Need to rework the compositions of the committees, and broaden the scope in/of the proposed law

The introduction of the Judicial Standards and Accountability Bill, 2010 in the ongoing winter session of Parliament is laudable. The majesty and sanctity of the judiciary rest on the respect and confidence it enjoys among the people. The Bill seeks to ensure greater judicial accountability and transparency. It provides for provisions for declaration of assets and liabilities of judges of higher judiciary, and a mechanism to tame the judicial indiscipline and corruption even at the instance of an ordinary private person. It provides for setting up of a broad based “National Judicial Oversight Committee”(NJOC) and an all Judges “Scrutiny Committee”.The NJOC would consist of a retired Chief Justice of India (CJI), a Judge of the SC and the Chief Justice (CJ) of a HC. The Attorney General would be the ex-officio member and an eminent person would be nominated by the President as its member. The Scrutiny Committee for the SC would consist of a former CJI and two Judges of the SC. The Scrutiny Committee for the HCs would consist of a former CJ of that HC and two Judges of that HC.
The NJOC would first refer the complaints to the appropriate Scrutiny Committee. The Scrutiny Committee would submit their reports to the NJOC within a maximum period of three months. The NJOC would constitute an investigation committee to go into the complaints recommended by the Scrutiny Committee. The NJOC and investigations committees would have the power to summon persons from any part of India and ask for any public record. The investigation committee would also have the power of “search and seizure.”
Under Clause 34 of the proposed Act, the NJOC would have the power to dismiss complaints or impose minor penalties such as warnings and advisories. If the charges were of the “serious nature warranting” removal, it could request the Judge to voluntarily resign “and if he fails to do so, then advise the President accordingly who shall refer the matter to the Parliament.”
However, needless to emphasize that Judicial accountability, transparency and independence are interwoven. To protect the sacrosanct “Independence of Judiciary”, the final decision making body i.e. NJOC should comprise of all judges. Hence, if a complaint is against a Supreme Court judge, the NJOC should consist of the Chief Justice of India (CJI) and the four senior most Supreme Court judges. If the complaint is against a High Court judge, the NJOC should consist of the CJI, two senior most Supreme Court judges and two senior most High Court Chief Justices. The Chief Justice of India should be the Chairman of this Committee. Further, the Scrutiny Committee should be broad based and it could have one member as a Chief Justice of India or his nominee, two Members as the Speaker, Lok Sabha and Chairman, Rajya Sabha or their nominees. There could be one nominated representative of the Prime Minister and one representative of the Bar Council of India. An outstanding law academician could also be the member. He may be elected by the Confederation of Law Colleges, the department of Laws of various Universities (including private and deemed universities), the specialized Law Universities (National Law Schools) and deemed Law Universities like Indian Law Institute, Delhi.
Moreover, the matter of appointment of the judges in higher judiciary could also be entrusted to a wider body other than the present collegium with representation from the judiciary, the executive and legislature and civil society. It is suggested that it could be entrusted to the suggested restructured "Scrutiny Committee" which could initially screen the names and thereafter, refer the same to the NJOC for final recommendation (hitherto now recommendations are made by the Supreme Court Collegium. It is noteworthy that composition of the suggested restructured NJOC and the extant Supreme Court Collegium is mostly the same). In case of appointment of judges in the High Court, the Chief Justice of the concerned High Court and the Chief Minister of the State where that High Court is situated should also be the Members. 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.
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.

Selections in the Selectors (PSCs)

The Supreme Court on November 12, 2010 gave the nod for the removal of suspended Haryana Public Service Commission (HPSC) Chairman and its suspended members for their failure to “maintain the required standards of integrity and rectitude in performance of their constitutional duties”. A three-member Bench headed by Chief Justice SH Kapadia ruled that “There exist justifiable grounds” for their removal and “resultantly, the reference, made by the President of India to this court, is answered in the affirmative”. The other members of the Bench were Justices KS Radhakrishnan and Swatanter Kumar.
The Constitution mandates that as nearly as may be one-half of the members of every Public Service Commission (PSC) shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State. Further, the power vests with the President or the Governor as the case may be to determine the number of members of the Commission and their condition of service. However, the State Public Service Commissions, of the late, have become dumping grounds for pliable retired bureaucrats and the henchmen of the Chief Minister who can piously do his bidding.
The Selection of the Chairman and the Members of the PSC should be made by the President/Governor on the recommendation of a Committee comprising the Prime Minister/Chief Minister, Chief Justice of India/Chief Justice of the High Court of the State and the Leader of the Opposition in Lok Sabha/Vidhan Sabha from a panel of outstanding retired civil servants and others with impeccable integrity as the case may be. The Article 319 enumerating certain prohibitions as to the holding of offices by the Ex-Chairman or Ex-Members of the Commission should be amended to bar such Chairman or Members to engage in active politics or to occupy a political post even in an honorary capacity after demitting the office.

High time to keep the Speaker out of the loop in adjudicating over the question of disqualification on the score of defection

The anti-defection law has now become the handmaid of the vagaries of the Speaker of the House be it State or Union Legislature who in turn dances to the tune called by his political boss in ruling regime as seen, of the late, in Haryana and Karnataka. Hence, time brooks no delay in amending the Constitution suitably to keep the Speaker out of the loop in adjudicating the question of defection in a given case. The President and the Governor should be vested with the power to decide on disqualification of MPs and MLAs respectively on the score of defection on the binding advice of the Election Commission of India (ECI) a proposal mooted by the ECI and endorsed by the Second Administrative Reforms Commission.

Further, not all is bad with the anti-defection law. The whipping boy the para 4 of the Tenth Schedule of the Constitution enabling the merger of a political party, in fact, is highly democratic. It envisages a collaborative and participatory working between the political party concerned and its legislature party consisting of all members of the given House for the time being belonging to that political party in the State Legislature or Parliament whatever may be the case. The law tends to strike a fine balance between interests of political party and the aspirations of the Legislators (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 thereto as embodied 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. Hence, the contention as being articulated from certain quarters that unilateral decision of the two-third members of the legislature party bypassing the political party ipso facto seals the fate of the latter is untenable. 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.

When should the justice retire?

Lawyers update, November, 2010, Letters to the Editor
“The Cover Story, “WHEN SHOULD THE JUSTICE RETIRE?” by HemRaj Singh in the September 2010 issue was timely. Amongst others, the retirement age of the Judges of higher judiciary has profound bearing on the independence of higher judiciary in India. The retired judges of the higher judiciary are offered government employment of some kind or other viz. chairmanship, membership of tribunals, statutory commissions, committees and so forth. The lure of such prospective offices and associated perks and pelf have ample potential to subject some of the serving judges to extraneous considerations in the discharge of their duties and it may undermine the independence of higher judiciary. The apprehension becomes more marked in view of the constitutional prohibition restraining the retired Supreme Court Judges and the retired High Court Judges to practice law before any court or authority in India and in the High Court(s) where they held office as a permanent judge respectively.
As pointed out in the story, in USA, a Judge of the Supreme Court holds office during good behaviour, which means that he can continue to occupy office for life. The secured judicial tenure leading virtually up to the last breath of the judge free of the post-retirement anxieties greatly subserves the independence of judiciary in the USA.
In India, the present position of difference in age of retirement has colossal potential to inveigle some of the High Court judges to curry favour with the Supreme Court’s collegium (entrusted with the function to make appointments and transfers in higher judiciary) to secure an extended tenure of three more years in the Supreme Court.
The Constitution Amendment Bill introduced in the Lok Sabha in the last monsoon session to raise the retirement age of High Court Judges from 62 to 65 is salutary but not adequate. In this matter, either the Indian Constitution should appropriately be amended on the line of the American Constitution or any how, the age of retirement of both the High Court and Supreme Court Judges be fixed at 70 years in line with the present normal life expectancy in India.
However, needless to emphasize that Judicial accountability, transparency and independence are interwoven. The Judicial Standards and Accountability Bill cleared by the Union Cabinet recently needs to be made into law forthwith. Moreover, the proposed Scrutiny Committee and Judicial Oversight Committee in the said Bill should also be involved along with the existing machinery of the present Collegium system in making judicial appointments and transfers in the higher judiciary. It will help tremendously in mitigating the scourge of “Judges appointing the Judges”.”
Rajender Goyal
Advocate, Bahadurgarh
(Haryana)

