HC summons IO in suicide case

Gujarat high court on Monday summoned the investigating officer from Vejalpur police station in Panchmahals, who is probing a case of the suicide of a youth over alleged incestuous relationships of his wife.
The man had killed himself in April 2014. His family members recovered letters by him mentioning that he was fed up with his wife's incestuous relationships with her father and brother.On basis of the material recovered, suggesting that the wife's relationship was the reason for his extreme step, the man's father lodged an FIR in 2015, accusing his daughter-inlaw, her father, brother and a cousin of abetment to suicide.The cops booked them under section 306 of the IPC. The complainant alleged that his son was disturbed with his wife's relationships and there were frequent quarrels between them over this. The in vestigation conducted by cops in this case revealed that the family members had evidence in tge form of letters left behind by the deceased which mention detail about his wife.
Against the FIR, the wo man's father, brot her and the cousin moved the high co urt denying all alle gations of incestuo us relationships with her. The HC sta yed police from ta king any action aga inst the accused. During the hearing on Monday , the counsel for the accused emphasized on documents recovered by the cops after the suicide and highlighted that there was no mention of any such reason for the suicide.

Sources: TNN
 

HC issues notice to central govt, AMC

Illegal Constructions Near ASI Monuments

Gujarat high court on Monday sought explanation from the Centre and Ahmedabad Municipal Corporation (AMC) in response to a PIL complaining about unabated illegal construction in the regulated zone of Archaeological Survey of India (ASI) -protected monuments in the city . Citing a TOI report, petitioner Sunni Awami Forum complained about the ongoing construction of a building just a couple of metres from the protected Shah-e-Alam mosque, constructed in 15th century. An old building of Navjivan Bakery was pulled down last year and its owner Zia Ansari began construction of a two-storied building without any prior permission from the ASI.
The bench of Acting Chief Justice Jayant Patel and Justice VM Pancholi issued notice to authorities and kept further hearing on January 27.
Upon numerous complaints received from local residents against this construction, the ASI too filed a complaint with police. But cops did not take any action, or register an FIR, which is mandatory in cases of violation of laws for protection of ancient monuments.
In August and September last year, ASI's official Arif Agariya filed 121 complaints with city police and reported illegal constructions near protected monuments across the city. But police did not take any action. Citing this inaction, the PIL has also raised the issue of rampant violation of construction norms across the city , which has got 57 protected monuments. Out of them, 33 such structures exist in the walled city area. The PIL described how ancient monuments like Dariyakhan's Tomb, Bibi Achyut Kuki's mosque and Nawab Sardarkhan Roza lie choked due to encroachment. Last year, the HC had repeatedly pulled up local authorities for neglect of the city's heritage, particularly at a time when the city has pitched for world heritage status from UNESCO. To preserve the heritage, the HC even ordered shifting of polluting industries from the walled city areas.
Civic authori ties have been accused of being negligent in protecting ancient monuments. Out of 13 such ASI-protected monuments across the state, where encroachment has be en reported in the Parliament, eight such old marvels exist in Ahmedabad.

Sources: TNN

RIL files plea in HC against land acquisition law

Reliance Industries Ltd (RIL) has filed a petition in Gujarat high court questioning provisions of the 2013 land acquisition laws by which the acquisition is rendered void if the state government fails to pay compensation and take possession of the acquired land within five years. RIL's questioning the provisions of section 24(2) of the Land Acquisition, Rehabilitation and Resettlement Act, 2013 came last month after 12 farmers from five villages in Jamnagar approached the Gujarat high court in 2014, seeking that the court declare the acquisition of their land as lapsed. Some 11,235 acres, of five villages in Jamnagar -Navagam, Kanalus, Kanachhikari, Padana and Derachhikari -was acquired in 2008 by the state government for RIL.
The farmers' counsel Anand Yagnik said that the provisions of the new land acquisition law as well as the 1984 law clearly say that since the state government neither took possession of the land nor paid the award that was decided in 2008 for more than five years it should be declared as lapsed. This litigation was pending for more than a year. In June last year, a bench headed by former Acting Chief Justice V M Sahai recused itself from the case, saying that something had taken place in this case that had shaken the judges' confidence.
Before the matter came up for final hearing, RIL came up with a separate petition challenging the provisions of the land acquisition law by which the right of the acquired land vested with the company is taken away maintaining that the law cannot be made applicable with retrospective effect. The company also claimed that the legislation has an element of arbitrariness and that it is in violation of Article 14 of the Constitution.Hence, the provisions of the 2013 law should be scrapped.
Against the company's challenge to vires of the law, the farmers came up with one more application and urged the court on Monday to hear them before deciding on the company's petition. They contended that non-utilization of land goes against the company and the state government so far as the land acquisition process is concerned.
After allowing the farmers to join the litigation, a bench of Acting Chief Justice Jayant Patel and V M Pancholi has scheduled a further hearing on this subject for January 11.

