Gubernatorial Office and Change of Government at the Centre

B.P. Singhal vs Union of India & Anr (WRIT PETITION (CIVIL) NO.296 OF 2004) decided on May 7, 2010 by the Constitution Bench of the Supreme Court of India:

(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office  at any time without assigning any reason and without giving any opportunity to show cause.

(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. THE COMPELLING REASONS ARE NOT RESTRICTED TO THOSE ENUMERATED BY THE PETITIONER (THAT IS PHYSICAL/MENTAL DISABILITY, CORRUPTION AND BEHAVIOUR UNBECOMING OF A GOVERNOR) BUT ARE OF A WIDER AMPLITUDE. What would be compelling reasons would depend upon the facts and circumstances of each case.

 (iii) A GOVERNOR CANNOT BE REMOVED ON THE GROUND THAT HE IS OUT OF SYNC WITH THE POLICIES AND IDEOLOGIES OF THE UNION GOVERNMENT OR THE PARTY IN POWER AT THE CENTRE. NOR CAN HE BE REMOVED ON THE GROUND THAT THE UNION GOVERNMENT HAS LOST CONFIDENCE IN HIM. IT FOLLOWS THEREFORE THAT CHANGE IN GOVERNMENT AT CENTRE IS NOT A GROUND FOR REMOVAL OF GOVERNORS HOLDING OFFICE TO MAKE WAY FOR OTHERS FAVOURED BY THE NEW GOVERNMENT.

(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court will call upon the Union Government to disclose to the court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.

NOTE: The Supreme Court directions had come on a petition filed by Uttar Pradesh ex-DGP and the then BJP MP BP Singhal (Rajya Sabha 1998-2004) and brother of Vishwa Hindu Parishad’s Ashok Singhal.  BP Singhal had filed a PIL in 2004 challenging the removal of NDA appointed Governors of Uttar Pradesh, Gujarat, Haryana and Orissa by the new UPA government. It would be interesting to see as to  whether the current regime will repeat the history of UPA or it will accord honour in letter and spirit to said judicial pronouncement of SC that came into being at the instance of an erstwhile BJP Member of Parliament impugning the action of the then UPA-1 Government????

Private School under RTI: CIC Rules

In a major boost to transparency in private schools, the Chief Information has ruled that private schools governed by laws like the Delhi Education Act will also be governed by provisions of the Right To Information Act, 2005. In the significant decision,Ms. Sadhana Dixit Vs. Directorate Of Education, the Central Information Commission (CIC) ruled that private schools cannot deny to provide information on service records and salaries.

The Appellant an ex-employee of Jindal Public School under the Directorate of Education hadfiled an RTI seeking a certified copy of service book, copies of her appointment letter issued by Jindal Public School and staff statements of all the employees. The Directorate of Education provided all the information available with them but the school did not share any of the information asked by the appellant on the grounds that the RTI Act did not apply to a private institution.

The Appellant preferred a second appeal before the Commission after she was unsatisfied with the information provided by the Public Information Officer (PIO) of the Directorate. Information Commissioner Sridhar Acharyulu directed the school to provide her with the information requisitioned under Section 2(f) of the RTI Act and said that the school “has a duty under sections 4 and 8 of the Delhi Education Act 1973, to abide by the regulatory conditions of service, payment of salaries as prescribed, etc for which the school has to maintain the records, which provide an inherent and implied right to information to their employees”

The Commissioner also noted that, “Under Right to Education Act 2009 also, the recognized school is under an obligation to appoint eligible teachers and provide them with prescribed wages. This also reveals that it has given inherent Right to Information to the teachers from their employers.”The Commissioner then directed the school to furnish the information sought by the appellant under the lawto the Directorate of Education who in turn would provide it to the appellant.

This decision by the Information Commission will now ensure transparency in the service records of teachers and other staff among private schools governed by the Delhi Education Act.

