'Additional evidence' in Harbhajan's appeal hearing

Adelaide, Jan 28 A transcript from the stump microphone will be available as "additional evidence" to a New Zealand judge who will hear the appeal in the racial abuse case against India's Harbhajan Singh here Tuesday.

This evidence was not available to the International Cricket Council (ICC) match referee Mike Procter when he first heard Australian Andrew Symonds' allegation that Harbhajan called him a "monkey", appeals commissioner John Hansen said here Monday.

Following the hearing, Harbhajan was banned for three Tests. But the off-spinner appealed against Procter's decision and as per the ICC rules an independent appeals commissioner, Hansen, was appointed. He is a high court judge in New Zealand.

Counsels for both sides could cross-examine witnesses, Hansen said here Monday while outlining the procedure he would adopt during the hearing at the federal court here.

According to ICC rules, Hansen, also a member of the ICC Code of Conduct Commission, has the power to increase, decrease, amend or otherwise substitute his own decision from that made at the previous hearing, and his decision is final and binding.

The second hearing comes a day after India lost the four-Test series 1-2 to Australia, with the final match ending in a draw at the Adelaide Oval.

"It was felt proper that Mr Singh should have the benefit of a personal hearing in this case. The process of that hearing is left to the discretion of the appeals commissioner, in this case myself," Hansen told the media.

"However, in this case I have consulted counsel for Mr. Singh and the Board of Control for Cricket in India (BCCI), counsel for Cricket Australia (CA) and counsel assisting me, Mr John Jordan SC," he said, without taking questions from the reporters.

Hansen pointed out that during the re-hearing, evidence would be given by all the witnesses who had given evidence to Procter.

"There may also be some additional evidence, such as the transcript available from the stump microphone, which was not available to Mr Procter. The witnesses will give viva-voce evidence that will be led by counsel assisting me, Mr Jordan. Opportunity will then be afforded to both the counsels to cross-examine the witnesses," he said.

"I should add that Section H, Clause 11(e) of the Code of Conduct requires the appeals commissioner to hear and determine the appeal within seven days of appointment."

Hansen said that he would "consider my decision and reduce it to writing".

"In accordance with Section H, Clause 11(g) of the Code of Conduct it will be forwarded to Mr Singh, Mr Procter, and the Chief Executive of the ICC. Following that required process I will deliver my decision publicly," he said.

Justice Hansen has held various judicial offices since 1979 - from 1979 to 1988 in Hong Kong and since 1988, in the High Court of New Zealand. He has also had a life-long involvement with cricket, both as a player and administrator. - IANS

Law teachers could soon practise in Courts

New Delhi, Jan 27 If the government has its way, teachers in Indian law schools will be able to practise in courts and work as consultants too.

This is being proposed to retain talent in law schools where the remuneration is far less compared to what law experts get outside, resulting in an exodus.

A senior law ministry official said there was an immediate need to reconsider promotional schemes and avenues to promote meritorious faculty members on law campuses.

"Today legal education has to meet not only the requirements of the Bar Council but also trade, commerce and industry. So we need to have really talented law teachers who can train students to meet the challenges in the legal field globally," said the official.

The government has taken serious note of the deteriorating standards of education in law campuses. It is generally felt by policymakers that there is an immediate need to remove the fetters on faculty pertaining to opportunities in legal practice, such as consultancy assignments and legal practice in courts.

"These reforms need to be introduced in a balanced, reasonable and regulated manner to ensure adequate incentives for law faculty without compromising on consistent academic quality," another official suggested.

Even the National Knowledge Commission constituted by the prime minister has made similar suggestions.

"Why can't we have flexibility to appoint those lawyers as faculty members who have an LLB degree, unlike an LLM PG degree, which is the qualification for being a law teacher," suggested a commission member.

Commission chairman Sam Pitroda said there should be a new regulatory mechanism under the Independent Regulatory Authority for Higher Education (IRAHE) that could deal with all aspects of legal education.

Supreme Court upholds ban on bullfight

New Delhi, Jan 11 The Supreme Curt Friday threw out the Tamil Nadu government plea to allow the traditional Jallikkattu, saying that the bullfight in which the animals are tortured and made to run amok represented "severe cruelty".

A bench headed by Chief Justice K.G. Balakrishnan dismissed the Tamil Nadu government plea and said that torturing bulls to provoke them into fighting was also "against the humanity".

The bench observed that the sport, which takes place just after the harvest festival of Pongal, causes "severe injury to men" trying to tame the bulls and those watching.

The court, however, allowed the bull race and bullock-cart race on the occasion.

On July 27, the Supreme Court suspended a Madras High Court ruling that allowed the age-old practice and said that it was merely a form of traditional sport and attracted foreign tourists. The high court set aside a single judge bench order of its Madurai bench.