Sources: TNN

Clarification on TDS on Interest on Fixed Deposit, Under Section 194A of Income Tax Act, 1961

IT Department has clarified that Interest on FDRs made in name of Registrar General of Court or depositor of fund on directions of Court, will not be subject to TDS till the matter is decided. However, once Court decides ownership of money lying there, provisions of section 194A will apply.

Sources: Manupatra Newsline  

Cisco found to not have infringed patent

The United States Court of Appeal for the Federal Circuit ruled in favour of Cisco Systems in a patent dispute regarding improvements in wireless networking technology. U.S. Patent No. 6,430,395, owned by Commil USA, relates to a method that enables faster and more reliable handoff of mobile devices when switching from one base station to another. Commil had alleged infringement of its patent by Cisco, which had incorporated it in its wireless networking equipment and sold it to customers. Pursuant jury trial, Commil’s patent had been found valid and damages were awarded therefor. The Court of Appeal though at the first instance of the matter refused to hear Cisco’s non-infringement arguments, on remand from the United States Supreme Court, it accepted Cisco’s submissions. It noted that the Patent comprised a two step process of “dividing” and “running”, whereas Cisco’s system never performed the “running” step, meaning a single copy of the protocol supported all connected devices. Commil was held to have not proven that tracking separate ‘state’ information for each device was the same as “running” for the purposes of the Patent.

Sources: Manupatra Newsline  

Electronic Filing of First Appeal before CIT (Appeals)

Electronic filing of appeal before CIT(Appeals) has been made mandatory for persons who are required to file the return of income electronically. The existing Form 35 for filing of first appeal is being substituted by new Form.

Sources: Manupatra Newsline 

News Government readying to extend maternity benefits

The Ministry of Labour and Employment may soon get approval from the Union Cabinet to extend maternity benefits to 26 weeks of paid leave from 12 weeks at present. The Ministry is also expected to release Rules extending maternity leave to six and a half months.

Sources: Manupatra Newsline

Ministry of Women and Child Development launches e-Office

Smt. Maneka Sanjay Gandhi launches e-Office in the Ministry of Women and Child Development

In keeping with the spirit of "Good Governance" initiative of Hon'ble Prime Minister, Shri Narendra Modi; the Ministry of Women and Child Development has launched the e-office in the Ministry. The e-office was formally launched by WCD Minister, Smt. Maneka Sanjay Gandhi in New Delhi today. Secretary, WCD, Shri V. Somasundaran; Secretary, DeitY, Shri J. S. Deepak; Additional Secretary, WCD, Ms Nutan Guha Biwas and other senior officials of the Ministry of WCD and NIC were present on the occasion.

Smt Maneka Sanjay Gandhi congratulated the officials for making such a big leap forward towards paperless functioning. The new system brings transparency and accountability, which will help to step up the delivery mechanisms, the Minister explained. She also hoped to bring other organizations like National Commission for Women within the ambit of e-Office soon since they receive a large number of complaints from the public which need rigorous follow-up. Smt Maneka Gandhi urged that applications along with the necessary documents for important programmes of the Ministry like STEP should be received online and processed on the new system.

