, clause (c) of the proviso toArticle 67 of the Constitution of India provides that the Vice-Presidentshall, notwithstanding the expiration of his term, continue to holdoffice until his successor enters upon his office. Likewise, the provisoto Article 156, which deals with the term of office of Governor providesthat a Governor shall, notwithstanding the expiration of his termcontinue to hold office until his successor enters upon his office.The second proviso to Article 94, which deals with vacation andresignation of, and removal from, the office of Speaker and DeputySpeaker of the House of People provides that whenever the Houseof the People is dissolved, the Speaker shall not vacate his officeuntil immediately before the first meeting of the House of the Peopleafter the dissolution. Likewise in respect of vacation and resignationof, and removal from, the offices of Speaker and Deputy Speaker ofan Assembly, the second proviso to Article 179 of the Constitution ofIndia provides that whenever the Assembly is dissolved, the Speakershall not vacate his office until immediately before the first meetingof the Assembly after the dissolution. No such provision has beenmade in Article 243-U (1) of the Constitution of India and, therefore,necessary corollary is that the framers of the Constitution did notwant that the elected Municipality should be allowed to continue tohold the office till new elected body assumes charge.”24

It is submitted that the learned Judge made wide and deepinterpretation of the U.P.Munipicipalities Act, 1916, U.P.MunicipalCorporation Adhiniyam, 1959 and Constitution of India. In interpreting


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Article 243-U of the Constitution, he took the paramount considerationof Parliament that a Municipality and a Nagar Panchayat should functionfor a period of five years from the date appointed for its meeting. Thelearned Judge relied on a number of judgments of the Apex Court,Allahabad High Court and other High Courts and concluded that if theelections were not held before the expiration of the duration ofMunicipalities, due to unavoidable reasons, it should be held within aperiod of six months. In interpreting the provisions of different acts andConstitution of India the learned Judge applied the Golden rule and Literalrule or Grammatical Rule of interpretation. He stated that in interpretinga statute, effort should be made to give effect to each and every wordused by the Legislature. The approach of the learned Judge was tostrengthen democratic principles, local self-government and rule of lawin the country.

D. Disqualifications for Membership

Article 243-V deals with disqualifications for membership. Clause(1) provides that a person shall be disqualified for being chosen as, andfor being, a member of a Municipality--

(a) if he is so disqualified by or under any law for the time being inforce for the purposes of elections to the Legislature of the Stateconcerned:

however, no person shall be disqualified on the ground that heis less than twenty-five years of age, if he has attained the ageof twenty-one years;

(b) if he is so disqualified by or under any law made by theLegislature of the State.

Clause (2) lays down that if any question arises as to whether amember of a Municipality has become subject ‘to any of thedisqualifications mentioned in clause (1), the question shall be referredfor the decision of such authority and in such manner as the Legislatureof a State may, by law, provide.

E. Powers and Functions of Municipalities (Articles 243-W)

Article 243-W deals with powers, authority and responsibilities ofMunicipalities, etc. It provides that the Legislature of a State may, by law,


49

endow- -

(a) the Municipalities with such powers and authority as may benecessary to enable them to function as institutions of self-government and such law may contain provisions for thedevolution of powers and responsibilities upon Municipalities,subject to such conditions as may be specified therein, withrespect to--

(i) the preparation of plans for economic development andsocial justice;

(ii) the performance of functions and the implementation ofschemes as may be entrusted to them including those inrelation to the matters listed in the Twelth Schedule;

(b) the Committees with such powers and authority as may benecessary to enable them to carry out the responsibilitiesconferred upon them including those in relation to the matterslisted in the Twelth Schedule.

The 74th Amendment added Twelth Schedule (Article 243W) to theConstitution. It authorizes the Muncipalities to make law and to do workon the following subject -

1. Urban planning including town planning.

2. Regulation of land use and construction of buildings.

3. Planning for economic and social development.

4. Roads and bridges.

5. Water supply for domestic, industrial and commercial purposes.

6. Public health, sanitation conservancy and solid wastemanagement.

7. Fire services.

8. Urban forestry, protection of the environment and promotion ofecological aspects.

9. Safeguarding the interests of weaker sections of society,including the handicapped and mentally retarded.

10. Slum improvement and upgradation.


50

11. Urban poverty alleviation.

12. Provision of urban amenities and facilities such as parks, gardens,playgrounds.

13. Promotion of cultural, educational and aesthetic aspects.

14. Burials and burial grounds, cremations, cremation grounds andelectric crematoriums.

15. Cattle pounds; prevention of cruelty to animals.

16. Vital statistics including registration of births and deaths.

17. Public amenities including street-lighting, parking lots, bus stopsand public conveniences.

18. Regulation of slaughterhouses and tanneries.

In case of M. C. Mehta V. Union of India25 a Division Bench of theSupreme Court consisting of Y. K. Sabharwal and B. N. Agarwal, JJ.held that regularization of illegal industrial activity can not be done if itresults in violation of the right to life enshrined in Article 21 of theConstitution. This case about unauthorized industry in Delhi in residentialareas had a protracted background.

It was held that Municipalities have constitutional responsibilities oftown planning under Part IX-A and especially under Article 243-W of theConstitution.

The Municipal Corporation has the responsibility in respect of mattersenumerated in Twelth Schedule of the Constitution and powers in respectthereof under Article 243-W, regularization of land use, public health,sanitation, conservancy, solid waste management being some of themand Section 345, 416(1), 417(1) and 461 and Part I of Schedule XI andSchedule XII of the Delhi Municipal Corporation Act, 1957. Therefore, itdid not lie in the month of the Corporation to plead helplessness in carryingout responsibilities and obligations under the Delhi Municipal CorporationAct, 1957.

It is submitted that the Apex Court has made dynamic interpretationof the Constitution. Regularization of illegal industrial activity should notbe allowed, if it results in violation of the right to life enshrined in Article21 of the Constitution. Town planning is the constitutional responsibilitiesof the Municipalities under Part IX-A and especially under Article 243-W


51

of the Constitution. However, it is not satisfactory, the powers of theMunicipalities should be increased for the proper development ofdemocracy, local self government, rule of law and human rights in thecountry.

F. Power to impose Taxes by and Funds of the Municipalities(Article 243-X)

Article 243-X deals with power to impose taxes by, and funds of, theMunicipalities. It provides that the Legislature of a State may, by law -

(a) authorise a Municipality to levy, collect and appropriate suchtaxes, duties, tolls and fees in accordance with such procedureand subject to such limits;

(b) assign to a Municipality such taxes, duties, tolls and fees leviedand collected by the State Government for such purposes andsubject to such conditions and limits;

(c) provide for making such grants-in-aid to the Municipalities fromthe Consolidated Fund of the State; and

(d) provide for constitution of such Funds for crediting all moneysreceived, respectively, by or on behalf of the Municipalities andalso for the withdrawal of such moneys therefrom.

G. Finance Commission (Article 243-Y)

Article 243-Y deals with Finance Commission. It lays down that theFinance Commission shall also review the financial position of theMunicipalities. It shall make recommendations to the Governor as to- -

(a) the principles which should govern--

(i) the distribution between the State and the Municipalitiesof the net proceeds of the taxes, duties, tolls and feesleviable by the State, which may be divided between themunder this Part and the allocation between theMunicipalities at all levels of their respective shares ofsuch proceeds;


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(ii) the determination of the taxes, duties, tolls and fees whichmay be assigned to, or appropriated by, the Municipalities;

(iii) the grants-in-aid to the Municipalities from theConsolidated Fund of the State;

(b) the measures needed to improve the financial position of theMunicipalities;

(c) any other matter referred to the Finance Commission by theGovernor in the interests of sound finance of the Municipalities.

Further, the Governor shall cause every recommendation made bythe Commission together with an explanatory memorandum as to theaction taken thereon to be laid before the Legislature provisions of theState. Article 243-I makes provision for constitution of FinanceCommission to review financial position. It provides that the Governor ofa State shall, at the expiration of every fifth year, constitute a FinanceCommission. The legislature of a State may, by law, provide for thecomposition of the Commission, the qualifications which shall be requisitefor appointment as members thereof and the manner in which they shallbe selected. The Commission shall determine their procedure and shallhave such powers in the performance of their functions as the Legislatureof the State may, by law, confer on them. Article 243-Z lays down that thelegislature of a State may, by law, make with respect to the maintenanceof account by the Municipalities and the auditing of such accounts.