(Source: Live Law)

Delhi High Court on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

In an order pronounced on January 16, 2014 in a case titled Swatanter Kumar vs  The Indian Express Ltd. & Ors (I.A. No.723/2014 in CS(OS) No.102/2014), the Delhi High Court vide para 57 opined that  in view of the recent stringent provisions incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which provides for a mechanism of dealing with the cases of sexual harassment, strict view  would have to be applied equally to both the sides, i.e. complainant as well as alleged accused specially in cases where the complaint is filed after the lapse of long period. The Hon’ble Court further lamented that there should be a limitation of time for the purpose of filing of such complaints, otherwise no one would know when the complaint ought to have been filed and decided. Thus, a balanced approach has to be taken, particularly, in these types of matters.

        It is brought out that said Act of 2013 takes care of both the above counts highlighted by the Court. Section 9 thereof, stipulates the time period of three months from the date of incident further extendable up to three more months if the circumstances were such which prevented the woman from filing a complaint within said period. Further, Section 14 thereof provides for punishment for false or malicious complaint and false evidence.

         However, it is noteworthy that whereas the alleged incident occurred in May 2011, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 passed in February 2013 came into force from December 9, 2013. Moreover, notwithstanding its own binding guidelines of the Vishakha case (1997), the Supreme Court did not have a mechanism to receive such complaints in 2011. 

Dr. Rajender Goyal, Advocate, Bahadurgarh

Faux pas lies in the law of the land

 Protagonists of women’ rights  have strongly discountenanced the disclosure of the name of the intern concerned at many places in the operative portion of three-judge Supreme Court Panel Report in the Justice Ashok Ganguly case.  They seem to be highly indignant as to how such a faux pas/ gaffe could have been allowed by the highest court of the land. However, I feel that it is ripe time to put the record straight from the standpoint of the law of the land. The Supreme Court inquiry panel arrived at a conclusion that the statement of the intern, both written and oral, prima facie discloses an act of unwelcome behavior (unwelcome verbal/non-verbal conduct of sexual nature) by Mr. Justice (Retd) A.K. Ganguly with her and that said intern was not an intern on the roll of the Supreme Court and that concerned judge had already demitted office on account of superannuation on the date of incident.

     Hence, it can be culled out that alleged  act of grave impropriety and misdemeanour  i.e.sexual harassment reportedly by Justice Ganguly does not come with in the purview of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and further section 16 whereof prohibits the disclosure of the identity and addresses of not only of  the aggrieved woman but also of  respondent (person against whom aggrieved woman makes a complaint) and contravention of this provision has been made punishable under section 17 thereof.

            Moreover, alleged act attracts section 354A of the Indian Penal Code, 1860 inserted recently by the Criminal Law (Amendment) Act, 2013. It is also brought out that section 228A of the IPC also further amended by the Act of 2013 forbids the disclosure of identity of the victim of offence of rapes in its various degrees as held punishable in various sections 376, 376A, 376B, 376C, 376D, 376E of the IPC.  Further, section 327 of the CrPC mandates that inquiry into and trial of rape cases shall be conducted in camera. Thus, it can be said that law of the land except in the cases of rape and sexual harassment as envisaged by  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 does not enjoin upon, in other cases of sexual crimes against women, to keep secrecy, more so, in a case where said law intern hereself ventured out to bring to fore her plight in the virtual world that has attracted lot of well-deserved attention in the real world.

However, dithering shown by the Delhi police in registration of FIR in the case inspite of a formal complaint by Ex Dean of Faculty of law of Delhi University squarely goes against the recent constitution bench pronouncement of the Hon’ble Supreme court that mandates   registration of FIR either on the basis of the information furnished by the informant or on any information received other than by way of an informant.

Moreover, it is no gainsaid to emphasize that sexual harassment results into violation of fundamental rights of women to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

News Report is wrong and shocking

The News Report “Wll invalid unless signed by 2 witnesses & registered : SC”  published in the "TRIBUNE" ,March 30, 2013 purportedly to the effect that Supreme court of India held that any will not signed by two witnesses and un-registered was “only a piece of paper in the eyes of law, having no legal effect” is factually and legally wrong and is the brainchild of serious misquotation of the clear & unambiguous dictum of Hon’ble Supreme Court on the part of legal correspondent.  The question before the Supreme Court was whether the alleged document  was a will or in the nature of transfer of property.  The Court held that “it was neither in the nature of a Will nor in the nature of transfer of the property because the said writing was neither registered as required under the provisions of the Indian Registration Act, 1908 (as it must have been so in case of transfer of immovable property of the value of one hundred rupees and upward, S. 17(1)(b) of the Registration Act, 1908) nor was attested by two witnesses as it should have been done, had it been a Will.”

