SC declines Cong. plea for a floor test in Arunachal House

Hours before the President's rule was withdrawn in Arunachal Pradesh, the Supreme Court refused a suggestion by the State's Congress party leaders to order a floor test to be conducted in the Arunachal Assembly. The apex court’s decision to lift its order of status quo in the border State had cleared the road for withdrawal of the emergency and the possible consequence of a new government being formed with dissident Congress leader Kalikho Pul as Chief Minister.

Mr. Pul has already staked his claim to form the government with a majority backing of 32 MLAs in the Assembly. The Supreme Court on Thursday refused to intervene in Gauhati High Court's interim stay on the disqualification of the 14 rebel Congress MLAs who tilted the balance against the ruling Nabam Tuki government, triggering political crisis which led to the proclamation of emergency on January 26.

Pushing for an order for floor test, senior advocate Kapil Sibal said all the apprehensions of the Congress in Arunachal were coming true.

But the Bench refused, saying that though a floor test may be a “possible manner of dealing with the issue,” it could not be done now as the Supreme Court was still hearing the case.

“We have suspected all this [alleged bid to revoke President's Rule and install a new government]. We have told our apprehensions to the court and now all that are coming true,” Mr. Sibal said. Mr. Sibal raised another apprehension, asking what would happen if the Centre and Governor J.P. Rajkhowa swore in a new Chief Minister, but later goes on to dissolve the House to ensure that power remains in their hand till snap polls were held.

Sources: The Hindu 

Lawyer ignore summons, yet no action

After unleashing violent attacks on journalists and students on two consecutive occasions, lawyer Vikram Singh Chauhan on Friday led a “peace march” around the India Gate roundabout, protesting “defamatory statements” made by the media against him and his colleagues.

Mr. Chauhan, who has been summoned thrice by the police, the third summon being issued on Friday, has been actively participating in marches and public events, but has no found no time to visit the police station.

He was seen carrying the Tricolour and raising slogans such as ‘Bharat Mata ki Jai’ at Friday’s rally. Talking to The Hindu later, he said he was yet to take a call on the police summons served on him so far.

The lawyer, who on Thursday was felicitated at a Delhi court by some lawyers for “protecting Mother India” and teaching a lesson to “anti-national elements”, had made an appeal to fellow lawyers to join the “peace march” on his Facebook page.

The march was organised by the Coordination Committee of All the District Bar Associations of Delhi against “a conspiracy” by the media to tarnish the image of the legal fraternity in their reports on the violence witnessed inside and outside the Patiala House Courts on February 15 and 17.

On Friday afternoon, a large group of lawyers, led by Mr. Chauhan, marched from the Patiala House Courts to India Gate and back. Yashpal Singh and Om Sharma, two other lawyers who have been summoned in connection with the violence on the two days, also participated in the march, said Mr. Chauhan.

Statements such as “(Umar) Khalid ki zabaan kaat do (cut off Khalid’s toungue)” were made by a group of lawyers as they returned to the court premises. Although the march, which started and concluded at Gate Number 2 of the court, remained incident-free, the slogans were reflective of the aggression among the lawyers.

Source: The Hindu 

SC: Court no stage for political speeches

The Supreme Court on Friday maintained equanimity as a lawyer loudly protested inside the courtroom when parts of a petition alleged that the mob violence in the Patiala House courts in connection with the hearing of a sedition case against JNUSU president Kanhaiya Kumar was “instigated by the Rashtriya Swayamsevak Sangh (RSS) and other extremist organisations.”

A Bench of Justices J. Chelameswar and A.M. Sapre did not lose their poise as R.P. Luthra, a Supreme Court advocate, interrupted the court with an emotional outpouring that “he was pained by the portrayal of the RSS as an extremist organisation”.

“The RSS has taught me that all women are my mother and sisters... I am hurt, pained,” Mr. Luthra submitted. He said remarks about the RSS should be expunged from the petition.

The Bench stopped Mr. Luthra, saying “the court is not a stage for political speeches.”

“We are not interested in who created or designed this... ,” Justice Chelameswar said.