The Protection of Women Against Sexual Harassment at Workplace Bill, 2010

THE TRIBUNE, NEW DELHI, 11.11.2010, P. 10
Sexual harassment
Thirteen years after the Supreme Court delivered the Vishakha judgment detailing guidelines for the protection of women at workplaces, the Union Cabinet’s nod to the Protection of Women Against Sexual Harassment at Workplace Bill, 2010 for introduction in the Parliament’s forthcoming winter session is heartening (editorial “Protecting career women: Bill to prevent sexual harassment at offices”, Nov 8).
The apex court had relied upon the Convention for Elimination of All Forms of Discrimination against Women (CEDAW), which India had signed. As stated in the editorial, the Bill is broad-based in its nature and scope as it includes women working in all enterprises — public, private, organised and unorganised. It will apply even to establishments with less than 10 employees, but their complaints will be directed to a local complaints committee at the district level.
Moreover, any woman who enters the workplace as a client, customer, apprentice, daily wage earner or in an ad hoc capacity, students and research scholars in colleges and universities, patients in hospitals will have the right to complain against sexual harassment. However, it is rightly urged upon to bring the domestic help into the ambit of the present legislation in view of the increasing cases of exploitation and molestation of the domestic help in recent times.
RAJENDER GOYAL, Advocate, Bahadurgarh

MOCKERY OF AN EXAMINATION

THE TRIBUNE, NEW DELHI, PULL-OUT OF HARYANA PLUS, OCTOBER 26, 2010, P. 2
Mockery of an examination
An eerie sense of distrust, skepticism, unpredictability and dilly-dallying is generally seen to shroud the selection processes undertaken by the Haryana Public Service Commission (HPSC). For appointments in HCS (Judicial Branch), the HPSC conducted preliminary examination on 11.07.2010. The result that was declared on 14.07.2010 wadded into troubled waters. Some unsuccessful candidates hauled up the HPSC and the selection committee of the Punjab and High Court over some grave errors in the question paper and answer key.
Justice Ajay Lamba then directed the Selection Committee and the HPSC to constitute an empowered committee to redraft the answer key and recheck the papers of all candidates. However, without doing so, the HPSC notified the schedule for main examinations (October 1 to October 3). While the aggrieved candidates grumbled at the indiscretion of the HPSC, the successful candidates were also on tenterhooks over the legal sanctity of the examination. Later, the answer key was rectified and the revised merit list was published on 27.09.2010. Consequently, it occasioned the induction of 45 more candidates. However, there was no deferment of the main examination which took place as per notified schedule. Will the authorities explain as to how it is feasible to brace up for an examination for the post of the Civil Judge-cum-Judicial Magistrates in a short notice of four days? The disappointment further deepens because of the fact that High Court is also involved in the selection process.
Rajender Goyal
Bahadurgarh

FOOD CRISIS amidst GRAIN DRAIN

THE HINDUSTAN TIMES, NEW DELHI, October 25, 2010
Starved of compassion
With reference to Grain rot deeper than govt claim: SC (October 19), allowing millions of tonnes of foodgrain, procured at heavy cost to the State exchequer to rot, while millions starve in the country is nothing but inhuman. The prime minister owes a public apology to the nation on the emotive issue of the food crisis and grain drain.
RAJENDER GOYAL, DELHI

The policy of the appointment of Chief Justice of a High Court from outside is salutary

THE TRIBUNE, NEW DELHI, October 20, 2010, P. 10
Debate on CJs’ appointment
I read The Tribune debate on the policy of appointment of High Court Chief Justice from outside the state (Sept 9, 13, 14 and Oct 6). The present policy is based on the decision to have one-third of the judges of a High Court from outside the state following serious deliberations in the Constituent Assembly, the States Reorganisation Commission, the Law Commission, the Administrative Reforms Commission, etc. The Supreme Court, in its various rulings, has also ratified it.
The common grouse against the present policy is that the Chief Justice from outside the state is not familiar with the local Bar, the practices and rules of the new High Court and the subordinate judiciary and that his tenure generally is too short to enable him find his feet in the new High Court. The Supreme Court in SC Advocates-On-Record Association v Union of India (1994) ruled: “It may be desirable to transfer in advance the seniormost Judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court”.
The recent transfer of Justice Ranjan Gogoi, Acting Chief Justice of the Guwahati High Court to the Punjab and Haryana High Court is in line with the said decision of the Supreme Court and needs to be replicated invariably in every case. Moreover, while denouncing the present policy of transfer, we must not lose sight of the rampant scourge of “uncle judges” that is badly sullying the judiciary’s fair image.
RAJENDER GOYAL,
M.D. University, Rohtak

Judiciel Standards and Accountability Bill

The Union Cabinet’s nod for the introduction of the Judicial Standards and Accountability Bill in the coming winter session of the Parliament is laudable. The majesty and sanctity of the judiciary rest on the respect and confidence it enjoys among the people. The Bill provides for provisions for declaration of assets and liabilities of judges of higher judiciary, and a mechanism to tame the judicial indiscipline and corruption even at the instance of an ordinary private person. To weed out frivolous complaints, a scrutiny committee is envisaged to examine the authenticity of the complaint. Only thereafter, a broad based judicial oversight committee will look into the complaint, and take/recommend suitable action against errant judge. Hence, the Bill is a fine blend of judicial accountability, transparency and independence.
However, in the Bill, the Higher Judiciary including the office of the CJI should specifically be made amenable to the command of the RTI. Moreover, the proposed Scrutiny Committee and Judicial Oversight Committee should also be involved along with the present Supreme Court Collegium (that practically makes appointments and transfers of the judges in higher judiciary) in effecting judicial appointments and transfer in the higher judiciary.

My wife's olive branch on Ayodhya verdict

THE TRIBUNE, NEW DELHI, OCTOBER 12, 2010, P. 10
Ayodhya: Need to move beyond ruling
The Ayodhya verdict is getting mixed reactions. One set of views declares it a triumph of Indian ethos of secularism, pluralism, tolerance, and unity in diversity and peaceful co-existence. Others brand it as a political verdict contrary to facts and law, affirmation of Hindu majoritarianism, judicial perpetuation of a gross illegality, an attempt to supplant the much cherished ‘rule of law’ with the ‘divine rule’ and so on.
Be that as it may, the core issue involved in the Ayodhya matter is essentially political. It will be foolhardy to seek a legal solution of a political and religious problem. In 1994, the apex court had returned the Presidential Reference unanswered on the question: “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Babri Masjid (including the premises of the inner and outer courtyards of such structure)” on the count that the reference was superfluous, unnecessary, opposed to secularism and favoured one religious community.
The momentous verdict of the Lucknow Bench of the Allahabad High Court has given an opportunity to leave the past behind and press on with new resolve and vigour. We should shun internecine belligerent positions and should reach out to each other to hammer out a mutually acceptable solution more or less in line with the Ayodhya verdict.
NEETI GOYAL, Bahadurgarh

The hullabaloo over AFSPA is deafening

Gen (retd) VP Malik’s Article “Revisiting AFSA:Don’t blame it for Kashmir problems”, The Tribune, New Delhi, Sept 20, was enlightening and gave an apt snapshots of the various provisions of the Armed Forces (Special Powers) Act, 1958 (AFPSA) vis-à-vis its need in view of the extant disturbed, subversive conditions in many parts of the Country, and its practical utility and efficacy. The real thorn in the flesh of the problem lies in the socio-politico-economic grievances of the people and the political authorities concerned only can address it. To pass the buck on the Armed Forces for the present vitiated state of affairs is highly reprehensible and self-defeating.
The AFSPA arms the security forces with sweeping powers that are absolutely necessary to pulverize the diabolic designs of the subversive element in the disturbed areas. Amongst others, the whipping boy is the Para 6 of the AFSPA. It confers some protection to the members of the security forces deployed in the disturbed areas against frivolous prosecutions etc. inasmuch that prior sanction of the Central Government is mandatory before any prosecution, suit or legal proceeding is instituted against them for any alleged acts of commission or omission done under the AFSPA . The detractors of the AFSPA must know that even an ordinary public servant, while acting or purporting to act in the discharge of his official duty, enjoys largely similar protections under the general law of the land. Even in the absence of the AFSPA , the members of the armed forces will enjoy somewhat identical protection as envisaged in said Para 6, under section 197 (2) of the code of criminal procedure.
The need of hour is to chalk out cogent and comprehensive roadmap to redress the grievances of the aggrieved people in the disturbed areas. However, the security forces require potent legal cover, optimal logistics support and adequate operational freedom to crush the menace of terrorism and insurgency.