The legacy data of all the files of the ministry has been digitized and the entire file movement is now taking place electronically. Under the e-office, every receipt of any paper is scanned and digitized and the new file is opened. The file is then processed electronically as per specified procedure and specified hierarchy. The project was initiated in July, 2015 and over 12,000 files of the Ministry have been digitized. Several modules of e-office ie File Management System, Knowledge Management System, Leave Management System, Tour Management System, have been running under the e-office. Personnel Information Management System (e-Service Book) is expected to start from the 1st of January, 2016.

Shri V Somasundaran appreciated the efforts of the NIC team to digitize such a large number of files within just six months. In the new system, a file takes only 4-5 days for processing as compared to 30-40 days earlier and it is possible to locate the point at which the file is held up and avoid delay by expediting the same, he explained.

Shri J S Deepak pointed out that e-Office is a very good system for processing of files and that Deity is continuously striving to bring new areas within the ambit of digitization.

All files of the M/o Women & Child Development are being processed in e-Office (13383 number of Total Files processed till 22nd December, 2015), Receipts are also getting scanned and processed in e-Office (23993 number of total Receipts processed till 22nd December, 2015).

The e-office has resulted in substantial reduction of processing time which directly impacts the delivery mechanism of the ministry, both for the State Governments as well as related civil society organizations. The e-office has also resulted in better accountability and transparency and will ultimately result in higher manpower efficiency. All the attached offices of the ministry are also going to come on the e-office platform shortly. 

Sources: Manupatra Newsline 

LPG subsidy not available to those with taxable income of over Rs. 10 lakhs

Benefit of LPG subsidy will not be available if the consumer or his/her spouse had taxable income of more than Rs Ten lakh in previous financial year

At present, there are 16.35 crore LPG consumers in the country. With the implementation of the PAHAL Scheme (DBTL), the subsidy is being transferred directly to the Bank Account of 14.78 crore LPG Consumers. The objective of the scheme was to ensure that the subsidy benefits go to the targeted group. The Government had also given a call to the well-to-do households for voluntarily giving up LPG subsidy. So far, 57.50 lakh LPG consumers have opted out of LPG subsidy voluntarily heeding the call given by the Prime Minister. The subsidy saved from the 'GiveitUp' campaign is being utilized for providing new connections to the BPL families under the 'Giveback' campaign. This enables provision of LPG, a clean fuel, to poor households by replacing the conventional fuels such as kerosene, coal, fuel wood, cow dung, etc. relieving the poor of the hardships and health hazards from such fuels.

While many consumers have given up subsidy voluntarily, it is felt that consumers in the higher income bracket should get LPG cylinders at the market price. Therefore, the Government has decided that the benefit of the LPG subsidy will not be available for LPG consumers if the consumer or his/her spouse had taxable income of more than Rs 10,00,000/- during the previous financial year computed as per the Income Tax Act, 1961. In keeping with the approach of trusting the citizens, this will be given effect to initially on self-declaration basis while booking cylinders from January 2016 onwards.

The Rights of Transgender Persons Bill, 2015

A Bill : 

To  provide  for  the  formulation  and  implementation  of  a comprehensive  national  policy  for  ensuring  overall
development of the Transgender Persons and for their welfare
to  be  undertaken  by  the  State  and  for  matters  connected
therewith and incidental thereto.
Be it enacted  by  Parliament  in  the  Sixty-sixth   Year  of   the
Republic of India as follows:—

