By Akshya and Kriti Chopra
With the ever-increasing list of alleged perpetrators, the Me Too movement has finally arrived in India. Soon after the crusade picked up its pace, it was criticized for the vigilante justice it aims to achieve, disregarding the principles of due process and natural justice.
While the newspapers are being filled with the “he said, she said” debate, we attempt to deconstruct the statutory provisions in place to tackle the menace of Sexual Harassment at the workplace, with the aim of providing an explanation to the rise in this movement.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 mandates the establishment of the Internal (Section 4 of the Act) and the Local Complaints Committee (Section 6), each having its well-defined jurisdiction and functions. On one hand, the Internal Complaints Committee is an in-house body aiming to eradicate the menace of Sexual Harassment within the organization, and on the other hand, the Local Complaints Committee aims to curb the menace of sexual harassment in the unorganized sector while supervising over the Internal Complaints Committees in its jurisdiction.
In order to understand the root cause for the sudden rise in the Me Too movement, we use a hypothetical example to illustrate.
Suppose X, a female employee, is being sexually harassed by her employer and after pondering upon the situation, she musters up the courage to approach the Internal Complaints Committee against the employer. She realizes that the employer, resorting to his position of power in the organization (the structure of Internal Complaints Committee as envisioned in Section 4 of the Act is such that it is bound to be manipulated or be biased towards the employer and the same was pointed out by Justice Verma Committee in its 2013 report), has influenced the Committee to an extent that instead of acting as X’s knight in shining armor, the Committee is now using its sword to assassinate her character.
Let down by this, X resorts to approach the Local Complaints Committee in her district against the violation of the principle of due process by the Internal Complaints Committee only to realize, yet again, that this mythical creature exists only on paper.
To illustrate this fact, an attempt was made to locate the Local Complaints Committee in Delhi. Two 2016 notifications of the Delhi government were found which listed out the members of the Local Complaints Committee for the South & South East district, with no details at all about how to contact or pursue with these Committees. This has led to such a situation that the law firms/lawyers, in the name of complying with this Act, are filing yearly reports of their clients either in the Labor Commissioner’s Office or in the Delhi Commission of Women.
Later, X gives it a one last shot and goes to her nearest police station to register her complaint, where even after half a decade of Lalita Kumari v. Union of India, getting a FIR registered is not less than a battle.
The demoralized X thus pours her heart out on social media for the world to read, in the hope that someone out there will hear her cries and help her get justice.
Before criticizing the naming of the alleged predator on social media, it is important to understand that the victim only resorts to such measures due to the unperturbed manner in which the statutory authorities handle complaints of sexual harassment at the workplace. While there is no denying that no one should be falsely crucified on social media, the fact of the matter is that the Act provides for a punishment in case of a malicious complaint (Section 14).
However, due to the nonchalant behavior of the statutory authorities, the falsely accused is also denied the due process of law, and all this while the debate surrounding the movement has turned into clamour. It doesn’t matter how many judicial commissions are being appointed, till the time the statutory provisions are being treated as a dead letter of law, a change in the current scenario is highly improbable.
Akshya is a legal adviser, and Kriti Chopra is an advocate currently pursuing her LL.M. in International Dispute Settlement.
Advocate Talib Hussain who rose to prominence for fighting for the cause of Kathua rape victim has been accused of raping a JNU student who had invited him to JNU to speak on the campus.
The disclosure by the victim which has been made on Firstpost comes in the wake of the #MeToo movement. The account by the victim does not name the perpetrator but the obvious reference is to Talib Hussain.
The account on Firstpost reads as follows:
“I was one of those students who had invited him to JNU campus. But subsequently, in his personal conversations with me, he proved to be very invasive of personal boundaries. He asked me a lot of questions about my family, my research work, and my political beliefs. I would not have minded any of this had he not abruptly asked me one day to do “nikaah” with him. This was in mid-April, just after his second visit to JNU. I told him that it is a very inappropriate thing to ask me. But he did not stop calling me.”
Subsequently, she narrates the incidents of April 27 which culminated in her rape.
“On 27 April, he messaged me to say that he would be arriving in Delhi that evening and that I should meet him. I did not want to; instead, I went out for dinner with some of my friends. But he called me and insisted that he would come to JNU itself to meet me….I told him that it is not possible to meet him, since there were disturbances on campus as a result of an anti-conversion documentary (‘In the Name of Love’) that was screened by ABVP…
Despite my explaining to him the seriousness of the situation on campus, he persuaded me to leave my friends and see him. He called me 40 times that night (I noted this on my call log the next day).”
Eventually she gave in and went to meet him. The victim says that he took her in a car to Batla House locality…ushered her into a one-room flat on the second/third floor of a building and raped her.
“My fears turned out to be right.
That night, mine was NOT a feeble no. I threatened to expose him to all my friends in JNU, I pleaded with him, I even physically wrestled against his brute strength; but my resistance seemed too frail compared to his brutality. I remember crying in pain; but instead, he mocked me, saying “Tum bohot naazuk ho.” All the while he raped me, he kept insisting that he would do “nikaah” with me, as if by declaring his intention to marry he would legitimise what he was doing.”
Senior Advocate Indira Jaising who has been representing the family of Talib Hussain in a petition in the Supreme Court seeking inquiry into alleged custodial torture of Hussain in two other cases related to domestic violence and rape filed by his wife and sister-in-law, has now chosen to withdraw from the case.
This, she has stated, is in support of the #MeToo movement. A lawyer is not the hired spokesperson of a client but has social obligations and responsibilities that go beyond the profession and her social commitment to #MeToo overrides her professional engagement, Jaising states in her article published on The Leaflet.
“In the light of the article published today in FirstPost, I do not intend to continue to appear on behalf of Talib Hussain anymore. I take the decision in view of my full support of the #MeToo movement.
I believe that a lawyer is not the hired spokesperson of a client, but has social obligations and public responsibilities that go beyond the profession. It is their duty to present to the Court facts as they see them. It is the obligation of lawyers to uphold public interest. My social commitment to the #MeToo movement overrides my professional engagement, and therefore I have taken a conscious decision to stop representing Talib Hussain in any court.”
Read the article on Firstpost here.
Read Indira Jaising’s statement here.
The Patiala House Court today reserved its order in the application filed against Subramanian Swamy seeking a restraint on him publishing his opinion on social media in the National Herald Case.
Swamy filed his reply in this application before the Court and made his submissions challenging the admissibility of the Tweets, allegedly published by him, under the Indian Evidence Act.
Swamy claimed that the said tweets did not count as evidence and also argued on the merits of the application.
It was Swamy’s case that while he has a right to tweet, there have also been precedents where similar injunctions sought were not entertained by the Courts.
“I have a right to tweet, there is no doubt about that. But the evidence submitted is not evidence at all under the Evidence Act”, submitted Swamy.
One of the cases cited by Swamy to buttress his point was the injunction sought by Shashi Tharoor against Arnab Goswami’s channel Republic TV and the reportage of the case concerning Sunanda Pushkar’s death. Swamy pointed out that the Delhi High Court had refused to grant the injunction in the said case.
Further, Swamy also argued that the Indian Courts follow the system of open courts and such an injunction would go against this principle and backed his argument by citing the recent Supreme Court judgment allowing live streaming of cases of national importance.
Senior Advocate RS Cheema countered Swamy’s arguments on the ground that the case was not at the stage of defence evidence but the simple point was that Swamy’s tweets were forming an obstacle in the way of the lawyers carrying out their work.
Cheema also posed a severe objection to Swamy’s usage of terms like “Congi lawyers” in his tweets which were found to be objectionable to the lawyers. He claimed that Swamy was not permitting a fair trial to be carried out.
Swamy submitted that “usage of the term “Congi”, is not defamatory, it’s just short for Congress”.
“I am a lawyer and do not belong to any party and cannot be called a party-man”, responded Cheema.
While the Court reserved its order in this application, the next date for hearing in the main case of National Herald has been set for November 17 when Subramanian Swamy will be cross-examined.
Earlier this month, Congress leader Motilal Vohra had urged the Additional Chief Metropolitan Magistrate Samar Vishal to restrain Swamy from sharing his opinions concerning the National Herald case on social media.