Retirement age of the Judges and independence of Higher Judiciary

The Sunday Tribune, New Delhi, Sept 26, 2010, P. 12
Raising judges’ tenure will strengthen judicial independence
Justice A.R. Lakshmanan’s article, “Retirement of judges: Raise the age to streamline the higher judiciary” (Sunday Oped, Aug 29) was thought-provoking. The increase in the retirement age of the judges of higher judiciary will have a profound bearing on the judicial independence.
The retired judges are offered government employment of some kind or other which may subject some of them to extraneous consideration and thus undermine judicial independence.
It is more so in view of the constitutional embargo prohibiting a retired Supreme Court and High Court judge to practice law before any court or authority in India and in the High Court(s) where he held office as a permanent judge respectively. In the US, a Supreme Court Judge holds office during good behaviour, which means that he can continue to occupy office for life. Of course, a judge is at liberty to retire on attaining the age of 70 years and on completing ten years of service at the Supreme Court.
The Constitution Amendment Bill in the Lok Sabha to raise the retirement age of High Court Judges from 62 to 65 is laudable but not adequate. Either the Constitution should be amended on the lines of the American Constitution or the retirement age of judges be fixed at 70 years in consonance with the normal life expectancy in India.
RAJENDER GOYAL, Advocate, Bahadurgarh

QUOTA BLUES

THR TRIBUNE, NEW DELHI, SEPTEMBER, 23, 2010, P. 10
Quota blues
Apropos of the editorial, “Quota conundrum” (Sept 15), the founding fathers’ idea of reservation was like that of the crutches lent to a physically challenged person until his limbs grow up and he stands on his own legs. The time has come for a review of the entire policy on quotas. The quota based reservation policy, a part of the affirmative action, envisaged as a tool of egalitarianism now stands catapulted as a ‘prized booty’.
The common refrain of the protagonists of the Jat reservation is that when some other peasantry castes in Haryana already enjoy the benefits of the reservation, why the Jats should be deprived of the same? The remedy lies in not giving quotas to any such caste.
RAJENDER GOYAL, Advocate, Bahadurgarh

NOTE:-In the above write-up published in "The Tribune". I have been misquoted in certain material aspect in so far as the assertion "The remedy lies is not giving quotas to any such caste" is concerned. In fact, I had used the expression "The remedy lies in disentitling any of such caste to reap the fruits of the reservation, if found, that they do not qualify for it" in the original write-up sent to The Tribune for publication . The flawed paraphrasing has resulted into total misconstruction of my perspective on this count.

The original write-up sent to "The Tribune" is reproduced below:

Bandwagon of reservation
Apropos the editorial “Quota conundrum: Hooda again mishandles situation”, Sept 15, the Founding Fathers’ idea 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 started clamouring for the crutches. The quota based reservation policy- a part of the affirmative action- envisaged as a tool of egalitarianism now stands catapulted as a ‘prized booty’. 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? Two wrongs do not make a right they constitute a plumb blunder. The remedy lies in disentitling any of such caste to reap the fruits of the reservation, if 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.
RAJENDER GOYAL, Advocate
Bahadurgarh

Recent approval and derecognition of Law Institutes in India

The Meeting of the Legal Education Committee of the Bar Council of India was held on Saturday, 4th September, 2010 at 10.30 A.M. and on Sunday, 5th September, 2010 at 10.30 A.M. at the premises of the Bar Council of India, 225, Okhla Industrial Estate, Phase-III, New Delhi. In the said meeting the Vaish College of Law, Rohtak was granted permission to commence admission process. Quite shockingly, the Institute of Law & Management Studies, MDU, Gurgaon (one of the finest law institute in Haryana) has been derecognized allegedly for offering allurements to the Office of Chairman, BCI by the incharge of the Institute. Since the said Institute is a an University maintained Institute, the alleged allurements must have some non-pecuniary connotations!
The record of minutes is reproduced as follows:
Vaish College of Law, Rohtak, Haryana
Perused the report of Vaish College of Law, Rohtak, Haryana.
Permission is granted to commence a three year law course with
two sections of 60 students for two years 2010-2011 and 2011-
2012. Similarly, permission is granted for two sections of 60
students each for B. A. LL.B. 5 year law course. However, the said
college is directed to supply information to the DLE on the teaching
plan, the syllabus to be followed as well as fair and transparent
process be adopted for the admission of the students. The said
admission of students will take place under the supervision of the
Professor in Charge of the Campus Law Centre, Delhi University.
Institute of Law & Magmt. Studies, Maharishi Dayanand
University, Gurgaon, Haryana
Having regard to the fact that the in-charge of this institution
attempted to offer allurements to the Office of Chairman, Bar
Council of India, the said application is rejected. This institution
will not be recognized by the Bar Council of India. Office is
directed to maintain a list of all the promoters of the institution. If
a new institution promoted by the said persons applies for
recognition, office will put-up a note of the present resolution.

Jindal Global Law School, O. P. Jindal Global University,
Sonipat, Haryana
Having regard to the material as well as the inspection report,
there is no manner of doubt that the Jindal Law School is
maintaining standards and imparting legal education of high
quality. Under the circumstances, approval is granted for B.A.
LL.B. (Hons.) 5 year course and LL.B. (Hons.) 3 year course for the
years 2010-2011 and 2011-2012. The existing sections may be
maintained.
(SOURCE: http://www.barcouncilofindia.org/)

The following law colleges were dercognised:
The MOM of the Legal Education Committee of the BCI conducted on 30th April, 2010 de-recognises
Bihar Institute of Law, Patna
Ram Kumari Ayodhya Law College, Begusarai, Bihar
ITM University and ITM Law School, Gurgaon, Haryana
Anugrah Memorial Law College, Gaya, Bodh Gaya, Bihar
S. S. S. Mata Ramabai Ambedkar Women’s Law College, CIDCO, Aurangabad
S. S. S. Devjibhai Hariya Law College, Kalyan, Distt- Thane, Maharashtra
Namdevraoji Parjane Patil Law college, Kopargaon, Distt- Ahmednagar, Maharashtra
Utrakhand Technical University, Uttrakhand
The MOM of the Legal Education Committee of the BCI conducted on 21st and 22nd August, 2010 de-recognises the following law colleges-
S. S. S. Mata Ramabai Ambedkar Women’s Law College, CIDCO, Aurangabad
S. S. S. Devjibhai Hariya Law College, Kalyan, Distt- Thane, Maharashtra
Namdevraoji Parjane Patil Law College, Kopargaon, Distt-Ahmednagar, Maharashtra
Hutama Rajguru Shikshan Prasarak Mandal’s (HRSPM) Law College, Rajgurunagar, Pune
Hurakadli Ajja Law College, Dharwad, Karnataka
B. M. Law College, Muzaffarnagar
Bharti Vidyapeeth’s New Law College, Kolhapur
5 year course withdrawn
P. S. Raju Law College, Kakinada, A.P.
Rajiv Gandhi Institute of Law, Kakinada
3 year course withdrawn
Prasunna College of Law, Kurnool
Yashwantrao Chavan Law College, Karad
5 year course withdrawn
Department of Law, Dr. B. R. Ambedkar University, Srikakulam, Etcherla, A. P.
P. E. S. Modern Law College, Pune
3 year course withdrawn
Manjra Charitable Trust’s College of Law, Navi Mumbai
Maa Jinwani College of Legal Studies, Pushpgiri Treeth, Sonkatch, M.p
College of Law, D. N. R. College Association, Bhimavaram, A.P
5 year course withdrawn
S. I. P. E. Law College, Dibrugarh, Assam
The MOM of the Legal Education Committee of the BCI conducted on 4th and 5th September, 2010 de-recognises the following law colleges-
Shri V. P. K. Mandal’s Pravin Gandhi College of Law, Vile Parle, Mumbai, Maharashtra
Seth Shankarlal Lahoti Law College, Gulbarga, Karnataka
Smt. Sonia Gandhi Law College, Gulbarga, Karnataka
Jawahar Law College, Yadgir
Karnataka Law College, Gulbarga
H. C. E. S. Law College, Gadag
Shri B. R. Mirdha Govt. College agaur, Rajasthan (STBC)
Government Law College, Sirohi, Rajasthan
Government P.G. College, Datia, Madhya Pradesh
Centre for Juridical Studies, Dibrugarh University, Dibrugarh
Maharani Laxmi Bai Govt. College of Excellence, Gwalior
D. H. S. K. Law College, Dibrugarh
Dr. R. K. Baruah Law College, Dibrugarh
Institute of Law & Magmt. Studies, Maharishi Dayanand University,Gurgaon, Haryana
Saraswati Law College, Chitrdurga, Karnataka
Virendra Kumar Singhal Law College, Moradabad, U.P.
Marwadi Siksha Samithi Law College, Hyderabad, A.P.
Visakha Law College, Visakhapatnam
Veeravali College of Law, Prakash Nagar, Rajamundry
However the Legal Education Committee re-considered the matters of the following law colleges which were decided by the Committee at its meeting held on 21st and 22nd August, 2010 and modified as follows-
Bharti Vidyapeeth’s New Law College, Kolhapur
5 year law course allowed
Maa Jinwani College of Legal Studies, Pushpgiri Treeth, Sonkatch, M.P.
3 year law course allowed
Sridhar University, Pilani, Rajasthan
(SOURCE:www.barandbench.com)