(H) Elections to the Municipalities (Article 243-ZA and 243-ZG)

Article 243-ZA deals with elections to the Municipalities. Clause (1)provides that the superintendence, direction and control of the preparationof electoral rolls for, and the conduct of, all elections to the Municipalitiesshall be vested in the State Election Commission referred to in Article243K. Accordingly, State Election Commission shall consist of a StateElection Commissioner to be appointed by the Governor. The conditionsof service and tenure of office of the State Election Commissioner shallbe such as the Governor may by rule determine. However, the StateElection Commissioner shall not be removed from his office except inlike manner and on the like grounds as a Judge of High Court. Theconditions of service of the State Election Commissioner shall not bevaried to his disadvantage after his appointment. Upon a request madeby the State Election Commissioner, the Governor of a State shall makeavailable such staff as may be necessary for the discharge of the


53

functions conferred on the State Election Commissioner. Again, theLegislature of a State may, by law, make provision with respect to allmatters relating to, or in connection with, elections to the Municipalities.

Article 243-ZG deals with bar to interference by courts in electoralmatters. It provides that the validity of any law relating to the delimitationof constituencies or the allotment of seats to such constituencies, madeor purporting to be made under Article 243-ZA shall not be called inquestion in any court. Further, no election to any Municipality shall becalled in question except by an election petition presented to suchauthority and in such manner as is provided for by or under any lawmade by the Legislature of a State.

(I) Committee for District Planning (Article 243-ZD)

Article 243-ZD deals with committee for district planning. Accordingly,there shall be constituted in every State at the district level a DistrictPlanning Committee to consolidate the plans prepared by the Panchayatsand the Municipalities in the district and to prepare a draft developmentplan for the district as a whole. Clause (2) says that the Legislature of aState may, by law, make provision with respect to--

(a) the composition of the District Planning Committees -

(b) the manner in which the seats in such Committees shall befilled: however, not less than four-fifth of the total number ofmembers of such Committee shall be elected by, and fromamongst, the elected members of the Panchayat at the districtlevel and of the Municipalities in the district in proportion to theratio between the population of the rural areas and of the urbanareas in the district;

(c) the functions relating to district planning which may be assignedto such Committees;

(d) the manner in which the Chairpersons of such Committees shallbe chosen.

Clause (3) states that Every District Planning Committee shall, inpreparing the draft development plan -

(a) have regard to- -


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(i) matters of common interest between the Panchayats andthe Municipalities including spatial planning, sharing ofwater and other physical and natural resources, theintegrated develop-ment of infrastructure andenvironmental conservation;

(ii) the extent and type of available resources whetherfinancial or otherwise;

(b) consult such institutions and organisations as the Governormay, by order, specify.

The Chairperson of every District Planning Committee shall forwardthe development plan, as recommended by such Committee, to theGovernment of the State.

(J) Committee for Metropolitan Planning (Article 243-ZE)

Article 243-ZE deals with Committee for Metropolitan planning. Itprovides that there shall be constituted in every Metropolitan area aMetropolitan Planning Committee to prepare a draft development planfor the Metropolitan area as a whole. The Legislature of a State may, bylaw, make provision with respect to--

(a) the composition of the Metropolitan Planning Committees;

(b) the manner in which the seats in such Committees shall befilled: however, not less than two-thirds of the members of suchCommittee shall be elected by, and from amongst, the electedmembers of the Municipalities and Chairpersons of thePanchayats in the Metropolitan area in proportion to the ratiobetween the population of the Municipalities and of thePanchayats in that area;

(c) the representation in such Committees of the CentralGovernment and the Government of the State and of suchorganisations and institutions as may be deemed necessaryfor carrying out the functions assigned to such Committees;

(d) the functions relating to planning and coordination for theMetro-politan area which may be assigned to such Committees;

(e) the manner in which the Chairpersons of such Committees shallbe chosen.


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Further, every Metropolitan Planning Committee shall, in preparingthe draft development plan,

(a) have regard to- -

(i) the plans prepared by the Municipalities and the Panchayatsin the Metropolitan area;

(ii) matters of common interest between the Municipalities andthe Panchayats, including coordinated spatial planning ofthe area, sharing of water and other physical and naturalresources, the integrated development of infrastructure andenvironmental con-servation;

(iii) the overall objectives and priorities set by the Governmentof India and the Government of the State;

(iv) the extent and nature of investments likely to be made inthe Metropolitan area by agencies of the Government ofIndia and of the Government of the State and other availableresources whether financial or otherwise;

(b) consult such institutions and organisations as the Governor may,by order, specify.

The Chairperson of every Metropolitan Planning Committee shallforward the development plan, as recommended by such Committee,to the Government of the State.

It is submitted that in certain western countries, local bodies enjoytheir existence and autonomy independent of the State or CentralGovernments. For example, Article 28 of the German Constitution of1949, guarantees to the local bodies the right to regulate the affairs ofthe local community and puts the responsibility on the Federation toensure the protection of that guarantee. However, in the India local bodiescannot make a claim beyond what these Amendments do or the Statelegislations may provide. It is submitted that in line with our devolutionarysystem, they would in course of time acquire a sense of autonomy andresponsibility towards the local self-government.

(K) Amendment of Article 280

As a result of the establishment of the Financial Commission forMunicipalities, the 74th Amendment adds a new clause (c) in clause (3)


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of Article 280 and existing sub-clause (c) is renumbered as sub-clause(d). The new sub-clause (c) provides that it shall be the duty of theFinance Commission to make recommendations to the President as tothe measures needed to augment the consolidated fund of a State tosupplement the resources of the Municipalities in the State on the basisof the recommendations made by the Finance Commission.

4. Democracy (Local self-government), Rule of Law and HumanRights

A. Democracy (Local self-government)

Protection and promotion of democratic principles, rule of law andhuman rights are the basic foundations of modern civilized society. TheConstitution of India recognizes the principles of democracy, rule of lawand human rights. The English scholar W. Ivor Jennings states: “Thefundamental principle of democracy is that government shall be carriedon for the benefit of the governed. The object of most constitutions is toset up machinery by which the wishes of the governed may determinethe nature of the government.”26 The basic object of democracy is toprotect and implement the wishes of the electorates. The democraticgovernment should be carried on for the welfare of the people. In caseof Smt. Indira Gandhi V. Raj Narain27 Mathew, J. held that democracy isa basic feature of the Constitution. It can not be amended or abridged bymaking an amendment of the Constitution. The Constitution envisagesthe establishment of a democratic republican form of Government basedon adult suffrage. The learned Judge observed:

“Democracy proceeds on two basic assumptions: (1) popularsovereignty in the sense that the country should be governed by therepresentatives of the people; that all power came from them; attheir pleasure and under their watchful supervision it must be held;and (2) that there should be equality among the citizens in arriving atthe decisions affecting them.

Today, it is impossible to conceive of a democratic republicanform of Government without equality of citizens. It is true that in therepublics of Athens and Rome there were slaves who were regardedas chattels. And, even in the United States of America, there was arepublic even before the Negroes were enfranchised. Our


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Constitution envisages the establishment of a democratic republicanform of Government based on adult suffrage”28

It is submitted that the Constitution has adopted a democraticrepublic form of government based on adult suffrage. In the Preamblethe people of India have solemnly resolved to constitute India a democraticState. It means that the Constitution rest’s on the people’s will and theinstitutions set up under it shall seek to give effect to democraticprinciples. The 74th Amendment adopts the principles of democracy andlocal self-government. It makes provisions for elections. Article 243-Qdays down provisions for constitution of municipalities. Article 243-Rprovides that all the seats in a Municipality shall be filled by personschosen by direct election. It makes provisions for the representation ofpersons having special knowledge or experience in Municipaladministration. Article 243-T makes provisions for reservation in favourof Scheduled Castes, Scheduled Tribes and women. Article 243-U statesthat the term of the Municipalities shall be for a period of five years.Article 243-ZA makes provision for election to the Municipalities. It statesthat the conduct of all elections to the Municipalities shall be vested inthe State Election Commissioner. Article 243-ZC makes provision forelection petition. Article 243-W directs the Legislature of a State to conferthe Municipalities such powers and authority as may be necessary toenable them to function as institutions of self-government. It is submittedthat the Amendment makes elaborate provisions to strengthen democraticprinciples. These democratic principles would enrich the roots of localself- government in the country.