Senior Advocate Cheema, appearing for Vohra, had argued before the Court that Swamy’s taking to social media to discuss the case amounted to “influencing the outcome of the complaint.”
The private complaint filed by Swamy accuses Congress President Rahul Gandhi, Sonia Gandhi, Oscar Fernandes, Motilal Vohra, Sam Pitroda as well as ‘Young India’, owned by the Gandhi family, of criminal breach and misappropriation of property.
Swamy’s conduct during the pendency of the case was said to be leading to “character assassination” of the accused, according to Cheema. He had submitted that this case “was being fought on social media and not in Court”.
During the previous hearing, Cheema had highlighted before the Court the kind of content that was published by Swamy on social media platform and urged that there needed to be a restraint on it.
Read full thread on today’s hearing here.
— Bar & Bench (@barandbench) October 20, 2018
A recent ruling by Justice Prathiba Singh of the Delhi High Court has held that Civil Courts do not have jurisdiction to adjudicate on matters vested with the NCLT under Companies Act, 2013.
Under the Companies Act, 1956, High Courts were vested with original jurisdiction as a ‘Company Court’ to adjudicate certain matters. The jurisdiction which was divided between the erstwhile Company Law Board (CLB) and High Court was clubbed and transferred to the NCLT under the 2013 Act.
In the present case, the Delhi High Court interpreted Section 430 of the 2013 Act strictly, and ruled that High Courts (which are now ordinary Civil Courts for the purpose of 2013 Act) will not entertain disputes for which a remedy before the NCLT has been provided.
The dispute pertains to an allegation of non-compliance with Section 62 of the 2013 Act. This provision provides for the procedure to be followed while making a further issue of share capital (or rights issue). The plaintiff, SAS Hospital, owned 99.96 percent shares of the Defendant Company, Surya Construction Pvt Ltd prior to the allotment of shares in dispute. After the allotment, its shareholding was diluted to 21.44 percent. The Plaintiffs argued that money belonging to the company was moved in a circular manner to show an artificial deposit for allotment of shares. The Plaintiffs had, therefore, prayed for annulment of this allotment.
The case was pending before the CLB also, where an order of status quo was obtained by the Plaintiffs. They had also obtained an order of injunction from the Civil Court.
In the proceeding before the High Court, however, the maintainability was challenged by the Defendants. They argued that Section 430 of the Companies Act, 2013 does not permit the Civil Courts “to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act ”.
The consequence of non-compliance with Section 62 can be found in two provisions, both of which grant NCLT the exclusive jurisdiction:
a. Section 59, under which an application can be made for rectification of register of members, or
b. Section 242, if the affairs of the company are conducted in a prejudicial manner.
The High Court noted the broad and far-reaching consequences of the powers provided to the NCLT under Section 242, which are greater than a Civil Court’s power. It then referred to various other judgments which upheld NCLT’s authority to adjudicate on all matters, including the ones which were under the jurisdiction of the High Courts under the 1956 Act.
The Court found that as per the 1956 Act, the High Court was the Company Court for deciding cases such as the present one. However, the High Court has not been granted original jurisdiction under the 2013 Act, and will be treated as a Civil Court.
The High Court ultimately applied the following dual test to determine the jurisdiction:
a. Whether the NCLT’s order is attributed finality; and
b. Whether the NCLT would be able to do what a civil court could do.
It found that Section 59 has specific consequences for non-compliance and that the NCLT order is only appealable before the NCLAT. Accordingly, the Court held NCLT is the right forum to decide on the above matter. However, a Trial Court can examine the cases where issues of fraud or collusion come up, the Court added.
The plaint was thus rejected and Plaintiffs were asked to approach the NCLT for relief.
Read the judgment below.
The placement figures for the 2018 Batch of the National University of Juridical Sciences (NUJS), Kolkata have been released. As intimated by the official press release, NUJS has recorded the highest number of placements across National Law Universities.
A total number of 84 students (of the graduating batch of 113 students) were placed in the recruitment process, either by the Campus Recruitment Committee (CRC) or through offers outside the college recruitment process.
Of the students who sat for placements, 54 were recruited by 15 law firms, the biggest recruiter being Cyril Amarchand Mangaldas which placed 16 students. 4 students have bagged offers at foreign law firms; two at Allen & Overy and two at Linklaters. 15 students were recruited for corporate/in-house roles, whereas 11 students opted to join law chambers/litigation firms.
Among the students who were placed through the campus recruitment process, the average annual packages offered by foreign law firms ranged from Rs 42-46 lakhs, by top domestic law firms ranged from Rs 15-18 lakhs while the students joining companies in the role of in-house counsels received packages ranging from Rs 12-14 lakhs.
Of the remaining students, 5 students have opted to pursue higher studies at Universities of Cambridge, Oxford and Purdue. Other students have opted to work for Non-Governmental Organisations, or to pursue Civil Services, Judicial Services or Judicial Clerkship.
The CRC team of 2017 and 2018 comprised Aditya Sarmah, Arjun Agarwal, Farhan Shehab Umar, Keshav Pareek (Coordinator), Kshitij Maheshwari, Pranav Rajesh Sethi, Samarth Sharma, Sammanika Rawat, Sankalp Srivastava (Coordinator) and Venkatesh Renganathan.
The break up of placements secured by the 2018 Batch is as provided below.
|SL. NO.||RECRUITER/CAREER AVENUE||NO. OF STUDENTS RECRUITED|
|DOMESTIC LAW FIRMS|
|1.||Cyril Amarchand Mangaldas||16|
|2.||Khaitan & Co.||8|
|3.||AZB & Partners||6|
|5.||Shardul Amarchand Mangaldas & Co||5|
|6.||L & L Partners||3|
|10.||Lakshmikumaran & Sridharan||1|
|11.||Singh & Associates||1|
|13.||. P&A Law Offices||1|
|15.||Pioneer Law Associates||1|
|FOREIGN LAW FIRMS|
|16.||Allen & Overy LLP||2|
|19.||Hindustan Petroleum Corporation Limited||2|
|21.||Star India Private Limited||1|
|22.||AM Sports Law and Management Consultancy||1|
|23.||. International Justice Mission||1|
|25.||Partners for Law in Development||1|
|26.||Hash Cyber Security Solutions Private Limited||1|
|LAW CHAMBERS/LITIGATION FIRMS|
|27.||Chambers of Adv. Mr. Aditya Wadhwa||1|
|29.||Chambers of Adv. Mr. Madhav Khurana||1|
|30.||Chambers of Adv. Mr. Arjun Diwan||1|
|31.||Menon & Associates||1|
|33.||LP Asthana Excise Consultants||1|
|35.||Chambers of Adv. Mr. Kotla Harshavardhan||1|
|36.||Litigation in High Courts/Trial Courts||2|
|37.||LLM, University of Cambridge BCL,||3|
|38.||University of Oxford||1|
|39.||JD, University of Purdue||1|
|ALTERNATE CAREER AVENUES|
|40.||Non-Governmental Organizations (NGOs)||2|
|41.||Judicial Clerkship (Supreme Court)||1|
|42.||Judicial Examination preparation||5|
|43.||Civil Services preparation||12|
Read the Press Release:NUJS_CRC_2018_Press Release
Cannot curtail an Adult’s Constitutional Freedom, Kerala HC allows 23 y/o to live with Lesbian Partner
The Kerala High Court recently came to the rescue of a lesbian couple in aiding their choice to live together, while reiterating that subjective morals cannot supersede Constitutional freedoms guaranteed to adult citizens.
The Bench of Justices CK Abdul Rehim and R Narayana Pisharadi passed the order in a Habeas Corpus plea against the forced detention of a 23-year-old woman by her parents on coming to know of her plans to live with her partner.
After the registration of a police complaint last August, the detenue-woman was eventually ordered to be released by a Magistrate court. However, her parents then took her to a mental hospital, which refused to set her free without a court order.
Her partner (petitioner), therefore, approached the High Court seeking issuance of Habeas Corpus writ to set the detenue free. The Court was informed that even when the petitioner visited the detenue at the mental hospital, she had expressed her wish to go with the petitioner.
