Law, Lawyers, Judiciary

01-17-2007, 01:12 AM

01-20-2007, 11:38 PM

DMK urges Centre to 'rewrite' Constitution

Press Trust of India

Chennai, January 20, 2007

Against the backdrop of recent Supreme Court judgements on the power of Parliament vis-a-vis the legislature, the DMK-led government in Tamil Nadu on Saturday demanded the rewriting of the Constitution, keeping in mind the changing needs of the nation while preserving basics like the country's unity, integrity and sovereignty.
Outlining the policy of the DMK â a partner of the UPA at the Centre â for the coming year, Governor Surjit Singh Barnala told the state assembly that political, social and economic facets and the needs of the working class had radically changed in the past 50 years.

Today, the backward, most backward, Scheduled Castes and Scheduled Tribes have been forced to defend their hard-won rights and to ensure social justice, including minority and gender rights, he said in an obvious reference to the Supreme Court verdict that all laws incorporated in the Constitution's ninth schedule after 1973 were open to judicial review.

Echoing the DMK's long-pending demand for autonomy for states, Barnala, a former leader of Akali Dal which too demanded more powers for states, said there was an increasing need to transfer more powers to states by reviewing the division of powers between states and the Union. This would ensure that true federalism prevails and the wheels of social justice move without any hindrance.

"Hence, this government urges the Union government that the Constitution of India should be rewritten afresh, having regard to the changing needs, while preserving the unity, integrity and sovereignty of the nation," Barnala said.

01-21-2007, 02:27 PM

56 years have passed since the Constitution of India was enforced. The world has changed and India has also undergone transformation. While enforcing the provisions of the Constitution certain gray areas have come to the notice of the decision makers, at the same time we have seen political parties in power trying to circumvent the provisions of the Constitution. For effective running of the administrative, judicial and legislative machinery of this big and complex country it is necessary to have Rules, Regulations and guidelines in great detail to face all expected and unexpected contingencies and situations. Time and again we have also seen a showdown or confrontation between the judiciary and legislature.

In view of the reasons above, it is not in appropriate to go in for a review of the present Constitutional provisions and to make the new provisions or amended provisions acceptable to all concerned, should be put to referendum. However, given the fragmented and divergent political scene in present day India this is not an easy task to fulfill. At present, the regional political parties have a considerable say in view of they being members of one coalition or the other. There is no major political party in the country that can say that it has an all India standing in the same scale as some of the parties had in the early 1950s.Given this situation, divergent regional political interests are bound to make the Constitutional review process a very difficult and complex task.

01-21-2007, 06:04 PM

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02-07-2007, 09:26 AM

http://www.ibnlive.com/news/devils-advocat...2-3-single.html

Interesting interview with new CJI Balakrishnan.

02-08-2007, 03:07 AM

QUOTE(rajesh_g @ Feb 6 2007, 11:56 PM)http://www.ibnlive.com/news/devils-advocat...2-3-single.html

Interesting interview with new CJI Balakrishnan.
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This is a bad interview. Karan Thapar or anybody else does not have a right to ask such questions to CJI. Thapar is asking CJI the same way he would talk to a laloo or a mulayam or any other politician. Unfortunate that the CJI put himself thru this.

QUOTEKaran Thapar: But, if there is an allegation, will you probe it diligently?

K G Balakrishnan: Certainly.

Karan Thapar: You wonât be worried by the fact that you could embarrass yourself because he is a fellow judge who sits in the Supreme Court with you. That wonât concern you?

K G Balakrishnan: Certainly, I have to discharge my constitutional obligations.

Karan Thapar: And you will do it fearlessly and diligently.

K G Balakrishnan: Of course, I have taken oath for that.

02-09-2007, 04:01 AM

I think this is unwanted judicial activism.