B. Rule of Law

Rule of law is an important stone of a civilized society. The EnglishScholar A. V. Dicey has propounded the doctrine of ‘rule of law’ in hisfamous work. ‘An Introduction to the Study of the Constitution.’ Accordingto him the doctrine of ‘rule of law’ is one of the basic foundation of theEnglish Constitution. This principle is adopted in the Constitution also.In case of Smt. Indira Gandhi V. Raj Narain29 the Supreme Court heldthat democracy and rule of law are basic structure of the Constitution.Mathew, J. observed:

“The rule of law postulates the pervasiveness of the spirit of lawthroughout the whole range of Government in the sense of excludingarbitrary official action in any sphere. Rule of law is an expression to


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give reality to something which is not readily expressible. That iswhy Sir Ivor Jennings said that it is an unruly horse. Rule of law isbased upon the liberty of the individual and has its object, theharmonizing of the opposing notions of individual liberty and publicorder. The notion of justice maintains the balance between the two;and justice has a variable content.”30

The learned Judge further observed:

“If rule of law is to be a basic structure of the Constitution, onemust find specific provisions in the Constitution embodying theconstituent elements of the concept. I can not conceive rule of lawas a twinkling star up above the Constitution. To be a basic structure,it must be a terrestrial concept having its habitant within the fourcorners of the Constitution. The provisions of the Constitution wereenacted with a view to ensure the rule of law. Even if I assume thatrule of law is a basic structure, it seems to me that the meaning andthe constituent elements of the concept must be gathered from theenacting provisions of the Constitution. The equality aspect of ruleof law and of democratic republicanism is provided in Article 14. Maybe, the other articles referred to do the same duty.”31

It is submitted that the principles of ‘rule of law’ is an essential part ofthe Constitution and our legal system. The 74th Amendment of theConstitution recognizes the principle of rule of law. The Article 243-Qand 243-R deal with constitution and composition of Municipalities. Article243-S makes provision for constitution and composition of WardsCommittee etc. Thus, the Act divides exercise of powers between theMunicipalities and Ward Committees. It prevents the arbitrary exerciseof powers by Municipalities and adopts the first principle of rule of lawpropounded by English Scholar A. V. Dicey. Article 243-U fixes five yearsduration of Municipality. After five years, fresh elections shall be held.Every citizen of the country is entitled to give vote and participate inelections. Thus, the Amendment adopts the basic principles ofdemocracy and rule of Law. Articles 243-ZD and 243-ZE make provisionsto constitute committee for district planning and committee forMetropolitan planning. Thus, there is a division of powers betweencommittee for district planning and committee for Metropolitan planning.In other words, there is division of powers in different bodies instead ofconcentration of powers in a single body. Further, the principle of equalityis implicit in the provisions of the Amendment. Every citizen of the country


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is entitled to participate in the functions and planning of Municipalitiesand to take benefits of it. Article 243-Z makes provision for audit ofaccounts of Municipalities. In other words, the principle of rule of lawruns throughout the provisions of the 74th Amendment. It is submittedthat the doctrine of rule of law would increase the importance of theAmendment. It would enrich the system of democracy and local self-government in the country.

C. Human Rights

A democratic society recognizes the principles of human rights. Therule of law and human rights are fundamental foundation of democracyand local self-government. The term ‘human rights’ was firstly used inthe Charter of the United Nations. The elaborate provisions regardinghuman rights are provided in the Universal Declaration of Human Rights,1948. The provisions of the human rights are provided in the Constitutionin the name of ‘Fundamental Rights and Directive Principles of StatePolicy’. The Preamble, Part-III and Part-IV of the Constitution makeprovisions regarding human rights.

In the case of Kirloskar Brothers Limited V. Employee’s StateInsurance Corporation32 a three Bench of the Supreme Court consistingof K. Ramaswami, S. Saghir Ahmad and G. B. Patnaik recognized theimportance of human rights. The Court referred Article (1), (3), 25 (1) ofthe Universal Declaration of Human Rights, 1948, Articles 6, 7 (b) of theInternational Covenant on Civil and Political Rights, 1966 and certainprovisions of the Constitution specially Preamble, Fundamental Rightsand Directive Principles of the State Policy and observed:

“The Preamble of the Constitution of India, the FundamentalRights and Directive Principles constituting trinity, assured to everyperson in a Welfare State social and economic democracy withequality of status and dignity of person. Political democracy withoutsocial and economic democracy would always remain unstable.Social democracy would become a way of life in an egalitarian socialorder. Economic democracy aids consolidation of social ability andsmooth working of political democracy.”33

It is submitted that the provisions relating to Human Rights/Fundamental Rights are provided in the Preamble, Part-III and Part-IV ofthe Constitution. The 74th Amendment of the Constitution makes provision


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for the promotion and protection of social justice, economic democracyand welfare State. Article 243-W of the Amendment empowers theMunicipalities to make plans for economic development and socialjustice. It empowers the Legislature of a State to endow the Municipalitieswith such powers and authority as may be necessary to enable them tofunction as institutions of self-government. Article 243-X states that theLegislature of a State may by law authorize Municipalities to impose tax.Article 243-Y directs the Finance Commission to provide financialassistance to the Municipalities. Twelfth Schedule (Article 243-W)empowers the Municipalities to make law for urban planning includingtown planning, planning for economic and social development, publichealth, safeguarding the interests of weaker sections of the society, slumimprovement and upgradation and urban poverty alleviation, etc.

It is submitted that the Amendment would be helpful to provide socialjustice to the people. It would enable the Municipalities to make plans foreconomic development. The financial assistance would enableMunicipalities to implement schemes made for the welfare of the people.It would be helpful to protect and promote provisions of human rightsprovided in Preamble Part-III and Part-IV of the Constitution.

5. Conclusion

It is submitted that the Municipalities will be dependent to a greatextent on the State Governments. The 74th Amendment creates somelegally enforceable rights and obligations which can not be ignoredbeyond a limit. It imposed duties upon the States to Constitutemunicipalities. They have to ensure elections at regular intervals. Theyhave to provide for their constitution as laid down in the Amendment.They are empowered for the constitution and composition of WardsCommittees etc. The Legislature of a State may by law confer on themsome minimum powers and functions as institutions of local self-government. It may involve them in planning and development and ensurefinancial resources and autonomy. It is submitted that the Amendmentwould enrich, protect and promote democracy (local self-government),rule of law and human rights at grass root level in the country.

References

1. The paper was presented in National Seminar on ‘Urban Local Self-Governmentin an Era of Globalisation’ (9-10 March, 2006) organized by the Departmentof Political Science, University of Allahabad, Allahabad.


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2. Sr. Lecturer, Faculty of Law, University of Allahabad, Allahabad.

3. Goswami Tulsidas : ‘Sri Ram Charit Manas’, Uttar Kand at Page 806, Doha19-21, Tikakar Hanuman Prasad Poddar, Published by Govind BhawanKaryalaya, Gita Press, Gorakhpur, 41 Edition (Sanvat 2049).

4. AIR 1998 Gujrat 124. The case was heard by a Division Bench of the GujratHigh Court consisting of K. Sreedharan, C. J. and M. S. Shah, JJ. Thedecision of the Court was delivered by K. Sreedharan, J.

5. AIR 1999 SC 826. The case was heard by a Division Bench of the SupremeCourt consisting of Mrs. Sujata V. Manohar and G. B. Patnaik, JJ. TheJudgment of the Court was delivered by Sujata Manohar J.

6. Saij Gram Panchayat V. State of Gurrat, AIR 1988 Gujrat 124

7. AIR 1997 SC 347. The case was heard by a Division Bench consisting of Dr.A. S. Anand and S. B. Majumdar, JJ. The decision of the Court was deliveredby Dr. A. S. Anand, J.

8. Smt. Shanti Devi V. Smt. Saraswati Devi (1996) Rec. Rev. Rep., 292.

9. AIR 1998 SC 815. The case was heard by a three Judge Bench of theSupreme Court consisting of J. S. Verma, C.J.I., B. N. Kirpal and M. JagnnathaRao, JJ. The judgment of the Court was delivered by J. S. Verma, C.J.I.

10. AIR, 1998 SC 815 at P. 820, Para 14.

11. C. A. No. 6379 of 1997, Dt. 4-8-1997 (Guj.)

12. AIR, 1997 SC 347.

13. (2002) 10 SCC 565.

14. (2002) 10 SCC 565 at P. 566.