Injudiciousness and perfunctoriness over Haryana judicial service examination

The controversies, apathy and dilly-dallying has become endemic to the Haryana Public Service Commission (HPSC). The whole gamut of the selection process is shrouded by an eerie sense of distrust, secrecy and panic. The sore points are umpteen.
Timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies.
On the contrary, the notifications that are issued for selection for particular posts/services do not specify the date(s) of the holding of the examination. The candidates are left in lurch for months end on just surmising about the time of the examination. Anyhow, if the examinations take place, unpredictability about the declaration of result ensues. And with the declaration of the result, commences the plight of the successful candidates because, more often than not, the result will be found impugned in the High Court/Supreme Court for some alleged irregularities/improprieties in the selection process/examination.
For the selection of suitable candidates for appointment in HCS (Judicial Branch), the HPSC conducted preliminary examination on 11.07.2010 in accordance with the provisions contained in the Punjab Civil Services (Judicial Branch) Rules, 1951 as amended from time to time. In just less than a week, the result came out enlisting the name of the successful candidates found eligible to take the main examination. Expectedly, the said result also wadded into troubled water since the HPSC and Selection Committee, Punjab and Haryana High Court were hauled up by some unsuccessful candidates in the Punjab and Haryana High Court over some grave irregularities in the question paper and answer key. It is noteworthy that both High Court and the State government (read here HPSC) are jointly responsible for the smooth conduct of the judicial service examination as mandated by the Hon’ble Supreme Court in the case of Malik Mazhar Sultan v. UP Public Service Commission (2006). The Punjab civil service (Judicial Branch) Rules, 1951 as amended in February 2010, ordain that the HCS (Judicial Branch) Examination is to be conducted by a selection committee consisting of three senior judges of the High Court and equal number of state government official and Chariman of HPSC (Haryana Govt. Gazette Notification No. GSR 3/Const/Art 234 and 309/ 2010 dated 10 Feb 2010).
Before the single judge bench of the High Court, the counsels of the HPSC and the High Court conceded some goof-ups. To protect the paramount interests of the examinees, the single judge bench of His Lordship Justice Ajay Lamba on 13.09.2010 directed the Selection Committee of the Punjab & Haryana High Court and HPSC to constitute an Empowered Committee to look into the grievances of the petitioners and redraft the answer key, recheck the papers of all the candidates, and prepare merit list afresh accordingly. In the flagrant violation of the said decision of the High Court, without undertaking any such exercise, the HPSC notified the schedule for Main Examinations to be held from 1st Oct to 3rd Oct. While the aggrieved candidates were fuming and fretting at the contumacy of the HPSC, the successful candidates were also on tenterhooks, and in a state of paranoia about the legal sanctity of the scheduled examination. In meanwhile, Punjab & Haryana High Court through its Registrar went in Letter Patent Appeal (intra court appeal) before the division bench against the said single bench decision. In deference to the decisions by Their Lordship Justices M.M. Kumar and Ritu Bahri on 22.09.2010 and 27.09.2010 in the above noted case, the Answer Key was rectified and the merit list was published accordingly. Consequently, it occasioned the induction of 45 odd more candidates in the Merit List. Quite shockingly, there was no deferment in the schedule of examination (1st Oct- 3rd Oct 2010) in spite of the fact that 45 new candidates came to find place in the merit list on 27.09.2010 0nly. Will the concerned authorities take pain to enlighten on as to how it is feasible to brace up for an examination for the post of the Civil Judges-cum-Judicial Magistrates on a short notice of just four days only?

My wife's note of circumspection on the caste census

The Tribune, New Delhi, September 15, 2010, P. 10
CASTE CENSUS MUST HAVE A PURPOSE
The Cabinet approval for an independent caste count to be conducted from June to September 2011 is uncalled for (news report, “Cabinet nod to caste count in census”, Sept 10). It is noteworthy that in India more than 300 million people are languishing below poverty level. At least 35 million children aged 6-14 years do not attend school and over three million children are living on the streets, and over 150 million children are working as bonded labourers and so on.
Against this backdrop, the move of the government to spend a whopping sum of Rs 2,000 crore on caste census just to pander to some vested interests to help them accomplish their narrow partisan ends is unwarranted.
The huge amount of taxpayers’ money can be utilised to assuage the plight of millions of hapless and impoverished people. Moreover, there are serious doubts on any objective usefulness of this costly drill since in India the same caste bears different tags in different parts of the country. Anyhow, the caste census should be broad-based enlisting the income and the means of livelihood, etc. of the people of different castes so that it may serve the intended purpose.
NEETI GOYAL, Bahadurgarh

Do'nt tinker with the present policy of appointment of the Chief Justice of a High Court from outside the State

The present policy of appointing the Chief Justice of a High Court from outside the state is the part and parcel of the policy to have one-third of the puisne judges of a High Court from outside a state. It has come in place after a very serious and prolonged deliberations at very various fora viz. the Constituent Assembly, State Reorganization Commission, 14 Report of Ist Law Commission of India (LCI) headed by the then Attorney-General of India, Sh. M.C. Setalvad, Administrative Reform Commission and the 80th Report of the 8th LCI headed by the eminent Mr.justice H.R. Khanna. The present policy also finds approval from the decisions of the Supreme Court of the India [S.P. Gupta Vs UOl , AIR 1982 SC 149 (1st Judges case) and Supreme Court Advocates on Record Association V s UOl, AIR 1994 SC 268 (11nd Judges case)]. The Constituent Assembly debates indicate that the High Court Judges were intended to constitute an All India Cadre.
The most common grouse against the present policy is that chief justice from outside is not familiar with the local Bar, traditions, language and the practices and rules of the new High Court, and the judges of the subordinate judiciary. The Supreme Court in the case of S.C. Advocate on record Association v. Union of India adverted to this and opined that:
“It may be desirable to transfer in advance the senior-most Judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth transition without any gap in filling the office of Chief Justice”. (AIR 1994 SC 268 at P. 440)
The recent transfer of Justice Ranjan Gogoi from Gauhati High Court to the Punjab and Haryana High Court is in conformity with the said opinion of the Apex Court and needs to be replicated invariably in every case.
Moreover, while denouncing the present policy of transfer, we should not lose sight of the rampant scourge of the “uncle judges” that is sullying the hallowed edifice of judiciary and creating fatal cleavages in its image of non-partisanship.
However, the new Chief Justice should be given a long enough stint to enable him to find feet in the new High Court. It is also imperative that Constitution amendment Bill, 2010 introduced by the government in the Lok Sabha in the last monsoon session to raise the retirement age of High Court Judges from 62 to 65 be made into law forthwith.
POST SCRIPT:-
Reportedly, in a departure from two-decade-old practice, the SC collegium has recommended the appointment of Andhra High Court Chief Justice Nissar Ahmed Kakru as the Chief Justice of the high court of J& K, which is his home state. The SC collegium is understand to have decided to send the present Chief Justice of the High Court of the J&K High Court, Aftab Hussain Saikia, to the Gauhati High Court as its Chief Justice in his home state of Assam, replacing Chief Justice Madan Lokur, who is being transferred to the Andhra High Court. (As reported in Hindustan Times, New Delhi, Sept 15, 2010, P. 8)