Banning all roadside stalls, I think, is uncalled for. The better way would have been to enforce some hygiene and cleanliness in these shops. Making people to apply for licences would be a good idea. It would also save a lot of harressment for these hawkers. In New York (the city I am more familiar with. this could be in most big cities), hawkers are given food-handling license that is renewable every year. There are unannounced inspections and also people can complain to the NYC govt if unhygienic conditons exists. Now for Delhi, whole lot of people are going to become lawbreakers (the other option is to become unemployed!) and ofcourse the policemen are going to make a killing with hafta vasool (bribes)!

QUOTEDelhi delicacies go off the roadsÂ

Neelam Pandey | New Delhi

aam admi directed to buy packaged food

This is a recipe of trouble for citizens of Delhi. The ruling by the Supreme Court banning selling of food items on roadsides will severely affect a large number of office-goers and business class people who have thrived on such portable stalls for generations, especially in south and west Delhi areas.

Other than causing harassment to such people who never bothered about grabbing a bite or two, the ruling is also likely to generate a pool of unemployed people.Â

The New Delhi Municipal Council's Enforcement Department on Thursday said that they would comply with the court orders.

"We came to know about this order from the media. Though we are still waiting for the court's order we can say that the vendors who have been issued licence to do business will have to surrender it as per the requisites of the court orders," said RC Meena, director Enforcement, NDMC. Unperturbed by the plight of the people, including thousands of families earning their daily bread and butter from these eateries in the form of khomchas, rehris and food-stalls, the civic officials say that they have to comply with the orders of the court.

Take, for example, the heart of the city - Connaught Place or the bylanes of Walled City in Chandni Chowk. CP alone has several hawkers who cater to the chhole-bhature, curry-chawal, aloo-tikki appetites for thousands of people thronging the places from different parts of the city.

A majority of them are the office-goers who rely on these hawkers for their daily food consumption more than their homemade tiffins. Nonetheless, such eateries are also a hit with the tourists, especially the foreigners who at times relish on chaat, fried rice, paranthas or bread pakoras.

Decades-old hawkers selling paranthas, jalebis, and matar-samosas on the pavements of Chandni Chowk area too are feeling the pinch.

"We are here since years serving hot jalebis, paranthas and the special matar-samosa fried in fresh pure ghee. The moment we start packing these in plastics we will be degrading the food quality which too means an attack on the tehzib of Puraani Dilli," said Ahmed, a vendor in Chawri Bazar.

"Seldom do we bring food from home. This is the place we look forward during the lunch to share the delicious fried foods over a cup of chai. It is not only a problem for us but more for them (hawkers) who get a livelihood from these stalls spread on the pavements of Udyog Bhawan, Niram Bhawan, Shastri Bhawan or near Dholpur House ," said Kumar Ranjan, a Government employee in Udyog Bhawan.

The court's decision states that only packed food would be allowed for selling purposes. "I live in Ghaziabad and travel to Connaught Place every day. How can I cook food at home and carry such a large quantity of it? I cook according to the demand and even if I do carry such a large amount of food won't it go stale during the day, how would they check the hygienic condition then", questioned an angry hawker.

Street vendors at the Union Public Service Commission complain that though they have been given a shop by the NDMC but the size is so small that cooking inside the shop is not possible. NDMC Medical officer of Health SK Garg says "as far as our licensing is concerned we do not allow any cooking on roadside as that food is exposed to dust and flies. We have been encouraging these hawkers to sell packed food and have been issuing licence for the same for a long time". But the hawkers here expressed, "ab hum kahan jayen aur kahan se layenge roti apne bacchon ke liye".

02-15-2007, 11:35 PM

<img src='http://www.dailypioneer.com/images4/home_stories/front_page/big/story1.jpg' border='0' alt='user posted image' />QUOTEKin 'make hay' as Judges shine 
Navin Upadhyay | New Delhi
Following the controversy triggered by the verbal duel between the two judges of the Gujarat High Court, the local bar council passed a resolution on January 23 seeking transfer of all judges whose relatives practised in the same court.Â Â
Pioneer investigation in performance of judgesâ relatives

The bar council's resolution came in the backdrop of Justice BJ Shethna's allegation of a conspiracy to "finish his judicial career" for indicting his fellow Judge PB Majmudar's son SP Majmudar for appearing in his father's court.