CHAPTER I
PRELIMINARY

1. (1)  This Act  may be called the  Rights of Transgender Persons Act, 2015.
Short  title  and commencement
(2) It extends to the whole of India.
(3)  It  shall  come  into  force  on  such  date  as  the  Central
Government may, by notification in the Official Gazette, appoint.
2. In  this  Act,  unless  the  context  otherwise requires;
Definitions
(a) 'abuse' includes verbal and physical abuse;
(b) 'appropriate government' means;
(i) In relation to an establishment of the Central Government, or an  establishment,  wholly  or  substantially  owned  or  financed  by that Government, or a Cantonment Board constituted under the Cantonments Act, 1924, or a Union Territory without legislature, or the provider of a service which pertains to List 1 in  Schedule VII of the Constitution, the Central Government;
(ii) In all other cases, the State Government or, as the case may be, the Government of a Union Territory with legislature.
(c)  'barrier'  means  any  factor  including  attitudinal,  cultural, economic,  institutional,  political,  religious,  social  or  structural factors  which  hampers  the  full  and  effective  participation,  of  transgender person in society;
(d)  'discrimination'  means  any  distinction,  exclusion  or restriction on the basis of gender identity and expression which has  the  purpose  or  effect  of  impairing  or  nullifying  the recognition,  enjoyment  or  exercise,  on  an  equal  basis  with others,  of  all  human  rights  and  fundamental  freedoms  in  the political,  economic,  social,  cultural,  civil  or  any  other  field  and includes  all  forms  of  discrimination,  including  denial  of reasonable accommodation;
(e) 'establishment' means and includes;
(i) Departments and Ministries of Government;
(ii)  Local  authorities  and  authorities  or  bodies  owned, controlled or aided by the Central or State Government;
(iii)  Any  statutory  or  non-statutory  body  created,  owned, financially  or  administratively  controlled  or  aided  by  the Central  or  State  Government  or  any  such  body  performing public  or  civic  functions  and includes  Government  Companies as defined in Section 617 of the Companies Act, 1956;
(iv)  Any  company,  firm,  cooperative  or  other  society, association,  trust,  agency,  institution,  organization,  union, industry,  supplier  of  goods  or  services,  factory  or  other  nonstatutory body which is not covered under clause (a) to (c) and provides services as defined in clause (r) section 2;
(f) 'exploitation' means using a Transgender Person to one's own advantage  to  which  one  is  not  otherwise  entitled,  or  to  the latter's  disadvantage,  to  which  such  latter  person  is  not
otherwise liable;
(g) ‘higher education' means a course of education which can be pursued after completing twelve years of school education;
(h) ‘human rights’ shall have the meaning assigned to it in Clause
(i) of Section 2 of the Protection of Human Rights Act, 1993;
(i) 'inclusive education' means a system of education wherein all students learn together, most or all of the time;
(j)  'institution'  means  an  institution  for  the  reception,  care, protection,  education,  training,  rehabilitation  or  any  other service of transgender persons;
(k) 'local authority' means a municipality, a Cantonment Board, a Panchayat  or  any  other  authority,  established  under  an  Act  of Parliament, or a State Legislature to administer the civic affairs of any habitation as defined in or under such Act;
(l) 'prescribed' means prescribed by rules made under this Act;
(m) 'public building' means a building, irrespective of ownership, which is used and accessed by the public at large; and includes its entrance, exit, parking space, footpath and other appurtenant lands;

Former Chief Justice of India S.H. Kapadia passes away

Former Chief Justice if India SH Kapadia passed away in Mumbai on Monday night.
SH Kapadia, 68, is survived by wife and a son and a daughter.
CJI Kapadia, who delivered the landmark Vodafone Judgment & laid down the law in several other important tax cases, suffered cardiac arrest this morning;
Kapadia's funeral will be carried out at Mumbai today.
May His soul REST IN PEACE -

UWSL

Sources: TNN

THE NEGOTIABLE INSTRUMENTS (AMENDMENT) ACT, 2015

MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 29th December, 2015/Pausha 8, 1937 (Saka)
The following Act of Parliament received the assent of the President on the
26th December, 2015, and is hereby published for general information:—