15. AIR 2003 SC 1659.

16. (2002) 1 Mah LR 637 (Bombay).

17. AIR 2003 SC 1659 at P. 1673, Para 21.

18. (1949) 1 All ER 109.

19. (1987) AC 625.


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20. AIR 2003 SC 1659 at P. 1678.

21. [2006 (2) ADJ 90 (All) (D.B.)]. The case was heard by a Division Benchconsisting of R. K. Agrawal and (Mrs.) Saroj Bala, JJ. The judgment of theCourt was delivered by R. K. Agrawal, J. See also Hindalaco Industries Ltd.Sonebhadra V. State of U.P. [2006 (3) ADJ 597 (All) (D.B.)]. In Shanti GPatel v. State of Maharashtra , AIR 2006 SC 1104, a Division Bench of theSupreme Court held that the courts at most could only direct State to passappropriate legislation in term of provisions of Article 243-W and Schedule12, items 1, 2. The Court approved the decision of the Bombay High Courtand dismissed the petition. See also Kabir Hussain Nasir Ahmed Boga v.State of Gujarat AIR 2006 Gujarat 53.

22. (2004) 6 SCC 588.

23. [2006 (2) ADJ 90 (All) (D.B.)] at p. 105- 106 Para 36.

24. [2006 (2) ADJ 90 (All) (D.B.)] at p. 106 Para 37.

25. (2004) 6 SCC 588.

26. The Law and the Constitution (London University of London Press Ltd.) Firstprinted 1933 at P. 229.

27. AIR 1975 SC 2299.

28. AIR 1975 Sc2299 at pp. 2383-2384 Paras 334-335.

29. AIR 1975 SC 2299.

30. AIR 1975 SC 2299 at P. 2384, para 338.

31. AIR 1975 SC 2299 at P. 2385.

32. (1996) 2 SCC 682.

33. (1996) 2 SCC 682 at P. 687. See also State of Punjab V. Ram LubhayaBagga, AIR 1998 SC 1703, N. D. Dayal V. Union of India (2004) 9 SCC 362.

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JUDGMENT SECTION

CASE OF SAMPANIS AND OTHERSV.

GREECE

(Application no. 32526/05)

Decided on 5th June, 2008 by the European Court of Human Rights

Ms. G.M. Padma Priya*

In the present case, the applicants were of Romani ethnic origin,residing in a settlement located in the “Psari” area of Aspropyrgos, Attica.Their grievance related to the fact that their children were refusedenrollment by the education authorities in the local primary school duringthe school year 2004-2005 and instead they were placed in an annex tothe local primary school, housed in prefabricated containers attendedonly by Roma, located five kilometres from the primary school. Thejudgment recognizes the issue of the education afforded to Romanichildren, and is thus a landmark in the field of right to education andequality.

The applicants’ claimed that their children had for some time attendedclasses at the local primary school. But due to the reaction of local non-Romani parents who did not want their children to attend the same schoolwith Romani children and had staged numerous protests, includingpreventing their children from attending school, the Government shiftedthe Romani children to an annexe to the local primary school.

In this act of the State, the Court found a violation of Article 14(prohibition of discrimination) of the European Convention on HumanRights, read with Article 2 (right to education) of Protocol 1, The Courtheld that it was necessary to take into account the “incidents of a racistcharacter” such as the demonstrations staged by the parents of non-Romani children, that had taken place and concluded that these eventshad an impact on the authorities’ decision to send the Romani childrento the segregated annex school.

*Advocate, High Court of Delhi


64

The ECHR, in arriving at its decision relied on an earlier judgment ofthe Grand Chamber in the case of the D.H. and Others v. The CzechRepublic wherein it was observed that in Para 205 that “[…] the CzechRepublic is not alone in having encountered difficulties in providingschooling for Roma children: other European States have had similardifficulties”, which indicates that the Court recognized the issues relatingto the educational rights of the Roma children as a common problem inEurope.

The Court considered the domestic legislation and the vulnerableposition of Romanis in Greece which required special measures toensure the full enjoyment of their rights, and held that the failure of thestate authorities to enroll the Romani children during the school year2004-2005 was attributed to them and very much their responsibility.

Regarding the segregated school environment, the Court emphasisedthe need to put in place an adequate system of assessment of childrenfacing educational challenges which ensures the avoidance of ethnicminority children being placed in special preparatory classes based ondiscriminatory criteria.

Lastly, the Court reiterated principles laid down in the case of D.Hand Others regarding un-informed consent, and noted that one of theapplicants had explicitly stated that he had effectively to choose betweensending his children to the local primary school and jeopardizing theirphysical integrity at the hands of “indignant” non-Romani persons andsending them to the “ghetto school”.

This judgment, in effect, reinforces the position emanating from thecase of D.H. and Others that the segregation of Romani children ininferior schools and classes is illegal and that European governmentsmust take responsibility for this.

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65


T.N. GODAVARAMAN THIRUMULPADVs.

UNION OF INDIA (UOI) AND ORS.AND

IN RE: VEDANTA ALUMINA LTD.[Decided on 23.11.2007 reported as (2008) 2 SCC 222]

Ms. G.M. Padma Priya*

This case is yet another example of how active a role has theSupreme Court played in protection and preservation of the environment.It further fortifies the fact that environmental protection encompasseswithin its ambit, not only control of pollution, but also sustainabledevelopment and conservation of natural resources and the eco-system.

Facts:

M/s. Vedanta Aluminium Ltd. (M/s. VAL, for short) filed an applicationbefore the Supreme Court seeking clearance of the proposal for use of723.343 ha of land (including 58.943 ha of reserve forest land) in LanjigarhTehsil of Kalahandi District, Orissa for setting up Alumina Refinery. Theproject consisted of setting up of a large integrated aluminium complexin Orissa by M/s. Vedanta Aluminium Ltd. All the requisite permissionshad been obtained by the applicant including an environment clearancefrom MoEF.

The question before the Court was whether M/s. VAL should beallowed to set up its Project that involved the proposal for diversion of58.943 ha of forest land.

Held:

The Hon’ble Court observed at the very outset that adherence to theprinciple of Sustainable Development is now a constitutional requirement.The term ‘sustainable development’ means that development whichmeets the needs of the present without compromising the ability of thefuture generations to meet their own needs. The Supreme Courtreiterated its consistent view that it is the duty of the State as also that ofthe Courts to meet their obligations of Sustainable Development basedon inter-generational equity. Pertaining to the facts of the case in hand, it

*Advocate, High Court of Delhi


66

was observed that though mining is an important revenue generatingindustry, however, one cannot allow the national assets to be placedinto the hands of companies without proper mechanism in place andwithout ascertaining the credibility of the User Agency.

On the other side, the Court also took note of the life of the abjectpoverty that the local people in Lanjigarh Tehsil including the tribal people,were leading. The Court also noted that though there has beenaccelerated economic growth in India in the last few years, but the sameis in no manner an ‘Inclusive Growth’. Keeping in mind the two extremes,the Court thought of balancing development vis-a-vis protection of wildlifeecology and environment in view of the principle of SustainableDevelopment.

During the course of hearing, the Court was informed for the firsttime that M/s. VAL is a subsidiary of M/s. Sterlite Industries (India) Ltd.(M/s. SIIL, for short) and that M/s. SIIL shall provide jobs on permanentbasis to the tribals, particularly, land-losers. It was stated that plantmaintenance, power plant operations, house keeping, canteen, materialhandling etc. will be outsourced. The Court, however found that therewas no positive statement as to the number of persons who would getjobs on permanent basis or as to the category they would be fitted in. Itwas also noted that the Project is funded by Vedanta Resources (aU.K.- based company, which company the Court found, had been bannedfrom Norway for non-compliance of labour laws and for violation of humanrights.

Though the Court refrained from expressing any opinion on thecorrectness of the said Report, however, it observed that the risk ofhanding over an important asset into the hands of the company couldnot be taken unless one is satisfied about its credibility. Thus, in thecircumstances of the case and the totality of the above factors, the Hon’bleSupreme Court refused to clear the Project.

The Hon’ble Court also suggested various modalities in respect ofrehabilitation of the project affected families and protection andregeneration of the environment of the project area and accordingly libertywas given to M/s. SIIL to move the Court if they agreed to comply withthe said modalities.

It thus emerges from an analysis of the present judgment thatjudiciary is not against such projects in principle, but its endeavor is onlyto seek safeguards by which to protect nature and subservedevelopment.