While the versions of the two judges about their January 11 face-off are contradictory, the controversy has highlighted the fact that even freshly enrolled sons and daughters of some judges got more cases to handle than established advocates.

Record with The Pioneer shows that sons and daughters of as many as 13 judges,, including both Shethna and Majmudar, were enrolled in the Gujarat High Court. A comparison between the performances of the relatives of the two judges makes an interesting reading.

Justice Majmudar's first son SP Majmudar enrolled himself as an advocate in 2003 and appeared in as many as 2,030 cases till December 2006. Justice Majmudar's second son PP Majmudar enrolled in June 2006 and within a short span of six months appeared in 207 cases.

Curiously, the two inexperienced Majmudars have outshone Gujarat's some of the leading lawyers like KK Vakharia, Sharad B Vakil and Sudhir Nanavati.

Vakharia handed 182 cases between 2000 and 2006, Vakil appeared in 182 cases during the same period and Nanavati in 227 cases.

Similarly, sons and daughter of three other judges who enrolled themselves along with SP Majmudar in 2003, handled far less cases. For example, Justice AM Kapadia's daughter Shaili Kapadia appeared in 433 cases, Justice AL Dave's son HA Dave in 413 cases and Justice KA Puj's daughter Niyati K Shah in 216 cases.

On the other hand, Shethna's daughter Delnaz Shethna enrolled as advocate in 2002 and handled 19 cases till December 2006. Justice Shethna's second son Hormaz B Shethna enrolled in 1999 and has so far handled 123 cases.

Without attaching any motive, The Pioneer publishes the factual chart to highlight the performance of the relatives of various judges of the Gujarat High court.


Here you go shining example of Nepotism, but why stop here when Congress believes in Nepotism.

02-15-2007, 11:44 PM

QUOTEBanning all roadside stalls, I think, is uncalled for. The better way would have been to enforce some hygiene and cleanliness in these shops. Making people to apply for licences would be a good idea. It would also save a lot of harressment for these hawkers.
Sheila Dixit/Congress is paid by Malls owner. They work for highest bidder.
Hawkers do get license and they have to display.

When I was in first grade, I can recall very well, MCD used to do surprise check and destroy hawkerâs cycles and beat them outside our school. After 2-3 incidences we started alerting hawkers whenever we see MCD trucks near our school and even help them hiding inside school through broker boundary walls.
Majority of these hawkers are very poor people and illiterate.

It is sad, but we all know this government is for poor aam adami and Commies are their left and right hand. Both call themselves "Secular" and for poor people.

02-16-2007, 01:56 AM

QUOTETurncoats are bad

The Pioneer Edit Desk

But what if verdict is fractured?

In disqualifying 13 BSP MLAs who claimed to have "split" from their party in Uttar Pradesh in 2003 and joined hands with the Samajwadi Party to help Mr Mulayam Singh Yadav form a Government, the Supreme Court has brought clarity to a messy constitutional situation. The 13 MLAs constituted an eighth of the BSP's Assembly strength of 109 and were well below the one-third threshold. Yet the Governor accepted their claim generously and, over the following weeks, 24 other MLAs met him in bits and pieces. Finally, the Speaker recognised all 37 as a separate group. On the basis of this legally validated "separation", the Mulayam Singh Yadav Government has ruled almost a full term. Welcome as the Supreme Court judgement is in theory, it is so delayed as to have zero impact on practical politics. The horse has bolted. However, many issues still remain to be ironed out. Should Uttar Pradesh's voters, in their infinite wisdom, return another horribly hung Assembly in this year's election, a re-enactment of this "defection versus split" drama can be reasonably guaranteed.

