Posts Tagged ‘Delhi High Court

We don’t want to bleed anymore

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When the general secretary of the Congress party, Rahul Gandhi walked into the RML Hospital premises on September 07 after the Delhi High Court blast, slogans were shouted against him. And so were against other politicians who came to empathise with the victims and their families. This in many ways is symbolic of the growing frustration of the general public with those who govern them and the apathy with which they are treated.

India has been attacked again and again. Sample this – On March 12, 1993, Mumbai serial bombings shook the financial capital of the country killing more than 250 people. The main accused, Dawood Ibrahim is yet to be extradited to India from Pakistan. On December 13, 2001, more than a dozen people, including five gunmen, were killed in an attack on Parliament. On September 24, 2002, terrorists attacked Akshardham temple in Gujarat. In August 2003, two taxis packed with explosives blew up in Mumbai at crowded areas killing more than 50 people.

In October 2005, three bombs placed in Delhi markets, crowded with Diwali shoppers killed around 62 people and injured hundreds. In July 2006, seven bombs placed on Mumbai’s local trains killed over 200 people. Eight serial blasts rocked Jaipur in a span of 12 minutes in May 2008. On November 26, 2008, attacks on ten locations in Mumbai left more than 180 dead. Pakistani national, Ajmal Kasab has been sentenced to death with an appeal pending before the Supreme Court.

The list, sadly, goes on…

The Ram Pradhan Committee formed after 26/11 attacks to look into the lapses and recommend measures to stop further attacks, called for radical transformation of the police force. In spite of its recommendations, the beat constable is still unequipped, CCTV cameras still do not work and the Maharashtra Anti-Terrorist Squad established in 2004 is reportedly working at some 30 percent of the strength as compared to the numbers sanctioned by the government.

National Intelligence Grid was given approval by the Union Cabinet in June this year, months after the idea was first mooted. The project aimed at facilitating information-sharing among law enforcement agencies to combat terror was apparently delayed because of objections from other ministries, especially that of defence and finance, as they felt that the home ministry would have an unlimited access to all the information.

National Counter Terrorism Council (NCTC), an umbrella body to fight terror is also in the pipeline. Not sure when it will see the light of the day.

Delhi Chief Minister, after the High Court blast, had remarked that “multiplicity of agencies” created functional problem in combating terror and solving cases. To which the Home Minister P Chidambaram had replied that no single body can alone handle internal and external intelligence, policing and counter-terrorism. How often have we heard the government talk in different languages? And if statements like these do no create confusion in the minds of the citizens then what does?

On May 25, 2011, a blast took place at the Delhi High Court car park. Nonetheless it did nothing to wake up the authorities.

Home Minister recently said that Af-Pak was the epicentre of terror and that home-grown terror modules are fertilised from outside. And to a foreign television channel he said, “As far as cross-border terrorism is concerned, we have to continue to put pressure on Pakistan.”
The Indian Mujahideen gained notoriety in 2008 after taking responsibility for blasts in Ahmedabad, Jaipur, Delhi and Assam, even though it had been active since 2003. As per intelligence reports, the IM is being controlled from across the border. It was also reported recently that militants trying to infiltrate into India by June had exceeded the figures of 2010.

In this scenario what good are the photo-ops between SM Krishna and Hina Rabbani Khar, especially if the perpetrators of 26/11 cannot be brought to book? Yes, we cannot change our neighbours but we can certainly change the way we talk to them. Yes, trade and commerce are important issues, but not at the cost of losing innocent lives.

P Chidambram, was supposedly pulled back when he decided to tighten the noose around the Maoists, due to pressures from certain quarters and certain political parties. After the Batkal encounter case in Delhi, senior Congress leader Digvijay Singh, decided to visit Azamgarh. The Afzal Guru hanging case has long been in the public domain for the people to read between the lines. Isn’t it time we stop the policy of appeasement and vote-banks at the cost of bloodshed?

Congress leader Renuka Chowdhry said in a recent television debate, “Do you think that the terrorists will stop if we have a CCTV? What do you do when terrorists are ready to die?” After the serial blasts in Mumbai in July, Prithviraj Chavan, CM of Maharashtra lamented, “Terror groups are active and are able to strike at will.” Instead of statements like these, we need our leaders to send out a stern message to all terror groups that India will go after them in hot pursuit. And we also need a strong anti-terror law in place.

We have generic information about impending attacks but are we in a position to have specific and actionable and preventive attacks. Do our intelligence agencies depend too much on technical intelligence? Prime Minister Manmohan Singh expressed the same concern at a recent event when he said that security establishment needed to improve its, “human intelligence capabilities”.

Leader of Opposition in Rajya Sabha, Arun Jaitley said in a television interview, post the Delhi HC blast, “The most dangerous thing is that in the last six or so blasts, the cases are by and large unsolved.”