Justice A.R. Lakashmanan is factually incorrect

In the article “Appointing Chief Justices: The way out (The Tribune, New Delhi, Sept 13, p. 9), the Justice A.R. Lakshmanan’s (retired Judge, Supreme Court of India and former Chairman, Law Commission of India) observation that “The Collegium is now to consist of the Chief Justice of India and four seniormost Judges of the court and in the appointment of a High Court Judge, the Supreme Court Judge acquainted with that particular High Court should also be consulted raising the number to six” is factually incorrect. As a matter of fact and record, in the case of appointment of High Court Judges, the collegium consists of the Chief Justice of India and the two senior-most puisne Judges of the Supreme Court. In arriving at any decision, the collegium has to elicit the views, amongst others, of colleagues on the Supreme Court Bench “who are conversant with the affairs of the concerned High Court” (kindly advert to paras 26, 27 and 41of the celebrated case, In Re: Presidential Reference, AIR 1999 Supreme Court 1).
Interestingly, the memorandum of procedure qua appointment of the judges in High Courts drawn by the Ministry of Law and Justice seemingly in deference to the opinion of the Supreme Court in the case of S.C. Advocates-on-Record Association v. Union of India, AIR 1994 SC 268, para 501, sub para 13 at p. 439 (also known as Second Judges Case) sets out that
“The Chief Justice of India would send his recommendation for the appointment of a puisne Judge of the High Court as Chief Justice of that High Court or of another High Court, in consultation with the two seniormost Judges of the Supreme Court. He would also ascertain the views of the seniormost colleague in the Supreme Court who is conversant with the affairs of the High Court in which the recommendee has been functioning and whose opinion is likely to be significant in adjudging the suitability of the candidate.”
It is noteworthy that whereas the said memorandum is restrictive in a sense that it circumscribes the consultation only with the seniormost colleague ……. and there is no such limitation expressed in the opinion of the Supreme Court in the Re Presidential case as above indicated.
In fact, His Lordship’s observation about the composition of the collegium holds good regarding the appointments of the judges in the Supreme Court and the transfer of the judges of the High Courts with an addition that said collegium has also to seek the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected.
It is also pertinent to mention here that Justice A.R. Lakshamanan is the author of the 18TH Law Commission of India (LCI), 214th Report on "Proposal for Reconsideration of Judges cases I, II and III - S.P. Gupta Vs UOl reported in AIR 1982 SC 149, Supreme Court Advocates on Record Association V s UOl reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SC 739". The recommendations of this report also stands reiterated in the later 230th Report of LCI.
The record needs to be set straight.

Revamp of legal education system in India

There are around 900 recognised institutes, including 12 national law schools and 145 departments of law in various universities in India imparting the legal education. However, barring the national law schools and some other handful of the institutes, the modalities and standards of legal education provided therein neither prepares the students enough to take up the legal practice and consultancy effectively nor it is good enough to let them to face up to the contemporary needs and challenges in the domain of modern legal profession. The reasons are not very far to seek. The legal education as imparted in most of the law institutes in India largely acquaints the students with abstract theoretical aspects of law not giving desired emphasis on its procedural and practical aspects. Consequently, the fresh law graduates when they join the legal profession find themselves landed up in an alien world not able to apply the knowledge and skill acquired in the law institutes on real world problems.
To bridge the gap between theory and practice, there should be a well laid out and broad based collaboration between the law institutes and the bar & bench. There must be exceedingly greater objective focus on the procedural laws, and clinical and practical aspects of law viz. court visits primarily aimed at pre-trial preparation & participation in trial proceedings, visit of quasi-judicial bodies, Parliament, police stations, jails, NHRC, NWC, SC/ST Commission,revenue courts, offices of registrar of companies, firms, societies, trade mark, patent, copyright; moot court, mock parliament, free legal aid cell, drafting etc. with the active involvement of the competent members of the bar and the bench, and other specialized consultants and attorneys in various branches of laws. To a certain extent, most of the universities curricula provide for them, but practically not taken with the earnestness as it calls for and virtually pooh-poohed as not being worthwhile for the law students at the stage when they are still pursuing their course. As a corollary, it takes years end on for the new entrants to get acclimatized to the dynamics and imperatives of the legal profession.
Moreover, holding of the Lok Adalats in the Law institutes and latter’s participation also in the other variants of Alternative Dispute resolution (ADR) like mediation, conciliation will also be in the fitness of the things. The most of the faculty members of law institutes are thoroughbred academicians divorced from practical nitty-gritty of law. Hence, it will also be desirable to provide for various measures for them also as in the case of law students so that they will augment their practical insights about the law and its application and thus, we may have true academic lawyers. The supplementing of key course papers with mandatory assignments/research papers, the problem-oriented examination, and also the periodic revision and up-gradation of curricula to catch up with emerging new trends & areas of the legal discipline is also imperative to raise the bar of the legal education. It is also imperative to devise an innovative, interactive and participatory teaching methodology.
The LL.B. courses (both 3 years and 5 years) offered by the various law institutes are general in nature. There should be some degree of specialisation at the level of LL.B. itself. For this, later parts of the said courses should consist of elective subjects only and should be followed by an intense internship/apprenticeship in the chosen field of the specialisation. The discontinuation of LL.B. 3 YEARS Course also merits serious contemplations. While retaining the LL.B. 5 years course, the introduction of a new integrated course of the duration of 6 years [B.A. (LAW)-LL.B.-LL.M.] may be in sync with the extant demand of the time.
The above-suggested measures postulate that there is an otherwise competent and dedicated faculty supported by all necessary infrastructure and other paraphernalia in a law institute.
“We do have a small number of dynamic and outstanding law schools, but I am afraid they remain islands of excellence amidst a sea of institutionalized mediocrity,” rued Prime Minister Manmohan Singh on the quality of legal education in a two-day conference on Second Generation Reforms held recently in New Delhi.
The proposed National Law School Bill, 2010 envisaging the establishment of national law schools in all the states in India is welcome. The biannual All India Bar Examination (to be held on December 5, 2010 for the first time) aimed to test the worth of the candidate seeking entry in the legal profession is also a step in right direction. The need of the hour is to emulate the standards and excellence cultivated and nurtured by the national law schools for other law institutes in India also and usher in dramatic reforms and improvement in the scope and quality of legal education system in India.

Thoroughly monumental, colossal, awesome and par excellent

The Tribune, New Delhi, Haryana plus, P. 2, September 10, 2010
Reetika Singh tops LL.M exam (sic) (read LL.B. Exam)
Tribune News Service
Hisar, September 9
Reetika Singh, an alumnus of the local CR Law College, has bagged the first position in the LL.M (three-year course) (Sic) [read LL.B. (three- year course) examination conducted by Kurukshetra University.
She topped the merit list for all three years consecutively, scoring 1905 marks out of 2800. The gap between her aggregate score and the student placed second in the list is 79 marks.
She had earlier bagged the first prize in an inter-university mock court competition.
------------------------------------------------------------------------------------
HATS OFF TO YOU Reetika. You and only you were cut out for it. Keep on adding more coveted feathers in your illustrious cap.
RAJENDER GOYAL, Bahadurgarh

Judicial bashing is unfortunate

Each organ of the state should function in conformity with the basic spirit of the Constitution and in accordance with its provision in a way that centrality and the supremacy of the Constitution is preserved at all times to help the system to work smoothly and efficiently. The Constitution has entrusted the executive with the task of policy-making and its due execution. However, the moot point is that if the government of the day becomes oblivious of its constitutional duties, whether the judicial wing of the state -that is the custodian of the Constitution -can chip in and awake the government from a state of inertia typified by total abdication of its duty towards the people.
Allowing the millions of tons of food grains, procured at the heavy expenses of the state exchequer, to rot for years end on in the face of millions of starving people throughout the length and the breadth of the Country is nothing but ruthless trampling upon the spirit of the Constitution besides being highly inhumane and barbaric. The empathy of the Apex Court with the starving poor men on the streets amidst queasy stink of putrefying of millions of tons of food grains from all across the Country should not be denounced as judicial overstepping in the domain of the executive. The Prime Minister of India owes a public apology to the nation on this emotive issue of "FOOD CRISIS" juxtaposed with spine-chilling "GRAIN DRAIN" and should assure the countrymen that not even a single grain of the food wll be let to be rotten in a Country where over 37% of the population is still reeling under below poverty line.

Independent caste census is sheer splurge of tax payers' money

In the wake of the recommendation of the Group of Ministers headed by the Finance Minister Pranab Mukherjee, the Home Ministry has sought cabinet approval for an independent caste count to be conducted around June 2011. It is noteworthy that in India more than 300 million people are languishing below poverty level, at least 35 million children aged 6 - 14 years do not attend school, over 3 million children are living on the streets, and over 150 million children are working as bonded labourers and so on. Against this repulsive backdrop, the proposed move of the government to splurge whopping money to the tune of Rs. 2000 crore on caste census just to pander to some vested interests to help them accomplish their narrow political ends is highly insensitive and unwarranted. Since the enumeration of population (i.e. headcount) is a decadal phenomenon, the caste count can be undertaken along with the next headcount. The huge amount of taxpayers’ money in meanwhile can be utilized to assuage the plight of millions of hapless and impoverished people.
Moreover, there are serious doubts on any objective usefulness of this costly drill since in India the same caste bears different name tags in different parts of the Country e.g. a largely trading caste known as “Bania” in and around Haryana is addressed by more than 356 different names all across the India viz. Vani in Maharashtra, Vania in Gujrat, Sood in Himachal Pradesh, Mahajan in Jammu and Kashmir, Marwari in north-east and so forth. Anyhow, the caste census should be broad based enlisting the income, the means of livelihood etc. of the people of different castes so that it may subserve any objective purpose for further demographical and anthropological studies.