For a start, while the Speaker will get the brunt of the blame after the apex court verdict, the original error - for lack of a stronger word - was probably that of the then Governor. Once a Government has been sworn in, facilitated by an assumed split in a non-supportive party, given the reality of Indian politics, it is reasonably easy for the ruling party to "induce" more support and render a defection the post facto legitimacy of a split simply by breaking away enough members of the targetted party. In this situation no Speaker will want to risk embarrassment and unpopularity by unilaterally toppling the Government, notwithstanding its awkward conception. This is exactly what happened in Uttar Pradesh in 2003 - or at the Centre in the mid-1990s when, as Lok Sabha speaker, Mr Shivraj Patil, safeguarded the PV Narasimha Rao Government by the innovative recognition of a "continuous split" in the Janata Dal, spread over several months.

While the Supreme Court's verdict would satisfy a purist and while the constitutional amendment to the anti-defection law pushed through by the NDA Government later in 2003 has effectively raised the floor for a split from one-third to two-thirds of legislative strength, the fact is, in times of fractured mandates and coalition Governments, the constitutional and moral dilemma that confronted the Uttar Pradesh Speaker is bound to recur. This year itself, aside from Uttar Pradesh, Goa, is likely to see Government formation reduced to mergers and acquisitions after results are declared. To take a textbook view of post-poll tie-ups would be to, in an extreme situation, render Governments impossible. It would see the 2005 Bihar phenomenon - when the Assembly election process had to be repeated - becoming a template. It is worth asking if the rules as they exist militate against democratic functioning in such situations or actually bolster it. Should alternative mechanisms be tried in case of an impossibly hung Assembly? How about the election of the leader of the House - and thereby the Chief Minister - by the MLAs? The Supreme Court tried this mechanism, admittedly in an ad hoc situation, when Mr Kalyan Singh and Mr Jagadambika Pal were rival claimants for power in Uttar Pradesh in 1998. Should it be institutionalised? It is time for the political class to take a call - or wait for a replay of what happened in Lucknow.

02-16-2007, 02:10 AM

QUOTETurncoats are bad

The Pioneer Edit Desk

But what if verdict is fractured?



I was thinking, how do u make induced defections to stop and if at all there are, it is based on principles/policies and not for ministership, posts or money?

How about this...
1) All candidates/elected representatives should swear by their parties manifestos for the elected term. If they decide to differ, they have to resign their seat.
2) Any representative defecting/supporting govt/party other than their party at the time of election, cannot gain from the support for the elected term .They can do like Narayan Rane (I am assuming that is what he did), ie resign from the seat and get re-elected under the new party and become minister etc. So no ministeral berth, no chairman post, and ofcourse no money. The defector should give an affidavit that he/she did not accept any monetary consideration for changing their vote.

I am sure no would be defector would support this measure, but I think the political parties themselves will support it as they are vulnerable to defection.

02-24-2007, 02:57 AM

http://www.indianexpress.com/story/22088.html

I hope Sri Sorabjee and others similar folks in Indian judiciary are not as dumb as this article makes it sound.

In this article all Sri Sorabjee is doing is talking about freedom of expression of the producer of the movie. So the producer of the movie has made the movie. He has totally ignored the rights of the cinema owners to not screen a movie they dont like and most of all the right of a viewer to not see any BS that comes along.

utepian · 02-24-2007, 04:23 AM

My note to Indian Express:-

1. Paragraphs 4&5 (Tamas and Ore Oru Gramathile) are irrelevant to the discussion. In these cases the state ordered a ban under threat. Gujarat Administration has not buckled under any threat and *not* banned the film.

2. No the state has no obligation to burn its coffers on promoting one individual's freedom of expression. People vs Larry Flynt comes to mind easily. While Larry Flynt had the right to publish naked pictures of women, people/newstands still had the right not purchase/distribute his publication. State was in no way obligated to ensure that newstands carried the publication. Would Mr Sorabjee also advocate the state go the extra step to ensure newstands carry pornographic magazines? If not how would the state draw the distinction?

3. Commercial boycott is rooted in the Indian Freedom struggle. Artistic or not, Parzania is a commercial product. If British merchandise was detrimental for Indian economic health and Mahatma Gandhi exhorted masses, why should a lopsided pseudo-secular consignment not be subjected to the same treatment?

