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Renting and service tax

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PUBLISHED IN THE HINDU BUSINESS LINE

The plenary power of Parliament to legislate in determining relevance of service tax is subject to the Constitution.

 In Budget 2010, the Government used its Brahmastra and amended the Finance Act, 1994, levying service tax on renting of property. To ensure that the weapon was truly effective, the levy was made retrospective, with effect from June 1, 2007.

This measure was to counter the opinion — given twice — of the Delhi High Court, in Home Solution Retail, that the pure act of renting wouldn’t amount to a taxable service, since there is no value-addition involved.

It also sent signals to the Supreme Court, before whom a petition on that issue was pending, that the power of the Government to levy a tax under the Constitution is extremely wide. A bevy of petitions before the Mumbai High Court were disposed off recently, disagreeing with the opinion of the Delhi High Court.

MUMBAI HIGH COURT DECISION

In Retailers Association of India Vs Union of India and Ors, the Mumbai High Court reconsidered the constitutional validity of a service tax on rentals.

It noticed that the Supreme Court had an occasion to consider similar petitions in four landmark cases against the Union of India — Tamil Nadu Kalyana Mandapam, Gujarat Ambuja Cement, All India Federation of Tax Practitioners and Association of Leasing and Financial Services Companies. Considering a plethora of other Apex Court decisions, the Mumbai High Court held that the legislative basis that has been adopted by the Parliament in subjecting taxable services involved in the renting of property to the charge of service tax cannot be questioned.

The assumption by a legislative body, that an element of service is involved in the renting of immovable property is certainly not an assumption which can be regarded by the Court as being so manifestly perverse as to lead to an inference that the Parliament had treated as a service, an item which in no rational sense could be regarded as involving service.

But more significantly, even if the Court were to proceed on the basis, suggested by the petitioners, that no element of service is involved, that would not make the legislation beyond the legislative competence of Parliament.

As long as the legislation doesn’t trench upon a field which has been reserved to the State legislatures, the only conclusion that can be drawn is that the law must be treated as valid and within the purview of the field set apart for Parliament.

The petitioners were also irked by the retrospective application of the law. The Mumbai High Court was of the opinion that Parliament has the plenary power to enact legislation on the fields, which are set out in List I and List III of the Seventh Schedule.

RETROSPECTIVE APPLICATION

The plenary power of Parliament to legislate can extend to enacting legislation both with prospective and with retrospective effect. That, however, is subject to the mandate of Article 14 of the Constitution, which states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The Mumbai High Court agreed with the decision of the Supreme Court held in Bakhtawar Trust Vs M. D. Narayan, wherein it was held that it is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would be no more possible for the Court to arrive at the same verdict.

BEFORE THE SUPREME COURT

The decision of the Mumbai High Court follows the pattern of a host of High Courts, agreeing to disagree with the logic of the Delhi High Court in Home Solution Retail — the Punjab and Haryana High Court in Shubh Timb Steels, Orissa High Court in Utkal Builders and the Ahmedabad High Court in Cinemax India.

These decisions, along with the fact that renting of immovable property is not in the initial list of negative services, would be food for thought for the Supreme Court.

While all the developments post-Home India point to validating the levy, the Supreme Court could think of constitutional precedents and judicial cases to rule that the tax is applicable only from 2010 onwards, and not 2007.

 

(The author is a Bangalore-based chartered accountant.)

ORIGIN: http://www.thehindubusinessline.com/features/mentor/article2506762.ece?homepage=true

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Why the land acquisition bill is flawed

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GOPAL KRISHNA IN REDIFF NEWS

The Land Acquisition Rehabilitation and Resettlement Bill 2011 argues for a perfect land market, unrestrained urbanisation and industrialization, says activist Gopal Krishna.

On September 7, Jairam Ramesh introduced the Land Acquisition Rehabilitation and Resettlement Bill 2011 in the Lok Sabha within six days of the end of the public comment period on the bill that is to replace a 116 year old colonial law. This bill argues for a perfect land market, unrestrained urbanisation and industrialisation.

It sounds strange that rural development ministry is working for urban development as if latter is unquestionably the pre-condition for the well being of rural people and their ecosystem. Will the prime minister reveal the role of urban development ministry if what rural development ministry is doing is indeed its mandate?

Will Ramesh explain as to whether what he said as secretary, economic affairs, Indian National Congress remains relevant or not? Ramesh, a representative “of a generation that was created by public investment” and as a key player in developing India‘s 1991 economic reforms said in 2001 that “in 1715 they (India) accounted for 25 percent of world industrial output, so it’s always been an industrial nation in that sense of the term.”

Caught in the time warp and frozen with the contested develop-mentality, corporate fund driven political parties and NGOs are out to decisively put the State and the natural resources on sale unmindful of its cognitive and ecological cost and intergenerational inequity that it promotes almost forever. Both ruling parties and most of the opposition parties are hand in glove in this regard.

These anti-citizen entities are acting as if present and future citizens, gram sabhas, panchayats and zilla parishads do not matter. Their responses to enactment of Special Economic Zone Act, 2005 and its implementation is a case in point.

The Special Economic Zones and land acquisition by companies are about generating financial wealth with naked political patronage at the cost of natural and human wealth. The Land Acquisition Act, 1894 has been useful for it. It is indeed “painfully evident that the basic law has become archaic”. It used to be said that company is an artifact of law, it now appears that law such as this is an artifact of companies. Every act of privatisation of the government through legislations like these is quite painful too.

If that is not the case why should State use its sovereign power to acquire land for companies either partially or fully in the name of industrial and urban development or legislate to facilitate the same? If ‘development’ wasn’t a notorious and negative word why has a benign and positive word ‘sustainable’ pre-fixed to it unmindful of this the bill cites developmental imperatives with the assumption of its innocence.