In these circumstances, the High Court did not take long to decide in favour of the petitioner, proceeding to order the release of the detenue.
Apart from pointing out that same-sex relationships are now Constitutionally protected after the Navtej Johar judgment, the Bench took the opportunity to emphasise that on attaining the age of majority, a person’s liberty cannot be curtailed.
Read about the Supreme Court Judgment on Section 377
In this regard, it cited the case of Soni Gerry v Gerry Douglas, wherein it was observed that on attaining the age of majority, a person is entitled to make his/her choice. Further, it had been observed that the Courts cannot assume the role of parens patriae as long as the choice remains.
With specific reference to choosing a live-in relationship, it was noted that the Supreme Court has already held that persons are not prohibited from opting for such relationships, even if they are not competent to enter into a wedlock.
Ultimately, the Hadiya case was cited to emphasise that the Court’s only role in such matters is to ensure that the individual choice of the adult citizen is respected.
“What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees. It was found [in Hadiya’s case] that, the social values and morals have their space, but they are not above the constitutionally guaranteed freedom… Courts as upholders of constitutional freedom must safeguard these freedoms.“
Therefore, the Court allowed the Habeas Corpus plea and allowed the detenue to go with the petitioner, as she wished, after noting,
“... this court cannot find that the ‘live-in relationship’ between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner. On the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.“
Read the Judgment below.
Senior Advocate Maninder Singh has resigned from his position as the Additional Solicitor General (ASG) after serving as a law officer in the post for over four years.
Singh became Senior Advocate in 2008 and was appointed ASG in June 2014 after the NDA government came to power in the Centre.
Maninder Singh resigned on October 10, which is the same day when Tushar Mehta was appointed to the post of Solicitor General of India. Singh says that his tenure as ASG added tremendously to his experience as a Senior Advocate and to his knowledge in law.
“The opportunity given to me has tremendously added into my experience as a Senior Advocate and my knowledge in law.” The letter also lauds the “positive attitude” and co-operation of all Ministries and departments of the government of India. “The positive attitude and co-operation from all Ministries and Departments of the Government of India has enabled me to discharge my responsibilities with utmost sincerity and to the best of my ability.”
The letter does not offer any reason for his resignation instead ending on abrupt note by stating that he is submitting his resignation. “I wish to get relieved of this responsibility of the office of the Additional Solicitor General of India. I am, therefore, submitting my resignation.”
Singh is the senior most among the ASGs. After Singh’s resignation and Tushar Mehta’s appointment as the Solicitor General, there are four ASGs for the Centre in the Supreme Court – Pinky Anand, Atmaram Nadkarni, Vikramjit Banerjee, and Aman Lekhi.
This is the third resignation by an ASG within a span of four months with Senior Advocate Sandeep Sethi resigning as the ASG in July this year followed by Senior Advocate PS Narasimha resigning from the post earlier in October.
(The story was updated on October 20, 2018 at 11.35 am)
The hearing in the defamation case filed by Director Vikas Bahl against Anurag Kashyap and others took an unexpected turn today, when the victim who was allegedly sexually harassed by Bahl submitted to the Bombay High Court that she did not want to file a complaint against him.
The matter was heard in chambers today by Justice SJ Kathawalla at 5 pm. Although the victim did not appear in Court today, she was represented by Senior Counsel Navroz Seervai, who submitted that his client did not want to file a complaint against Vikas Bahl.
During the last hearing on Wednesday, the Court had directed that the victim be made a formal defendant in the defamation suit filed by Bahl. However, today, she expressed her desire not to be part of the proceedings, albeit standing by the statements she made that were published in the Huffington Post article.
The Court asked the victim’s counsel to file a statement averring that his client does not want to file any complaint against Bahl. In response, Seervai submitted to Kathawalla J that he would make an oral statement to that effect, which could be recorded in the order.
Pertinently, the Court observed that the #MeToo movement cannot be misused by anybody, and that nobody can use the victim’s shoulder to fire allegations of sexual harassment.
No order was passed after today’s hearing. The matter will come up again on Tuesday.
In the wake of the #MeToo movement, a former employee of Phantom Films – of which Bahl, Kashyap and Motwane were Directors – came forth with allegations that Bahl had sexually harassed her in 2015. The survivor’s account was published on online news portals, and Kashyap and Motwane had verified the allegations against Bahl through Twitter. This prompted Bahl to file a civil defamation suit in the Bombay High Court seeking damages of Rs. 10 crore.
Bahl alleges in his suit filed against Anurag Kashyap, Vikramaditya Motwane and a number of publications including Huffington Post and Economic Times, that they had published false, malicious, unsubstantiated imputations, allegations and statements against him.
Specific reference is made to an article published on Huffington Post on October 6 titled ‘Queen Director Vikas Bahl Sexually Assaulted Me, Phantom Films Did Nothing: Survivor Speaks Out’. In the article, a crew member who worked at Phantom Films alleged that Bahl had sexually assaulted her at a party in May 2015.
The article alleges Bahl to have “put his hand inside her dress” despite resistance; “dropped his pants and began to masturbate onto her back”; that he verbally abused her when his alleged advances were refused; and harassed her at work during the months following the incident. The article was then carried by a number of other publications, and the allegations made therein were given credence to by Kashyap and Motwane.
With reference to the co-Directors of the now-defunct Phantom Films, Bahl claims that they made the statements on Twitter with an intent to settle personal scores, owing to disagreements they had with him in the past.
“Defendant Nos. 1 and 2 (Kashyap and Motwane), taking advantage of the ongoing “#MeToo” movement in the country, published false, malicious, unsubstantiated imputations, allegations and statements against the Plaintiff through their twitter accounts and other social media platforms. Defendant Nos. 3 to 8 have further circulated and continue to circulate defamatory stories about the Plaintiff through their social media platforms.”
The plaint further states neither has any criminal complaint been filed by the victim, nor has Bahl been called upon for investigation with respect to the alleged incident. Further, it is stated that the victim continued to work for Phantom Films, and had a purely professional relationship even after the said alleged incident took place.
Therefore, Bahl has sought a permanent injunction against the defendants restraining them from publishing defamatory articles/posts against him. An order has been sought to direct Kashyap and Motwane, as well as the publications to delete the allegedly defamatory tweets and articles against Bahl, who has sought damages amounting to Rs. 10 crore with interest at the rate of 18% p.a. till the date of payment of the same.
Bahl was represented by Sharan Jagtiani and Dr. Abhinav Chandrachud, who were briefed by a team from Juris Corp including Hitesh Jain, Subhash Jadhav, Shradha Achliya and Rupesh Geete. Kashyap and Motwane were represented by Senior Advocate Venkatesh Dhond, along with Astad Randeria, Priyanka Khimani and Nirali Sanghavi of Anand and Anand & Khimani.
Senior Counsel Aspi Chinoy appeared for Madhu Mantena. Ashish Pyasi, Pragya Khaitan, Umang Thakar and Ashlesha Raut of Dhir and Dhir Associates represented Deccan Chronicle. Vijay Hiremath represented Times of India and Economic Times.
The matter will be next heard on Tuesday, October 23.
Read the plaint:
The Central Information Commission (CIC) has imposed a penalty of Rs. 5,000 on the Central Public Information Officer (CPIO) of the Bar Council of Delhi (BCD) for non-compliance with the Right to Information Act (RTI Act), failure to attend hearings before the CIC, and “utter disregard for law”.
The order was passed by the CIC on October 9 in a plea by one Shashi, seeking information with respect to her enrolment request and details of file notings and the resolutions relating to the increment of enrolment fee.
She had made an RTI application in January 2017 seeking information regarding whether the BCD received her request application of December 2016. She had also sought certified copies of file notings, letters communicated, and the decision taken with respect to her request application, the current status of her application, copy of resolutions and file notings in respect of fixation of fees for enrolment under different categories, etc.
The information was denied to her. She had filed the second appeal before the CIC in June 2017.
During the course of the hearing, the counsel for the appellant had submitted that the website of the Bar Council of Delhi does not contain the basic information/link of “Right to Information” viz. name of CPIO, First Appellate Authority (FAA), etc.