Sources: The Hindu 

Introduction to - Hon'ble The Chief Justice of India

New Chief Justice for Bombay High Court

The government on Monday announced the transfer of the Chief Justice of the Orissa High Court, Dhirendra Hiralal Waghela, to the Bombay High Court to assume office as Chief Justice from February 16.

The Supreme Court Collegium led by Chief Justice of India T.S. Thakur had recommended Mr. Waghela’s transfer last month and the President had approved it.

Source: The Hindu 

Judicial academy to be inaugurated this month

The much-awaited inauguration of the Regional Judicial Academy at Race Course in the city is expected to be on the 21st of this month.

It was earlier said that the building might be inaugurated in mid-2013. But, it was delayed for several reasons.

Construction of the four-storied building at an estimated Rs. 8.5 crore began in 2011. In a campus sprawling about two acres the total built-up area is 70,000 sq.ft. But the completion of the building was delayed due to financial constraints and it has been completed over a period of five years after additional funds were sanctioned.

This will become the first-ever judicial academy outside Chennai and works are on for constructing a similar one at Madurai.

The academy coming up here will benefit sub-ordinate judiciary officers in Coimbatore, Tirupur, Erode, Namakkal, Salem, Dharmapuri and Krishnagiri districts. They need not travel all the way to Chennai for training programmes.

The building has a library, rooms for training visiting judicial officers and lawyers, conference hall, auditorium and chambers for the Director and Deputy Directors. It will be useful for conducting induction training programmes for the officers entering the sub-ordinate judiciary and those who are about to be elevated.

Similarly, Public Prosecutors, Special Public Prosecutors and Government Pleaders will also go through training programmes on induction.

Sources said that in addition, the academy would also be useful for conducting mid-career and in-service refresher training programmes.

Source: The Hindu 

It is in gross violation of law, says legal expert

The Hindu

R.K. Pachauri continues to be Chancellor of the deemed university of TERI.

Legal experts express concern at precedent this sets for safety of women at workplace

After The Energy and Resources Institute (TERI) announced on Monday that R.K. Pachauri, under investigation in a sexual harassment case, has been appointed its Executive Vice-Chairman, legal experts termed the move illegal, expressing concerns about the precedent this sets for safety of women at the workplace.

Mr. Pachauri, who is out on bail, was appointed to this position, which was created to accommodate him.

Eminent lawyer Vrinda Grover said this appointment was in gross violation of the spirit of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 that builds on the foundation laid down by the Vishakha judgment of the Supreme Court in 1997. As per the new law, sexual harassment at workplace is a crime, which places multiple obligations on the employer, first and foremost being an impartial and fair enquiry. She said the woman complainant in this case was denied that, as the Internal Complaints Committee which found Mr. Pachauri guilty was dissolved and its findings were not acted upon.

“With pending investigation, the TERI management should not have compelled the woman complainant to resign,” Ms. Grover said.

Mr. Pachauri, on the other hand, continues to be Chancellor of the deemed university of TERI. With the current appointment, he will continue to hold executive powers in the organisation.

Ms. Grover said that under the new law, all workplaces were obliged to provide a safe workplace for women.

What the law says
1. Woman employee’s complaint of sexual harassment must be investigated by an internal committee
2. Internal committee, at the request of aggrieved woman, can take steps to settle the matter between her and respondent, through conciliation
3. If the complaint is found wrong, the complainant will be subject to disciplinary action
4. Internal committee must pay regard to the mental trauma suffered by aggrieved party, loss in career opportunity, medical bills for physical/psychiatric treatment, and decide compensation for them.
5. The employer must assist the complainant in seeking legal remedies or filing police complaint
6. The employer must treat sexual harassment as a misconduct and initiate action for misconduct

Source: The Hindu 

The SC must end partisan federalism

• 

The court can limit political partisanship in federal relations by decisively applying neutral constitutional rules in two pending cases pertaining to the removal of Governors

The National Democratic Alliance (NDA) came to power in 2014 with a slim popular mandate that produced a parliamentary majority. Its manifesto posited: “Power is currently concentrated in Delhi and the State capitals. We believe this power should be genuinely decentralised. BJP has stood for greater decentralisation through devolving of powers to the States.” This decentralisation push has been enthusiastically portrayed as a commitment to ‘cooperative federalism’ by the government, its media champions and opinion-makers.