The argument of Cabinet Committee on Economic Affairs that acquisition of land for industrial and urban development is a necessity — is driven by corporate funding of ruling and opposition parties since 2003 when the ban on company donations was lifted. Clause 59 of the Land Acquisition Rehabilitation and Resettlement Bill, 2011 deals with the provision of ‘penalty for obstructing acquisition of land’ seems to be about punishing the protesters and dissenters.

It reads: “Whoever willfully obstructs any person in doing any of the acts authorised by section 9 or section 15, or willfully fills up, destroys, damages or displaces any trench or mark made under section 15, shall, on conviction before a magistrate, be liable to imprisonment for any term not exceeding one month, or to fine not exceeding five hundred rupees, or to both.” Ramesh argues that this is required because “Land markets in India are imperfect.”

Is it a coincidence that Ramesh who is also a member of the Cabinet Committee on Unique Identification Authority of India related issues has introduced UID provision in Section 10 and 36 of the Land Titling Bill, 2011?

Will CCEA and CCUIDAI reveal all the proposed legislations that are aimed at creating property based democracy?

Can parliament, all its standing committees, state governments and state’s legislative bodies ever exchange notes to unearth the legislative web being woven at the behest of transnational financial institutions before it is too late?

In the backdrop of such unanswered questions, the 70-page LARR Bill has 74 Sections and 3 schedules in its English version to deal with the grievance accumulated since 1894. Clause 69 of the bill deals with the ‘Return of Unutilised Land’.

It reads: “(1) The land acquired under this Act shall not be transferred to any other purpose except for a public purpose, and after obtaining the prior approval of the appropriate government, and any change in purpose made in violation of this provision shall be void and shall render such land and structures attached to it liable to be reverted to the land owner.

(2) When any land or part thereof, acquired under this act remains unutilised for a period of five years from the date of taking over the possession, the same shall return to the land owner by reversion;

(3) The appropriate government shall return the unutilised land or part thereof, as the case may be, to the original owner of the land from whom it was acquired subject to the refund of one fourth of the amount of compensation paid to him along with the interest on such amount at such rate, as may be specified by the appropriate government, from the date of payment of compensation to him till the refund of such amount; and

(4) The person to whom the land is returned being the owner of the land shall be entitled to all such title and rights in relation to such land from which he has been divested on the acquisition of such land.”

Dr Usha Ramanathan, a noted jurist, asks, “What happens when they (the displaced) are unable to buy it back” when the unutilised land is returned. This section permits the transfer of land for another public purpose. This particular clause is not acceptable and has to be removed from the draft bill. Unmindful of widespread concern in the academia and among citizens, the bill has been approved in a tearing hurry by the Union Cabinet which gives rise to valid questions about player behind the curtain in the backdrop of declaration of assets by billionaire ministers.

Schedule I of the bill deals with “compensation for land owners”, Schedule II deals with the “list of rehabilitation and resettlement entitlements for all the affected families (both land owners and the families whose livelihood is primarily dependent on land acquired) in addition to those provided in Schedule I and Schedule III deal with “provision of infrastructural amenities” for resettlement of populations “to minimise the trauma involved in displacement.”

Referring to schedule II, Ramaswamy R Iyer, former secretary, union water resources aptly concludes that “The principle of ‘land for land’ has been abandoned” because it is applied for irrigation projects alone that too with a provision that is inferior to the ones made for the displaced in the Sardar Sarovar Project. The Cabinet Committee on Economic Affairs appears to be under undue influence from the funders of ruling political parties both at the centre and the states to exclude projects for power, mining, flood management, SEZ, urban development and several other ‘multi-purpose’ projects that cause displacement. So far neither the ministry nor the CCEA has responded to it.

The bill fails to address the question of transfer of agricultural land to non-agricultural use and the implications for food security although it does refer to multi-cropped irrigated land but it is hardly sufficient. It seems to be pursuing the path of regressive Bihar Agriculture Land (Conversion for Non Agriculture Purposes) Act, 2010 which is facing bitter opposition especially in cases where widely acknowledged and awarded fertile lands are being acquired for hazardous asbestos factories amidst paid news journalism and studied silence of opposition parties in the state.

If this is the fate of a state government whose head keeps referring to Ram Manohar Lohia’s four tier governance, it is understandable why most of the socialist experiments become an exercise in sophistry. Instead of ensuring that private purchases of agricultural land be subject of state regulation from the point of view of land-use, water-use, soil health and food security, such legislations are indulging in a myopic exercise of according priority to creation of financial wealth at any non-financial cost and risks.

Section 2 of the LARR Bill deal with the definition of the expression “public purpose” includes- (i) the provision of land for strategic purposes relating to naval, military, air force and armed forces of the Union or any work vital to national security or defence of India or state police, safety of the people; (ii) the provision of land for infrastructure, industrialisation and urbanisation projects of the appropriate government, where the benefits largely accrue to the general public; (iii) the provision of village or urban sites, acquisition of land for the project affected people, planned development or improvement of village sites, provision of land for residential purpose to the poor, government administered educational and health schemes, (iv) the provision of land for any other purpose useful to the general public, including land for companies, for which at least 80 per cent of the project affected people have given their consent through a prior informed process; provided that where a private company after having purchased part of the land needed for a project, for public purpose, seeks the intervention of the appropriate government to acquire the balance of the land it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired through private negotiations and it shall be bound by all provisions of this Act for the balance area sought to be acquired. (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by government, any local authority or a corporation owned or controlled by the State”. This definition of “public purpose” or common good to destroys “the distinction between private use and public use”.