In an order passed on April 13 this year, the CIC had directed CPIO of Bar Council of Delhi to respond to the applicant’s RTI request. It had also sought a report from the CPIO on non-compliance with regard to the suo motu disclosure of details on the website as per Section 4 of the RTI Act.
When the matter came up for hearing on October 9, the CIC noted that the CPIO had failed to honour his obligations under the RTI Act by repeatedly making excuses for the delay in giving the information. The CIC also noted that the CPIO was absent for the hearings which happened in May 2018, September 2018 and October 2018.
“Moreover, the CPIO has not submitted any written submissions/explanations with regard to the delay and his absence on each day of hearing. Earlier the CPIO had brought to the attention of the CIC their engagement in the verification process of the Bar Council of Delhi. The same plea cannot be taken over and again.”
The CIC also observed that though the hearing was scheduled one after another, giving ample opportunity to the respondent to present his case, he did not fulfill his legal obligation of timely supplying the information to the appellant.
“The CPIO could have sent his authorized representative to present his case but he failed in his legal duty. Due to absence and inaction of the CPIO, the appellant could not get this information in time.”
This lack of responsibility from the respondent authority reflects his utter disregard for the law, the CIC noted.
It, therefore, concluded that this is a fit case for imposition of penalty.
The CIC proceeded to impose penalty of Rs. 5,000 on the CPIO of Bar Council of Delhi and also directed him to provide information sought by the applicant.
“The respondent is directed to take action as per paras 5, 6, 8 and 9 above. Further, penalty of Rs. 5,000/- is imposed on the CPIO, BCD. The amount of Rs. 5,000/- shall be deducted by the Public Authority from the salary of the CPIO by way of demand draft drawn in favour of “PAO, CAT”, New Delhi in 2 equal monthly instalments.”
Further, the CIC also sought a report from the CPIO regarding the updation of the website as per the RTI act.
Read the order below.
In view of the technical glitches that have marred the conduct of the Common Law Admission Test (CLAT) in the past, the Consortium of National Law Universities (NLUs) has unanimously resolved that CLAT 2019 will be conducted offline.
The decision was taken at the 4th meeting of the NLU Consortium, held on Wednesday at the National Law School of India University (NLSIU), Bangalore. A press release further informs that the feasibility of making CLAT online would be considered depending on future requirements. It states,
“Keeping in view that in last few years there have been glitches due to the fault of the service provider in the conduct of the online CLAT examination, the CLAT Consortium unanimously resolved that CLAT-2019 will be conducted Off-line. It was also resolved that as and when number of candidates taking up CLAT drastically increases or when admission to law colleges in the entire country would be based only on the CLAT score, the feasibility of online test will be considered.“
In its earlier meeting this month, the Consortium had taken a historic decision to constitute a Permanent Secretariat for the conduct of CLAT at NLSIU. Wednesday’s meeting also saw the inauguration of this Permanent CLAT Secretariat by Chairman, Prof Faizan Mustafa (Vice-Chancellor of NALSAR, Hyderabad) and Vice-President, Prof V Vijayakumar (Vice-Chancellor, NLIU, Bhopal).
The CLAT Secretariat is intended to function throughout the year from its permanent office at Bangalore. Pursuant to ensuring the stable conduct of CLAT, the Consortium has also decided that a permanent website for CLAT will be created.
The other major decisions taken by the NLU Consortium in their meeting include:
– In the LL.M. admission test, some subjective portion would also be included in 2019 PG CLAT. The details of subjective portion will be worked out by the CLAT Executive Committee.
– To improve the quality of the question paper of CLAT, the Consortium resolved to create a question bank to which experts from all the NLUs and other institutions would be asked to contribute.
– It was also resolved that in each State, in addition to NLUs, CLAT will be conducted in other centres/cities as well depending upon the number of candidates. The decision in this respect too would be taken by CLAT Convenor and Executive Committee.
– The Consortium also decided to hold a workshop in collaboration with NAAC and UGC on evolving objective parameters for the accreditation of NLUs by NAAC and other accreditation agencies.
– It was unanimously resolved that Vice-Chancellor NLSIU, Bangalore shall be the ex-officio Treasurer of the Consortium. Prof R Venkata Rao took over as Treasurer of the Consortium.
Read Full Press Release:
Chief Justice of India (CJI) Ranjan Gogoi has approved the suspension of Railway Claims Tribunal (RCT) judge RK Mittal, reports Indian Express.
Mittal is under scanner for involvement in a Rs. 50 crore scam related to compensation claims in Patna. As per the report, file was pending with the office of the previous CJI for months with Gogoi J clearing it this week.
The case of corruption against the judge is being investigated by Supreme Court judge, Justice UU Lalit. The scam came to light after an internal investigation by the Principal Bench of the RCT into allegations against the judge including accusations of connivance with a select group of lawyers appearing for victims of railway accidents.
The probe found that Mittal had awarded compensation claims amounting to at least Rs. 50 crore to fictitious victims and to the same claimants for the same accidents several times with several lawyers also pocketing money.
RCT Chairman Justice (Retd.) K Kannan had written to the Railway Board seeking Mittal’s suspension a few months ago. Mittal was then transferred to the Trivandrum Bench of the RCT from Ranchi.
The Railway Board had then sent the file to CJI’s office after taking into account the legal opinion that a sitting judge of a tribunal cannot be suspended without the approval of the CJI.
The absence of statutory recognition for a “Buddhist Adi Dravidar” community and the general renouncement of caste in Buddhism recently led the Madras High Court to deny a Buddhist convert’s claim for a Adi Dravidar caste certificate.
The Bench of Justices R Subbiah and R Pongiappan passed the order in a writ petition filed by a man born to Christian converts as Victor Joseph J. However, the petitioner’s grandparents followed Hinduism and were part of the Adi Dravidar community.
In 2015, the petitioner converted from Christianity to Buddhism, and also changed his name to GJ Tamilarasu. Thereafter, he applied for a caste certificate as belonging to the Buddhist Adi Dravidar Community.
This application was rejected by the Tashildar, and thereafter by the Revenue Divisional Officer and the District Collector, prompting Tamilarasu to move the High Court with his plea for the issuance of the Adi Dravidar community certificate.
However, the Court also declined to grant any relief after it concluded that there was no statutory or religious backing for Tamilarasu’s claim to membership in the Adi Dravidar community.
Tamilarasu had cited a 2009 Government Order (GO) to buttress his case that he is entitled to recognition as an Adi Dravidar community member upon conversion, if he is accepted by the community.
The GO in question states,
“The children born to Christian Schedule Caste parents i.e., Christian by birth, converted to Hinduism, Sikhism or Buddhism at a later date and the Scheduled Caste parents embracing Hinduism, Sikhism or Buddhism converted to other religion and subsequently reconverted Hinduism, Sikhism or Buddhism, if they are accepted by their community people, the Revenue Authorities can issue Scheduled Caste community certificate to them to become eligible for the constitutional privileges conformed on the Hindu Scheduled Caste (following Hinduism, Sikhism or Buddhism) and order accordingly.“
This GO was issued after the Madras High Court in 2007 struck down an earlier order which denied recognition to Adi Dravidar Christian converts, even if they re-converted to Hinduism at a later point of time.
In the instant case, the Court found that the 2009 GO only provides that recognition can be claimed by persons who re-convert back to the religion originally followed by their ancestors who were part of the Adi Dravidar community.
In other words, the Bench appears to have taken the view that Tamilarasu would have been entitled to get an Adi Dravidar community certificate had he re-converted to Hinduism, as followed by his Adi Dravidar grandparents.
“In the instant case, originally the petitioner’s family was professing Hinduism, then they converted to Christianity and the petitioner in particular, got converted to third religion, namely Buddhism. Therefore, he is skipping from one religion to another, which will not give the benefit of claiming the status of Buddhist Adi Dravidar by issuance of Community Certificate.“
Further, the Bench also emphasised on the casteless nature of Buddhism to support its conclusion that Tamilarasu could not be granted a Buddhist Adi Dravidar community certificate.