It had done so on a petition by the Animal Welfare Board of India challenging the high court order.

Senior advocate K.K. Venugopal, appearing for the animal rights body, opposed the Tamil Nadu government's plea to lift the ban and argued that the bulls were subjected to enormous cruelty before and during the competition.

He said the animals were made to drink arrack and had chilli powder sprinkled in their eyes to make them go berserk.

He said the bull owners left the animals loose in a boisterous crowd and some people jump over their humps while others try to catch them by their horns or pull their tails.

This practice often leads to serious injuries and even deaths amongst the spectators.

National Consumer panel upholds Ahmedabad consumer body plea

"Power of Attorney (POA) holder is entitled to file a complaint under the Consumer Protection Act."

Ahmedabad, Jan 5 (IANS) In a landmark judgement, the National Consumer Disputes Redressal Commission has directed an insurance firm to pay a man Rs.10,000 as damages for a malfunctioning television set, though the petition was rejected earlier because the man's parents had filed the complaint on his behalf, armed with a power of attorney.

The India Assurance Co. Ltd will also have to pay the Durga Dalal an interest of 10 percent per year on the amount, starting Jan 1, 2003, the New Delhi-based commission ruled.

Local consumer forums here had rejected the complaint earlier because someone armed with a power of attorney (POA) had filed it.

There is a legal debate in Indian courts on whether POA holders can file a case on the behalf of a victim.

The panel, which was deciding on a "revision petition" filed by Consumer Education and Research Society (CERS) here, held that a POA holder was entitled to file a complaint under the Consumer Protection Act.

Earlier, the district forum here had dismissed the complaint as "non-maintainable" on this ground. The Gujarat State Commission had also held that that the case did not stand. But the commission set their orders aside.

The parents of Durga Dalal alleged that the television had broken down suddenly and the insurance company was bound to reimburse consumers on the basis of a household policy. Durga had bought the TV set.

On July 30, 2002, his parents filed a claim for Rs.30,000. When the insurance company did not pay, they approached the district forum.

The insurance company held it had offered to pay Rs.10,000, though its surveyor had reported that the TV set was very old and valued at Rs.8,500-9,500. It also said the damage was caused by wear and tear that was not covered under the scope of the insurance policy.

The National Commission said the state commission and the district forum had taken "an over-technical view" in dismissing the complaint by "holding that father/mother of an aggrieved person or his power of attorney was not entitled to file a complaint under the Consumer Protection Act 1986".

"This is erroneous," the National Commission observed. "It is to be reiterated that under the Act, technicalities are not to be encouraged because the only procedure prescribed under the Act, is to follow principles of natural justice and to decide the matter after hearing both parties."

SC divided on examining government appointments

New Delhi, Jan 4 (IANS) Adding to the raging debate on judicial activism, a Supreme Court bench Friday appeared divided on examining a plea challenging the executive's powers to appoint officials.

The difference of opinion emerged in a bench of Justices H.K. Sema and Markandey Katju during hearing of a petition that apprehended that former Gujarat Director General of Police (DGP) P.C. Pandey could be reappointed as the police chief of the state.

While Justice Katju fiercely opposed the plea challenging Pandey's likely appointment as Gujarat police chief, Justice Sema asked the petitioner, social activist Teesta Setalvad, to file an additional affidavit in support of her contentions.

During last month's Gujarat assembly elections, Pandey was shifted as the DGP on the orders of the Election Commission following complaints about his alleged lack of political neutrality and bias in favour of the Narendra Modi government.

Pandey was made director of the state's Anti-Corruption Bureau. The petition by Citizens for Peace and Justice, headed by Setalvad, apprehended that Pandey could be reappointed as the state police chief.

Earlier, Setalvad moved the apex court alleging Pandey's role in shielding perpetrators of the 2002 statewide communal carnage.

As the petition came up for hearing Friday, state government counsel Hemantika Wahi told the court Pandey had already been shifted out from the DGP's post.

At this, Setalvad's counsel Aparna Bhat contended that following the assembly polls a new government has been sworn in and there was strong possibility of Pandey being brought back as the DGP.

She wanted the court to extract an undertaking from the Gujarat government that it would not reappoint Pandey.

To this, a visibly infuriated Justice Katju retorted: "What has the judiciary to do with the appointment of the state's DGP? Is the judiciary meant for regulating the appointments by the government? Do you challenge the appointment of the prime minister?"

"It's the exclusive jurisdiction of a chief minister to appoint anybody to a post. You want the judiciary to take over the function of the government?" Justice Katju asked.

"In the appointment of the chief secretary or home secretary or even a district magistrate, it's the state government which has to decide," he said.

Rattled by the judge's observations, Bhat said there were many complaints pending against Pandey. At this Justice Katju shot back: "One may not be a desirable person, but that does not mean the judiciary will interfere in appointments by the government."