In a text “Some notes on the Draft Land Acquisition and Rehabilitation Bill 2011”, Ramanathan states that “The eminent domain power in India is not, and in any event should not be, so wide” wherein an inverted Robin Hood is created which takes from the poor to give to the rich.

The draconian black law of 1894 which is proposed to be replaced in the backdrop of massive bitter opposition to Special Economic Zones and environmentally damaging projects in Jaitapur, Haripur, Ghaziabad, Andhra Pradesh, Tamil Nadu, Karnataka, Bihar and Goa where lessons have not been learnt from the bloodshed and violence in Nandigram and Singur.

The proposal to amend the Atomic Energy Act, 1962 in the aftermath of West Bengal’s denunciation of Haripur nuclear power project in the aftermath of Fukushima and abandonment of nuclear power projects in Germany, Japan and other countries is uncalled for. But strangely, the Nuclear Safety Regulatory Authority Bill, 2011 was introduced on September 7 itself without any public comments on the Bill. Both these Bills should be deferred till it provides for moratorium on acquisition of land for nuclear power projects.

Unlike in US, the Supreme Court of India observed, “The Act, which was enacted more than 116 years ago for facilitating the acquisition of land. However, in the recent years, the country has witnessed a new phenomena. Large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilised the same for construction of multi-storied complexes, commercial centers and for setting up industrial units. Similarly, large scale acquisitions have been made on behalf of the companies by invoking the provisions contained in Part VII of the Act. The resultant effect of these acquisitions is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood. Majority of them do not have any idea about their constitutional and legal rights, which can be enforced by availing the constitutional remedies under Articles 32 and 226 of the Constitution.”

If the bills are not sensitive to these observations in a context of corporate funding to political parties even if passed by the Parliament, they can be struck down by the apex court as contrary to the Preamble of our Constitution.

Admittedly, there is “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired” but the role of futures markets in land within India and the land being acquired in African countries does not find any mention. Also “asymmetry of power and information” is acknowledged only to be ignored as if it’s a merely an exercise in lip-service. The bill ignores how acquisition of land affects acquisition of water as well. The ministry has failed to provide a white paper on the impact of 1894 Act since its enactment before independence and after independence. A compensation and rehabilitation regime is needed with “reference not to the nature of the project but to the nature of the impact.”

The parliamentary standing committee on rural development must ask for the status of the total land acquired and the total number of internally displaced persons till the introduction of the Bill in Parliament. Without such a paper and data, the ministry’s rush to get the bill passed is an act in haste which generations to come will repent and it will be considered a monumental failure of Ramesh if he does not undertake rigorous outreach before arriving at a research based decision.

Has his ministry bothered to send this bill to all the sarpanchs and mukhiyas of the country in their language to ascertain its implications and provide suggestions? The passage of the bill in its current shape must be deferred till this is done. The minister can check with his ministry, there is a precedent in this regard, a rural development minister had written such letters to sarpanchs.

This author was shown one such letter in a panchayat at a gram sabha meeting of Mendha Lekha, Dhanora tehsil in Gadchiroli district in July-August 2001. It would indeed be a sad commentary on the ministry and the standing committee headed by Sumitra Mahajan of Bhartiya Janata Party if they fail to genuinely reach out to villages before finalising the bill. The bill must factor in the provisions of Article 243 (G) of the Indian Constitution and Panchayat Extension to the Scheduled Areas (PESA) Act, 1996. It must desist from “forced industrialisation” and forced urbanisation.

This is required to deal with an uncertain future being manufactured by real estate, food and water companies to safeguard agricultural land from being grabbed by powerful national and transnational companies that can undermine parliament, state assemblies, gram sabhas, panchayats, zilla parishads and the government for good by depriving us of our food sovereignty. If our legislature can legislate on land use, water use, land acquisition, rehabilitation, resettlement and land titling with the memory of country’s past share in world trade, it will be acting to restore the sovereignty of our Parliament and ensure that companies of all ilk remain subservient to its legislative will.

ORIGIN: http://www.rediff.com/news/column/why-the-land-acquisition-bill-is-flawed/20110913.htm

 


 

HC notice to UT: Evolve fool-proof security system

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PUBLISHED IN THE INDIAN EXPRESS

In wake of September 7 bomb blast in Delhi, PIL exposes lax security measures for entry into High Court

The Punjab and Haryana High Court on Friday issued notices to Chandigarh Administration on a Public Interest Litigation (PIL) seeking directions to Chandigarh Administration to evolve and install a fool-proof security system.

Suggestions were made to install a system with modern electronic gadgets, equipments and Closed-circuit television (CCTV) Cameras on the pattern of security systems installed in the Supreme Court of India.

The petition has been filed by Advocate H C Arora.

Referring to the security system in the High Court, the petitioner contended that “…The security system in the High Court is quite lax. Anybody can enter from gate number 1 after assuring that he needs to get an affidavit attested from an Oath Commissioner. Anybody pretending to be a government officer can get unrestricted entry through the gates.”

“Entry is at will after lunch for all visitors. Any mischievous element can enter the High Court premises after posing as an advocate by wearing a black coat and a white collar band.”It read, “Laxity in the security system can pose a serious threat to the life and liberty of innocent citizens, including lawyers and the staff of the High Court.”

The petitioner has sought that the security system shall be set up in due consultation with the High Court on administrative side and the High Court Bar Association, in wake of the bomb blast which took place in Delhi High Court.

SC security measures

* Permanent passes with photographs to permanent members of the Supreme Court Bar Association or to outside advocates, issued at the instance of the Bar Association.

* Temporary passes issued at the spot to outsider advocates, after establishing their identity based on voter identity card, or the Enrollment Card issued by concerned Bar Counsel.

* Temporary separate passes issued in a similar manner to litigants, on the basis of strict proof of their identity.