      It is to be noted that as per section 18 (e) of the said Act the registration of will is optional and Supreme Court of India nowhere throughout the judgment discountenanced it.  The record needs to be put straight by publishing a necessary corrigendum and clarification so that public at large is not misinformed & misled by such erroneous and preposterous news report particularly in the back drop that news report carried in this esteemed daily are taken with utmost earnestness and credibility.

Quota crutches

The Tribune, New Delhi , March 27, 2012

Quota crutches

I endorse DR Chaudhry’s views in the article, “Reservation stir in Haryana” (March 23) that reservation was meant for a period of 10 years, hoping that deprived sections would climb up the social ladder and would no longer be in need of a quota crutch”.

The founding fathers’ vision of reservation policy was like that of the crutches lent to a limbless person until his limbs grow up and he stands on his own legs The time has come at such a pass, paradoxically, where we see that the erstwhile limbless person, now having fully-grown limbs, does not want to let go off the borrowed crutches, and the inherently able-bodied person has also started clamouring for the crutches.

It is time now to gradually phase out reservations. The concept of creamy layer in the SC/ST should be introduced. The income from any other source including salaries should be included while computing annual income.

Other modalities of affirmative action like financial help in the form of various scholarships, fee reimbursements, dedicated training programmes etc should be stressed on.

Some other criteria in addition to caste factor for entitlement to reservation should be put in place.

Dr RAJENDER GOYAL, Delhi

Divine merchants

THE TRIBUNE, NEW DELHI, MAY 10, 2012

Divine merchants

Godmen and religious gurus like Nirmal Baba and Dinakaran Paul being exposed is the proverbial tip of an iceberg. The grim situation has built a strong aversion to self-styled godmen, astrologers, palmists, numerologists, sooth-sayers and other cognate persons and entities working in innumerable forms. These uncouth people perpetrate a very subtle, systemic, insidious design among unsuspecting, credulous, gullible and feeble-minded persons or those who are rapacious and desperate for worldly attainments.

The scourge is deep-seated and widespread. It calls for well-concerted and incessant endeavors from the rationalists. Superstition in any form and style is anathema to human dignity and existence.

Dr RAJENDER GOYAL, Bahadurgarh

RESERVATION EMBROGLIO

                                            THE TRIBUNE, MAY 04, 2012

Jats vs non-Jats

After Haryana was formed in November 1966, for most of the time the Chief Minister of the state is from the Jat community. Intermittently, if there have been non-Jat Chief Ministers, they were either a protégé of some powerful Jat leader of the time or seen hankering after Jat support for political survival. It bears testimony to the political clout of Jats in Haryana. Hence, it sounds quite queasy to hear the shrieks of demand for reservation from within the Jat community.

The common refrain of the protagonists of the Jat reservation is that some other peasantry castes in Haryana are already enjoying benefits of reservation, then why not Jats? Two wrongs do not make a right, they constitute a blunder. The remedy lies in denotifying and dis-entitling any such caste from reaping the fruits of reservation, if after an objective appraisal found that they do not qualify for it.

We must be alive to the hard fact that reservation is a state's charity and it is highly unbecoming of any self-respecting person to live of anybody’s alms unless physically handicapped.

Dr Rajender Goyal, Delhi


PS CAVEAT:- I have been misquoted by News Paper The Tribune in certain material aspects:-

1. I never entitled my write up as “Jats vs non-jats as published. Rather the write up  I had sent was entitled as  “RESERVATION EMBROGLIO”.
2. The words “Unless physically handcapped” in the last line are the  concoction of the News paper in the guise of necessary editing. I had used the expression "Be that as it may be, we must be alive to the hard fact that reservation is a state's charity and it is highly unbecoming of any self-respecting person to live off anybody’s alms unless it is not at all possible to stand on one's own legs due to some insurmountable present or historical reasons".  