POST SCRIPT: Cabinet accorded approval on 9-9 2010 for an independent caste count to be conducted from June to September 2011.

Retirement age and independence of higher judiciary

In his article “Retirement of judges: Raise the age to streamline the higher judiciary” (The Tribune, New Delhi, oped page, August 29, 2010), Justice A.R. Lakshmanan has made a strong case for increasing the retirement age of the judges of the higher judiciary grounded mainly on the premises of increase in the retirement age of counterparts in some quasi-judicial bodies, rise in the longevity or life expectancy of people in India and best use of high-up experienced professionals. However, it also has other dimensions having profound bearing on the independence of higher judiciary in India. The retired judges of the higher judiciary are offered government employment of some kind or other viz. chairmanship, membership of tribunals, statutory commissions, committees and so forth. The lure of such prospective offices and associated perks and pelf, more so in view of the constitutional embargo prohibiting the retired Supreme Court judge and the retired High Court Judge to practice law before any court or authority in India and in the High Court(s) where he held office as a permanent judge respectively, have ample potential to subject some of the serving judges to extraneous considerations and influences in the discharge of their duties and it may undermine the independence of higher judiciary.
In USA, a Judge of the Supreme Court holds office during good behaviour, which means that he can continue to occupy office for life. Although, a judge is at liberty to retire on attaining the age of seventy years and on completing ten years service at the Supreme Court. Even after retirement as distinct from resignation, they can be requested to join the benches to discharge judicial function, whenever need arises. The secured judicial tenure leading virtually up to the last breath of the judge free of the post-retirement anxieties subserves the independence of higher judiciary in USA.
Moreover, the nature and stress of work is same for the judges of the High Courts and the Supreme Court. Present position of difference in age of retirement can inveigle some of the high court judges to curry favour with the Supreme Court’s collegium (entrusted with the function to make appointments and transfers in higher judiciary) to secure an extended tenure of three more years in the Supreme Court.
To plug the gap, the government has introduced the Constitution amendment Bill, 2010 in the Lok Sabha in the last monsoon session to raise the retirement age of High Court Judges from 62 to 65 that is salutary but not adequate. The Bill in the present form is half-baked and only addresses the matter partially. It would be more in the fitness of the things, if in this matter, either the Indian Constitution is appropriately amended on the line of the American Constitution or any how, the age of retirement of both the High Court and Supreme Court Judges be fixed at 70 years in consonance with the present normal life expectancy in India.

Enact law to rein in the rampage of Khap Panchayats (Caste Councils)

THE TRIBUNE, NEW DELHI, SEPTEMBER 4, 2010, P. 12
Deterrent law must to curb “honour killings”
To say that the highhandedness of the khap panchayats in Haryana is a ‘law and order problem’ is too simplistic a viewpoint. It is an ominous social nuisance (editorial “Honour killings: Delay but don’t drop legislation”, Aug 27). Snuffing out young lives by taking refuge in antiquated and unenforceable customs not only renders the much-cherished constitutional freedoms and liberties redundant but is also an anathema to the tenets of the great Indian culture and civilization embedded in the ideals of compassion, tolerance, non-violence and peaceful co-existence.
The glorification of such crimes by the khap panchayats should tantamount to criminal abetment and conspiracy because it provides a supportive ground to the misguided zealots. Medieval practices like social ostracism or expulsion of the couple and their family, diktats pronouncing the legally wedded couple, as brother and sister by the khap panchayats should also be punishable.
The gaps in the law need to be bridged adequately. To curb a crime, both the Union and state legislature should (sic) (read can) enact the law but subject to a rider that in case of any inconsistency in such law, the Central law will prevail. Parliament is obliged to provide a deterrent law to eradicate this social evil. It would be desirable to take the states on board before the enactment of the law.

RAJENDER GOYAL, Bahadurgarh

My wife's take on the Chief Minister's obfuscatory prevarications

The Tribune, New Delhi, August 28, 2010, P. 12
Hooda’s stance on khaps is indefensible
The stance of Haryana Chief Minister Bhupinder Singh Hooda before the Group of Ministers (GOM) constituted to work out the contours and the contents of the law to curb the menace of “honour killings” reeks of sheer political opportunism (news report, “Hooda’s no to law on honour killings”, Aug 26).
His contention that khap panchayats have no role in the gruesome murder of innocent youngsters is indefensible. The frenzied and sanguinary exhortations of the self-styled leaders of such organisations in full public glare have become an order of the day in Haryana. It not only creates law and order problem but also has the potential to put the social fabric in the state in jeopardy.
Moreover, even a cursory glance across the state of Haryana will bring out that these entities are predominantly caste-centric and mostly operating in those castes which are socially, economically and politically better off. Having already reaped the benefits of political empowerment, they come out in large numbers to participate in the electoral process and constitute a huge vote bank for political parties. Politicians all across the political spectrum (but for exceptions like Shamsher Singh Surjewala) try their utmost to woo them for political gains.
However, it is to be understood by one and all that any molly coddling of and patronage to such anachronistic entities will be disastrous. The posterity will look down upon us.
NEETI GOYAL, Bahadurgarh

Law on Honour Killings

The consistent attempts from some quarters to pass off the flagrant highhandedness and the hooliganism of the khap panchayats just as a law and order problem is too simplistic to tackle an ominous social nuisance. No doubt, that the law making by the Parliament on a matter on the subject of ‘law and order’ requires the consent of the States since the ‘law and order’ is a state subject. However, we dare not to lose sight of the fact that instances of the honour killings are outright crimes involving the gruesome murders of the innocent lovebirds without any justifiable reason or rhyme. To curb a crime, both Union and State Legislatures are competent to enact the law but subject to a rider that in case of any inconsistency in such law, the state law will have to give way to the Central law. The ruthless snuffing out of the sacred lives by taking refuge in the antiquated and unenforceable customs not only renders the much cherished constitutional freedoms and liberties redundant but is also grossly anathema to the tenets of the great Indian culture and civilization embedded into the ideals of the compassion, tolerance, non-violence and peaceful co-existence. The glorification of such crimes, aids in various forms to the culprits by the khap panchayats should tantamount to criminal abetment and conspiracy in the perpetration of such crimes because it provides a supportive ground to the misguided zealots giving rise to the repeated occurrence of such gory incidents. The medieval diktats like social ostracism and/or expulsion of the couple and their family, pronouncing the legally wedded persons as brother and sister by the khap panchayats should also specifically be declared prohibited and punishable. Hence, the khap panchayats can not be absolved of the criminal culpability and gap in the law must be filled adequately. The Indian Parliament is obliged to provide a deterrent law to eradicate this social evil even if any State is striving to stall it for obvious political compulsions. Nevertheless, since the law is to be ultimately administered and enforced by the States, it would be desirable to take the States on the board before the enactment of the law.

MOCK PARLIAMENT

The whole Country steeped in utter disgust and indignation witnessed the clowning of our legislators enacted right with in the precincts of the Indian Parliament on 21st August. The self-fulfilling shenanigans and demagogy of our legislators has reduced the highest seat of the deliberations and the policy-making in a democratic polity into a theatre of mockery and mud slinging. The Founding Fathers of our Constitution had envisioned that persons of immense caliber, intelligence, diligence and integrity, would occupy both houses of the Parliament who will be above the petty considerations of caste, creed, race, region, religion etc. and dedicate themselves in the devout task of nation building. The opposition is assigned the role of a watchdog over the working of government by not letting it to go astray from the goal of good governance in its various nuances through well-considered and constructive advices and interjections. To achieve this end, the treasury bench and the opposition are expected to work in an environment of mutual understanding, trust and respect keeping at the helm the welfare of the public at large. The legislators should shun proclivity to garner some brownie points at all costs even out of human miseries and national tragedies. May the good sense prevail upon our legislators and thus, the majesty and the prestige of the Indian Parliament is restored back to its due place as enshrined in the Constitution of India. Nevertheless, it was a good piece of vignette for all those especially the law students looking for participation in MOCK PARLIAMENT.