03-08-2007, 01:47 AM

QUOTEHang corrupt from lamp post: SC 
Pioneer.com
PTI | New Delhi
Observing that everyone wants to loot this country, the Supreme Court on Wednesday said the only panacea to rid the country of corrupt elements was to hang a few of them from the lamp post.

"The only way to rid the country of corruption is to hang a few of you on the lamp post. The law doesn't permit us to do it but otherwise we would prefer to hang people like you from the lamp post," a Bench of Justices SB Sinha and Markandeya Katju remarked during arguments put forth by counsel for an accused.

As counsel R Singh tried to make some submission, Justice Katju further said, "Everywhere, we have corruption. Nothing is free from corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people in the public so that it acts as a deterrent for others."

The Bench's scathing observations came during the hearing of a bail application moved by one Braj Bhushan Prasad, a dismissed employee of Bihar Government for his alleged involvement in the Rs 1000 crore fodder scam in which the name of Railway Minister Lalu Yadav had also figured prominently. The counsel's submission that Bhushan was a mere budget accounts officer further infuriated the Bench, which observed "Look at that! you are supposed to audit the funds, but see what you have done."

Good going.
Court should have avoided barbaic Islamic way, That should be reserved for Muslims.

03-17-2007, 11:33 PM

Kalam calls upon the honest to reform the system

Satya Prakash

New Delhi, March 17, 2007

Related Stories [X] close

Feb 23 | President and the pen-pusher Â»

Observing that those in power would resist any change towards a corruption-free society, President APJ Abdul Kalam on Saturday called upon the honest within the system to come forward and assert that it needed to be changed in the interest of one billion people of the country.

"Those who are in power and are enjoying powerâ¦, by themselves (they) do not have any reason to change the system. They will even resist changes," Kalam said. Inaugurating a seminar on 'Delay in Administration of Criminal Justice' organised by the Indian Law Institute in New Delhi, he emphasised the need for a "new satyagraha" and "sacrifice" to achieve the goal.

Noting that ordinary powerless citizens by their very nature of lives can not do much and the whistleblowers were systematically eliminated by the powerful nexus of criminal elements, the President said the right-thinking people in power should come out and be ready to face the wrath of others.
Punish cops colluding with criminals

Discussing the maladies plaguing the criminal justice system, Kalam suggested a three-prong strategy to deal with errant police officials.

He said police officials found colluding with criminal should be tried in a parallel court and witnesses turning hostile during trial should be given stringent punishment.

"Once his guilt is established his relatives too should be barred from recruitment in the police services for a period of time to create societal pressure," he said.

Kalam said, "A strict mechanism has to be evolved for preventing the witnesses from turning hostile. Such action should attract exemplary punishment as a crime against society."

Terming police stations as "the place of action", he said police should move fast before criminals succeed in destroying the evidence. He suggested several measures to speed up police action following an act of crime and said that every Station House Officer should be instructed that the complaint should be registered immediately.

Every police station should have a computer and SHO's e-mail should be published. A copy of mail should be addressed to a higher official, if the complaint is not registered.

Action taken report on the complaint should be time-bound, within 10 days, Kalam said and cautioned the police against putting pressure on the complainant to withdraw the FIR.

He also underscored the need "to have a time bound mechanism" for the hearing, arguing and appeals of the cases.

CJI for better infrastructure

Chief Justice of India KG Balakrishnan sought increased budgetary allocation for improving court infrastructure, particularly in trial courts. "There should be sufficient sitting arrangement for the witnesses or the clients. There should be suitable building for the proper functioning of the courts. The accused and the witnesses should have resting rooms if the trial becomes lengthy," he said.

Poor condition of undertrial prisoners

Law Minister HR Bhardwaj talked of the miserable conditions in jails and said nearly 70 per cent of the inmates, who were undertrials, lived in jails with the hardcore criminals. He underlined the need for prison reforms.

Favouring an overhauling of the criminal justice system, Bhardwaj said the basics like presumption of innocence, benefit of doubt to the accused and burden of proof on the prosecution to prove the change against the accused should remain there as these were the "golden threads" of criminal jurisprudence.