Think over this – On December 7, 2010, a bomb went off at a Varanasi ghat killing a two-year old girl with no arrests made in the case so far. On December 19, 2010, gunmen on motorbikes shot at a tourist bus injuring two persons. It was considered to be IM’s handiwork. The case is unsolved. On July 13, 2011, triple blasts in Mumbai killed 21 persons, with IM being the prime suspect. ATS is investigating, with an arrest only very recently. On April 6, 2011, two blasts took place in Maligaon in Assam which killed 7 persons. Investigation is on, ULFA are the main suspects. Inspite of some arrests, it is said that the main culprit is still in the run. And the very recent May 25, 2011, Delhi High Court car park blast with no casualties. It too remains unsolved. And add to it the 7/11 blast again at Delhi HC – not much headway in this case either.

Yes, it is a cause for alarm if cases of terror attacks are unsolved for a long period of time.

Amidst all these spare a thought for the victims of the bomb blasts – past and present and if I may add with a dread – the future. The citizens don’t want to be saluted anymore for their so called resilience and die-hard-spirit – what they want is to live in peace and dignity. And anyways what choice do they have than to get up and get going the next day?

Yes, maybe terror attacks all over the world cannot be prevented all the time. Nonetheless, it is important for the government and the intelligence agencies of the day to be perceived as trying to do their best.




Renting and service tax

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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.


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.


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.


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.)


HC notice to UT: Evolve fool-proof security system

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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.

Supreme Court clears air on OBC cut-off

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The minimum cut-off marks under the OBC quota at central universities should be lower than the cut-off set for the general category by up to 10 per cent, the Supreme Court today ruled.

The clarification had become necessary as certain institutions, such as Jawaharlal Nehru University (JNU), were setting the OBC cut-off at 10 per cent less than the marks obtained by the last student actually admitted under the general category.

Since the last general student’s marks are virtually always higher than the cut-off (which is a mere eligibility criterion) set for his category, OBC students were losing out. Many OBC quota seats remained vacant and were subsequently absorbed into the general category.

A two-judge bench today clarified that the originally prescribed general category cut-off would be the yardstick in calculating the OBC cut-off, but said the order would not affect those already admitted for the 2011-2012 session.

If any central institution has already fixed the quota cut-off with reference to the marks secured by the last general candidate to be admitted, and has allotted the vacant OBC seats to general candidates, such admissions will not be disturbed.

But institutions where the process of such conversion and allotment has not been completed, the remaining quota seats should be filled by OBC candidates under the correct rule, the bench said. If some OBC seats still remain vacant, they can be given to general candidates.

“If the last date for admission has expired, (it) shall be extended till August 31, 2011, as a special case to enable admissions to the vacant OBC seats,” the court said.

The bench was clarifying a five-judge apex court bench’s judgment of October 14, 2008, validating a 2005 law that enables central higher education institutions to provide 27 per cent reservations for OBCs.

On September 7 last year, a single-judge Delhi High Court bench had ruled that the “last general candidate” rule was incorrect. The apex court today upheld the high court verdict against an appeal by former IIT director P.V. Indiresan.

The appellant had cited the wording of the apex court’s October 2008 order, which said the “maximum cut-off marks for OBCs be 10 per cent below the cut-off marks of general category candidates”.

Indiresan argued that “cut-off marks” denotes the marks secured by the last candidate admitted to a particular course or under a particular category, and is not synonymous with “minimum eligibility marks” or “minimum qualifying marks”.

Cut-off marks, he contended, are decided with reference to a merit list, prepared on the basis of the number of seats available for a programme.

OBC candidates’ lawyers, however, argued that linking quota admission to an uncertain and fluctuating benchmark (the last general candidate’s marks) would defeat the purpose of the reservation and deny OBCs their just entitlement.

Justices R.V. Raveendran and A.K. Patnaik rejected Indiresan’s contention, saying the expression “cut-off marks” is freely used, even in academic circles and central educational institutions, to describe the originally prescribed minimum eligibility/qualifying marks. The bench cited the All India Institute for Medical Sciences’ prospectus for MBBS admission.


Centre Justifies Keeping CBI, NIA Etc Out Of RTI Act Ambit

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Terming the right to information as “not an absolute one”, the Centre defended in the Delhi High Court its decision to keep key probe and intelligence agencies like CBI, NIA and NATGRID out of the transparency law ambit, asserting that it was “in larger public interest and in the interest of national security.”

In a 16-page affidavit submitted to the bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna, the Ministry of Personnel justified its decision to keep various investigating and intelligence agencies out of the Right to Information Act purview, citing the need to strike a balance between “transparency and the security and well-being of the nation.”

“It is in the larger public interest and in the interest of the national security that CBI, NIA and NATGRID have been included in the second schedule to the act,” the Centre said in its affidavit submitted to the court in reply to the court notice over a public interest plea, challenging the exclusion of CBI etc from the RTI Act ambit.

“The right to information is not an absolute right.

There is a need to ensure the security of the nation, which should not be jeopardised due to disclosure of information under the transparency law,” said the Centre.

“It may be stated that the RTI Act requires a balance to be maintained between transparency and security and well- being of the nation. The three organisations have been included in the second schedule to the Act for maintaining such a balance,” it added.