Justice Katju pointed out that Pandey was no longer the police chief and so the plea for his removal has already become meaningless and liable to be dismissed.

Faced with the court's inclination to dismiss the petition, Bhat wanted to be given the "liberty" to approach it again in case Pandey is reappointed.

"What liberty? What type of Citizens for Peace and Justice (the name of the petitioner's organisation) are you?" Justice Katju asked, adding, "Had you sought our permission before fling this petition?"

But despite Justice Katju's observations, which indicated his aversion to take up the petition for elaborate hearing, Justice Sema, the senior judge on the bench, decided against dismissing it and adjourned the matter for two weeks for further hearing. He asked the petitioner to file an additional affidavit in support of her contentions.

On Dec 6 last year, as part of another bench headed by Justice A.K. Mathur, Justice Katju had delivered a significant ruling on judicial activism and cautioned the judiciary against encroaching upon the domains of the legislature and the executive.

The ruling had triggered a fierce debate on judicial overreach.

Ansals get bail, sentence suspended by high court

New Delhi, Jan 4 (IANS) The Delhi High Court Friday granted bail to real estate tycoons Sushil and Gopal Ansal and two others in the Uphaar fire tragedy in which 59 people were killed a decade ago.

Justice H.R. Malhotra asked the Ansal brothers as well as Shyam Sunder Sharma, who was with the Municipal Corporation of Delhi (MCD) at the time of the accident, and H.S. Panwar, who was divisional officer with Delhi Fire Service, to furnish a personal bond and a surety of Rs.50,000 each.

A day-to-day hearing of the case will begin from Feb 15.

All the four accused were Nov 23 awarded a two-year jail term for causing death due to their negligent act. On the same day, they were granted bail, which would have lapsed Jan 8.

They had approached the Delhi High Court seeking suspension of their sentence till the disposal of their appeals.

Seven others -- Radha Krishan Sharma, N.S. Chopra, Ajit Chowdhary (Uphaar managers), Manmohan Unniyal (the cinema's gatekeeper), Brij Mohan Satija, A.K. Gera and Bir Singh (Delhi Vidyut Board officials) -- were held guilty for culpable homicide not amounting to murder and were awarded seven years rigorous imprisonment.

As many as 59 people had died while over 100 others were injured in a stampede following a devastating blaze in south Delhi's Uphaar Cinema June 13, 1997.

Kiran Bedi launches SaferIndia.com

New Delhi, Jan 3 (IANS) In her first major step after doffing her police uniform, Kiran Bedi Thursday blasted police officers for inefficiency as she unveiled a network to register complaints from the public.

The retired Indian Police Service (IPS) officer made it clear that her initiative would not serve as a parallel police but only register complaints when aggrieved citizens felt that they were being denied justice.

In announcing www.saferindia.com, however, Bedi, India's first woman police officer who retired last month after 36 years in service, accused police officers of fudging crime figures. She told reporters that police officials were misleading the media and citizens by manipulating crime statistics. "They never give you the right picture. Not even a single police officer has dared to reveal the correct crime graph." She also said that police officials were not addressing complaints from people, and by refusing to probe criminal cases were actually encouraging criminals. "In my endeavour to bring reforms in policing, today we are launching a mechanism through which we would ask people to register their grievances with our website," she said.

visit saferindia.com

Indian judiciary - a time for introspection

By Rebecca Mammen John

The function of the judiciary is not to stand itself against the policy and politics of majority rule. Courts are there to test the validity and constitutionality of the actions of the state.

Judicial activism in India is again in the net of criticism with the Supreme Court making observations on its overreach, with references to several orders passed in relation to the demolition of unauthorised constructions, nursery admissions, air pollution, motor vehicle fines and so on.

In the past, the Supreme Court has clarified that policy decisions are the prerogative of the executive. Yet courts routinely pronounce verdicts on policy matters that require no legal or constitutional interpretation.

Recently, the Delhi High Court issued a notice on a self-serving petition filed by some South Delhi Residents Associations, wanting the Delhi Metro to go underground, notwithstanding the heavy cost involved. Clearly, the evidence of judicial overreach is now too obvious and pronounced to be ignored; hence the observations of the Supreme Court need to be welcomed.

Often judicial intervention causes more havoc than the policy it seeks to correct. Take the example of the Monitoring Committee set up by the Supreme Court in the drive to seal unauthorised commercial establishments in the national capital. There cannot be any doubt that the committee's work as some sort of parallel executive body has only served to intensify the conflict between the judiciary and the executive.