“Moreover, it is to be noted that the acceptance of the people of a respective Caste/Community can be ascertained only from the sense of reaction of the Community and the point of view which the Community holds, has its own significance and it eliminates the factor of acceptance arising out of ceremonies.
Buddhism never appreciates the factum of ‘caste’ in its ideologies and preaching, and this is the reason behind Buddhism that has its own significance. When this being the factor, the petitioner’s claim of conversion to Buddhism, is of little significance. That being the case, the question of issuing Community Certificate indicating the Community/Caste as ‘Buddhist Adi Dravidar’ does not arise.”
Ultimately, it was also pointed out that there is no provision in the statutory schedule for “Buddhist Adi Dravidars”
“… there is no entry as ‘Buddhist Adi Dravidar’ in the Presidential Order issued in accordance with the procedures prescribed under Articles 341 and 342 of the Constitution of India. In the absence of any Notification by the Government of India, listing ‘Buddhist Adi Dravidar’ as a Caste in the Schedule, no such Community Certificate could be issued.
The Community Certificates could be issued only in the name of the communities, which are mentioned in the Presidential Order issued under Article 341 of the Constitution of India and it is only ‘Adi Dravidar’ community which has been mentioned in the list of Scheduled Castes relating to the State of Tamil Nadu. Moreover, there is no category with the nomenclature ‘Buddhist Adi Dravidar’.“
In view of these observations, the writ petition was dismissed by the Bench.
Read the Order:
Reporter’s Diary: Chelameswar J asks why the CBI is yet to file a chargesheet in the medical college graft case
Reporter’s Diary is a series that brings you interesting snippets from court hearings and public interactions that happen across the country. It attempts to offer our readers a glimpse into interactions between judges and lawyers, and the observations made in cases of importance.
Former judge of the Supreme Court, Justice Jasti Chelameswar recently asked why the Central Bureau of Investigation (CBI) has not yet filed a chargesheet after it arrested Justice IM Quddusi, former Acting Chief Justice of the Orissa High Court, in a racket involving the opening of medical colleges in Uttar Pradesh.
Although Justice Chelameswar did not name either Justice Quddusi or mention the allegations against him, it was apparent that he referred to this case, when he said that the “CBI arrested a former Chief Justice of a high court, but did not yet file a chargesheet against him”. Justice Quddusi was the Acting Chief Justice of Orissa High Court before his transfer to the Chhattisgarh High Court in 2010.
Justice Chelameswar made this observation during his conversation with The Wire’s founding editor, MK Venu, on Saturday at the Indian Social Institute, New Delhi. The conversation was part of the conclave on the ‘Institutions of Indian Democracy: Past, Present, and Future’ organised by an association of retired civil servants.
Chelameswar J alleged that the CBI has not yet filed a chargesheet against Justice Quddusi, who was later released on bail, because once it is filed, the allegations against him and others who are part of the conspiracy would come into the public domain, which the CBI wanted to avoid.
On the topic of the historic press conference organised by him along with three of his senior colleagues on January 12 this year, Justice Chelameswar said that the allocation of the petition seeking a court-monitored inquiry into the mysterious death of Judge BH Loya, to a preferred bench of the Supreme Court, was just one of the factors that triggered the press conference.
Judge Loya was hearing the case against BJP President, Amit Shah in the Sohrabuddin encounter killing, before he died while attending a marriage function in Nagpur. The judge succeeding Loya had later acquitted Shah of all charges.
Chelameswar J further alluded that part-heard cases were taken away from Supreme Court judges without stating any reasons, and that they were unhappy about the same.
“Each of the statements we made at the press conference were calibrated, and the other three Judges endorsed whatever I had said”, Justice Chelameswar disclosed, when asked about his statement that democracy was in peril.
Saying that there were compelling reasons for the press conference, he said the absence of precedent to a press conference by judges would not make it untenable. Chelameswar J added that the press conference “destroyed his privacy”, as many subsequently questioned the propriety of the four judges holding it, while in service.
When Venu hinted that Justice Chelameswar would make everything public in a book expected to come out within three years, the latter asked him not to reveal the date of release.
The conclave also saw speeches by the former Vice President of India Hamid Ansari, well-known writer Nayantara Sahgal, and veteran former Editor of the Tribune, Harish Khare.
The Securities Exchange Board of India has in an interim order directed Malvinder Singh, Shivinder Singh and eight other entities to repay a sum of Rs. 403 crores of diverted funds to Fortis Healthcare.
SEBI’s preliminary probe, which was a result of an article that appeared on Bloomberg, has revealed that 403 crores worth of funds were diverted through a complicated web of transactions between related and unrelated entities. The funds have been routed from Fortis Healthcare through several step down subsidiaries, to promoter entities, which are controlled by Singh brothers. The funds were diverted, as the order notes, for the ultimate benefit of the Singh Brothers.
Some of the money was routed through unrelated entities to avoid provisions of SEBI (LODR) Regulations and to misrepresent transactions.
Fortis Healthcare, through its subsidiary, granted inter-corporate loans to 3 Indian companies. These loans were, however, never reported as they were given at the beginning of each quarter and returned by the end of the quarter. But for the quarter ending September 2017, the amount was not returned by the borrowers as they didn’t have enough cash flow to repay Fortis Healthcare.
These 3 companies to which loans were given have also become related parties since December 2017.
Pending completion of the investigation and till further order, the Singh brothers and the eight entities have also been directed not to dispose of any of their assets or divert any funds without prior permission of SEBI. However, they can utilize funds for certain purposes, including for meeting expenses of day-to-day business operations, the order said.
(Read order)SEBI-FHL Order-17 October 2018
The Patiala House Court today took cognizance of the criminal defamation complaint filed by former Union Minister MJ Akbar against journalist Priya Ramani.
Reliance Industries has acquired a majority stake in India’s largest cable operator, Hathway Cable & Datacom, in a bid to speed up the commercial launch of its GigaFiber high-speed home broadband services.
Reliance has acquired a 51.3% stake through a primary investment of Rs. 2,940 crore through a preferential issue.
Cyril Amarchand Mangaldas acted for Reliance Industries and the team was led by Managing Partner Cyril Shroff along with Partners Ravi Kumar, Anchal Dhir, Avaantika Kakkar and Yashojit Mitra.
Trilegal advised Hathway and the team was led by Partner Sridhar Gorthi.
The move will help in giving a boost to Ambani’s ambitious JioGigaFiber that aims to connect 50 million homes across 1,100 cities, reported ET.
MJ Akbar v. Priya Ramani: Patiala House court takes cognizance in Criminal Defamation case [Live Updates]
The Patiala House court has taken cognizance of offence under Section 499 of the Indian Penal Code in the criminal defamation case filed by former Union Minister MJ Akbar against journalist Priya Ramani.
Additional Chief Metropolitan Magistrate, Samar Vishal heard Senior Advocate Geeta Luthra who appeared for Akbar, before ordering that he is taking cognizance of offence of criminal defamation under the IPC.
The matter is now listed for hearing on October 31 at 12 pm.
Live updates from the court given below:
– Senior Counsel Geeta Luthra arguing on behalf of MJ Akbar along with team from Karanjawala.
– “Let’s take a look at the defamatory statements/tweets. If the content is defamatory then let’s take it forward”, Judge Samar Vishal.
– Geeta Luthra begins reading out the tweets put out by journalist Priya Ramani indicting Akbar for sexual misconduct.
– “It (tweet) is clearly defamatory. It is lowering my reputation. It is years and years after what she claims these events took place”, Geeta Luthra.
– Geeta Luthra submits that the tweet has had a wide reach based on the number of retweets the content received.
– Karanjawala Partner Sandeep Kapur adds to the submissions and brings to the Court’s notice that the said tweet was picked up by media (print and electronic) and circulated further.
– Geeta Luthra now argues on cause of action and Jurisdiction. For cause of action, it is sufficient to show that it was read by a few right-thinking persons.
– Luthra highlights the professional history of MJ Akbar to establish his reputation, which has now been tarnished according to the complainant.
– Order being dictated by judge Samar Vishal.
– “I have gone through the complaint and other documents annexed. I take cognizance of the offence under section 500 of the IPC” Judge Samar Vishal.