Email author: satya.prakash@hindustantimes.com

04-08-2007, 11:08 PM

Now Sonia lead Manmohan run fascism is not working anymore, so they have started intimidating judiciary. Should we name it "Hitler Fascism act-2"

PM concerned over judicial overreach QUOTE-Last week the Allahabad High Court ruled that Muslims could not be considered minorities in Uttar Pradesh before staying this decision the next day after a special appeal by the state government
-The Supreme Court also stayed the 27 per cent quota for OBCs in educational institutions last month
-In January this year, the Supreme Court ruled that courts have the power to examine the validity â and strike down if necessary â laws placed in the ninth Schedule of the Indian Constitution
-Laws included in this schedule created in the 1950s have been immune from judicial scrutiny

04-10-2007, 03:00 AM

QUOTEWhat overreach? 
The Pioneer Edit Desk
Judiciary can't ignore flawed policy
Prime Minister Manmohan Singh was uncharacteristically blunt while pointing out that "the dividing line between judicial activism and judicial overreach is a thin one" at a conference of Chief Justices of High Courts and Chief Ministers in New Delhi on Sunday. The unusual sharpness of his comments reflect the UPA Government's increasing disquiet over the judiciary, especially the Supreme Court, undoing policy framed not for the welfare of the masses but with an eye to garnering votes at election time. In fact, for a better appreciation of Mr Singh's remarks they should be seen against the backdrop of the recent Supreme Court order staying the implementation of the policy to reserve 27 per cent seats for OBC students in Union Government-funded institutions of higher education. Before that order, the Supreme Court, in a landmark judgement with far-reaching implications, ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges, are subject to judicial scrutiny if they violate fundamental rights. This has virtually stripped the Union Government of the constitutional protection that has been abused, more so by the Congress, for the explicit purpose of preventing politically-motivated policy from being challenged in court. Given the cynical purpose behind his cautioning the judiciary against overreach, it is difficult to support Mr Singh's contention, although it can be nobody's case that judges should be unmindful of maintaining harmony between the three organs of the state - the executive, the legislature and the judiciary.

But to blame the judiciary alone, as is being done by both the executive and the legislature, for committing territorial transgression would be unfair. Addressing the same conference, Chief Justice of India KG Balakrishnan spoke of the need for "judicial review to determine constitutionality of legislation", a point that appears to be lost on politicians who have come to believe that policy, no matter how flawed, cannot be questioned. For instance, there is near-unanimous 'outrage' over the Supreme Court's stay order on the OBC quota and all kinds of absurd demands are being voiced to subvert the order. Yet, no politician appears to have the courage to point out that there would have been no occasion for either the executive or the legislature to cavil at the judiciary if such a pernicious policy had not been adopted under the pretext of "social justice". Or, for that matter, had successive Governments not indulged in blatant misuse of the Ninth Schedule, it would have remained beyond the purview of judicial scrutiny. In a sense, when decrepit politicians with perverse perceptions of caste-based identity politics and equally perverse notions of 'secularism' that are predicated on the twin ideas of nurturing a permanent supplicant minority and pandering to a communal vote-bank, begin to formulate policy, judicial 'overreach', if at all this is the right term, is the only remedy to restore some amount of credibility to our system of governance. In any event, it would seem that the Prime Minister and his party are opposed to judicial 'overreach' only when the shoe pinches them. For, when the Supreme Court has pilloried non-Congress State Governments in the past, those who are now exercised have either maintained a silence or applauded that 'overreach'.

04-12-2007, 10:15 AM

Minor can elope to save her love: HCQUOTE If a minor girl runs away with her lover to save herself from the onslaught of her parents opposed to the affair and gets married, she or her spouse cannot be deemed to have committed any offence, the Delhi High Court has said.

In a judgement that could trigger a debate on the extent of liberty minor girls enjoy under the law, the court said parents have no right to marry off their daughter against her wishes, as "right to life and liberty as guaranteed by the Constitution is equally available to minors". Justice Shiv Narayan Dhingra gave the ruling recently while quashing criminal charges slapped by a minor Muslim girlâs father on her husband who is a Hindu.