��


67

POETRY SECTION

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68


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69


I. ALL INDIA MEET OF EXECUTIVECHAIRPERSONS AND SECRETARIES OF

STATE LEGAL SERVICES AUTHORITIES ANDHIGH COURT LEGAL SERVICES COMMITTEES

The All India Meet of Executive Chairpersons and Secretaries of StateLegal Services Authorities and High Court Legal Services Committees,organized by the “Delhi Legal Services Authority” under the aegis of“National Legal Services Authority” was held at Vigyan Bhawan, NewDelhi on 2nd, 3rd, and 4th May, 2008 to discuss the various facets of “SocioLegal Audit” which may be undertaken by the State Legal ServicesAuthorities in the areas of “Poverty Alleviation” and other welfareschemes in the special context of rising “Crime Against Women”.

The Meet was inaugurated by Hon’ble Mr.Justice K.G.Balakrishnan,Chief Justice of India and Patron-in-Chief of National Legal ServicesAuthority, in the august presence of Hon’ble Mr.Justice Ashok Bhan, JudgeSupreme Court of India and Executive Chairman, National Legal ServicesAuthority and Hon’ble Dr. Justice Arijit Pasayat, Judge Supreme Court ofIndia and Chairman, Supreme Court Legal Services Committee.Mr.E.M.S.Nachiappan, Member of Parliament and Chairman,Parliamentary Standing Committee on Personnel, Public Grievancesand Law and Justice, also graced the occasion.

The Hon’ble Chief Justice impressed upon the gathering to ensurethat all the Constitutional and statutory authorities, render their servicesso as to ensure that the benefits of social welfare legislations and publicwelfare schemes reach the people for whose benefit such legislationsand schemes are framed and particularly the weaker sections of thesociety.

II. LEGAL SANCTION AND OTHER FACETS OFTHE SOCIO LEGAL AUDIT

The Meet examined and discussed the legal sanction behind “SocioLegal Audit” to be undertaken by State Legal Services Authorities inIndia. There was a broad consensus that there is legal sanction, includingthe sanction provided by Clause (d) of Section 4 of the Legal ServicesAuthority Act, 1987 (hereinafter referred to as “the Act”) read with Clause

FUNCTION REPORT


70

(h) (k) and (l) of the said Section, providing for the functions of the NationalLegal Services Authority and also the provisions of Section 8 of the Actrequiring the State Legal Services Authorities to act in cooperation, inter-alia, with other Governmental agencies and also to be guided by theNational Legal Services Authority. The Constitutional provisions, includingArticle 51 (A) read with the provisions of the Act enable and empowerthe State Legal Services Authorities to play a pro-active role to enablethe people, and in particular the weaker sections of the society, to realizetheir rights, benefits and privileges, as guaranteed by social welfarelegislations and other enactments, as well as administrativeprogrammes and measures incorporating welfare schemes. The Meetdiscussed, with reference to the judgments of the Hon’ble SupremeCourt of India, the need for helping the poor and down trodden and thepersons suffering from disabilities to have access to justice andparticularly to achieve social-justice.

There was consensus that to achieve the objective of social justiceas enshrined in the preamble to the Constitution and other Constitutionalprovisions and the provisions of the Legal Services Authorities Act, 1987and other enactments, the State Legal Services Authorities may adoptappropriate strategies for “Socio Legal Audit”, including enablingvoluntary social organizations or other eminent personalities or, if required,in appropriate cases, itself initiate social justice litigation in the mattersof special concern to the weaker sections of the society including thematters regarding consumer protection and environmental protection.

III. The Meet also considered the environmental issues andexpressed serious concern about the degradation in air, water and earthcaused by out dated technologies and unmeaningful waste of scarcenational resources and the role which could be played by Legal ServicesAuthorities to arrest such degradation and to protect the environment.

The Meet highlighted the need for public administration to take agreater initiative in reaching out to the weaker sections of the society,rather that the weaker sections chasing the Government. The Meet alsodiscussed the need to implement more effectively the directions givenby the Hon’ble Supreme Court of India for enforcement the “Right toFood”.

The Meet noted with concern the differences in opinions about theappropriateness or otherwise, in applying to all cases, certain provisionsof the enactments made for achieving the social-justice and discussedpossible measures for reconciling such differences.

71


THE MEET MADE THE FOLLOWINGRECOMMENDATIONS:

1. To achieve the objective of social justice enshrined in the preambleto the Constitution and other Constitutional provisions and theprovisions of the Legal Services Authorities Act, 1987 and otherenactments, the State Legal Services Authorities may adoptappropriate strategies for “Socio Legal Audit”, including enablingvoluntary social organizations or other eminent personalities to initiateor, if required in appropriate cases, itself initiate social justice litigationin the matters of special concern to the weaker sections of the societyincluding the matters regarding consumer protection andenvironmental protection.

2. The State Legal Services Authorities should take urgent steps tospread awareness about the protection of environment amongst allthe sections of the society, including children in Schools and studentsin Universities.

3. The State Legal Services Authorities may take all necessary remedialmeasures on the environmental front, including coordination withregulatory agencies and if required, initiation of social justice litigationfor implementation of the legislations for protection of environment.

4. The Government may provide for implementation of various socialwelfare schemes through a Single Window Operation System withpeople friendly procedures and practices.

5. There is need for involvement of State Legal Services Authorities formore effective implementation of the directions given by the Hon’bleSupreme Court of India for enforcement of the “Right to Food”.

6. The State Legal Services Authorities and the Committees thereundershould sensitize all concerned to consider the nature and degree ofnon-implementation of any provisions of enactments made foradvancement of social justice, before recommending any particularmode of dispute resolution or before invoking one or more of theavailable remedies – such as counselling, conciliation, civil litigationand criminal complaints. The State Legal Services Authorities may,as a part of the “Socio Legal Audit” strategies adopt such otherand further measures as may be considered appropriate in the factsand circumstances of a given case, within the Constitutional set upand the scheme of Legal Services Authorities Act, 1987.


72

7. The Delhi Legal Services Authorities is authorized to move theNational Legal Services Authority for taking up the matter with theCentral Government for amendment of any provisions of the Act, forproviding stringent provisions for non compliance with the directivesof the National Legal Services Authority and the State Legal ServicesAuthorities, so as to make the directives of these authorities bindingon the concerned Authorities and persons, in order to make thefunctioning of State Legal Services Authorities, District Legal ServicesAuthorities and Taluka Legal Services Committees more effectivefor achieving the objectives of social-justice as enshrined in theConstitution.

Glimpses from All India Meet of Chairpersons and Secretaries ofLegal Services Authorities and High Court Legal Services

Committees on 2nd, 3rd & 4th May, 2008at Vigyan Bhawan, New Delhi.

INAUGURAL SESSION

Hon’ble Mr. Justice K.G. Balakrishnan, Chief Justice of India, Supreme Court of India& Patron-in-Chief, National Legal Services Authority lighting the lamp in the benignpresence of Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India& Executive Chairman, National Legal Services Authority & Hon’bleDr. Justice Arijit Pasayat, Judge, Supreme Court of India & Chairman,Supreme Court Legal Services Committee.

Hon’ble Mr. Justice K.G. Balakrishnan, Chief Justice of India, Supreme Court of India& Patron-in-Chief, National Legal Services Authority delivering inaugural address inthe inaugural plenary session.

Hon’ble Dr. Justice Arijit Pasayat, Judge, Supreme Court of India & Chairman,Supreme Court Legal Services Committee delivering the concluding address inthe inaugural plenary session with his speech.

A view of the Plenary Hall of Vigyan Bhawan in the inaugural plenary session.

EXECUTIVE PLENARY SESSION

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & ExecutiveChairman, National Legal Services Authority and Hon’ble Dr. Justice Arijit Pasayat,Judge, Supreme Court of India, Chairman, Supreme Court Legal Services Committeeinteracted with the Delegates on ‘Role and Contribution of High Court Legal ServicesCommittee; impending coordination of State Legal Services Authorities and HighCourt Legal Services Committees for effective implementation of free legal aidprogrammes for the weaker sections.

Ist Session on 3rd May, 2008 at Vigyan Bhawan, New Delhi.