The claim that this government practises a new cooperative federalism runs up against mounting evidence of the persistence of an older, more venal political strain in Centre-State relations: partisan federalism. Political parties mobilise their power in the Central government to disable and decapitate State governments of opposition parties. Can new cooperative federalism exist even if this older partisan federalism persists? Unless the Supreme Court completes its unfinished agenda of limiting the scope for partisan federalism through the strong enforcement of neutral constitutional rules on the appointment of Governors and the exercise of their powers, there is little possibility that cooperative federalism can define Centre-State relations in India.

Exploiting judicial quiescence

The Supreme Court is currently adjudicating the constitutional validity of the imposition of President’s rule in the State of Arunachal Pradesh on Republic Day, 2016. Before we turn to this case, we must dwell on the indecisiveness of the court that has precipitated this crisis. Soon after the NDA government assumed power in May 2014, much like the United Progressive Alliance (UPA) before it, it sought the resignation of the Governors of five States (West Bengal, Uttar Pradesh, Chhattisgarh, Nagaland and Goa), all of whom were appointed by the UPA. Significantly, the law on the appointment of Governors had changed as the Supreme Court in B.P. Singhal v. Union of India (2010) held that the Governor of a State could only be removed for reasons which included physical or mental disability, corruption, and behaviour unbecoming of a high constitutional office, and not at the pleasure of the Central government. The NDA’s removal of Governors was challenged in court by one erstwhile Governor, Aziz Qureshi, but the court has been quiescent on the issue and no orders have been passed.

The conspicuous lack of urgency in this case emboldened the Centre and catalysed further Governor removals. On June 1, 2015, J.P. Rajkhowa was sworn in as the 19th Governor of Arunachal Pradesh, replacing Lt. Gen. Nirbhay Sharma (retd.). No reasons were cited for Mr. Sharma’s removal, though reports suggested that the Centre perceived him to be partisan towards the Congress government. Since his appointment, Mr. Rajkhowa’s actions as the Governor confirm that such appointments are primarily to satisfy partisan interests. On December 9, 2015, he decided to not only advance a session of the Legislative Assembly against the advice of the Council of Ministers in Arunachal Pradesh but also set its agenda: discuss the removal of the Speaker of the House. Article 174 of the Constitution provides that the Governor may “summon the House of the Legislature of the State to meet at such time and place as he thinks fit”. However, this power is to be exercised on the advice of the Council of Ministers, unless it is the first time that the Assembly is convened after an election and no government is in place. This decision was challenged by the Speaker, Nabam Rebia, and stayed by the Gauhati High Court where Justice Hrishikesh Roy lamented that the Governor of a State, who was expected to discharge his “role with dispassion and within the constitutional framework”, had “facilitated the political battle to move in a certain direction in the tussle for power”, and that this reflected “the non-neutral role of the constitutional head” which was “undermining the democratic process”.

Grounds beneath the feat

Despite the High Court’s admonition, Mr. Rajkhowa dispatched a report under Article 356 of the Constitution recommending President’s rule. While the report has not been made public, three substantive grounds have been discussed in media reports: the inability of the ruling government to hold a Legislative Assembly session within the constitutionally mandated six months; the government’s lack of support in the House; and the breakdown of law and order. All three grounds appear to be misconceived.

The Governor’s decision to advance the Assembly session precipitated a court order that constrains the liberty of the House to conduct its proceedings. Second, at least since S.R. Bommai v. Union of India (1994), as confirmed in Rameshwar Prasad v. Union of India (2005), the floor test is the only constitutionally valid manner of determining the whether a government enjoys majority support. A floor test to determine support for the government can only be conducted in a valid Assembly session which is yet to take place. Hence, no finding of a loss of support based on the subjective assessment of the Governor is constitutionally tenable. Third, the court has clarified that the breakdown of law and order must not be surmised from stray occurrences in and around the Assembly but be manifest in the inability of the government to maintain civil order, peace and security. Unless the Governor’s report includes hitherto undisclosed materials and evidence that satisfy any of these neutral rules of constitutional law, it would seem that Mr. Rajkhowa’s assessment of a breakdown of constitutional machinery in the State is not legally tenable.