– The matter is fixed for examination of complainant and his witnesses for October 31 at 12 noon.
MJ Akbar had filed a criminal defamation case against journalist Priya Ramani under Section 499 of the Indian Penal Code (IPC).
Akbar approached the Patiala House Court claiming that the allegations of sexual harassment and misconduct levelled against him are “false, frivolous, unjustifiable and scandalous”.
Akbar, who was the Minister of State for External Affairs, resigned from his post on Wednesday, citing his will to pursue the legal route in this matter “in his personal capacity”. The resignation came three days after Akbar had refused to step down from his position and had issued a statement denying all allegations.
The criminal defamation case against Priya Ramani was filed on Tuesday, October 16, in the Patiala House Court. Akbar has claimed that the sexual harassment allegations are a part of an agenda in the run up to the General Elections and have caused a loss to his damage and reputation.
“…the Accused has made and published highly damaging imputations against the Complainant herein, intending to harm and knowing that such imputation will harm, the reputation of the Complainant, resultantly having committed the offence of ‘defamation’ as defined under Section 499 IPC and made punishable under Section 500 IPC.”
The complaint has been filed through Senior Partner of Karanjawala & Co, Sandeep Kapur.
A number of women have levelled allegations of sexual misconduct against MJ Akbar, who has been the Editor of various publications including The Telegraph and The Asian Age. Apart from Ramani, some of the other woman journalists to recount instances of Akbar’s misconduct include Ghazala Wahab, Suparna Sharma, and Harinder Baweja.
The Securities Exchange Board of India (SEBI) on Tuesday, partially modified its order in the Satyam Scam, on the limited points of disgorgement of illegal gains and period of debarment from securities market against three officials.
In 2014, SEBI had passed an order against the three officials and promoters/directors of Satyam under provisions of SEBI Act, SEBI (PFUTP) Regulations and SEBI (PIT) Regulations. Along with the promoters of Satyam (Ramalinga Raju and Rama Raju), three other persons, Vadlamani Srinivas (ex CFO), G Ramakrishna (ex V P Finance) and V S Prabhakara Gupta (ex Internal Auditor), were restrained from the market for a period of 14 years. Besides, the SEBI order also directed disgorgement of alleged illegal gains based on the knowledge that the books of Satyam did not reflect the true state of affairs and of the huge loss suffered by the Company.
An appeal against the said order was preferred before the SAT, and the SAT in May 2017, while upholding the order of SEBI on merits, remanded the case back to SEBI for reconsidering the amount to be disgorged by these three persons and the period of debarment from securities market.
In doing so, the SEBI reviewed the role played by all three persons. In the case of Vadlamani Srinivas and G Ramakrishna, the Whole Time Member found that they were aware of the fraud and therefore, he has reduced the period of debarment to 7 years from the earlier period of 14 years. For Gupta, however, the period is reduced to 4 years. The debarment period would include the years of ban already undergone by these individuals.
No change was, however, made to the amount to be disgorged by Ramakrishna, but considering the cost of purchase of shares, the amount to be disgorged by Srinivas was reduced from 29.50 Crore to 15.65 Crore and for Gupta it was reduced to 48 lakh from 51.26 lakh, with interest @12% p.a. from January 7, 2009 (when Ramalinga Raju made his confession).
The leniency in case of Prabhakara Gupta was due to the unique role played by him. The WTM made a distinction between the role of an internal auditor and other management functionaries and observed that
“I find that he was not privy to any interaction with Ramalinga Raju or Rama Raju or V Srinivas or G Ramakrishna. There is no evidence to show that he was aware of the company’s books being manipulated until he came across a few discrepancies which he noted in his report…… The fact that he had brought out the discrepancies on record and closed it subsequently, as per the instructions of Rama Raju, the MD of SCSL shows that his role in the fraud was limited in nature.”
V Srinivas was represented before the WTM by KRCV Seshachalam, G Ramakrishna represented himself and V S Prabhakara Gupta was represented by Advocate Joby Mathew.
The Delhi High Court has framed a scheme for redressal of grievances of lawyers in Delhi District Courts and the High Court.
The scheme was framed by Chief Justice Rajendra Menon and was notified by an order dated October 10, 2018.
The order states that during the course of the functioning of the Courts, there often arise certain issues between the Bar and the Bench and these issues need to be redressed and resolved to ensure effective and smooth functioning of . . .
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The Karnataka High Court recently dismissed a writ petition calling for the appointment of judges to High Courts and the Supreme Court through public advertisements/notifications in lieu of the present Collegium system.
In doing so, Justice BV Nagarathna reiterated that the judicial office cannot be equated with ordinary state services in matters of appointment.
",,,, the Office of a Judge of the High Court or Supreme Court is a constitutional position or Office and not a post . . .
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The Kerala High Court today issued notice to the Association of Malayalam Movie Artists (AMMA) in a petition seeking constitution of Internal Complaints Committee for AMMA to deal with complaints of sexual harassment in accordance with the guidelines laid down by the Honourable Supreme Court in Vishaka v. State of Rajasthan.
The petition filed by Women in Cinema Collective, an organisation which works for the welfare of women in Indian Cinema, was heard by a Bench of Chief Justice Hrishikesh Roy and Justice AK . . .
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“… So teach us something worth knowing, Bring us back what we’ve forgot, Just do your best, we’ll do the rest,
And learn until our brains all rot.“
(The Hogwarts song, Harry Potter and the Philosopher’s Stone by JK Rowling)
Larger life lessons offered at the Hogwarts School of Witchcraft and Wizardry, as gleaned from the Harry Potter novels by JK Rowling, have made their way into the curriculum of a National Law University.
The National University of Juridical Sciences (NUJS), Kolkata now offers an elective course on Harry Potter and its interface with Law.
Formally titled An Interface between Fantasy Fiction Literature and Law: Special Focus on Rowling’s Potterverse, the course will be offered to fourth and fifth year students of the BA LLB (Hons.) programme by faculty member, Shouvik Kumar Guha.
However, as informed in the course outline, only limited seats are available for sincere Potterheads who have read all seven books of JK Rowling’s magical saga at least twice, although watching the movies is only optional.
On what prompted the venture into such fantastic realms, the course outline points towards the understated significance of fictional narratives, although they often mirror socio-economic realities and mould generations of future citizens.
“It is true that fantasy fiction literature and children’s literature in particular have often been neglected by several law and literature scholars as well as literature critics for lacking in socio-cultural significance. However, there are others who believe that children are not simply spellbound by the plot-twists and inherent excitement of such fiction; they represent the future and all over the world, it is our future leaders, thinkers and bringers of change, who are being exposed to the wealth of social values and cultural mores intrinsically posited within such literature – therein lies its significance.”
Whereas the course curriculum is still a work in progress, it would focus on the following broad areas:
– Legal Traditions and Institutions in Potterverse (including role of law and rule of law in a magical society, moral choice and liberty in Potterverse and the role of bureaucracy in the Ministry of Magic)
– Crimes and Punishments in Potterverse (including Unforgivable Curses, Wizengamot Trials, Innocence of Sirius Black and Persecution of Tom Riddle)
– Morality, Social Values, Identity and Class Rights in Potterverse [including (human?) dignity and enslavement of House Elves, marginalization of Werewolves, Giants, Centaurs and Merpeople, Mudbloods and Squibs, militant literacy and misuse of texts]
– The Potterverse Economy (including Gringotts, magic of money and economic growth and entrepreneurship)
– Politics in Potterverse (including bases of authority, terror and counter-terror, resistance, intelligence and secret societies)
– Contracts and Agency in Potterverse (including Unbreakable Vows, Agents of Good or Servants of Evil, express will and loyalty, Snape and the Order of Phoenix, Dumbledore’s Man through and through)
– Family in Potterverse (including blood relationship, familial ties, testamentary law)
– Miscellaneous (including Quidditch and sports law, religion and destiny, Rowling’s legal battles and reflections, philosophical significance of Potterverse characters, technological anarchism and the hi-tech, low-tech wizarding world, archetypes and stereotypes, from ‘Mars is Bright Tonight’ to Horcruxes in Faerie Land and ‘Just behind the Veil’: Influences of Dante, Edmund Spenser and George MacDonald on Potterverse)
As part of evaluation for the course, students would have to write essays and present written assignments (or in the alternative, perform magic tricks for 15 minutes) apart from writing an end semester exam.