THE NEGOTIABLE INSTRUMENTS (AMENDMENT) ACT, 2015
NO. 26 OF2015
[26th December, 2015.]
An Act further to amend the Negotiable Instruments Act, 1881.
BEit enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:—
1. (1) This Act may be called the Negotiable Instruments (Amendment) Act, 2015.
(2) It shall be deemed to have come into force on the 15th day of June, 2015.
2.In the Negotiable Instruments Act, 1881 (hereinafter referred to as the
principal Act), in section 6,—
(i) in Explanation I, for clause (a), the following clause shall be substituted,
namely:—
'(a) "a cheque in the electronic form" means a cheque drawn in electronic
form by using any computer resource and signed in a secure system with digital
signature (with or without biometrics signature) and asymmetric crypto system
or with electronic signature, as the case may be;';
(ii) after Explanation II,the following Explanationshall be inserted,
namely:—
'Explanation III.—For the purposes of this section, the expressions
"asymmetric crypto system", "computer resource", "digital signature", "electronic
form" and "electronic signature" shall have the same meanings respectively
assigned to them in the Information Technology Act, 2000.'.
3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof
and after sub-section (1) as so numbered, the following sub-section shall be inserted,
namely:—
"(2) The offence under section 138 shall be inquired into and tried only by a
court within whose local jurisdiction,—
(a) if the cheque is delivered for collection through an account, the branch
of the bank where the payee or holder in due course, as the case may be, maintains
the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due
course, otherwise through an account, the branch of the drawee bank where the
drawer maintains the account, is situated.
Explanation.— For the purposes of clause (a), where a cheque is delivered
for collection at any branch of the bank of the payee or holder in due course,
then, the cheque shall be deemed to have been delivered to the branch of the
bank in which the payee or holder in due course, as the case may be, maintains
the account.".
4. In the principal Act, after section 142, the following section shall be inserted,
namely:—
"142A. (1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or any judgment, decree, order or direction of any court, all cases
transferred to the court having jurisdiction under sub-section (2) of section 142, as
amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed
to have been transferred under this Act, as if that sub-section had been in force at all
material times.
(2) Notwithstanding anything contained in sub-section (2) of section 142 or
sub-section (1), where the payee or the holder in due course, as the case may be, has
filed a complaint against the drawer of a cheque in the court having jurisdiction under
sub-section (2) of section 142 or the case has been transferred to that court under
sub-section (1) and such complaint is pending in that court, all subsequent complaints
arising out of section 138 against the same drawer shall be filed before the same court
irrespective of whether those cheques were delivered for collection or presented for
payment within the territorial jurisdiction of that court.
(3) If, on the date of the commencement of the Negotiable Instruments
(Amendment) Act, 2015, more than one prosecution filed by the same payee or holder
in due course, as the case may be, against the same drawer of cheques is pending
before different courts, upon the said fact having been brought to the notice of the
court, such court shall transfer the case to the court having jurisdiction under
sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment)
Ordinance, 2015, before which the first case was filed and is pending, as if that
sub-section had been in force at all material times.
5. (1) The Negotiable Instruments (Amendment) Second Ordinance, 2015, is hereby
repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the principal
Act, as amended by the said Ordinance, shall be deemed to have been done or taken under
the corresponding provisions of the principal Act, as amended by this Act.

Supreme Court upholds Kerala’s selective alcohol restrictions

The Kerala Bar Hotels Association & anr. v State of Kerala & ors.
29.12.2015
The Supreme Court batted away claims of discrimination between variously ‘starred’ hotels to dismiss a challenge against the Kerala government’s moves to restrict sale and consumption of alcohol. It agreed that Kerala’s three-pronged approach to controlling liquor manufacture, wholesale and retail supply, and now consumption, was predicated on the disproportionately high consumption of alcohol in the state. Further, nexus between the State’s restrictions on sale of alcohol at hotels, save five star hotels, was commensurate with its attempts to reduce alcohol consumption: prices of alcohol in five star hotels were “usually prohibitively high”, so much so, guests of five star hotels, unlike at other establishments, did not visit them for the sole purpose of consuming alcohol. Res extra commercium, it opined, was the position of alcohol for which it faced more stringent restrictions than other trades.

2.76 per cent of the nation’s population (based on Census 2011) but nearly 14 per cent of its alcohol consumption, the Supreme Court has cause to lament the ‘social malaise’ of alcohol addiction in Kerala. The State has long played bugbear to the alcohol-enthusiast, with sale of alcohol in government hands since 1984, no licenses for private manufacture of alcohol having been granted since 1999 and its endeavours since 2014 to curtail alcohol consumption. At the forefront have been the Abkari Act and Kerala Foreign Liquor Rules which the State relies on to implement its policies.