In his 1959 Holmes Lecture at the Harvard Law School, Professor Herbert Wechsler urged judges to develop “neutral principles of constitutional law that are general in content and equal in applicability”. To be general in content, constitutional rules must offer reasons beyond the immediate result in the case. To be equally applicable, the court must apply these rules irrespective of the party before it. In the complex field of Centre-State relations, the Supreme Court has developed neutral constitutional rules that have progressively limited the scope for political partisanship in federal relations. If the court decisively applies these neutral rules in the pending decision on the appointment of Governors in Qureshi and the proclamation of President’s rule in Arunachal Pradesh, it will significantly advance its unfinished agenda of limiting partisan federalism. Only when partisan federalism is canned and put away can cooperative federalism truly emerge.

(Sudhir Krishnaswamy is Director of the School of Policy and Governance, Azim Premji University, Bengaluru; Gaurav Mukherjee is a Graduate Fellow there.)

Since his appointment, J.P. Rajkhowa’s actions as the Governor confirm that such appointments are primarily to satisfy partisan interests

Rule of law is the basis of justice administration, says judge

“Criminal law cannot be expressive in all provisions and the judicial dispensation must bear in mind the cardinal principles of criminal jurisprudence in addition to accepting explainable human nature that aligns with human conduct which no law can change,” said S. Nagamuthu, judge, Madras High Court.

Delivering the Knowledge Leadership Forum lecture on “Principles of Criminal Jurisprudence” at the School of Law at the SASTRA University near here on Saturday, Mr. Nagamuthu covered the various elements and dimensions of the criminal justice administration in the country.

Dividing India’s history of criminal jurisprudence on pre-constitutional and post-constitutional time lines, he stressed on the rule of law was the basis of administering justice in India.

Stressing the salience of constitutional principles, he said the Constitution was the touch stone of every statute.

On procedural law relating to criminal justice adjudication process, he traced the various stages of arrest enshrined in the Code of Criminal Procedure, 1973.

Explaining the constitutional balance relating to the fundamental rights jurisprudence and the procedural nuances, he dwelt on the basic principles relating to the Criminal Procedure Code and the Indian Evidence Act, 1872. He advised lawyers to be familiar with the provisions of the Evidence Act and assist the court in dispensing justice. Mr. Nagamuthu said that India now stood at the transitory phase from following an adversarial model of justice to the inquisitorial system, where justice was to be delivered at the doorstep of the aggrieved. He said that lawyers were professionals learned in varied fields and addressed the intricate interface between law, forensic science, and medical sciences.

 
Source: http://www.thehindu.com

HC asks social media to block contents against women lawyers

The Madras High Court has directed Facebook, WhatsApp and Youtube to block certain “objectionable material, containing a scandalous attack”, on women in particular, which was circulated by two lawyers, who were earlier prohibited from practising in any court, pending disciplinary proceedings.

Hearing a PIL plea filed by six women lawyers, practising in the High Court, a Division Bench comprising Justices V. Ramasubramanian and K. Ravichandrabaabu also said that the Superintendent of Police of Cyber Cell shall render necessary assistance to the social networking sites in this regard.

Following a spate of posts that appeared in the social media last week containing remarks against some women lawyers, petitioners Sudha Ramalingam, Anna Mathew, Sathya Rao, S. Devika Rao, M.N. Sumathi and R.S. Akila moved the High Court with a PIL plea.

The audio and written formats posted by respondent W. Peter Ramesh Kumar, in connection with a contempt proceedings, some of which were reposted by another respondent Manikandan Vathan in the social media were “wholly obscene, scandalous, vexatious and create a hostile work environment for women lawyers”, petitioners alleged in their plea.

The petitioners sought to restrain the two lawyers from posting comments in the social media, and a direction to Information Technology department, Facebook, WhatsApp and Youtube to remove uploads by them. Further they sought appropriate guidelines in relation to proceedings and pleadings in courts that contain sexually coloured remarks against women.

The appeal also includes a direction to Information Technology department, Facebook (also the owner of WhatsApp), Youtube and all other media or service providers to frame a protocol. The bench restrained both the respondent lawyers from publishing, distributing and circulating any message or material scandalising the institution and women lawyers. The case was further posted on February 26.