The affidavit by the Ministry of Personnel said the government decided to keep CBI out of the transparency law ambit on a agency’s representation which was throughly examined by a committee of secretaries.

“This has been primarily done to ensure that the interests of the security of the state are not overlooked while protecting the rights of the citizens to seek information,” the affidavit said and sought the PIL to be dismissed with cost.

While refuting allegations that exemption had been granted to hide information and make CBI etc opaque organisations, the ministry said these organisations were not excluded from the RTI Act ambit to protect any guilty employee, officer, minister and other authorities.

CBI, meanwhile, in a separate affidavit to the court, pleaded disclosure of information had been hindering its functioning.

Citing a list of sensitive cases, including the assassination of former Prime Minister Rajiv Gandhi, Navy War Room leak case, IC 814 hijacking and Bombay blast, CBI said it has been handling several “sensitive cases pertaining to the national security and the disclosure of information about them would jeopardise the functioning of the agency.”

The Centre and CBI had filed their replies in response to the court notice to them on two separate PILs, filed last month by lawyers Sitab Ali Chaudhary and Ajay Aggarwal against the June 9 decision of the union cabinet exempting CBI, NIA and National Intelligence Grid (NATGRID) from the purview of the RTI Act.

How rigorous is rigorous imprisonment?

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Press Trust of India in HT

Two murder convicts sentenced to rigorous imprisonment were recently found loitering in Tihar jail by an inspecting Judge who passed critical comments on lax rules in prisons. This has triggered a debate whether rigorous imprisonment (RI) really means the rigours of prison like hard labour.

A look at different jail manuals in the country shows that 99% of the convicts being awarded RI may actually be undergoing simple imprisonment in reality.

Sentenced to undergo RI in Delhi’s Tihar jail, an ex-IPS officer looks after the library while another convict, also undergoing RI, dishes out legal aid.

Many of those convicted to undergo rigorous imprisonment in various other prisons may actually be serving just simple imprisonment as the jails do not have enough work for the convicts.

“Only 10% of our rigorous imprisonment prisoners get work and rest sit idle as there is no work. Prison officials decide the type of work to be given. Work is allocated to a prisoner keeping in mind the best that can be got out of the prisoner,” K V Reddy, president All India Prison Officers Association and deputy superintendent of Jails, Andhra Pradesh said.

“The word RI needs refinement. Since it is not clearly defined anywhere we end up following the simple rule that a RI prisoner must work. A prisoner sentenced to simple imprisonment has a choice but an RI sentenced prisoner has none,” Neeraj Kumar, DG Tihar Prisons said.

“Former IPS officer R K Sharma, and Santosh Singh, a lawyer, are both murder convicted who got RI. Both are given work inside the prisons. Sharma manages the library and Singh gives legal aid to other prisoners,” Sunil Gupta spokesperson, Tihar Prisons said.

Justice R S Sodhi, a retired Delhi High Court judge, cautioned, “This vagueness about RI can lead to its misuse. The type of treatment, the type of work, to be meted out to an RI sentenced prisoner will depend on the whims and fancies of the jail superintendents. And it is absolutely true they can be given very light jobs despite convicted and sentenced to RI.”

“Rigorous imprisonment, that is, with hard labour. This is what Section 53 of the Indian Penal Code says about RI,” Dr Surat Singh, a Supreme Court advocate, said.

“But then hard labour is not well defined. In majority of the criminal cases RI sentencing is pronounced and the word itself connotes physical labour,” he said.

RI sentence is pronounced based on the gravity of offence of the accused criminal.

“If two people have committed murder then one might be eligible for getting a simple imprisonment and another may not. It will depend on how brutal the murder was,” Justice (retired) B A Khan of Delhi High Court said.

“Scanning the pages of the jail manuals of different jails across the country, the Prisons Act 1894 and the Code of Criminal Procedure for a definition of ‘rigorous imprisonment’ one will end up with an unclear picture of RI,” Dr Singh said.

Aditya Bandhopadyay, a lawyer and human Rights activist, said, “In absence of clear definition of what RI entails which basically means hardened criminals who should be undergoing stringent punishment, end up having a picnic in jails at taxpayers expenses.”

Agreeing to the fact that it can be misused, Justice Khan said, “If the definition of RI is absent in jail manuals then it should be immediately be brought to the notice of the court. Government’s view point should be taken and misuse be told and parameters should be laid down immediately. “The same was done with the term ‘life imprisonment’ and that is why there is no confusion about it now.”

The Jail Manual of Asia’s largest Prison, Tihar too has no rules and regulations laid down related to RI sentenced prisoner.

Former Chief Justice of India J S Verma said, “We pronounce RI based on whatever is there in the legislation. RI must be physical labour.”

Advocate S S Mishra, a lawyer with the Supreme Court said, RI is not defined in jail manual nor explicitly defined in the study books. “And hence it depends on the discretion of the jail authority and this discretionary power can be misused.

“This word was introduced by Britishers.”

An RI sentenced prisoner in colonial days had to break stones or was made to do road construction work. But today nothing of that sort happens.”

Written by THE LAWFILE

July 26, 2011 at 5:26 pm