Percentage of alcohol sales

Sources: Manupatra Newsline

Unfree speech

December has been a cruel month for free speech. Law is imperfect, often used for the wrong reasons to exacerbate the very publicity it claimed to want to suppress. A quick retrospective will remind us of Salman Rushdie’s Satanic Verses under the Customs Act, Khushboo indicted for criminal defamation and later absolved in the Supreme Court, James W. Laine’s work on Shivaji, banned under the Criminal Procedure Code, liberated by the Supreme Court, the ban on Sahmat’s posters lifted by the Delhi High Court, Khushwant Singh’s biography injuncted by Maneka Gandhi until the ban was lifted by the Delhi High Court.
M.F. Husain was pilloried by criminal offences till he left the country to die abroad. The stories are endless as India’s increasingly intolerant society allows Hindu fundamentalists to threaten those they don’t like with impunity. Cinemas are closed because party goondas do not like a film.

The pathology of litigation exposes the law. In the 1990s, Georg W. Pring and Penelope Canan invented the term “Slapp”, which stands for Strategic Law Suit Against Public Participation that has been used in many countries to silence speech on public affairs through litigation. In my book Publish and Be Damned (2008), faced with the absence of an acronym for criminal cases harassing Husain, I created the term “Kicks” for “(K)riminal Intimidatory Knock-out-Strategy”. Ignore my forced spelling, but that is what the criminal law does and seeks to do with artists like Husain and activists

like Teesta Setalvad and Binayak Sen. In civil matters, there used to be some restraint due to the ad valorem court fee (fee as a percentage of the value claimed as damages). Maharashtra dispensed with such a huge fee to make Mumbai the defamation capital of India. Most irresponsibly, Justice P.B. Sawant claimed Rs 100 crore because his picture had been wrongly placed against another judge’s name. We all know how Rupert Murdoch closed down Private Eye to provoke a marvelous book called Malice in Wonderland. Slapp and Kicks wear out free speech to despair and bankruptcy.

Tamil Nadu Chief Minister J. Jayalalithaa has filed several defamation cases. She had filed against The Hindu, but the case became infructuous. Her ire has been conspicuously against Subramanian Swamy. In the decriminalising defamation case, the Supreme Court was astounded by the number of criminal complaints filed by the great leader against Swamy. More recently, Nitin Gadkari and Amit Sibal filed against Arvind Kejriwal. A defamation case against Rahul Gandhi was valiantly opposed by the Congress’s top-notch lawyers. Although many proceedings were stopped by the court, the Supreme Court (Justices Mishra and Pant) showed incredible indecisiveness. Months have passed since the judgment was reserved. All defamation cases can be filed anywhere the comment claims to be read. Caravan was proceeded against in the Northeast by a corporate. As my friend, Malcolm Feeley, reminds us: “The process is the punishment.” Mind you, Swamy loves this drama. Most would not.

Recently Kirti Azad, a BJP MP, seemed to want an investigation into the contracts for re-doing the Feroz Shah Kotla ground when Arun Jaitley was in charge of the Delhi & District Cricket Association. He was suspended from the party. Kejriwal entered the fray. The controversy spiralled. The Delhi government set up a probe committee. On December 21, 2015, Jaitley filed both civil and criminal cases against Kejriwal and five others. Kirti Azad was saved Jaitley’s ire. The civil case demanded Rs 10 crore as damages. What was impressive was not the initiation of cases but the fanfare that went with them. Jaitley was accompanied by ministers Smriti Irani, Piyush Goyal, J.P. Nadda, Venkaiah Naidu, R.S. Rathore. The case seemed less important than the fanfare. Jaitley, a lawyer of distinction, has been wrongly advised. After the Auto Shankar case (1994), India has adopted the NY Times formula that public figures must expect criticism on public issues

in due diligence publications, even if found to be untrue. Thus, Morarji Desai lost his case against the duly diligent Seymour Hersh alleging that Morarji was a CIA agent. Criminal defamation can also provide such protection (Section 499, Exception 1 and 9). What was the purpose of Jaitley’s cases? Declaration of innocence. But mostly tamasha. The only thing missing was the drums and the dance of triumph by BJP followers.