* Entry being allowed to petitioners in person, only for the particular Court Room where they have to appear or watch the proceedings of their own cases, where after they have to leave the premises of the Supreme Court

* Frisking of all visitors, except those with permanent passes, and staff of the Supreme Court of India

* CCTV Cameras keeping account of activities of all visitors to Supreme Court of India

* No entry of persons other than lawyers to the bar rooms.

Reprieve from death

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T.S. SUBRAMANIAN IN THE FRONTLINE

DEATH CONVICTS IN THE RAJIV GANDHI ASSASSINATION CASE

The delay of over 11 years by the President to decide the mercy pleas of Rajiv Gandhi’s killers dominates the debate on the issue.

WHY was there a delay of more than 11 years before the President of India decided on August 11 to reject the clemency petitions of Murugan, Santhan and Perarivalan, who had been sentenced to death in the Rajiv Gandhi assassination case? The question came to the fore after it became known that the President had rejected their petitions. Officials of the Central Prison, Vellore, subsequently decided to hang them on September 9, but on August 30 the Madras High Court stayed their execution.

The Supreme Court reconfirmed the death sentences awarded to Nalini, Murugan, Santhan and Perarivalan in October 1999. On April 24, 2000, M. Fathima Beevi, Governor of Tamil Nadu then, commuted the death sentence awarded to Nalini, wife of Murugan, on the grounds that she was a woman and had a daughter; but she rejected the clemency petitions of the other three. The three sent separate clemency petitions to the President on April 26, pleading that they had undergone solitary imprisonment for eight years, which alone could be a mitigating factor for commuting their death sentences. The President’s decision came after 11 years and four months.

Following this, Vaiko, leader of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) and N. Chandrasekaran, advocate, filed petitions on behalf of the trio in the Madras High Court. Senior Advocates Ram Jethmalani, R. Vaigai and Colin Gonsalves, who appeared for Murugan, Santhan and Perarivalan respectively on August 30 before a Division Bench comprising Justices C. Nagappan and M. Sathyanarayanan, argued that the 11-year delay made the death penalty illegal and unconstitutional. The sentence of death after the three had spent 20 years in jail was “unjust and inhuman”, they said.

“Unless the delay is properly explained or justified,” Jethmalani argued, “it makes the death penalty immoral, illegal and, according to me, unconstitutional.” He told the judges: “You must start with the assumption that more than two years’ delay is, prima facie, wrong.” Jethmalani quoted from various Supreme Court and High Court judgments, including the apex court’s ruling in the Chinnappa Reddy case, to argue that the 11-year delay could be the sole ground for commuting the death sentence.

Vaigai and Gonslaves argued that the delay was “unconscionable”. By no yardstick could a government sit on a mercy petition for so many years. The delay made the execution of death sentence unconstitutional, Gonslaves argued. He said Article 21 of the Constitution made it mandatory that no person should be deprived of his life or personal liberty except according to the procedure established by law. Taking 11 years to dispose of the mercy petitions was not a procedure established by law, he said.

The arguments were heard in a courtroom packed with a couple of hundred advocates. The judges said in their brief order that the main contention raised in all the writ petitions was the delay in the disposal of the mercy petitions. “Since the matter involves consideration of question of law, the petitions are admitted and there shall be an order of interim injunction. Counter by eight weeks.” Additional Solicitor-General M. Ravindran and Advocate-General A. Navaneethakrishnan took notice for the Union government and the State government.

Assembly resolution

As news of the stay spread, the several hundred advocates gathered on the High Court premises rejoiced. Arputhammal, mother of Perarivalan, thanked Jethmalani with clasped hands as a beaming Vaiko stood by. There was more rejoicing when news came in on the same day that the Tamil Nadu Assembly had passed unanimously a resolution urging President Pratibha Patil to reconsider the clemency petitions.

The President should take into account the sentiments of the people of Tamil Nadu and the opinions of the political parties, the resolution said. The Congress members did not oppose the resolution. The Dravida Munnetra Kazhagam (DMK) members were not present in the House.

The resolution, piloted by Chief Minister J. Jayalalithaa, marked a significant change in the ruling All-India Anna Dravida Munnetra Kazhagam‘s (AIADMK) stand. Only the previous day had she told the Assembly that as Chief Minister she had no powers to stop the executions after the President had rejected the mercy petitions. This had been made clear in a Union Home Ministry Communication dated March 5, 1991, which said: “In case of death sentences where a petition for grant of pardon, etc., has earlier been rejected by the President of India in exercise of his powers under Article 72 of the Constitution of India, it would not be open for the Government of a State to seek to exercise similar powers under Article 161 in respect of the same case. However, if there is a change of circumstances or if any new material is available, the condemned person himself or anyone on his behalf may make a fresh application to the President for reconsideration of the earlier order. Once the President has rejected a mercy petition, all future applications in this behalf should be addressed to and would be dealt with by the President of India.”

Jayalalithaa also accused the DMK of adopting “double standards” and enacting “a deceitful drama”. Several political parties, Arputhammal and DMK president M. Karunanidhi had appealed to her to stop the executions. Jayalalithaa recalled that it was under Karunanidhi’s chief ministership in 2000 that the State Cabinet recommended rejection of the mercy petitions of Murugan, Santhan and Perarivalan. (The Cabinet took the decision on April 19, 2000, and the Governor, accepting its advice, passed the order on April 24.) If, after recommending the rejection of the mercy petitions of the three to the Governor, “Mr. Karunanidhi issues a statement that their lives should be saved, people of Tamil Nadu should ponder whether it is not tantamount to adopting double standards and performing a drama?” Jayalalithaa said.