Comments posted by two men lawyers are obscene, petitioners allege

Source: http://www.thehindu.com

Law students get ready for the top league

The NUALS team that qualified for the 57th Philip C. Jessup international moot court competition 2016 to be held in the U.S. 

A young team of talented law students is getting ready to compete with the best in the world.

Anchala Cletus, Anusha Madhusudhan, Devashree Pillai and Mimita Vinod, all final year B. A. LL.B (Hons.) students of the National University of Advanced Legal Studies (NUALS) at Kalamassery here have qualified for the international rounds of the 57th Philip C. Jessup international moot court competition 2016 to be held in Washington D.C in the United States. An official varsity release said that the event will be held by the end of March.

The team came third in the qualifying national rounds held at Christ University, Bangalore.

“They will represent India at the world's largest moot court competition for law students with participants from more than 600 law schools worldwide,” it said.

Source: The Hindu

High Court issues stay on official’s appointment

In a major setback to the Odisha government, the State High Court on Tuesday granted an interim stay on the continuation of Dr Minati Behera of Cuttack city as the State commissioner for persons with disabilities (SCPD).

In April last year, the government had selected Dr Behera for the coveted post.

After preliminary hearing on a writ petition challenging her selection , a single-judge Bench of Justice B. R. Sarangi passed the interim order.

Issuing notices to Dr Behera and the State government to file their respective counters, the High Court has fixed March 1 next for further hearing. “By this order of the High Court, Dr Minati Behera will cease to function as the State commissioner for persons with disabilities from today,” said Pitambar Acharya, a senior advocate of the High Court who argued the case for the petitioner, K. Ananda of Ganjam district.

The petitioner was one among the 21 aspirants who had applied for the post in pursuance to an advertisement last year. However, the Search Committee had zeroed in on three candidates (other than the petitioner) and the office of the Chief Minister selected Dr Behera.

Source: The Hindu 

Supreme Court recalls notice to Arunachal Pradesh Governor

The Supreme Court's five-judge Bench, led by Justice J.S. Khehar, graciously accepted its slip-up, saying it would be only “just and appropriate” to take back the notice issued to Mr. Rajkhowa on January 27.

Concedes he has total immunity for acts done in official capacity.

Just a few days after ordering Arunachal Pradesh Governor J.P. Rajkhowa to respond why he recommended President’s rule in the sensitive border State, the Supreme Court recalled the order on Monday, saying it made a “mistake” by not realising that Governors have “complete immunity” and are not answerable to courts for acts done in their official capacity.

A five-judge Bench, led by Justice J.S. Khehar, graciously accepted its slip-up, saying it would be only “just and appropriate” to take back the notice issued to Mr. Rajkhowa on January 27.

The notice was issued on a petition by Rajesh Tacho, chief whip of the Congress Legislature Party, contending that the Governor and the Centre “played [a] fraud on the Constitution” and President’s rule should be quashed.

“If we have made a mistake, we will recall our order... there is no problem,” Justice Khehar said.

The turn of events was triggered by Attorney-General Mukul Rohatgi, for the Centre, drawing the Bench’s attention to Article 361 (1) of the Constitution which gives the President and the Governor protection from legal action.

Under the Article, both the President and the Governor of a State “shall not be answerable to any court” for acts done in performance of their powers and duties.

“The Governor has complete immunity and a notice cannot be issued to him,” Mr. Rohatgi submitted.

To prove his point, he referred to the Constitution Bench judgment of 2006 in the Bihar Assembly dissolution case concerning Governor Buta Singh.

Misuse of Art. 356, says Rajesh Tacho

Rajesh Tacho, chief whip of the Congress Legislature Party in the Arunachal Pradesh Assembly had challenged in the Supreme Court the imposition of President’s rule in the sensitive border State. Mr. Tacho’s petition alleged that Article 356 had been misused by the Centre and the Governor to topple the democratically elected Congress government.

The petition wanted the Centre and the Governor to “furnish” records of the events culminating in the Union Cabinet’s recommendation on January 24 and the subsequent proclamation of President’s rule.