(Left to Right) Hon’ble Mr. Justice Shiva Kirti Singh, Judge, Patna High Court &Executive Chairman, Bihar State Legal Services Authority; Hon’ble Mr. JusticeM.Y. Eqbal, Judge, Jharkhand High Court & Executive Chairman, Jharkhand StateLegal Services Authority; Hon’ble Mr. Justice R.V. Raveendran, Judge, SupremeCourt of India and Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi &Executive Chairman, Delhi Legal Services Authority on the dias during the Ist Session.

5th Session on 4th May, 2008 at Vigyan Bhawan, New Delhi.

Hon’ble Mr. Justice D.P. Wadhwa, Former Judge, High Court of Delhi delivered akeynote address on “Consumer Protection - Social Justice Litigation & Role ofState Legal Services Authority”.


76

1ST TRAINING PROGRAMME FOR ADVOCATESHELD ON 6TH AND 7TH JUNE, 2008

Delhi Legal Services Authority organized 1st Training Programmefor legal services Advocates on 6th & 7th June, 2008 at India InternationalCentre, 40, Max Muller Marg, New Delhi.

Delhi Legal Services Authority initiated the process of selection ofAdvocates on its panel in accordance with the recommendations madeby National Legal Services Authority in its vision document. The TrainingProgramme was first of its kind in the country in which lectures ondifferent subjects were delivered by distinguished speakers chosen forthat purpose. Training Programme was organized to ensure quality legalservices to the beneficiaries and to train and sensitize Legal Servicesadvocates about the significant substantive and procedural law as wellto ensure quality legal services to the beneficiaries under the LegalServices Authorities Act.

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India &Executive Chairman, National Legal Services Authority kindly inauguratedthe Training Programme on Friday, the 6th June, 2008.

In the Inaugural Session, Hon’ble Mr. Justice T.S.Thakur, Judge, HighCourt of Delhi & Executive Chairman, Delhi Legal Services Authoritydelivered the Welcome Address. In the Inaugural Address, Hon’ble Mr.Justice Ashok Bhan, Judge, Supreme Court of India & ExecutiveChairman, National Legal Services Authority emphasized the need toinculcate the values of compassion and empathy within the PanelAdvocates and significance of holding of such Training Programme soas to update the knowledge of the Legal Services Advocates.

Ms. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal ServicesAuthority delivered the Vote of Thanks.

His Excellency Dr. A.P.J. Abdul Kalam, Former President of Indiadelivered the ‘Motivational Reflections’ on “Work with integrity,succeed with integrity”.

Hon’ble Dr. Justice S. Muralidhar, Judge, High Court of Delhi madea Power-point Presentation on “Evolution and Growth of the Conceptof Legal Aid and its relevance” .

77


Hon’ble Mr. Justice S.N. Kapoor, Former Judge, High Court of Delhihighlighted the “Role of Legal Aid Counsel in Mediation andConciliation Proceedings”.

Hon’ble Ms. Justice Sharda Aggarwal, Former Judge, High Court ofDelhi delivered the lecture on the “Concept of Plea Barganing andRole of Legal Aid Counsel”.

Hon’ble Ms. Justice Hima Kohli, Judge, High Court of Delhienumerated the “Professional Ethics of a Legal Aid Counsel”.

Hon’ble Mr. Justice S.K. Aggarwal, Former Judge, High Court of Delhidelivered a lecture on “Art and Law relating to Cross-examinationin Criminal Cases”.

Sh. Sanjeev Jain, Chief Metropolitan Magistrate, Delhi apprised theparticipants about the ‘Law relating to Disclosure, recovery,confession and other procedural aspects”.

Sh. Sidharth Luthra, Senior Advocate, High Court of Delhi highlightedthe “Role of Legal Aid Counsel in Remand Proceedings”.

Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi &Executive Chairman, Delhi Legal Services Authority delivered theconcluding remarks. His Lordship motivated the Legal ServicesAuthorities’ Advocates and emphasized that Knowledge is Power. HisLordship said that educating the Legal Services Advocates about theirrole and latest law is also a way to empower the poor for whose benefitLegal Services Authorities are constituted.

During the interactive sessions in all the lectures, the questionssubmitted by the participants were suitably answered.

The Training Programme was immensely successful and highlyappreciated by all the participants.

��


77

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & ExecutiveChairman, National Legal Services Authority lighting the lamp in the inauguralsession of the training programme.

Glimpses from Ist Training Programme for Advocates at IndiaInternational Centre on 6th & 7th June, 2008

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & ExecutiveChairman, National Legal Services Authority delivering the inaugural address in theinaugural session of the training programme.

A view of distinguish audience in the Inaugural Session.

His Excellency Dr. A.P.J. Abdul Kalam, Former President of India delivered motivationalreflection on “Work with Integrity, Succeed with Integrity”.

(Left to Right) Hon’ble Mr. Justice S.N. Kapoor, Former Judge, High Court of Delhi andHon’ble Dr. Justice S. Muralidhar, Judge, High Court of Delhi sitting on the dias in theinteractive session in Lecture - I on “Evolution and Growth of the Concept of LegalAid and its relevance.”

(Left to Right) Hon’ble Mr. Justice S.N. Kapoor, Former Judge, High Court of Delhi;Hon’ble Mr. Justice R.C. Chopra, Former Judge, High Court of Delhi and Ms. SangitaDhingra Sehgal, Member Secretary, Delhi Legal Services Authority on the dias.


81

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PRESS CLIPPING SECTION


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Dainik Jagran;Sunday 27th April, 2008

Nav Bharat Times;Monday 28th April, 2008

Times of India; Monday 28th April, 2008


83

Dainik Jagran; Monday 28th April, 2008


84

Indian Express; Monday 19th May, 2008

Nav Bharat Times;Monday 19th May, 2008


85

STATISTICAL INFORMATION IN RESPECT OF LEGAL AIDBENEFICIARIES FOR THE MONTH OF APRIL - 2008

Exclusively by High Court Exclusively by Taluk Legal GrandState Legal Legal District Services Total

Services Authority Services Legal Services Committees (Col.1to 4)(Gole Mkt.+PHC Committee Authority (KKD.+ROHINI)

+Jail)(1) (2) (3) (4) (5)

Schedule Caste 02+02=04 05 04 01+NIL=01 14

Schedule Tribe NIL+01=01 - - 01+NIL=01 02

Backward Class NIL - - Nil NIL

Women 75+12=87 10 40 39+54= 93 230

Children NIL - - Nil NIL

In Custody 38+08+120=166 06 61 61+ 24= 85 318

Accidental NIL 03 - Nil 03

General 54+05=59 11 45 19+12= 31 146

Total 169+28+120=317 35 150 121+90=211 713

STATISTICAL INFORMATION IN RESPECT OF LEGALLITERACY/LEGAL AWARENESS CAMPS

Legal Literacy/Legal Awareness Camp Number of Beneficiaries

8 78

INFORMATION SECTIONSTATISTICAL


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2129

2129

Meg

a T

raffi

c55

69-

5569

--

-43

25-

4325

4987

+-

4987

+20

174

-20

174

Lok

Ada

lat

5293

=52

93=

1028

010

280

Mah

ila C

onci

liatio

n-

--

--

--

0707

-07

07-

1414

Ren

t Con

trol

-20

20-

--

--

--

--

-20

20m

atte

rs

Dai

ly L

ok A

dala

t (fo

r-

0908

+01

--

--

--

--

--

0909

Mar

ch 2

3 si

tting

&(n

ot s

ettle

d)=

09 c

ases

set

tled)

09 d

ispo

sed

of

CIV

IL C

AS

ES

--

--

--

-18

18-

2929

-47

47

CR

L. C

OM

P.57

-57

--

--

--

-0-

-57

-57

CA

SE

S U

ND

ER

AC

R M

echa

nism

TOTA

L58

1867

864

96-

--

4325

1267

5592

1028

021

6512

445

2042

341

1024

533


88

STA

TIS

TIC

AL

INF

OR

MA

TIO

N IN

RE

SP

EC

T O

F L

OK

AD

AL

AT

S F

OR

TH

E M

ON

TH

OF

AP

RIL

- 20

08E

xclu

sive

ly b

y S

tate

Hig

h C

ou

rt L

egal

Exc

lusi

vely

by

Dis

tric

tTa

luk

Leg

alG

ran

d T

ota

l (C

ol.1

to 4

)L

egal

Ser

vice

sS

ervi

ces

Co

mm

itte

eL

egal

Ser

vice

s S

ervi

ces

Co

mm

itte

esA

uth

ori

tyA

uth

ori

ty(K

KD

.+R

OH

INI)

(1)

(2)

(3)

(4)

(5)

No.

of

Lok

Lok

adal

at o

ther

tha

n (M

AC

T)

68A

dala

ts h

eld

u/s

+ M

.A.C

.T

+

NIL

19 o

f LS

A A

ct

=

6

8-

4591

204

No

. of

MA

CT

Pre

-P

ost

Tota

lP

re-

Po

stTo

tal

Pre

–P

ost

Tota

lP

re-

Po

stTo

tal

Pre

-P

ost

Tota

lca

ses

sett

led

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

--

--

--

--

--

--

--

-

Tota

l no

. of

cas

es58

1867

864

96-

--

4325

1267

5592

1028

021

6512

445

2042

341

1024

533

Set

tled

(incl

udin

gM

AC

T)

Aw

arde

d am

ount

BA

NK

RE

CO

VE

RY

CA

SE

S:-

-C

RL

. C

OM

P. &

U/S

138

NIA

:-C

RL

. C

OM

P. &

U/S

138

NIA

:-B

AN

K R

EC

OV

ER

YR

S.