Arundhati Roy has been a champion of many causes for justice to the disempowered. The Bombay High Court denied bail to 90 per cent disabled Professor G.N. Saibaba, arrested for speciously alleged Maoist links. Roy published an article, “Professor POW”, in Outlook magazine of May 18, 2015. Saibaba’s bail was extended in July because of his disability. But on December 23, 2015, Justice A.B. Chaudhari refused bail and in the same order issued a contempt notice for what Roy had said on bail rejection by Justice S.B. Shukre on August 25, 2014, for “interfering with the administration of justice and lowering down the image of the judiciary without any basis and with selfish motive”. What a farce! How contrary to the law. It only goes to show that judges like Justice Chaudhari cannot be trusted with the peremptory power of contempt.

All these events augur poorly for free speech in public discourse. Most Indian governments want the defamation law to remain. Recall Rajiv Gandhi’s infamous Defamation Bill to permit cases to be filed for supposedly scurrilous attacks. A popular movement smashed the bill. The law of contempt was debated before the Contempt of Court Act 1971, but then law minister H.R. Gokhale skilfully averted radical changes.

We seem to forget Lord Atkin’s famous statement that “justice is not a cloistered virtue (but) must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.

Our hope is that the Supreme Court might decriminalise defamation. Our strategy has to be to fight each free speech violation, case by case, until the laws abridging free speech fall, one by one.

Sources: http://indianexpress.com/article/opinion/columns/unfree-speech/

Rich people don’t need law as much as the poor do: Vikramjit Sen

The recently retired Supreme Court judge discusses uniform civil code, section 377 and Kerala liquor policy with Utkarsh Anand.