Braving stiff resistance from her father and the community, 17-year-old Afsana (later became Anjali) married Vivek on April 12 last year at an Arya Samaj Mandir. Frustrated at his failure to persuade his daughter, the father filed an FIR against the boy, accusing him of kidnapping her. Under the Indian Penal Code, the consent of a girl below 18 years for marriage is not valid and the spouse can be punished for kidnapping. However, "forceful taking away" or "enticement" has to be proved in the case.

But in her statement before the court, Afsana said: "I told my father that I am in love with Vivek and wish to marry him. He repeatedly slapped me and said I was going to malign our religion and threatened to kill me. One day, a boy of my fatherâs choice came to meet me and said I will have to live with him for three months and thereafter live with his grandfather. I told him I was in love with someone else and the next day I ran away with Vivek". <img src='style_emoticons/<#EMO_DIR#>/ohmy.gif' border='0' style='vertical-align:middle' alt='ohmy.gif' />

The girlâs father said the minor was enticed away by assurance of marriage and a place to live and therefore it was a kidnap. Perusing the girlâs statement, Justice Dhingra said it was clear she had gone as per her own will. "If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence on the part of girl or the boy with whom she ran away and married," the judge said.

"There was a threat to her life...she has a right to protect herself. In fact, the father has forced her to run away."

"Can falling in love be said to be enticing? If two persons fall in love, who is enticing whom? Does providing shelter to a driven away girl amount to enticing and kidnapping? The answer is an emphatic ânoâ," said the court.


This is nonsense. Who will give protection to minor? Minor means they can't make right decisions. How minor can get marry in India? I thought marriage age is 18 for females and 21 for male .

04-14-2007, 07:31 PM

<img src='style_emoticons/<#EMO_DIR#>/argue.gif' border='0' style='vertical-align:middle' alt='argue.gif' /> Equality is a fine balance
Soli J. SorabjeePosted online: Saturday, April 14, 2007 at 0000 hrs Print EmailExcept in the case of some PILs, judicial interventions cannot be termed overreach

Soli Sorabjee
Related Stories No witch-hunting in Punjab
Horse-trading mantra
Human rights matter
The right to offend
Before we tender clemency

The prime ministerâs recent statement that each organ of the state has âconstitutionally assigned rolesâ and âeach must respect the functions of the otherâ raises the critical question about the legitimate role of each state organ.

The constitutionally assigned role of Parliament and the legislatures is to enact laws and that of the executive is to implement the laws. One salient fact must be remembered. The powers of Parliament and legislatures under our Constitution are not absolute. They are subject to certain limitations, one of which is legislative competence. Another important limitation is the fetter of fundamental rights. Our Constitution expressly provides that any law which contravenes any fundamental right is void. Again, action of the executive must be within constitutional and statutory limits. It is axiomatic that the limits of power and their transgression cannot be determined by the limited power itself. Therefore it is for the judiciary to determine and enforce constitutional limitations. This aspect was extensively debated in the Constituent Assembly. Ultimately it was accepted that the question whether a law or executive action violates any fundamental right was to be decided by the judiciary which was its legitimate function.

The judiciary invalidates a statute if it is clearly in conflict with the Constitution. Our courts have not been trigger happy in striking down laws. Laws are not invalidated because the court disapproves of the policy underlying the legislation or its wisdom. Statistics and research would establish that in a vast majority of cases legislation, especially socio-economic legislation, has been upheld. Undoubtedly there have been at times judicial aberrations. This cannot be avoided because infallibility has not been divinely guaranteed to the judges. Surely that cannot be a reason for clipping the wings of the judiciary.

Suppose a law is enacted by an overwhelming majority that persons belonging to certain castes or community are ineligible to hold certain constitutional offices. Can the court shirk its duty of striking it down as discriminatory?