Karunanidhi, however, turned the tables on Jayalalithaa. He said that on April 27, 2000, an AIADMK member opposed in the Assembly even the commutation of the death sentence awarded to Nalini. Jayalalithaa, too, had objected to the commutation. In a statement published in the AIADMK party organ Namadhu MGR (Our MGR) on October 23, 2008, she had attacked the delay in executing the death sentences awarded to the trio.

Karunanidhi said: “The three persons have spent more than 20 years in jail, which is virtually tantamount to death sentences. So the DMK wants the [death] sentence to be reconsidered. Since Murugan, Santhan and Perarivalan have spent more than 20 years in prison, it should be treated as if they had fully undergone the punishment awarded to them and they should be freed. The DMK appeals to the Centre to take steps in this direction.”

The assassination case

On May 21, 1991, former Prime Minister Rajiv Gandhi was assassinated at Sriperumbudur near Chennai by Dhanu, a belt-bomb assassin belonging to the Liberation Tigers of Tamil Eelam (LTTE). After a meticulous investigation, the Special Investigation Team (SIT) of the Central Bureau of Investigation (CBI) headed by D.R. Karthikeyan charge-sheeted 41 people in the case. The SIT said the LTTE was behind the assassination. Of the 41 accused, three were absconding and could not be tried. They were the LTTE chief V. Prabakaran, its intelligence wing chief Pottu Amman, and deputy chief of the LTTE women’s intelligence wing, Akila. Twelve among the 41 died, and so charges against them abated. The remaining 26 stood trial in the designated court at Poonamallee near Chennai. In his judgemnt delivered on January 28, 1998, the designated judge, V. Navaneetham, pronounced all 26 guilty under Section 102-B (murder) read with Section 302 (murder) of the Indian Penal Code and provisions of the Terrorist and Disruptive Activities (Prevention) Act, or TADA.

The charge against Prabakaran was that he ordered the assassination. Pottu Amman conspired with Prabakaran to carry it out. The charge against Akila was that she, in tandem with them, planned the assassination and arranged for its execution. Dhanu, an LTTE cadre, was to carry out the assassination along with Subha. Sivarajan, LTTE intelligence wing member, led the nine-member assissination squad, which reached Kodiakkarai in Tamil Nadu from the Jaffna peninsula on May 1. Sivarajan and Subha committed suicide at Konankunte, near Bangalore, on August 19, 1991, when cornered by the SIT.

The charge sheet said Nalini, an Indian national and wife of Murugan, accompanied Sivarajan, Dhanu, Subha and Haribabu to the assassination site. Murugan, a Sri Lankan Tamil and LTTE intelligence wing cadre, acted as a conduit between Sivarajan and Nalini’s family. According to the charge sheet, Murugan knew that Rajiv Gandhi was the target; Santhan, also a member of the LTTE intelligence arm, was a member of the squad; and Perarivalan, an Indian citizen, helped Sivarajan and Murugan in planning and executing the conspiracy. He bought two battery cells on Sivarajan’s instructions and gave them to him. They were used by Dhanu in her belt-bomb. Perarivalan also bought a battery to operate an illegal wireless set, which was installed in Vijayan’s (another accused in the case) house to send messages to Pottu Amman. Perarivalan bought the Kodak film used by Haribabu, photographer, to film the assassination. Haribabu died in the blast.

After the designated court awarded death sentences to all the 26 accused, they appealed in the Supreme Court. On May 11, 1999, Justices K.T. Thomas, D.P. Wadhwa and Syed Shah Mohammed Quadri confirmed the death sentences awarded to Nalini, Murugan, Santhan and Perarivalan but “altered” the death sentences awarded to Robert Payas, Jayakumar and Ravichandran to life imprisonment.

Justice Thomas disagreed with Justices Wadhwa and Quadri on confirming the death sentence awarded to Nalini. In his dissenting judgment, Justice Thomas said, “She became an obedient participant without doing dominant role. She was persistently brainwashed by A-3 [Murugan] who became her husband and then the father of her child…. She realised only at Sriperumbudur that Dhanu was going to kill Rajiv Gandhi. But she would not have dared to retreat from the scene because she was tucked into the tentacles of the conspiracy…. She knew how Sivarajan and Santhan had liquidated those who did not stand by them…” ( Frontline, November 5, 1999). Justice Thomas added that it could not be overlooked that she was the mother of a little girl who was born in captivity. Since the death sentence had been confirmed on the father Murugan and the child had to be saved from “imposed orphanhood”, the judge said, “the sentence passed on her is altered to one of imprisonment for life”.

Of the 19 other accused, the judges absolved 18 of taking part in the conspiracy. Although the judges confirmed the sentences awarded to them by the lower court under the Arms Act, the Explosive Substances Act, the Passport Act, and so on, they were freed because they had already served out their terms. S. Shanmugavadivelu, who was charged only under TADA, was acquitted.

Nalini, Murugan, Santhan and Perarivalan filed petitions in the Supreme Court, seeking a review of the death sentences awarded to them. On October 8, 1999, Justices Thomas, Wadhwa and Quadri reconfirmed the death sentences. Justice Thomas, who gave the dissenting judgment with regard to Nalini, said her review petition “should be allowed and her sentence should be altered to imprisonment for life”.

After the Supreme Court ruling in October 1999, Fathima Beevi accepted the recommendation of the Karunanidhi Cabinet in April 2000 to commute the death sentence awarded to Nalini to imprisonment for life. Congress president Sonia Gandhi met President K.R. Narayanan and conveyed her family’s view that Nalini’s life should be spared. “It is my personal feeling, keeping in mind a child’s need for a mother,” Sonia Gandhi said ( Frontline, May 26, 2000). Fathima Beevi rejected the petitions of Murugan, Santhan and Perarivalan. They sent clemency petitions to the President on April 26, 2000. President Pratibha Patil’s rejection of the petitions led to protests across Tamil Nadu.