PROTECT THE ANIMALS

The proposed move of the government to enact a new law to stop inhuman treatment with animals in place of existing law viz. Prevention of Cruelty to Animal Act, 1960 is sheerly humane. The penalty of Rs. 50 prescribed under the Act of 1960 for inflicting cruelty against animals is highly ridiculous since even minor traffic violations attract more unsavoury penalties. There should be a blanket ban on animals sacrifice on all occasions across the Country. The vegetarianism should be promoted by way of extensively eulogizing its boons and conversely, the public should be amply acquainted with the banes of the non-vegetarianism. The hapless animals may be saved from the sanguinary appetite of non-vegetarians by imposing some additional unpalatable taxes on the non-vegetarian stuffs. Most of the Indians are religious folks and a point needs to be driven home to each and everybody that violence in any form to the animals is the most conspicuous disservice to the grace of the Almighty.

Whistleblowers Law on the anvil

The Tribune, New Delhi, August 14, 2010, P 12

Law to protect whistleblowers
The decision of the Union Cabinet to clear the decks for the introduction of “The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010” in Parliament is laudable (news report, “Bill to protect whistleblowers okayed”, Aug 10). A comprehensive and efficacious law for the protection of whistleblowers has been hanging fire for some time. In the wake of the murder of Sateyendra Kumar Dubey in 2003, the Supreme Court of India was seized of the matter and issued directions to the Central government to do the needful.
Consequently, the government had issued a resolution in 2004 on public interest disclosures and protection of informers wherein the government authorised the Central Vigilance Commission to receive written complaints for disclosure on any allegation of corruption or misuse of office and recommend appropriate action.
In 2006, the government introduced The Whistleblowers (Protection In Public Interest Disclosures) Bill, 2006, in the Rajya Sabha. Sadly, thereafter, the Bill went into oblivion. In August 2009, the CBI in its 17th Biennial Conference of Heads of States Anti-Corruption Bureau exhorted Parliament to enact the Whistle Blower Act as recommended by the U.N. Convention against corruption and directed by the Supreme Court of India.
The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, envisages an exceedingly vital role for the CVC to protect the interests of the whistleblowers. The grievances of the RTI activists regarding the failure of the CVC to protect the interests of whistleblowers, particularly the failure to shield their identity, have amply been taken care of in the proposed Bill by way of providing for stringent punishment for the violators.
The murder of RTI activist Amit Jethwa in Gujarat again shows that social crusaders are on a sticky wicket and need to be provided an adequate and potent legal framework.
RAJENDER GOYAL, Bahadurgarh

Provide armour to the Whistleblowers

Hindustan Times, Delhi, August 9, 2010, P. 10

Defend the defenceless
With reference to the report "Law to protect whistleblowers on cabinet table" (August 5), the government introduced the Whistleblowers (Protection in Public Interest Disclosures) Bill, in 2006 to provide protection to people who bring to light specific instances of illegality, criminality and corruption in any public or private enterprise. The murder of Right To Information (RTI) activist Amit Jethwa in Gujarat makes it imperative for the bill to be made into a law.The grievances of RTI activists regarding the failures of the Central Vigilance Commission also needs to be looked into.
Rajender Goyal

Retirement age of the Judges of the Higher Judiciary is juxtaposed with the independence of the latter

The Allahabad High Court’s directive to the Centre to explore the possibility of having “judges for life” in the higher judiciary deserves serious contemplations. It has profound bearing on the independence of higher judiciary in India. The retired judges of the higher judiciary are accommodated in government employment of some kind or other viz. membership or chairmanship of tribunals or statutory commissions or commission of enquiry etc. The lure of prospective office and associated perks and pelf may subject the serving judges to extraneous considerations and influences in the discharge of their duties that may be quite fatal for the independence of higher judiciary. In USA, a Judge of the Supreme Court holds office during good behaviour, which means that he can continue to occupy office for life. Although, he or she is at liberty to retire on attaining the age of seventy years and on completing ten years service at the Supreme Court. Even after retirement as distinct from resignation, they can be requested to join the bench to discharge judicial function periodically.
Moreover, the nature and stress of work is same for the judges of the High Courts and the Supreme Court. Present position of difference in age of retirement has ample potential to inveigle the high court judges to curry favour with the Supreme Court’s collegium (entrusted with the function to make appointments and transfers in higher judiciary) to secure an extended tenure for three more years in the Supreme Court. It is, therefore, desirable that in this matter either the Indian Constitution should appropriately be amended on the line of the American Constitution or any how, the age of retirement of both the High Court and Supreme Court Judges be fixed at 70 years.

LAW MAKING W.R.T. MATTERS ENUMERATED IN THE CONCURRENT LIST

THE TRIBUNE, JULY 13, 2010, P. 8

New law
I read the editorial, “Reining in khaps: Hasten law on honour killings” (July 10). Both substantive and procedural criminal law is enumerated in the Concurrent List (List III) of the Seventh Schedule of the Constitution.
Article 246 empowers both Parliament and states’ legislatures to enact the law. However, under Article 254 of the Constitution, the Central law will prevail upon states’ law if there is any inconsistency between laws made by Parliament and the Legislatures of states in such matters. Nevertheless, the contention that “as the issue in question is sensitive involving deep social and religious sentiments, it would be legitimate on the part of the Centre to have wider consultation with the state governments” is in the fitness of things.
RAJENDER GOYAL, Bahadurgarh

ARMED FORCE SPECIAL PROTECTION ACT

THE TRIBUNE, NEW DELHI, JUNE 25, 2010, P. 8
Fighting terrorism
It is not so uncommon to hear that India is a soft state for its weak-kneed approach to combat terrorism largely because of want of strong political will and efficacious law (Editorial, “Amending AFSPA: Humane law can’t weaken fight against militancy”, June 22).
Terrorism is the worst form of assault on the sovereignty of a nation and sanctity of human lives. Before branding any law as draconian, it must be understood that democracy and terrorism are dichotomous, and to save the former sometimes the state has to take recourse to some unsavoury legal mechanism. Moreover, everything, including the law created by some human agency, is vulnerable to misuse. The remedy lies in minimising such misuse by awarding exemplary punishment.
History bears testimony to the fact that the menace of terrorism can be stamped out only if it is confronted with an iron hand. However, the sustained focus on constructive measures in terrorist-infested areas and respect for the notion of human rights will also contribute immensely to the task of eliminatting the menace.
RAJENDER GOYAL, Bahadurgarh

Need for a stronger Extradition Law

The Tribune, New Delhi, June 18, 2010, P. 10
The editorial “Deterring Bhopal-like disasters” (June 9) and other related news reports filled one with an overwhelming sense of déjà vu. The whole gamut of events amply brings out wide chinks in the legal system and vindicates the apathetic and perfunctory attitude of the law enforcers. The Bhopal gas tragedy engulfed more than 15,000 human lives and left lakhs of people maimed.
The situation reinforces a need for evolving a consensus among the nations for a stronger and unambiguous international law on extradition. Sentence of two years awarded to the guilty persons is too meagre to meet the ends of justice. There is an urgent need for legislation in such matters that would ensure stringent punishment to the culprits and just compensation to the victims.
RAJENDER GOYAL, Bahadurgarh

My Wife's foray into the domain of law !!

The Tribune, New Delhi, May, 24, 2010, page 10
Marriage Law
Harish K. Monga’s letter “Time for a common marriage law” (May 17) struck a much-desired chord of harmony and sanity in an otherwise frenzied atmosphere. His suggestion of framing a uniform law for the registration of marriages irrespective of caste, creed and religion is quite sensible. However, Mr. Monga’s assertion regarding the freedom to choose the marriage partners is subject to a rider. Personal law and also the Special Marriage Act, 1954, enumerate certain persons, although with varying degree and scope, with whom marriage is forbidden.
NEETI BANSAL GOYAL
Samalkha

Good-bye to Uncle Judges

The majesty and sanctity of judiciary rest on the respect and confidence it enjoys among the people. The scourge of uncle judges is sullying the hallowed edifice of judiciary and creating fatal cleavages in its image of non-partisanship. The litigants’ leaning towards the practicing kith and kin of sitting or retired judges to conduct their briefs in courts is probably for reasons other than those germane to legal competence, expertise and acumen. The Government must put in place suitable measures with due dispatch to contain this malaise, and salvage the pristine image of judiciary from being defiled by such dubious practices.