                It is crystal clear that expression "due to some insurmountable present or historical reasons" enables the extension of the reservation benefits not only to the physically handicapped persons but also to SC/ST/BC/OBC/Widows/victims of riots and natural calamities etc in genuine cases.


The original write up sent to the Tribune reads as follows:-

                    RESERVATION EMBROGLIO

Apropos the News report “Consensus on no reservation to Jat community”, (April 30, 2012), I would like to add that the Founding Fathers’ vision of reservation policy was like that of the crutches lent to a limbless person until his limbs grow up and he stands on his own legs. The time has come at such a pass, paradoxically, where we see that the erstwhile limbless person, now having fully grown-up limbs, does not want to let go of the borrowed crutches, and the inherently able-bodied person has also started clamouring for the crutches.
The political power is the magnet that attracts all other coveted temporal attributes like money, strength, status, recognition etc. in tow. In the context of jat agitation for reservation, we must know that after the formation of Haryana in November 1966, for most of the time, the Chief Minister of the state is from jat community. Intermittently, if there have been non-jat Chief Ministers, they were either a protégé of some powerful jat leader of the time or seen hankering after jat supports for survival. It bears out the pre-eminent position and stout political clout of jats in Haryana. Hence, it sounds quite queasy to hear the shrieks of demand for reservation from with in the jat community.
               The quota based reservation policy a part of the affirmative action was aimed as a tool of egalitarianism. It now stands catapulted as a prized booty. To grab upon reservation- one has to engage with the state and take casualties. The fumes billowed out of Gujjar agitation in Rajasthan have hardly died down, now jats are up in the arms in Haryana demanding reservation and guess who can be the next? Obviously only those daredevils who can muster up enough strength to block national highways, vandalise the public and private property, jeopardize others’ lives, chase away the police and security personnel, sacrifice precious lives at the altar of reservation cauldron and above the all, enjoy overt or covert political patronage from either side of the fence! The common refrain of the protagonists of the jat reservation is that some other peasantry castes in Haryana already enjoy the benefits of the reservation, then, why jat should not be? It must be brought home to them that two wrongs do not make a right, they constitute a plumb blunder. The remedy lies in denotifying and disentitling any of such castes to reap the fruits of the reservation, if after an objective appraisal, found that they do not qualify for it.
               Be that as it may be, we must be alive to the hard fact that reservation is a state's charity and it is highly unbecoming of any self-respecting person to live off anybody’s alms unless it is not at all possible to stand on one's own legs due to some insurmountable present or historical reasons. We should shun the path of confrontation and violence, and pledge to dedicate ourselves in the mission of nation-building to find our Country in the league of the developed countries in the next two decade.

Dr RAJENDER GOYAL, Visiting Faculty (Law)

CPJ College of Higher Studies and School of Law, Delhi

Stand-off between Private School Owners and Haryana Government over free Education to Students Belonging to Poor Families