SOURCE: http://www.frontline.in/stories/20110923281912700.htm

Half a victory

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Abhishek Manu Singhvi, Indian politician, spea...

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VENKITESH RAMAKRISHNAN  IN THE FRONTLINE

Team Anna wins the first round, but the way ahead in the fight against corruption is full of uncertainties.

“A BATTLE has been won in the campaign for cleansing public life through the rallying of vast sections of people across the country. But a purposive piece of legislation has finally to be passed by Parliament even to rate this victory as truly meaningful. Indeed, the state of peace that has descended after the tumult is pregnant with uncertainties. Uncertainties of such dimensions that no one has a clue as to what this will ultimately deliver.” These words spoken by a key player in the negotiations between Team Anna and the United Progressive Alliance (UPA) government during the tumultuous 12-day fast undertaken by Anna Hazare, which rocked the national capital and most other parts of the country, sum up the mood prevailing among individuals and groups that would play a role in the drafting and passage of a new Lokpal Bill. The government, the big and small opposition parties with representation in Parliament, Team Anna and various other institutions and bodies that have come up with suggestions on the proposed Bill, such as the Aruna Roy-led National Campaign for People’s Right to Information (NCPRI) and the Udit Raj-led Justice Party, all share these uncertainties and the lack of clarity about the future.

At the moment, of course, the prime mover is the Standing Committee of Parliament, chaired by Congress leader Abhishek Manu Singhvi. The committee is expected to take up and initiate negotiations on the various proposals from different sides sometime in September itself. Central to these negotiations are the three points on which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands. The sense-of-the-House resolution stated that the issues of “Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States” would be taken up by the Standing Committee. This process itself has historic dimensions because it is for the first time that the members of the Standing Committee will be discussing the provisions of an already introduced government Bill in response to a sense-of-the-House resolution suggesting incorporation of new provisions.

The mainstream political parties and Team Anna expect this process of the Standing Committee to be completed before the winter session of Parliament. On their part, both Union Finance Minister Pranab Kumar Mukherjee, who emerged as the most important player on the government side during the latter stages of the anti-corruption agitation, and Anna Hazare himself have come up with public postures that have signified a sense of caution and accommodation, which in turn is considered conducive to the smooth conduct of deliberations. In repeated comments to the media after Anna Hazare concluded his fast on August 28, Mukherjee made it clear that the government had bowed before people’s power and its genuine representative leader. Anna Hazare responded by agreeing that there was a lot more to be done peacefully to take the negotiations to the level of fruition. Asserting that “this is only half a victory”, he said he was confident that Members of Parliament would not go back on their word to provide “an effective and strong Lokpal”.

While this sense of accommodation and optimism bodes well for deliberations in the future, large sections of public opinion still harbour apprehensions as to how things will unfold. Speaking to the media immediately after Anna Hazare ended his fast, Infosys founder V. Narayana Murthy hailed the ‘in principle’ agreement of Parliament to the demands put forward by Team Anna but added that it was only the first step. “We have to go through the process of implementation and take it to success. And that is the toughest part. For implementation is the Devil.”

According to Professor Nil Rattan of the Patna-based A.N. Sinha Institute of Political Studies, the apprehensions about implementation have arisen essentially on account of the very track record of the players involved in the process. “Both sides have shown intransigence at different times. While the government has bumbled about from one mistake to another for long spells while addressing the issue, Team Anna had initially taken the obstinate position that nothing short of its version, the Jan Lokpal Bill, would do. The present atmosphere for deliberations could be arrived at only because the government rectified some of its mistakes and Team Anna was ready to come down on some of its demands like bringing the higher judiciary under the ambit of the Lokpal. What is the guarantee that this will stand? Who knows whether sections of the government will embark on some adventurist path again,” Nil Rattan told Frontline.

Indeed, the UPA’s track record in handling the early days of Anna Hazare’s August agitation is pathetic. Almost every section of the government, starting with Prime Minister Manmohan Singh, kept on making mistakes. Interventions by Home Minister P. Chidambaram and Telecommunications Minister Kapil Sibal made matters worse. Finally, Congress general secretary Rahul Gandhi contributed his mite to the rank confusion in the ruling establishment. These mistakes were in many ways directly proportional to the rising popularity of Anna Hazare.

Undoubtedly, the biggest mistake was the imprisonment of Anna Hazare on August 16, that too in Tihar jail, where people like Suresh Kalmadi and A. Raja, who were arrested on charges of corruption, are incarcerated. Subsequently, an official spokesperson of the Congress classified Anna Hazare as a “top to bottom” corrupt person.

Interestingly, the decision to take Anna Hazare to Tihar jail was made in an apparent effort to keep him away from the crowds. The political bosses and the administrative-bureaucratic leadership, especially of the Home Ministry, had reportedly considered different options, such as placing him in a government or private guest house or moving him out to Ralegan Siddhi (his hometown in Maharashtra), but finally decided against all these, fearing that his supporters would gather in front of the guest house or at Ralegan Siddhi. Informed sources said that they finally decided to shift him to Tihar because it was thought that the jail would not be accessible to Hazare’s supporters. But what happened was the exact opposite. Crowds gathered at Tihar in big numbers, forcing the government to order his release.

In the days following his release, and during the fast undertaken by him at the Ramlila Grounds, Anna Hazare was perceived as the symbol of all that is positive in society and in many ways the one-stop solution for all social problems. Various organisations, such as sections of the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar and non-governmental organisations of different hues and patterns of funding, pitched in for crowd mobilisation. Cumulatively, the impact of genuinely inspired participation and motivated organisational mobilisation resulted in massive crowds at the maidan.