94,

40,1

06/-

FIN

E R

EA

LIS

ED

RS

. 11

,600

/-F

INE

RE

AL

ISE

D:-

RS

. 40

,000

CA

SE

S:-

RS

.- 9

4,40

,106

CR

L.

CO

MP.

& U

/S 1

38 N

IA:-

CO

MP

EN

SA

TIO

N P

AID

:-+2

4,70

0=64

,700

/-C

RL

. C

OM

P. &

U/S

138

FIN

E R

EA

LIS

ED

: R

s.

32,7

00/-

RS

. 1,

19,0

00/-

CO

MP

EN

SA

TIO

N P

AID

:-N

IA:-

CO

MP

EN

SA

TIO

N P

AID

:-S

ettl

emen

t am

t. R

ealiz

ed i

n3,

74,7

00+3

,76,

500=

7,51

,200

/-F

INE

RE

AL

ISE

D:

RS

. 3,

82,8

00/-

Tra

ffic

L.A

.= R

s. 3

,27,

310/

-S

ettl

emen

t am

t. R

ealiz

edR

s.

1,0

9,00

0/-

Set

tlem

ent

amt.

Rea

lized

in

in T

raff

ic L

.A.=

Rs.

3,5

4,70

0+C

OM

PE

NS

ATI

ON

PA

ID:-

3,70

,955

=Rs.

7,2

5,65

5/-

Rs.

12,

53,0

00/-

Tra

ffic

L.A

.= R

s. 4

,65,

635/

-S

ettl

emen

t am

t.R

ealiz

ed in

Tra

ffic

L.A

.=R

s. 1

5,18

,600

/-

STA

TS

TIC

AL

INF

OR

MA

TIO

N R

EG

AR

DIN

G P

ER

MA

NE

NT

LO

K A

DA

LA

T E

STA

BL

ISH

ED

UN

DE

R S

EC

TIO

N 2

2B O

F T

HE

LE

GA

L S

ER

VIC

ES

AU

TH

OR

ITIE

S A

CT

Nu

mb

er o

f si

ttin

gs

of

Per

man

ent

Lo

k A

dal

ats

for

Pu

blic

Uti

lity

Ser

vice

s

40

4

0T

ran

sp

ort

Po

stal

, te

leg

rap

hS

up

ply

of

po

wer

,P

ub

lic

Co

nse

rvan

cyS

ervi

ce i

nIn

su

ran

ce

Tota

lS

erv

ice

or

tele

ph

on

e s

erv

ice

lig

ht

or

wat

ero

r sa

nit

atio

nh

osp

ital

or

D.V

.B.

dis

pe

ns

ary

No.

of

case

s se

ttled

--

317

--

-31

7

No.

of

sitti

ng

08

SE

TTLE

DN

ILP

erm

anen

t L

ok

Ad

alat

(D

DA

)Cas

es

Tota

l

4

831

7


89

STATISTICAL INFORMATION IN RESPECT OF LEGAL AIDBENEFICIARIES FOR THE MONTH OF MAY - 2008

Exclusively by High Court Exclusively by Taluk Legal GrandState Legal Legal District Services TotalAuthority Services Legal Services Committees (Col.1to 4)

(Gole Mkt.+PHC Committee Authority (KKD.+ROHINI)+Jail)

(1) (2) (3) (4) (5)

Schedule Caste 09 +01= 10 03 09 Nil 22

Schedule Tribe Nil +01= 01 - - Nil 01

Backward Class Nil 01 - Nil 01

Women 110 +25= 135 11 46 25+67= 92 284

Children Nil - - Nil Nil

In Custody 44 +07+115= 166 01 109 36 + 20= 56 332

Accidental Nil 01 01 Nil 02

General 95 +09= 104 19 32 29 + 06= 35 190

Total 258+43+115=416 36 197 90 + 93=183 832



9 101


90

STA

TIS

TIC

AL

IN

FO

RM

AT

ION

IN

RE

SP

EC

T O

F C

AS

ES

SE

TT

LE

D T

HR

OU

GH

CO

UN

SE

LL

ING

&C

ON

CIL

IAT

ION

FO

R T

HE

MO

NT

OF

MA

Y -

200

8

Exc

lusi

vely

by

Hig

h C

ou

rtE

xclu

sive

lyE

xclu

sive

ly b

y Ta

luk

Co

un

se

llin

g a

nd

Gra

nd

To

tal

Sta

te L

egal

Leg

al S

ervi

ces

Dis

tric

t L

egal

Le

ga

l S

erv

ice

Co

mm

itte

es

Co

nci

liat

ion

(Co

l.1 t

o 5

)S

erv

ice

s A

uth

ori

tyC

om

mit

tee

Se

rvic

es

(4)

Ce

nte

rs(G

ole

Mar

ket+

PH

C)

Au

tho

rity

(1)

(2)

(3)

(5)

(6)

Pre

Ref

erre

dP

reR

efer

red

Pre

Ref

erre

dP

reR

efer

red

Pre

Ref

erre

dP

reR

efer

red

Pre

Ref

erre

dlit

igat

ion

by

the

litig

atio

nb

y th

elit

igat

ion

by

the

litig

atio

nb

y th

elit

igat

ion

by

the

litig

atio

nb

y th

elit

igat

ion

by

the

cou

rtco

urt

cou

rtco

urt

cou

rtco

urt

cou

rt

Num

ber

14

+4

3N

IL5

51

55

43

NIL

04

01

02

Nil

12

4N

il2

85

15

6o

f ca

ses

=5

7re

ceiv

ed

Num

ber

12

+3

6N

IL5

21

21

21

NIL

Nil

01

Nil

Nil

53

Nil

17

41

22

of

case

s=

48

sett

led

KK

DR

oh

ini


91

STA

TIS

TIC

AL

INF

OR

MA

TIO

N I

N R

ES

PE

CT

OF

LO

K A

DA

LA

T F

OR

TH

E M

ON

TH

OF

MA

Y –

200

8

Exc

lusi

vely

by

Sta

teH

igh

Co

urt

Leg

al E

xclu

sive

ly b

y D

istr

ict

Talu

k L

egal

Gra

nd

To

tal (

Co

l.1to

4)

Leg

al S

ervi

ces

Au

tho

rity

Ser

vice

s C

om

mit

tee

Leg

al S

ervi

ces

Ser

vice

s C

om

mit

tees

Au

tho

rity

(KK

D.+

RO

HIN

I)(1

)(2

)(3

)(4

)(5

)

No

. o

f si

ttin

gC

rl. c

om

p. &

u/s

138

NIA

- 2

3-

CR

L. C

OM

P.

35

CR

L. C

OM

P -

33+2

4= 5

9C

rl. c

om

p. &

u/s

138

NIA

=

117

of L

ok

Ad

alat

s+

Ban

k re

cove

ry

2

2M

ahila

Co

nci

l.