On January 27, the Bench issued notice to the Centre and the Governor to file their responses by January 29 and posted the case for hearing on Monday. It also asked the Governor to hand over his reports recommending President’s rule.

During the hearing on Monday, both Justices Khehar and Dipak Misra said they had not yet opened the sealed covers containing the Governor’s reports. 

Source: The Hindu 

Security audit exposes flaws

: One month after the terror attack on Pathankot Air Force station, the Air Force has completed a security audit of all air bases and will soon initiate measures to address the loop holes that have been identified.

“A security audit of all bases has been conducted and has been conducted and steps will be taken as per the requirements,” a senior Air Force official said.

The official elaborated that every station has its own specific structure which needs specific measures based on the vulnerabilities identified. “We will put up forward proposals before the government for procurement of equipment as needed,” the official added.

The measures include electrification of the fences around the bases, additional lighting, and deployment of other sensors among others. Military installations in Kashmir and other high threat locations like Awantipora and Srinagar already have electrified fences which would be extended to all bases. Smart electrical fencing is among the top priorities, officials said.

The audit was conducted on the instructions of Defence Minister Manohar Parrikar. “A specific team is being made. It will visit (the bases) and look into priorities like risk factor, sensitivity and assets,” Mr. Parrikar had said on January 21.

On the early hours on January 2, six heavily armed terrorists believed to be from Jaish-e-Mohammad attacked Pathankot air base, the Air Force’s key base on the western border, and the holdup went on for four days before the terrorists were killed. Seven soldiers were also killed in the operation.

Officials also said that Defence Security Corps (DSC) and Garud commandos of the Air Force would continue to do perimeter security duties and more units would be deployed if needed.

During the Pathankot there was widespread criticism from experts on the employment of DSC and Garuds as the first responders after the terror attack.

While Air Force officials claim that Garuds are trained for counter insurgency operations, former Air Chief Air Marshal Fali H.Major said that “Garuds were raised for a different mandate for special Air Force tasks and not anti-terror operations”.

Officials also expressed concern at the proximity of civilian constructions close to air bases which severely compromises security.

Ideally there is supposed to be a 900 metre buffer zone outside air bases but does not happen due to the rapid urbanisation. After the incident officials are reviewing the dwellings in close proximity to bases and initiating measures to relocate them.

Source: The Hindu

Companies Law Committee submits report to Government

Suggestions include omitting provisions relating to forward dealing, insider trading

The Companies Law Committee — constituted in June 2015 to make recommendations on the issues related to implementation of the Companies Act, 2013 — submitted its report to the Government on Monday.

After extensive consultations with stakeholders and exhaustive deliberations, the Committee has proposed changes in 78 sections of the Companies Act, 2013 which, along with consequential changes, would result in about 100 amendments to the Act, according to an official statement.Approximately 50 amendments to the Rules have also been proposed. The recommendations cover significant areas of the Act, including definitions, raising of capital, accounts and audit, corporate governance, managerial remuneration, companies incorporated outside India and offences/ penalties.

The Committee has endeavoured to reconcile the competing interests of the various stakeholders keeping in mind the difficulties and challenges expressed by them and also being mindful of the government’s objective of furthering ease of doing business, encouraging start-ups and the need for harmonising various laws, according to the statement. Some of the key changes proposed are regarding managerial remuneration to be approved by shareholders and modification of definition of associate company and subsidiary company.Private placement process should be substantially simplified and incorporation process made easier.

The suggestions also include omitting provisions relating to forward dealing and insider trading from Companies Act. Companies may give loans to entities in which directors are interested after passing special resolution and adhering to disclosure requirement. Restriction on layers of subsidiaries and investment companies could be removed.

Auditor will report on internal financial controls with regard to financial statements. Frauds less than Rs. 10 lakh could be compoundable offences, according to the statement.

Other frauds can be continued to be non-compoundable. Requirement for a managerial person to be resident in India for 12 months prior to appointment may be done away with, it said. ESOPs may be allowed to promoters working as employees/directors. The report is available on the website of the Ministry of Corporate Affairs and public comments on the report are invited online till 15 February, 2016 on the facility made available specifically for the purpose at the portal. The Committee was chaired by Secretary, Ministry of Corporate Affairs. 

Source : The Hindu