Meanwhile, the government made another faulty move: it stated that Parliament cannot give up its supremacy. This when it had undermined Parliament in April by calling Team Anna to draft the Lokpal Bill and keeping the opposition parties out of the drafting committee. While this move was made by the Prime Minister, Rahul Gandhi made a facile attempt to score some brownie points through an intervention in Parliament highlighting the same supremacy-of-Parliament position.

Ultimately, it required the intervention of some youth power from the government side itself to untangle the mess that senior politicians such as Manmohan Singh, Chidambaram and Sibal had created. It was through the good offices of a young Delhi MP, Sandeep Diskshit, that the government built channels of communication with Team Anna and managed to bring about a solution. To start with, Dikshit’s intervention was followed by an appeal from Manmohan Singh to Anna Hazare to withdraw the fast. He made this appeal even while crediting Anna Hazare with valid slogans representing the people’s aspirations.

However, in the euphoria created by this collection of crowds day after day, shrill voices questioning the very legitimacy of political processes and leaderships were heard from the Ramlila podium – from Team Anna leaders including Anna Hazare, Kiran Bedi and Arvind Kejriwal, and supporters such as the actor Om Puri. The campaign was such that it sought to raise visions of an apolitical leadership replacing politics in the country. Voices like those of the social activist Swami Agnivesh, which emphasised the need to accord validity to political leaderships and elected representatives, were fiercely criticised by the volunteers of Team Anna and by sections of the crowd. Agnivesh’s comment that Hazare ought to have responded positively to Manmohan Singh’s appeal was targeted for special vitriolic treatment by many of Team Anna’s supporters.

Despite this, the government persisted with its efforts at negotiation. It was in this process that Pranab Mukherjee’s role came to the fore, even though Chidambaram and Kapil Sibal continued to argue that a tough line would ultimately compel Team Anna to compromise. This tussle on strategy reflected in a different manner within Team Anna too. Though voices like those of Swami Agnivesh had been sidelined, there also developed an impression that Kejriwal and Kiran Bedi were pushing things to the brink. A group within Team Anna, including senior lawyer Prashant Bhushan, took the lead in meeting a number of political leaders, particularly in the opposition BJP and the Left. These initiatives were supplemented by the Mukherjee-led negotiations.

Gradually, sections of Team Anna that had raised a rant against the political class as a whole had to listen to the less aggressive sections. And, it was this that finally led to the discussion of Anna’s demands in Parliament and the final passage of the resolution.

Notably, when Anna Hazare’s fast was withdrawn on August 28 following the passage of the resolution, Kejriwal made it a point to underline the fact that at no point of time had Team Anna sought to denigrate the entire political class as corrupt. While this was sought to be presented as a clarification, many observers perceived the effect of a corrective reverse pressure in this statement.

The passage of the resolution in Parliament and the acknowledgement of Anna’s agitation methods by parliamentarians have evoked high praise, especially from sections of the media, some of whom have described the agitation as the most phenomenal people’s movement to have happened in the history of independent India. In fact, some commentators have even gone to the extent of suggesting that there could be a classification of national politics as pre-Anna and post-Anna phases.

While it is true that the agitation and the fast touched an emotive chord in large sections of the people, including the middle class which has never participated actively in political initiatives, the fact remains that many other movements, ranging from the struggle for land reforms to the empowerment of Dalits, have had more lasting historical impact on Indian society.

Professor Sudhir Panwar, an Uttar Pradesh-based social activist associated with the Kisan Jagriti Manch, who supported the Anna Hazare agitation as a significant effort to initiate a new democratic discourse in the country’s political system, also pointed out that the increased participation of the middle class had helped get enhanced media attention to the movement compared with other grass-roots initiatives such as those of farmers and agricultural workers.

“The fact is the issue of corruption, especially corruption by the political class, is so pervasive and the fight against it has such widespread resonance that even those who have never thought of the country and its people in a larger sense joined in,” he said.

Panwar pointed out that the middle class, which had assiduously kept away from politics and refused to respond to phenomenal political developments such as the demolition of the Babri Masjid and the Gujarat riots of 2002, was triggered into action on political and other forms of corruption also because of the global economic crisis and its impact on day-to-day life.

Panwar emphasised that the leaders of Team Anna should use this opportunity to broadbase the movement with a larger understanding of other social issues and an earnest incorporation of other social movements. “Only then will this have a lasting impact,” he stated.

Naturally, this would involve adopting a more open approach to issues such as the demands of Dalits and backward classes in relation to the Lokpal and looking at broader issues such as the impact of neoliberal policies. Team Anna has announced its resolve to continue struggles in new areas such as electoral reforms, which will include the right to recall and the right to reject legislators. It has also stated that it will strive for decentralisation of power through the greater empowerment of gram sabhas and mohalla sabhas.

A one-line overview of the national political situation in the context of the agitation and the related developments was provided by Pranab Mukherjee when he said, “We are at a crossroads.” It was with this phrase that Mukherjee began his speech marking the beginning of the August 27 debate in Parliament on the Lokpal Bill.

Clearly, as the statement implies, it is time to move with caution to enhance the democratic content of the nation and its institutions and systems. It is a message that applies equally to the largely discredited and beleaguered political class as also to the new civil society players who have had a modicum of success in initiating a corrective process.

And exactly because of this success, Team Anna needs to be extra cautious in what it preaches and practises. For, the hallucination among some of its leaders that India is Anna and Anna is India militates against the very concept of democratic discourse.

Justice Bedi voices concern for subordinate judiciary

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SC RETIRED, JUSTICE HARJIT SINGH BEDI

The Supreme Court Bar Association on Friday organised a farewell function for Justice Harjit Singh Bedi whose official term in office ends on September 5.
Speaking on the occasion, Justice HS Bedi said that the last two decades of his judicial career have been very satisfying. He said that his association with the Bar, such as Chandigarh, Bombay, and the Supreme Court would be a memory that he will cherish forever.