0

1M

ahila

Co

nci

l. (R

oh

.) 0

2+

Ban

k re

cove

ry

=

22

hel

d u

/s 1

9 o

f+D

aily

Lo

k A

dal

at

1

7M

ega

Tra

ffic

L. A

. 14

Meg

a T

raff

ic L

ok

32

+ M

ahila

Co

nci

liati

on

=

03

LS

A A

ct+

Meg

a T

raff

ic L

ok

Ad

alat

1

3

C

ivil

Cas

es

0

2

Ad

alat

(16

+16)

+ M

ega

Tra

ffic

Lo

k A

dal

at =

5

7

80

52

Civ

il C

ases

(K

KD

)

01

+ D

aily

lok

adal

at

=

22

9

2+

Civ

il ca

ses

=

03

224

Pre

-P

ost

Tota

lP

re-

Pos

tTo

tal

Pre

–P

ost

Tota

lP

re-

Pos

tTo

tal

Pre

-P

ost

Tota

llit

igat

ion

litig

atio

nlit

igat

ion

litig

atio

nlit

igat

ion

litig

atio

nlit

igat

ion

litig

atio

nlit

igat

ion

litig

atio

n

Ban

k R

ecov

ery

223

-22

3-

--

--

--

--

223

-22

3ca

ses

Crl.

Com

p. c

ases

-94

494

4-

--

-12

6812

68-

1156

2484

-46

9646

96&

u/s

138

N.I.

Act

+13

28=

2484

Meg

a T

raffi

c66

95-

6695

--

-56

68-

5668

5000

+-

1057

522

938

-22

938

Lok

Ada

lat

5575

=10

575

Mah

ila C

onci

liatio

n-

0707

--

--

--

-11

11-

1818

Dai

ly L

ok A

dala

t-

2020

--

--

--

--

--

2020

CIV

IL C

AS

ES

--

--

--

-22

22-

1313

-35

35

TOTA

L69

1897

178

89-

--

5668

1290

6958

1057

525

0813

083

2316

147

6927

930


92

STA

TS

TIC

AL

INF

OR

MA

TIO

N R

EG

AR

DIN

G P

ER

MA

NE

NT

LO

K A

DA

LA

T E

STA

BL

ISH

ED

UN

DE

R S

EC

TIO

N 2

2B O

F T

HE

LE

GA

L S

ER

VIC

ES

AU

TH

OR

ITIE

S A

CT

Nu

mb

er o

f si

ttin

gs

of

Per

man

ent

Lo

k A

dal

ats

for

Pu

bli

c U

tili

ty S

ervi

ces

4

3T

ran

sp

ort

Po

stal

, te

leg

rap

hS

up

ply

of

po

wer

,P

ub

lic

Co

nse

rvan

cyS

ervi

ce i

nIn

su

ran

ce

Tota

lS

erv

ice

or

tele

ph

on

e s

erv

ice

lig

ht

or

wat

ero

r sa

nit

atio

nh

osp

ital

or

D.V

.B.

dis

pe

ns

ary

No.

of

case

s se

ttled

--

280

--

-28

0

No.

of

sitti

ng

08

SE

TTLE

D05

Per

man

ent

Lo

k A

dal

at (

DD

A)C

ases

Tota

l

5

128

5

STA

TIS

TIC

AL

INF

OR

MA

TIO

N IN

RE

SP

EC

T O

F L

OK

AD

AL

AT

S F

OR

TH

E M

ON

TH

OF

MA

Y -

2008

Exc

lusi

vely

by

Sta

teH

igh

Co

urt

Leg

al E

xclu

sive

ly b

y D

istr

ict

Talu

k L

egal

Gra

nd

To

tal

(Co

l.1to

4)

Leg

al S

ervi

ces

Ser

vice

s C

om

mit

tee

Leg

al S

ervi

ces

Ser

vice

s C

om

mit

tees

Au

tho

rity

Au

tho

rity

(KK

D.+

RO

HIN

I)(1

)(2

)(3

)(4

)(5

)

No.

of

Lok

Lok

adal

at o

ther

tha

n (M

AC

T)

80A

dala

ts h

eld

u/s

+ M

.A.C

.T

+

01

19 o

f LS

A A

ct

=

8

1-

5292

225

No

. of

MA

CT

Pre

-P

ost

Tota

lP

re-

Po

stTo

tal

Pre

–P

ost

Tota

lP

re-

Po

stTo

tal

Pre

-P

ost

Tota

lca

ses

sett

led

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

liti

gat

ion

-10

10-

--

--

--

--

-10

10

Tota

l no

. of

cas

es69

1898

178

99-

--

5668

1290

6958

1057

525

0813

083

2316

147

7927

940

Set

tled

(incl

udin

gM

AC

T)

Aw

arde

d am

ount

B

AN

K R

EC

OV

ER

Y C

AS

ES

:--

CR

L.

CO

MP.

& U

/S 1

38 N

IA:-

C

RL

. C

OM

P. &

U/S

138

NIA

:-B

AN

K R

EC

OV

ER

YR

S.

63,

23,3

99/-

FIN

E R

EA

LIS

ED

RS

. 20

,650

/-

FIN

E R

EA

LIS

ED

:- R

S.

49,7

00C

AS

ES

:- R

S.-

63,

23,3

99C

RL

. C

OM

P. &

U/S

138

NIA

:-

CO

MP

EN

SA

TIO

N P

AID

:-

+33

,250

=82,

950/

-C

RL

. C

OM

P. &

U/S

138

FIN

E R

EA

LIS

ED

: R

s.

52,2

00/-

RS

. 2,

92,3

00/-

CO

MP

EN

SA

TIO

N P

AID

:-N

IA:-

CO

MP

EN

SA

TIO

N P

AID

:-

S

ettl

emen

t am

t. R

ealiz

ed i

n

2,

84,5

00+4

,87,

900=

7,72

,400

/-F

INE

RE

AL

ISE

D:

RS

. 2,

51,5

00/-

Tra

ffic

L.A

.= R

s. 3

,36,

725/

-

S

ettl

emen

t am

t. R

ealiz

edR

s.

1,5

5,80

0/-

Set

tlem

ent

amt.

Rea

lized

in

in T

raff

ic L

.A.=

Rs.

2,9

3,29

5+C

OM

PE

NS

ATI

ON

PA

ID:-

Tra

ffic

L.A

.= R

s. 4

,03,

095/

-

3,

59,5

80=R

s. 6

,52,

875/

-R

s. 1

3,16

,200

/-S

ettl

emen

t am

t.R

ealiz

ed in

Tra

ffic

L.A

.=R

s. 1

3,92

,695

/-


93

STATISTICAL INFORMATION IN RESPECT OF LEGAL AIDBENEFICIARIES FOR THE MONTH OF JUNE - 2008

Exclusively by High Court Exclusively by Taluk Legal GrandState Legal Legal District Services TotalAuthority Services Legal Services Committees (Col.1to 4)

(Gole Mkt.+PHC Committee Authority (KKD.+ROHINI)+Jail)

(1) (2) (3) (4) (5)

Schedule Caste 04+01=05 02 09 Nil 16

Schedule Tribe Nil - - Nil Nil

Backward Class Nil+01=01 02 - Nil 03

Women 80+20=100 02 17 22+37=59 178

Children Nil - - Nil Nil

In Custody 52+02+51= 105 01 60 81+23=104 270

Accidental Nil - - Nil Nil

General 52+04=56 - - 14+02=16 72

Total 188+28+51=267 07 86 117+62=179 539



8 78


94

STA

TIS

TIC

AL

IN

FO

RM

AT

ION

IN

RE

SP

EC

T O

F C

AS

ES

SE

TT

LE

D T

HR

OU

GH

CO

UN

SE

LL

ING

&C

ON

CIL

IAT

ION

FO

R T

HE

MO

NT

H O

F

JUN

E,

2008

Exc

lusi

vely

by

Hig

h C

ou

rtE

xclu

sive

lyE

xclu

sive

ly b

y Ta

luk

Co

un

se

llin

g a

nd

Gra

nd

To

tal

Sta

te L

egal

Leg

al S

ervi

ces

Dis

tric

t L

egal

Le

ga

l S

erv

ice

Co

mm

itte

es

Co

nci

liat

ion

(Co

l.1 t

o 5

)S

erv

ice

s A

uth

ori

tyC

om

mit

tee

Se

rvic

es

(4)

Ce

nte

rs(G

ole

Mar

ket+

PH

C)

Au

tho

rity

(1)

(2)

(3)

(5)

(6)

Pre

Ref

erre

dP

reR

efer

red

Pre

Ref

erre

dP

reR

efer

red

Pre

Ref

erre

dP

reR

efer

red

Pre

Ref

erre

dlit

igat

ion

by

the

litig

atio

nb

y th

elit

igat

ion

by

the

litig

atio

nb

y th

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4

328

0

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