A reading list (apart from the mandatory seven Harry Potter novels) has also been prescribed for the course. However, it appears that the most important requirement for being eligible to participate in this new venture is enthusiasm.
As highlighted in the course outline statement,
“… it is expected that each student opting for this course would have already read all the books at least twice, if not more. Watching the movies is optional, though. It is also expected that the students would be enthusiastic and eager not only to merely participate in class discussion on related topics, but also to initiate such discussion and therefore, would turn up for the classes from the very beginning of the semester, if only to comment, ‘Nitwit! Blubber! Oddment! Tweak!'”
Read full Course Outline:
A First Information Report (FIR) has come to be filed against an unknown person for creating and operating a fake Twitter handle in the name of the Chief Justice of India Ranjan Gogoi, according to news reports.
News18 has reported that the FIR was filed after the Special Cell of the Delhi Police received a number of complaints in this regard . . .
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Breaking: Kerala High Court issues notice in petition seeking protection of Ashtamudi Lake, stalling new flyover
The Kerala High Court today issued notice to the State of Kerala in a petition praying that construction of a new flyover across the Ashtamudi lake be stalled.
A Bench of Chief Justice Hrishikesh Roy and AK Jayasankaran Nambiar heard a petition filed by a lawyer, advocate Rahul VI before seeking the response of the State.
Advocate Raghul Sudheesh and Lakshmi J appeared for the petitioner.
Ashtamudi Wetland is an extensive estuarine system, the second largest in Kerala State. The petition highlights the importance of the same stating the following:
“Ashtamudi Wetland is an extensive estuarine system, the second largest in Kerala State, which is of extraordinary importance for its hydrological functions, its biodiversity, and its support for fish. The site supports nearly 100 species of fish, a number of mangrove species as well as over 40 associated plant species, and 57 species of birds have been observed, including several migratory birds.”
It is also a wetland site protected by the Ramsar Convention on wetlands.
“The Convention was adopted in the Iranian city of Ramsar in 1971 and came into force in 1975. The convention entered into force in India on 1st February, 1982. India currently has 26 sites designated as Wetlands of International Importance (Ramsar Sites), with a surface area of 689,131 hectares. Out of the 26, three wetland sites are located in Kerala, namely, Vembanad-Kol Wetland, Ashtamudi Wetland and Sasthamkotta Lake.”
The petitioner has taken objection to the construction of a flyover by the State of Kerala across the Ashtamudi lake. The construction of the disputed flyover is part of the larger project called Ashramam Link Road Project.
The construction of Phase II of the Ashramam Link Road project from Ashramam junction to KSRTC Bus Terminal was done by filling up a vast portion of the Ashtamudi lake and destroying mangroves. The disputed flyover will run from KSRTC Bus Terminal to Thoppilkadavu via Olayil Kadavu.
The flyover which is stated to have the objective of easing traffic congestion in certain parts of Kollam town will be built entirely through the Ashtamudi lake, the petition states.
The construction work has already begun and pillars have been erected as part of phase III of the project. Around 8 acres of the lake has been encroached and filled for the said project, the petitioner submits.
The petitioner has argued that the construction of the flyover is a short-sighted ploy as there is already a four-lane thirteen-kilometer bypass nearing completion to ease the city traffic.
It is the argument of the petitioner that if the flyover is allowed to be constructed upon the lake, it will severely affect the already disturbed and damaged ecosystem of the Ashtamudi wetland, owing to the construction activities which involves heavy mining, piling, and allied activities. Further, it will also severely affect the community living around the lake.
He has, therefore, prayed that the construction of the flyover be stalled with immediate effect and the pillars which have been erected across the lake be demolished.
Read the order below.
In a development which could cast a shadow on the functioning of District courts in the National Capital, the Delhi High Court has taken cognizance of allegations of forum shopping involving three judges and ordered that IPR suits of certain parties not be listed before the three judges – Mukesh Kumar, Veena Rani and Chandrasekhar.
The order was passed by a Bench of Justices Vipin Sanghi and IS Mehta in a contempt petition filed by M/s Capital Ventures Limited against KRBL Limited and its officials (contemnors/respondents).
The petition has alleged that the contemnors/respondents represented by the same counsel had moved repeated applications in different suits to have it listed before “particular judicial officers”, Mukesh Kumar, Veena Rani and Chandrashekhar.
The petition also alleges that favourable orders were obtained by the contemnors from the said judicial officers “which they were not entitled on merits”.
The Delhi High Court after hearing the petitioners issued notice to the respondents and made it clear that it will not go into the merits of the disputes which were before the three judges who have been named.
However, it proceeded to seek the following details from the contemnors:
– The number of IPR suits filed by them with details including suit number, date of filing, counsel through whom it was filed and the judges before whom the matter was initially listed.
– Whether an application for marking and listing before a particular Judicial Officer was moved?
– The name of the Judicial Officers before whom the matter was sought to be listed.
– Whether the matter was listed before the Judicial Officer as desired by the respondents?
– Whether any ex-parte orders of injunction was passed?
– The date of ex-parte ad interim injunction order if any?
Importantly, the Court also made it clear that IPR suits preferred by the respondents should not be listed before the three judges in question.
The matter is now listed for hearing on November 22.
Read the order below.Capital Ventures Ltd v. KRBL
Tara Ollapally is a lawyer and an experienced mediator at CAMP Mediation. In this interview with Anuj Agrawal, she talks about the benefits of mediation, whether lawyers would become good mediators, and why one needs to invest time and effort to become a successful mediator.
Not too long ago, you come back to India and CAMP Mediation.
I kind of stumbled into mediation. It wasn’t a planned next step. My mother was a pioneer in the mediation movement. She was one of the co-founders of the Bangalore Mediation Centre. And she felt the need to take this next step in mediation – private mediation.
To get into the commercial dispute resolution space, we needed to get into private mediation, where parties have access to high quality mediation services. That is how we conceived the idea of CAMP.
It must have been difficult to sell mediation in the beginning.
We started CAMP in January 2015 and we would actually get calls asking, “So, when are your meditation classes?” – that is the environment in which we started. (laughs)
We have definitely moved from there.
I am convinced that people will see the value of it. We are working in an environment where people want and need options. What is being provided to them is not optimal, they are not happy with it.
Mediation has found legislative backing, but you have noted that more needs to be done.
So the amendment mandates disputes to go into mediation before they can be filed in the commercial court unless the parties are seeking interim relief. This is a fantastic step to try and get parties to sit down and resolve their dispute.
[But] what the law has not thought through are the details with respect to how this is done. For example, the body that has been given the mandate to administer these mediations is the legal services authority. Which really does not make sense.
It is not thought out that a commercial dispute and legal aid cannot be clubbed together in the same forum. If you have the legal services authority administering commercial mediation, you are setting yourself up for disaster.
Do you see commercial establishments recognising the benefits of mediation?
What do businesses want? They want to find a quick, cost-effective and appropriate way out, a business way out.
Mediation is not process-heavy. We don’t have pages and pages of process that needs to be followed before an application is filed. There are no applications that need to be filed. The objective is to be able to understand what are the interests of the parties, what is it that the parties truly want.
Cost effectiveness, speed – these were some of the touted benefits of arbitration. How is mediation better?
I would not use the word “better”, but “different”. Arbitration is still an adversarial process and by that I mean there is a winner and a loser. And there is a third person who is going to decide who the winner is, who the loser is.
In mediation, the whole concept is different. It is not about right or wrong. It is about differing perspectives, and helping the parties understand each other’s perspectives, and getting them to decide on what the solutions are.
Do you think lawyers make good mediators?
If a lawyer is able to switch hats from adversarial to collaborative, a lawyer is fantastically placed to be a mediator. Because the lawyer knows the law better than any other neutral would.
The law plays a very important part in mediation, because a large aspect of the negotiation hinges on what your alternative is. And, what is the alternative? Typically, it would be arbitration or litigation.