Judicial interventions in policy related matters must be few and far between and must fall within the parameters and ambit of law. The judiciary is not an elected or representative body, in touch with the people, and judges have hardly any experience in matters relating to public health, education and poverty alleviation programmes. Policymaking is best left to the executive. That is why the judiciary must know its limits and must not try to run the government

This is not to say that courts must not intervene to enforce the rule of law. The timely intervention of the Supreme Court in the extra judicial execution of Sohrabuddin Shiekh and his wife Kauser Bi in Gujarat in November 2005 by three senior Gujarat police officials has brought increased spotlight on clandestine extra judicial executions and encounter deaths across the country. A contempt notice has even been issued against Narendra Modi for his recent utterances in an election rally in Gujarat justifying the Sohrabuddin encounter death.

It is the job of the judiciary to promote, safeguard and protect the fundamental rights of citizens enshrined in the constitution. In this context "social action litigation", like the one seeking rehabilitation of the widows of Vrindavan, as opposed to "public interest litigation", like the one seeking the court's intervention in the traffic chaos at Thane in Maharashtra, needs to be promoted, thus drawing the line between social issues and those that can be solved easily by the executive.

Little has been done to discipline trigger-happy judicial officers manning the subordinate judiciary. Non-bailable warrants of arrest are routinely issued in frivolous prosecutions initiated by persons of questionable credentials. This brings us to examine an issue of great significance to the Indian judiciary - the issue of "Lesser Men" occupying judicial posts.

Recently the Delhi High Court had occasion to reprimand a junior judicial officer for insubordination and failure to follow the law. The judge was asked to undergo a refresher course at the Delhi Judicial Academy. What remains to be seen is how this judge's performance is monitored in future and whether he benefits from the public reprimand he received.

Transparency International India, a forum registered under the Societies Registration Act 1860, Delhi, in its report on the judicial system recommended the need to monitor the quality of judges and their judgments and the need to screen judicial appointments, making them more transparent and merit based. At present, the high courts are constituted of judges appointed from the bar and promoted from the higher subordinate judiciary.

Inevitably, promotee judges are appointed on the basis of their seniority in the cadre, which as a policy needs to be urgently reviewed. It is imperative that all judicial appointments are based on experience and performance and a solely seniority based collegium is not a good innovation. Regrettably, the selection and appointment of judges is not based on socially sensitive, honest and democratic considerations. Authority without virtue is dangerous and this makes the question of transparency in the appointment process real and urgent.

Earlier this year a parliamentary standing committee, chaired by E. M. Sudarsana Natchiappan, stated that "to meet the ends of social justice and equity," the quota for the Scheduled Cates, the Scheduled Tribes and Other Backward Classes (OBCs) should be extended to the higher judiciary. While reservation has become an extremely contentious and divisive issue today, it is nonetheless important to deliberate on this suggestion.

Significantly the South African interim constitution mandated the creation of a Judicial Services Commission (JSC) for purposes of selecting and recommending persons to the higher judiciary. Section 174(2) of the South African Constitution states: 'The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed'.

One important factor that guides the JSC is diversity, which is a quality without which a court is unlikely to do justice to all citizens of the country. Diversity is not treated as an independent requirement, superimposed upon the constitutional requirement of competence, but rather as a 'component of competence'.

While in India the present mode of selection of Judges to the higher judiciary ensures the independence of the institution, it does not address the issue of diversity. Instead of following the thorny route of reservation it would be beneficial to consider the creation of a Judicial Commission that would play a role in the appointment process and also ensure that diverse groups including gender, region, caste, religion, disability etc. find representation in the higher judiciary. This can only strengthen the faith and confidence of the people in the judicial process.

The judiciary also needs to introspect and self-regulate. There is a considerable body of opinion that subscribes to the view that when concerns are raised about the conduct of a high judicial functionary, it is within the public domain to seek an impartial inquiry into the correctness or otherwise of the allegations.

Corruption in the judiciary corrodes the rule of law. Allegations of corruption against a judge should be rigorously investigated and judges should receive limited immunity for actions relating to judicial duties. The biggest setback received by Indian democracy in the year 2007 was the unwillingness of the judiciary to initiate a fair and impartial inquiry into the concerns raised about a former chief justice's conduct.

Such an inquiry would have done much to alleviate the public's confidence in the Judiciary and would have even given an opportunity to the Judge to put to rest any concerns that the public had with regard to his alleged conduct. Instead, the Judiciary reacted petulantly and sentenced four Journalists of 'Midday' for contempt of court. No attempt was made to inquire into the truth of the charges. The Delhi High Court took suo motu cognizance of the new reports published in 'Midday' accusing the former chief justice of India of nepotism and ruled that the publication of the reports scandalized the judiciary and was nothing short of contempt.

In a democracy, it is inevitable that institutions should evolve with the passage of time and part of that process of evolution is questioning the manner in which institutions function. The year 2007 has seen more of those questions being asked than any real evolution.

(Rebecca Mammen John is a criminal lawyer practising in Delhi High Court. She can be reached at rebeccamammen@gmail.com )