There is a stiff stand-off between private schools owners and Haryana Government on the issue of provision of free education to the students belonging to poor families. The controversy hovers around the Rule 134A of Haryana Education Rules, 2003. and hence, it becomes imperative to put it in correct perspective.
Rule 134A added vide notification No. S.O.3/H.A.12/1999/S.24/ 2007 dated: 19-01-2007 sets out that “the recognized private schools shall reserve 25% seats for meritorious poor students. The school shall charge fee from these students at the rate as charged in Government schools. The deficit of difference of fee shall be charged from the other students of the school”. It is noteworthy that the said rule 134A was again amended in the year 2009 vide notification No S.O.24/H.A.12/1999/S.24 (1)/ 2009 dated: 21-02-2009 to the effect that “the recognized private schools shall reserve 25% seats for meritorious poor students. The school shall charge fee from these students at the rate as charged in Government schools”.
Hence, it is unequivocally clear that after the amendment of 2009 in Rule 134, no burden shall shift on the other students (i.e. remaining 75% students) for the recovery of deficit of difference of fee. Moreover, section 12(2) of the RTE Act, 2009 mandates that the private unaided school providing free and compulsory elementary education shall be reimbursed expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed provided that such reimbursement shall not exceed per-child-expenditure incurred by a government school provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate, such school shall not be entitled for reimbursement to the extent of such obligation. Furthermore, under the Act vide section12 (1) (c) private unaided Schools are under an obligation to admit in class I only, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion.
Thus, neither extant Rule 134A of Haryana Education Rule, 2003 as amended in the year 2009 is prejudicial to the interest of the students of well-off family as it does not shift any financial burden on them nor the RTE Act, 2009 obligates the private school to make the provision for 25% quota for admission all across the board other than Class1. However, to keep up the financial health of private unaided school, it will be desirable if Rule 134A is suitably amended so that Government compensate the expanses incurred by said schools in bringing home the objective of Rule 134A.

Defection in the garb of a merger: The protagonists of the merger need to revisit the tenth schedule of the Indian Constitution

Defection in the garb of a merger: The protagonists of the merger need to revisit the tenth schedule of the Indian Constitution

There is a deluge of views emanating from distinguished persons on the raging controversy regarding the validity of changing of side in the garb of a merger by the five MLAs of Haryana Janhit Congress (BL) with the Indian National Congress in Haryana and the whipping boy is the tenth schedule of the Indian Constitution enshrining the anti-defection law. The self-fulfilling interpretation of the provisions of the anti-defection law by the legal eagles to suit a desired end, the suspicion on the non-partisanship of Hon’ble Speaker of the Legislative Assembly and lack of definitive judicial pronouncement on the subject has cast serious doubts on the efficacy of the anti-defection law, and accentuates the need to put the relevant law in its true perspective.
In fact, the para 4 of the tenth schedule of the Constitution enabling the merger of a political party is highly democratic envisaging a “collaborative and participatory working” between the political party concerned and its legislature party consisting of elected representatives in the State Legislature or Parliament whatever may be the case. The law strives to strike a fine balance between the interests of political party and the aspirations of the elected representatives (denoting the will of the people) comprising the legislature party concerned. The contents and intent of the said law lend emphatic credence to the inference that any decision for such merger can only be taken by the original political party in accordance with the rules and procedure as delineated in the constitution of that political party, and to take it further to any logical conclusion must find favour with not less than two-thirds of the elected members of the legislature party concerned. Only a well-considered decision in consequence of due deliberations in concert with each other will sanctify the merger. Hence, it is seemingly erroneous to contend that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter.
The Apex Court in Ravi S. Naik (1994) while interpreting para 3 of said schedule (has since been repealed by the Constitution (Ninety-first Amendment) Act, 2003, w.e.f. January 1st, 2004) dealing with split in a political party had intoned that “even if there is 100% merger of the legislature party, without a split in the original party there can be no split”. It is noteworthy that said law of split enshrined in the repealed para 3 contemplated a lesser evil inasmuch as not immediately annihilating the existence of original political party. In consequence of split in original political party, the members of the breakaway faction constituted a separate political party and at the same time the original political party also retained its existence Where as in the present case under para 4 of the tenth schedule of the Constitution, the moment the merger is deemed to be valid, the existence of the original political party (read Haryana Janhit Congress) is wiped out entailing grave identity crisis for its founder & supremo Sh. Kuldeep Singh Bishnoi and other worthy members of the party not having countenanced to such a merger- a bizarre and unthinkable result which could never be intended by the anti-defection law as enshrined in the tenth schedule of the Constitution. Hence, as a corollary to above mentioned legal and factual position, it can be propounded that if split could not legally be effected in a political party under the law of split as was adumbrated in repealed para 3 of the tenth schedule of the Constitution without a split in original political party notwithstanding the fact that all members of the legislature party break away from the political party concerned , a fortiori, the merger of a political party into another political party becomes highly untenable just at the instance of members of the legislature party irrespective of their numbers in the absence of any decision of the political party concerned for such a merger.
However, courtesy to the peculiar constitutional scheme of things, and also relying on the hindsight, it can conveniently be prophesized that by the time any litigative churning-up will settle down and adjudication will attain finality, the term of the present legislative assembly will come to an end.
Since there is no direct authoritative ruling of the Apex Court on the para 4 of the Tenth Schedule of the Constitution and the vacuum is being rampantly misused/abused by the unscrupulous political parties and politicians, hence, it will be in the fitness of the things to invoke Article 143 of the Constitution to seek the opinion of the Supreme Court through a Presidential reference on the vexed question.
Dr RAJENDER GOYAL, Advocate and
Visiting Faculty in Law
CPJ College of Higher Studies & School of Law, Delhi