During the speech, Justice HS Bedi commented on the persistent sniping that goes on at the judicial system. Justice Bedi stated, “the criticism is sometimes justified and it has to be accepted in that spirit but I find that some of the remarks are unnecessarily sweeping and uncharitable as my experience shows that for every bad Judge there are many good ones whose contributions are completely ignored.”

Blaming the pressures, under which the Judges of the lower judiciary have to function, Justice HS Bedi said that it was responsible for the Judges to avoid taking decisions in controversial matters.

“The subordinate judiciary is at the receiving end not only from the litigant, as one side has to lose, but also from the public, the politician, the media, from unscrupulous lawyers, and, more importantly, from its superiors in the judicial hierarchy. It is this fear in the lower judiciary that is, in many ways, responsible for the creation of excessive and avoidable litigation in the higher courts as subordinate Judges play safe and let Judges higher in the hierarchy take decisions in controversial matters,” Justice HS Bedi said.

Justice Bedi during his speech also commented on the assessment made on the level of corruption in the judiciary. “We have High Court and Supreme Court Judges making assessments about the extent of corruption in the judiciary and offering widely differing figures from 20% to 80%.  How they come about these figures is a mystery to me. Undoubtedly allegations of corruption leveled against a Judge must be strictly dealt with, and that is invariably the case,” Justice Bedi said.

Chief Justice SH Kapadia, speaking on the occasion said that Justice Bedi has been a distinguished colleague who by joining the higher judicial office had continued the family tradition as his father Justice Jagjit Singh Bedi was a distinguished Judge of the Punjab and Haryana High Court.

The Chief Justice said that the judgments pronounced by Justice Bedi were always well structured and there was no element of judicial overreach. He said that his judgments and speeches were always appropriate and well balanced.

“He never crossed the lakshman rekha. His judgments indicate a very fine balance also between judicial activism and judicial restraint,” Chief Justice SH Kapadia said.

Sen courted trouble as Receiver

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FORMER CALCUTTA HIGH COURT JUSTICE SOUMITRA SEN

For the beleaguered Justice Soumitra Sen of the Calcutta High Court, trouble started in 1983, when the Steel Authority of India Ltd. filed a money suit in the court against the Shipping Corporation of India for sale of Periclase Spinal Bricks lying at the Bokaro Steel Plant.

On April 30, 1984, the court appointed Justice Sen, who was a lawyer at that time, as a Receiver to make an inventory, sell these goods, and keep the proceeds until the case was decided. Between April 1, 1993 and June 1, 1995, he received the sale amount of Rs. 33.23 lakh.

In 1996, though he was entitled to keep only five per cent, Rs 1.66 lakh, towards remuneration, he kept the entire money in a fixed deposit with ANZ Grindlays (which later merged into Standard Chartered) and later transferred it to Lynx India Ltd, a company authorised by the RBI.

On January 20, 1997, another High Court Bench directed Mr. Sen to be the Receiver in another case and to keep Rs. 70 lakh for distribution among workers of Calcutta Fans. But he deposited this amount also in Grindlays Bank. Between May 14, 1997 and August 6, 1997, he issued several cheques to the workers.

On February 26, 1997, he deposited Rs. 25 lakh (from out of Rs. 70 lakh) with Lynx India, which sank. The shortfall was made up by taking Rs. 25 lakh from the SAIL money and depositing it in the Calcutta Fans account

On February 27, 2003, the SAIL filed an application in the High Court asking the Receiver to return the entire sales proceeds and render true and faithful accounts. He failed to do so until he was appointed judge on December 3, 2003.

On August 3, 2004, the High Court appointed a new Receiver, without asking Justice Sen to refund money lying with him till then.

Subsequently on February 15, 2005 when the matter was posted before another judge, he issued notice to Justice Sen for return of the money. On June 30, 2005 after the High Court ordered an enquiry, it came to light that Justice Sen, as Receiver, never filed any accounts, though he was required to do so every six months.

On November 1, 2005 he deposited Rs. 5 lakh. On April 10, 2006, the court directed him to repay Rs. 57.65 lakh, which included an interest of Rs. 26.26 lakh. Justice Sen went on leave and on his return, he was not allotted judicial work. Between June 27, 2006 and September 5, 2006, he repaid Rs. 40 lakh and on November 21, 2006, he repaid the balance amount.

On September 25, 2007, a Division Bench quashed single judge’s order and expunged remarks. The Bench held that there was no material to hold that Justice Sen had misappropriated any amount or made any personal gain.

But on a report from the then Chief Justice of the High court, the then Chief Justice of India K.G. Balakrishnan formed a three-member committee to probe the charge

In February 2008, the in-house committee, found Justice Sen guilty of breach of trust and misappropriation. It said he did not have any honest intention since he mixed the money received as Receiver with his personal money. There was misappropriation, at least temporary, of the sales proceeds.

Acting on the report, he was asked to resign or to seek voluntary retirement, but he declined.

In August 2008, the then CJI, K.G. Balakrishnan, asked Prime Minister Manmohan Singh to initiate removal proceedings against Justice Sen for his misconduct.

On February 27, 2009, 58 MPs of the Rajya Sabha moved a motion seeking Justice Sen’s removal.

On March 4, 2009, the Chairman of the Rajya Sabha appointed a probe panel headed by the then Supreme Court judge, B. Sudershan Reddy.

On September 10, 2010, the committee held him guilty on two counts — misappropriation of money and misrepresentation of facts to the High Court — and recommended his removal.

On August 18, 2011 the Rajya Sabha voted the resolution to remove Justice Sen.

COURTESY: THE HINDU