Reservation to the extent of 27 per cent for OBCs in higher educational institutions has generated furious controversy. The court is not concerned with the wisdom or otherwise of the reservation policy but it has to consider its impact on fundamental rights, especially the guarantee of equality. Leaving aside the recent Supreme Court stay order let us test the issue on principle. Suppose the percentage of reservation is increased â God forbid âto 77 per cent. If the court finds that the hypothetical 77 per cent reservation violates the fundamental right of equality, should it fold its hands in despair and refuse to interfere because the majority of people and several political parties are insistent about it? Such a course would not be exercise of judicial restraint but plain and simple judicial abnegation. The rationale of guarantee of fundamental rights in the Constitution and their protection by an independent judiciary is precisely to check the majorityâs fleeting impulses and desires which are contrary to the cardinal values of the Constitution.

To dub judicial intervention in case of violation of fundamental rights by the legislature or by executive inaction as an overreach is tantamount to questioning the very legitimacy of judicial review by an independent judiciary which is a basic feature of our Constitution.

Courts certainly cannot interfere with the internal functioning of Parliament and legislatures about convening sessions, their timing and duration, the allotment of seats to members, its agenda of business and related matters. These are within the sole purview of the House. Judicial intervention is out of bounds even if there is malfunctioning in the House. However, if in exercise of powers and privileges claimed by Parliament the fundamental rights of a citizen are infringed, it is the duty of the court to adjudicate his complaint and give relief if the complaint is justified.

Often the occasion for judicial intervention is the inaction of the executive branch. In 1976, Parliament passed the Bonded Labour System (Abolition) Act. For a long time the act was not enforced till an NGO approached the Supreme Court. The court, departing from its traditional role, issued several directions. As a result the exploited bonded labourers secured much needed relief. Can this intervention be regarded as judicial overreach?

The court was confronted with the pervasive problem of sexual harassment of women in the workplace. The Court in its celebrated judgment, Vishaka, issued several directions which included definition of sexual harassment, the preventive steps that can be taken and also devised a complaints mechanism. Justice J.S. Verma, the architect of the celebrated judgment, was at pains to point out that these legally binding directions were pro-tem till Parliament enacted a law on the subject. Can the judgment in Vishaka, a classic instance of ad-hoc judicial legislation, be regarded as overreach? There can be two views about it but not about the beneficial effects of the judgment.

The principles of judicial review laid down by the Supreme Court in the Bommai case and the Bihar assembly dissolution case were timely and salutary. Their wholesome consequence has been to prevent wanton onslaughts on the federal fabric of our Constitution and to restrain the Centre from yielding to the temptation of toppling state governments.

Problems really stem from the judiciaryâs role in entertaining Public Interest Litigation petitions. Some orders and directions passed are beyond the judicial sphere and at times smack of judicial adventurism. For example, direction to the administration to construct roads and erect buildings, to secure lands in a particular locality for locating some industries, directions for huge ad-hoc monetary payments to riot victims which have serious budgetary implications. Again, directions to ensure timely running of trains or to relieve congestion in the city or combating the menace of monkeys are certainly instances of judicial overreach. Judges must withstand the temptation of publicity and also rid themselves of the belief that the judiciary alone can solve all the problems that afflict our nation and remember that PIL is not a pill for every ill.

There is no panacea to the problem of tension between the judiciary and the legislatures. Some degree of tension is inevitable. However friction can be avoided if each organ of the state correctly understands and respects the constitutional functions of the other organs.

The writer is former Attorney General for India

06-02-2007, 10:51 AM

Not sure whether you are familiar with BMW case, I U Khan public prosecutor, R K Anand, defense lawyer in this case, he is also Congress lawyer and former Congress Rajya Sabha Member and currently Queen's adviser and close budy involved in buying witness ...
Public Prosecutor and Defense lawyer both are in bed with criminals, and no surprising Congress is protecting his man.
This is sickening , 6 people died.

BMW case: NDTV exposes prosecution-defence nexus

NDTV BMW expose: 3-member committee to meet

Anand serves legal notice to NDTV : Agency Reports

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