LONG FELT NEED EFFECTUATED

The Supreme Court’s fiat for the implementation of Justice Padmanabham Committee’s recommendations for higher pay scale for lower judiciary across the Country is immensely laudable. The judges are entrusted with a noble duty to deliver all-encompassing justice. It entails that a judge must possesses the sterling qualities of competency, integrity and impartiality. The Lord Denning rightly said that “the independence of the judges can be threatened not only by the political or executive interference, but also by financial anxiety”. In contemporary consumerist materialistic society, the lure of lucre rules the roost. The bright law graduates either scramble for lucrative positions in corporate world or prefer to be in the Bar for want of attractive perks and pelf in the judicial services, and in the domain of law teaching. Moreover, in the face of fierce docket explosion in the Courts and abysmal insufficiency of requisite judicial strength, the judges deserve to be adequately recompensed commensurate with the arduous duties they perform. Hopefully, the Court’s order will render the judges their legitimate dues and also act as a spur to motivate the best talent to opt for the judicial services. Kudos to Dr. Neelima Shangla (Additional District & Session Judge, Kurukshetra, and President, Judicial Officers Association, Haryana) and for making the things possible by her sheer erudite & convincing pleadings before the Apex Court, and in this process, also for having added one more resplendent feather in her illustrious cap.

My Wife's plea for the creation of separate cadre for English Teachers at pre-senior secondary level in Haryana

The Tribune, May 4, 2010, Haryana Plus, Page 2
Separate cadre for English teachers needed
Geetanjali Gayatri's series of reports-- "BACK TO SCHOOL, 1-V1" (April 25 -30) brings out the lackadaisical approach of the Haryana Government towards school education. The lack of qualified English teachers at the pre- senior secondary level is highly deplorable. As major disciplines of higher education are essentially based on English language in terms of availability of study material, medium of instructions and examinations etc, it is not possible for the students to succeed in their chosen fields without adequate command over this language. The authorities concerned must know that casual and perfunctory dabbling with a subject not only weans away the interest of students but also eventually ends up killing the subject itself. The situation warrants the government's sincere attention to the woeful state of affairs of education in government schools and calls for immediate remedial action towards the creation of a separate cadre for English teachers at the elementary and secondary levels of education. The government should shun tokenism lest the noble vision of Haryana No.1 should prove to be a damp squib.
Neeti Bansal Goyal, Samalkha (Panipat)

Will my Wife's call for ameliorating the plight of School Education in Haryana change the state of inertia

THE TRIBUNE, MAY 1, 2010, P. 12
Beyond tokenism
The news report, “Class IX English topper can’t read a sentence” (April 26) typifies the lackadaisical approach of the Haryana government to secondary school education which is plagued by lofty sloganeering and vulgar self-aggrandisement.
Effective teaching is a complex process which besides pedagogical acumen requires adequate expertise in a teaching subject on the part of a teacher. The teacher first needs to internalise the theme of instructions. Only then the same can be imbibed by the pupils through an interactive and participatory modus operandi.
Major disciplines of higher education are essentially based on English language in terms of availability of study material, medium of instruction and examinations etc. Generally, it is seen that without sufficient familiarity with English language, it is impossible for a student to come out with flying colours in their chosen fields.
The situation warrants the government’s sincere attention to the woeful state of affairs and calls for a separate cadre for English teachers at the secondary level of education. It should shun tokenism.
NEETI BANSAL GOYAL, Samalkha (Panipat)

Practical constraints in RTE Act

THE TRIBUNE, APRIL 30, 2010, P. 10
Need to remove bottlenecks in RTE
Harish Dhillon’s article, “Assessing school education” (Education Page, April 27) accentuates the urgency for a thorough brainstorming on various aspects of the Right to Education (RTE) Act for its efficacious implementation.
The thorny challenges like defining and identifying the neighbourhood schools, modalities for enrollments towards 25 per cent quota in private unaided schools (since screening test is banned), furnishing of adequate physical infrastructure and human resources, the rationale of substituted admission criterion of ‘skill-appropriate class’ with ‘age-appropriate class’, repercussions of keeping admissions open round the year and compulsory promotion of children to the next class from the standpoint of qualitative education need to be addressed immediately after eliciting the views of all stakeholders.
The RTE Act, if implemented, in its true spirit, which is possible only through collaboratory efforts of all facets of the state and civil society, will transform the constitutional vision of egalitarianism into reality.
RAJENDER GOYAL, Bahadurgarh (Haryana)

Spirit of anti-defection law ravished

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) 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.

Inadequacies in the legal system to fix judicial accountability

The Tribune, New Delhi, April 19, 2010, page 8
Inadequacies in the legal system
The Justice Dinakaran fiasco and the cash-at-judge’s door scam expose the stark inadequacies in the present legal system to bring the errant judges of the higher judiciary to justice. There is no legally binding mechanism to fix the accountability of a deviant judge other than the impeachment process which is highly technical, tardy and cumbersome.
The defiant attitude of Justice Dinkaran in turning a blind eye to the Supreme Court collegium’s advice to go on leave vindicates the redundancy of the much-hyped ‘Restatement of Values of Judicial Life (Code of Conduct) 1999’.
All stakeholders must realise that judicial accountability is an integral facet of judicial independence and precludes neither disciplinary surveillance nor civil or criminal liability for abuse of power, because no immunity of function can be absolute.
RAJENDER GOYAL, Bahadurgarh

Some non-earthly thoughts about the Mother Earth from my little fairy

धरती माँ का पेड़ काटा,
धरती माँ रोने लगी।
धरती माँ का पेड़ लगाया,
धरती माँ हँसने लगी ।।
(The felling of trees makes the Mother Earth to cry, while plantation of trees makes the Mother Earth elated.)
--- This piece of musing about the plight of Mother Earth in the face of ruthless deforestation is conceived by my Four years old only daughter- Lakshya Goyal @ Khushi (creatively and cognitively precocious !!!!)

'April fool' full of loathesome rhetorics or 1st April heralding load of opportunities

The Right of Children to Free and Compulsory Education Act, 2009 guaranteeing the free and compulsory elementary education to the children of the age group between 6-14 is one of the most revolutionary and salutary law passed by the Parliament since independence. The ‘United Nation Convention on the Rights of the Child, 1989’ vide Articles 23, 28 and 29 bestows a ‘right of good education’ on every children and it further enjoins upon ‘everyone with a responsibility to encourage all children to go to school’. India endorsed this document in 1992. To achieve this end, Article 21A ( a Fundamental Right) was inserted in the Constitution by the Constitution (86th Amendment) Act, 2002 whereby it was mandated that State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Hitherto now, this matter was dealt with by Article 45 in the form of Directive Principles of State Policy. To effectuate the said constitutional mandate into reality, the Parliament enacted the said Act which received the assent of President on August 26, 2009 and was published in the official gazette on August 27, 2009 for the general information of the public. HRD Ministry through a notification in the official gazette on February 16, 2010 got enforced the provisions of this Act w.e.f. April 1, 2010. Now the onus lies on the parents or guardians of the children to enroll them in the right neighbourhood School. The governments and other local authorities are also under an obligation to sensitize every stakeholder to make best out of this coveted opportunity. There are many grey areas and bottle-necks in the Act which needs to be addressed forthwith for proper and efficacious implementation of the Act. The first thorny challenge arises from the complexities and intricacies of defining, identifying and notifying the neighbourhood Schools. Besides, the task of working out modalities for enrollments of the children towards 25% quota to be set aside by private unaided school will also be quite arduous and painstaking particularly in the face of specific ban on screening test in any form whatsoever. The repercussions of opening admissions round the year on the qualitative education is also a genuine concern. One other radical aspect of this law is that now child will be admitted to a age-appropriate class in stead of skill-appropriate class as prevailed in the earlier dispensation of education laws. This has left the educationist fuming and fretting throughout the country prophesying dooms day for the school education system. Going beyond the realm of the said law, however, the crux of the matter lies in bringing home the 'eternal realization' about the 'wholesome impact' of the 'holistic education' in the life of a human being. A fortiori becomes imperative to frame an all-encompassing curriculum; to prepare a capable, trained and inspiring community of teachers (role model in real sense); to provide for adequate infrastructure (both men based and physical); attractive and secured service conditions (primacy on academic freedom) coupled with optimal freedom in the matter of administration and management of educational institutions to conceptualize and effectuate the noble ideal of 'holistic education'.

A dove-tail of RTI Act, NREG Act, RTE Act, Whistleblower Resolution (as Whistleblowers Bill still pending in Parliament), Food Security Law (pending in Parliament), Women Reservation Law (pending in Parliament) and much desired comprehensive 'Health Security Law' ( the schemes like Rashtriya Swasthya Bima Yojna albeit laudable but abyasmally inadequate) on the line of American Health Care Law if properly conceived, enacted and executed can transform the constitutional goal of egalitarianism into reality.