Now how is this going to play out in arbitration or litigation? What are the strengths and weaknesses of each party’s case? A lawyer is very well positioned to be able to help parties go through the alternatives, the reality test.
But aren’t lawyers trained in an adversarial system?
I have met so many lawyers who love the law, but hate the adversarial aspect of the law. They want to be part of the dispute resolution process but they don’t like the way the dispute resolution process has been managed.
Now these people make fantastic mediators.
They are part of the dispute resolution process, they have the logical way of thinking, they understand the law, and they have the ability to structure and facilitate mediation in a very effective way.
Is India working towards a more conducive environment for mediation?
It is not like we have a choice. If lawyers want to keep up with the way lawyers are practicing law in several aspects of the world, this is an aspect that you just cannot look away from for very much longer.
Italy had a similar issue of pendency which is what motivated them to pass mandatory mediation legislation – essentially mandating the parties to sit, with their lawyers, with a neutral third party mediator. You can opt out after [one session] and go back to courts.
Just one session.
That is all it took. I don’t remember the statistics, but a large number of disputes that went through mediation ended in settlements.
So, mediation makes business sense, and there is money to be made. Yet?
Businesses in India are still not buying into mediation. They are still using arbitration because that is what is familiar.
Our purpose right now is to make businesses include mediation in their dispute resolution clause. Today’s dispute resolution clause is we will sit and negotiate, if negotiations fail, we will arbitrate. And that has to change.
It has to be, “We will sit, negotiate. If negotiation fails, we will do a facilitated negotiation and if that fails we go into arbitration.”
If a lawyer is interested in mediation, what advice would you give her?
For a young lawyer to enter into the field as a mediator would be challenging. But, my advice is go out, join a law firm, litigate, go in-house but start pushing disputes into mediation.
Through that aspect, you start exposing yourself to the mediation process, you start understanding the mediation process differently. Build the skills to be an effective advocate in mediation.
Skills such as?
Such as being able to figure what your client really wants. [Learn to] drop the posturing, prioritise options. Start listening to your client.
These are the skills that a mediator builds – listening to understand. Bringing down the emotional aspect of it by reframing, by summarising, by connecting to your client. Be an empathic lawyer in mediation.
To be an empathic lawyer is a huge skill that we have to build.
But nobody teaches you this as a law student.
Not at all. These are skills that you have to learn. So when I am listening, how am I listening? Am I listening to fully understand what you are communicating to me, or am I listening from a perspective to figure out what my response to you is? And then of course to be able to weed out the emotion from what my client really wants.
That seems like quite a time intensive practice.
Absolutely! It is actually about investing [in the client]. About understanding who my client is, why my client feels this way, what has motivated my client to be in the position that he is in.
Lawyers deal with people in conflict. But we have no concept or idea of what a human being is when in conflict. How is that person responding, how is her brain functioning when in a conflict situation. Because neuroscience will tell you that when you are in conflict, your brain is working differently.
These are concepts that we have not even thought about as professionals in this conflict space.
Final question, what is a good legal education? Or have you just answered that?
I think I may have. We are dispute resolvers. We are here to be able to find appropriate resolution for clients who come to us in a distress situation. They are frustrated, they are angry, they are helpless. They want a way out.
But the only thing that they know is to strike.
And we, as lawyers, are trained to help them strike harder. We just take them up this conflict path but we do not realise that our objective should be to get this person out of this mess in the quickest, safest, most respectful kind of way.
We don’t even think of it that way.
It is critical that our law students are exposed to this way of dispute resolution. The mark of a civilised society is in our ability to manage conflict. Conflict is inevitable, it is a result of progress. We cannot stop conflict but we have to find better ways to manage conflict so that conflict is opportunity.
This is an abridged version of the interview. To view the full interview, click here.
Anuj Agrawal is the co-founder of Amicus Partners. [http://amicuspartners.co.in/]
As the dust settles on the controversies surrounding the rules for appointment of law officers to the Madras High Court, the recent weeks have seen the appointment of such officers in various roles to appear before the Madras High Court, the National Green Tribunal (NGT), as well as to represent the Government of Puducherry,
The latest appointments were those of A Natarajan as the new Public Prosecutor and C Emilias
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A man accused of stalking and rape has been granted protection by Delhi High Court on account of the harassment he faced from his accuser.
By way of background, the man/petitioner was initially accused of stalking and harassing the complainant woman, in connection with which she filed a criminal complaint last April.
Although he was allowed bail in respect of these offences, he was arrested again after the woman added a rape charge against him. A Saket court granted him regular bail . . .
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A Division Bench of the Delhi High Court has upheld a Single Judge order passed in January this year directing Amity Law School to award Abhinav Pandey a Gold Medal for graduating with highest honours.
The law school, affiliated to Guru Gobind Singh Indraprastha University, had earlier refused to confer the Gold Medal on Pandey since he had not cleared two examinations on the first attempt.
Pandey, during his 6th semester in 2013, was unable to appear for two out of five papers as he was suffering from Chicken Pox. He wrote the said two papers later in 2014, and graduated with the highest Cumulative Performance Index (CPI).
After representations to the Vice-Chancellor of the University fell on deaf years, Pandey filed a writ petition in the High Court praying that the Gold Medal be awarded to him for the B.A. LL.B. course.
Appearing for the University before the Division Bench of Justices Hima Kohli and Rekha Palli, advocate Ekta Sikri contended that the Single Judge had failed to appreciate the real meaning of the term “first attempt”. She referred to Ordinance 5 and Ordinance 11 of the University, which she argued, do not treat appearance in a supplementary examination as a first attempt even if the student could not appear in the regular examination due to medical reasons.
It was also argued that a student who cleared the examination on the first attempt, and one who did so on the second attempt cannot be treated as similarly placed, as the latter student gets the advantage of more time to prepare for the same examination.
Amit George, appearing for Pandey, welcomed the Single Judge order and argued that the University’s interpretation of the term “first attempt” would lead to gross injustice to meritorious students like his client.
After hearing the parties, the Bench noted that the term “first attempt” has not been clarified in Ordinance 5. Therefore, the parties have resorted to case law to construe the same. The Bench noted that there were conflicting decisions on the topic; while the decisions of the High Courts of Bombay and Karnataka were relied upon by the University, decisions of the Supreme Court, Rajasthan High Court and Andhra Pradesh High Court were cited by the counsel appearing for Pandey.
The Bench therefore held,
“We are of the considered opinion that the term “first attempt” as occurring in the unmodified provisions of Ordinance 5 of the appellant/University cannot take in its sweep, situations where a student could not, as a consequence of severe medical issues, give an examination when it was first due. Thus, in the facts of the instant case, we have no hesitation in arriving at the conclusion that the respondent no.1 having been prevented due unavoidable medical concerns from appearing in the aforesaid subject papers in the first instance, during the Sixth End Semester Examinations, he ought not to be penalized or deprived of the fruits of his labour and well-deserved merit.”
Addressing the argument that Pandey had an unfair advantage over the other students who wrote and cleared the exams on the first attempt, the Court held,
“In our opinion, the aforesaid contention is wholly unmerited as it overlooks the fact that in the present case, instead of getting any undue benefit, the respondent no. 1 was compelled to prepare for and take the remainder of his Sixth End Semester Examinations alongwith his Eighth End Semester Examinations. In other words, the respondent no. 1 while appearing for his Eighth Semester Examinations, had to prepare for and take more examinations in the same duration that his fellow students had to prepare for a lesser number of examinations.”
The Bench also held that apprehensions that the Single Judge judgment, if allowed to stand, will open floodgates for similar claims by other students who may have missed some examination for any reasons, not limited to medical grounds, were unfounded.
Therefore, the Single Judge decision directing the University to award Pandey the Gold Medal was upheld.
Read the judgment:
GGIPU v. Abhinav Pandey Delhi HC
The Delhi High Court recently cautioned against adopting a cut and dry approach when it comes to dealing with rape cases, more so when the victim is a minor.
While reversing the trial court's acquittal of a man accused of raping a minor, the Court observed,
"Sexual offences carry with them a great deal of shame, embarrassment and guilt for the victim and the other family members. It is not easy, and it requires courage and . . .
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