Justice Vikramjit Sen retired on December 30 after three years as a Supreme Court judge. Among his key judgments were upholding the Kerala government’s restrictive policy on liquor and ruling that a single mother can be appointed the sole legal guardian of her child without the consent of the father. He also led the bench that asked the government if it is serious about bringing the uniform civil code. Excerpts from a wide-ranging interview:
On validity of IPC section 377 that criminalises homosexuality
I think the time has come for Section 377 to go. Why do a penal law and a court have to regulate what you do in private? Personal choices are to be validated if they do not violate anybody else’s rights? The Supreme Court judgment wanted Parliament to take a call on this. Why is Parliament not doing it? Parliament has to change laws. I agree with the view that the lawmakers have the primary duty to appreciate the changing times and make the right decision to protect the rights of all groups. However, I also feel that if the top court has consciously interfered with various policy decisions, has read down as well as held unconstitutional various laws; there was no impediment for the bench concerned to exercise its power in respect of Section 377 too. When I was the Chief Justice of Karnataka High Court in 2012, for the first time we took on board a transgender as a court employee. People questioned my decision but I am proud of my call. And today that person has impressed everyone with skills and dedication.
On uniform civil code
Secularism does not mean recognising all religions. It means not recognising any religion and that is why a uniform civil code is a major step towards attaining true secularism. Why should personal laws be allowed to impact civil rights and freedom of people? After all, religion is a private affair. Why should the state recognise any religion? It has to leave matters of religion to people and focus on guaranteeing rights to everyone under the Constitution. If you ask me, many religions are ready to adopt a uniform civil code. I acknowledge there are some reservations in certain sections of a minority community but women across communities definitely want it and the uniform code will be beneficial to women.
Parliament has to do it. A government in majority must strive towards the uniform civil code. As a judge, I was willing to stick my neck out if Parliament was ready for it. Let there be views and opinions from across the board and a point of consensus be reached on the uniform civil code. It will be great deal even if we achieve 50 per cent success in this endeavour and a right beginning is made.
On intolerance and Islamic State
I would refrain from commenting on it since it has become a political issue. For me, secularism entails unqualified tolerance of all thoughts and beliefs and it is only through tolerance that our country will reach great heights. Religion is important because it teaches you ethics. It teaches you to have your own faith and at the same time respect those who may have different beliefs. I am a Christian man married to a Hindu woman. You ask my children about their religion and they would answer, how is it relevant since they have respect for all faiths and beliefs? What Islamic State is doing today is a sign of intolerance and it is extremely unfortunate. And therefore, it must also be highlighted that the Muslim community in India has opposed their propaganda and their methods.
On pollution in Delhi and odd-even policy
It is reassuring that pollution has taken centre-stage and I am hopeful all the deliberations and attempts will lead to some positive results. The success or otherwise of the odd-even policy is yet to be seen, so it will not be prudent for me to comment upon it. I belong to Delhi and therefore it is a positive sign to see people trying to clean the city’s air. The fact that the issue of pollution has triggered debates and generated awareness is definitely commendable.
On collegium for appointing judges versus National Judicial Appointments Commission
There have been questions and issues on both sides. I have been the Chief Justice of Karnataka High Court, so I can tell you from first-hand experience that the whole idea of judges appointing judges may not be absolutely right. I am a first-generation lawyer. The then Chief Justice of India had put in a word for me for my appointment as a judge in Delhi High Court when I argued a case before him. He did not know me at all. He asked his fellow judge, who was from Delhi, to check my background and then recommended my name. Will you call it a judge appointing a judge? Recently, Justice T S Thakur asked me to check the profile of a lawyer who was very articulate in his arguments and showed excellent legal acumen but neither of us knew who he was. After a week, I informed him that the lawyer has a brilliant track record but he was not 45. Had this lawyer been 45 years old, Justice Thakur might have recommended his name. Can this be called a judge appointing a judge? Every system has its flaws but you need to weigh them with the possible dangers of a new system. There is also misgiving about judges’ children becoming judges. Judges may not have affluent lifestyles but they do have job satisfaction and pride. Judges’ children grow up witnessing this. So what is wrong about their children opting for a job which they see their parents so proud of?
On upholding Kerala government’s liquor policy
Judges don’t need to explain their judgments. We give our reasons in the judgments itself. However, since you are asking me this, I will tell you that upholding the state government’s attempt to ban serving and consumption of liquor in public had nothing to do with morality. I love my drink. I am one of the most social judges around. But as a judge, I need to decide the issues before us and prohibition of liquor was never a challenge before us. People need to read the judgment in the right context and should also be legally equipped to appreciate what the issues before us were. They can then find answers to their questions, based purely on law and the Constitution.
On judges’ conference in 2014 being held on Good Friday
It was a case of mishandling and then it unfortunately became political, which should have never happened. I don’t think it was intentional. No Supreme Court judge is a political animal, nor does he or she want to court controversies. Both the then Chief Justice (H L Dattu) and the judge concerned (Justice Kurian Joseph) had good intentions but the matter was not handled well and it went into a tailspin. I have been the chief justice of a high court and I can say I would have handled it differently. I think human relations are very important. But here the whole thing was blown out of proportion and it became political too. I feel the controversy was avoidable and it was unfortunate how the events spanned out. When I was a judge in Delhi High Court, I raised objections to some rituals and one can still find my letter written to the chief justice of the high court.
On new Chief Justice of India T S Thakur
He is an outstanding person. He knows the law, he is a very strong person and I am sure he will be in a position to implement various positive measures. The problem with chief justices is that they work too hard. They have to sit in courts, hear cases and write judgments, apart from managing administration. I feel as a chief justice, they should have ample time for administration. Justice Thakur is all there and he has the capacity to do the job. I am sure this is going to be a positive tenure.
On his tenure in Supreme Court
I don’t have any regrets on my tenure. I feel I have been very lucky to be a judge. I have always tried to do the right thing because I ought to answer my conscience everyday. I firmly believe the judge has to finally decide and lawyers only help them in deciding. A good or a bad lawyer does not absolve judges of their duty to decide. As a judge, I figured out ways to ensure people do not lose out on their rights and benefits due to strict letters of law. This is the job of a judge. I have believed the law is meant for the poor. Rich people do not need the law as much as the poor do. We have to keep devising ways to make sure the law works for the poor people. And I did the best I could.
On post-retirement assignments
I am a little sad about the fact that I am leaving office at a time when I have experience on my side, my health is supporting me and I am willing to contribute more. Therefore, I am ready to take up any assignment if it can help me contribute further to the cause of justice. Given a choice, I will prefer a job with an opportunity to serve the society over arbitration cases that can get me a lot of attention and money.


Source: http://indianexpress.com/article/india/india-news-india/rich-people-dont-need-law-as-much-as-the-poor-do-justice-vikramjit-sen/#sthash.m3KqKR4n.dpuf