Unwarranted glorification of M.Phil in derogation of Ph.D

Kurukshetra University is pleased to invite application, inter alia, for the post of Assistant Professor in Law in the Department of Law vide advt. no. 4/2011. In addition to the requirement of minimum qualification for eligibility, the University has laid down criteria enumerating the various categories for short listing the candidates to be called for interview in case the number of eligible candidates for one post exceeds fifteen. For every additional post, maximum fifteen additional candidates will be invited for interview. It further sets out that in case the number of eligible candidates is more than the above prescribed number of candidates, the screening committee shall short list the candidates, in the descending order, in the light of the prescribed criteria in addition to conditions laid down for the eligibility.
Bare facedly, the said short listing criteria bear out that those candidates who are NET + Ph.D simpliciter do not find any place in any of the categories except the residuary Category-7 that reads as “All the candidates who do not fall in any of the above category if fulfill the eligibility conditions will be called for interview.” Conversely, the candidates who are NET + M.Phil simpliciter enjoy weightage/preferential treatment and are privileged to find place in Category-6 that reads as “NET/SLET with 2nd Class M.Phil” i.e. one notch above the residuary category-7 wherein only the NET + Ph.D simpliciter may find a place as per the prescribed criteria.
The above factual narration clearly shows that said short listing criteria has assigned M.Phil a superior place in derogation of Ph.D. that is highly unnatural, untenable, unreasonable and arbitrary.
It is further brought out that said short listing criteria assigning weightage/preferential treatment to M.Phil. in one manner or other seems to be unwarranted and undesirable as far as discipline of Law is concerned, keeping in view the fact that, no University (whether State or Private or Deemed) or any other Institute in and around Haryana offers M.Phil Course in Law.
Dr. RAJENDER GOYAL

Supreme Court verdict raises a vital issue of bearing of Morality on Law

A Bench comprising Justices Dalveer Bhandari and Deepak Verma of the Hon’ble Supreme Court of India in a verdict on 29th September has rightly ruled that people’s right to own property fell very much with in the domain of human rights. However, it also raises a vital issue of bearing of morality on law. It is no gainsaid to emphasize that law of adverse possession under which any person in illegal possession of a property for 12 years could claim legal ownership of it in preference to real owner, if certain other requisite legal imperatives are satisfied, is immoral per se.
Does law and morality not have any nexus with each other? Can a law be formulated in total oblivion of moral considerations? If a law is bereft of morality, can it be enforced efficaciously? Is Law in force in India has underpinnings of morality in it? A bird’s eye view of various laws in force in India will bear out that it is not entirely devoid of morality viz. Law against immoral trafficking including Prostitution, Child Labour; Exemption of certain movable and immovable property from attachment and sale in execution of a decree; Complete exoneration of criminal acts of a child under seven years of age; Plethora of social welfare Legislations; Special provisions for Women, Children and other Vulnerable sections of the Society; Quota based Reservation Policy as a part of Affirmative Action are worth mentioning in a ocean that abounds with such provision.
However, human rights as appendages of “fundamental right of life and personal liberty” as enshrined in the Indian Constitution are inalienable. Going by that yardstick, once Supreme Court holds that right to property is one of the human rights, shouldn’t the law of adverse possession become ultra vire the Constitution of India and hence, a dead letter.
As a Corollary, doesn’t the law that declare a debt as time barred if no legal proceedings initiated for recovery with in three year from the time when it became due also deserves the protective cover of human rights? Doesn’t every rigor of law of limitation impinge on one or other human right?

National Judicial Oversight Committee

THE TRIBUNE, NEW DELHI, SEPT 09, 2011, P.8
Oversight committee
This refers to the news report “Judicial Accountability: Legal community divided on inclusion of MPs in oversight committee” (September 5). I want to point out that this report has wrongly stated, “Under the provisions of the Bill introduced in Parliament, all the members of the oversight committee would be nominated by the Chief Justice of India”.
On the contrary, Section 18 of the Judicial Standard and Accountability Bill, 2010, says:
(1) The National Judicial Oversight Committee shall consist of the following, namely:
(a) a retired Chief Justice of India appointed by the President, after ascertaining the views of the Chief Justice of India-- Chairperson;
(b) a judge of the Supreme Court nominated by the Chief Justice of
India-- Member;
(c) the Chief Justice of a High Court nominated by the Chief Justice of India-- Member ex-officio;
(d) the Attorney General for India—ex-officio Member;
(e) an eminent person nominated by the President-- Member
Hence, it can be culled out that all the members of the oversight committee are not envisaged to be appointed by the Chief Justice of India. Kindly put the record straight accordingly.
Dr RAJENDER GOYAL, Advocate,
Bahadurgarh

The Report of Parliamentary Standing Committee on Law and Justice and Personnel on the Judicial Standards and Accountability Bill, 2010

The Report of Parliamentary Standing Committee on Law and Justice and Personnel on the Judicial Standards and Accountability Bill, 2010, has rightly clamored for a better system of appointment of judges. The report in most unequivocal terms intones that “the law formulated by the government for maintaining judicial accountability would have “limited success ” till the “most significant lacunae” related to the present method of appointment of judges are removed at the earliest”.
It is trite to say that concept of Independence of Higher is of colossal significance in a Democratic Republic Federal State. The “scheme and procedure of selection and appointment, transfer and removal of Judges in Higher Judiciary” is having an unexceptionally indispensable role in establishing, asserting and perpetuating the Independence of Higher Judiciary. Only competent, meritorious and qualified persons of great legal caliber, expertise, meticulousness, precision, immaculate honesty, impeccable integrity, unimpeachable character, undaunting courage and unwavering determination selected through a transparent, merit-oriented, efficacious and holistic methodology having security of tenure and necessary safeguards in place against unregulated and arbitrary transfer and removal, and discharging their duties and functions without fear or favour, and sufficiently protected against Executive’s interferences and prejudices can bring home the most cherished constitutional ideal of the ”Independence of Higher Judiciary.”
Whereas the Bill of 2010 provides for setting up of a ‘broad based’ “National Judicial Oversight Committee”(NJOC) and an ‘all Judges’ “Scrutiny Committee”, the Parliamentary Standing Committee has recommended that composition of NJOC should be broadened further representing all the three organs of the State namely, Executive, Legislature and Judiciary, and that Scrutiny Panel should also include non-judicial members.
However, needless to emphasize that Judicial accountability, transparency and independence are interwoven. To protect the sacrosanct “Independence of Higher Judiciary”, the final decision making body i.e. NJOC should comprise of ‘all judges’. Conversely, the Scrutiny Committee should be broad based as much as possible. Moreover, the matter of appointment of the judges in higher judiciary could also be entrusted to a wider body with representation from the judiciary, the executive and legislature and civil society than the present ‘Judicial Collegium’. It is suggested that it could be entrusted to the broad based "Scrutiny Committee" as proposed above which could initially screen the names and thereafter, refer the same to the NJOC for final recommendation. The matter of the transfer of the Judges/Chief Justices of the High Courts should be entrusted to the NJOC only without any interference of the Scrutiny Committee and its decision should be final. The Constitution of India may be amended appropriately, if need arises, to legally put in the place the mechanism as above enumerated.
Under the proposed law, the Higher Judiciary including the office of the Chief Justice of India should specifically be made amenable to the command of the Right to Information Act.