The modern thinking Indian

The military forces in India have almost a separate life with a separate code of honor and law; their life is much more controlled than the lives of ordinary civilians. As a result, they have a separate process for justice, with a separate legal system that governs them. This includes offences they commit that are normally treated as criminal offences for the normal citizens of the country such as rape, murder, theft, etc; instead, these were normally handled through the military process of court-martials where military designated justices handle these offences. This would make sense if the crime was committed at a military owned location, or at the border of the country. However, in the past, it was argued that if a soldier was on leave and then committed a crime, even this was under the jurisdiction of military justice. This was because even under casual leave, the soldier was still under the jurisdiction of the army. However, a judge of the Madras High Court has ruled that such offences can also be handled in the civilian court system (link to article):

The Madras High Court Bench in Madurai has held that the armed forces personnel accused of committing murder, rape and other such crimes could be tried in a criminal court and not necessarily through court martial.
Justice A Selvam in his order yesterday said both the criminal court as well as the Army courts enjoyed concurrent jurisdiction to try criminal offences. Justice Selvam agreed that a soldier on casual leave could be considered to be in active service. However, he said that neither Army act nor the code of criminal procedure prevented a criminal court from conducting trial against servicemen.

This makes a lot of sense, since if a crime is committed under the laws of the country, it should be handled by the constitutionally valid legal system of the country.

Labels: Army, Crime, India, Judgment, Judicial, Law, Legal, Military

There is a universal phrase that 'justice delayed is justice denied'. But the fact remains that in India, the pace of the judicial system is extremely slow; typical cases can take more than a decade to move through the judicial system and this is just for the first judgment. With the appeal system allowing many cases to approach the Supreme Court, the multi-layered appeal courts can mean cases can go beyond the lifetime of many of the litigants of cases.
There are numerous cases (and many of them highly significant) where the process of the cases show the slow speed - the case involving the corruption of Sukh Ram, the Mumbai Bomb blasts case (of 1993), the case involving the person who was blown up by a grenade in a love triangle case, the Jessica Lal case, and numerous other cases. Even in cases where a quick judgment is need, such as when the case involves actions by speakers or governors in constitutional cases, the judgments have come long after the need for the case has evaporated, setting a precedent, but not helping the particular case.
An example that shows starkly the increasing load on the judiciary is the number of cases piled up at the Supreme Court (link to article):

In a blow to the concept of "speedy justice", the Supreme Court has for the first time in a decade run up a backlog of more than 50,000 cases. The unholy mark was crossed by the end of March 2009 when the number of pending cases stood at 50,163. The pendency has steadily crept northwards since 2006, when it stood at 34,649. In January 2007, it had become 39,780 with the pendency jumping up by more than 5,000 cases. Justice K G Balakrishnan took over as the Chief Justice of India at this time and tried to put in place mechanisms to arrest the trend of spiralling pendency.
A similar trend was seen at the level of high courts and trial courts. The 21 high courts, working with a strength of 635 judges as against a sanctioned strength of 886, reported a pendency of 38.7 lakh cases as of January 1, 2009, against 37.4 lakh cases on January 1, 2008. Trial courts, having a judge strength of 13,556 against a sanctioned strength of 16,685, were burdened with an additional pendency of nearly 10 lakh cases by January 2009, when the pendency figure was 2.64 crore. It stood at 2.54 crore cases in January 2008.

This huge backlog of cases has lead to a situation where people get locked up for long times, where a person would spend only a bit of time in jail after sentencing (since they have been in jail for long periods as an undertrial), people prefer to settle cases their own way rather than depending on a judgment, make compromises rather than spend the 10 years or more, and so on.
There are no easy solutions, with a backlog of vacancies only increasing the problem. We applaud when there are special fast track courts, or when somebody sets up evening courts, but those are just patches, not a solution.

Labels: Governance, India, Judicial, Law, Responsibility

Protests have been seen as a sign of legitimate dissent, about raising the voice of ordinary people against some action; in many cases, a protest is about having a good outlet for the frustrations of people. However, it is also true that protests have been hijacked by people with vested interests, and in many cases by lumpen elements. So, for every scene of people walking peacefully with placards, you have scenes of youth rampaging, burning vehicles, disturbing the lives and economic well-being of city-dwellers (think about the daily wage earner or streetside vendor who loses out on the daily income on the day that a protest shuts down all other activity).
As we have seen in the past, the Government, of whom it is expected that they ensure law and order on the street, does not intervene in many cases. In some cases, the protests have been called by the ruling party, or by other elements (which the Government does not really want to put down). Consider the case of the Gurjar agitation of last year in Delhi; in broad daylight, the media could see that the agitators were blocking major roads and burning vehicles, and the police had no interest in actually preventing them from doing such things.
In the past, the Supreme Court (and other courts) has actually levied fines on political parties who have sponsored such violent agitations, but not consistently, and of course, there has been very little other prosecution of the people involved in such violence. However, the Supreme Court has now come out with clear guidelines on how to identify the people involved in such violence (link to article):

In a landmark verdict, the Supreme Court on Thursday put in place stringent guidelines to deal with violent agitations that mandate the police to videograph each and every protest to bring to book mischief mongers who take advantage of a crowd and destroy public and private properties. The Bench, while putting the suggestions of the two committees as guidelines, said its directions would operate till Parliament or assemblies enacted suitable laws replacing the apex court's directions for prevention of vandalism of the kind seen during the Gujjar agitation in 2007.
The new guidelines include a provision that says those seen indulging in violence in video footage would be presumed to be the offenders and the onus would shift on them to show that they are innocent. Focusing on compensating the people whose properties were damaged by the protestors, the apex court said not only should the violent protestors pay the cost of damaged property, but they be also saddled with exemplary cost.

This was also a subtle reminder to the authorities that it is their duty to enforce law and order, which includes both preventing people from breaking the law, and prosecuting those who do break the law. One has to wait and see how the actual enforcement of the law proceeds.

Labels: Agitations, Court, India, Judicial, Law, Police, Politics, Punishment, Responsibility, Security, Violence

The prevalence of dowry in today's society is an open fact; most people see it in operation either in their own marriage, or in the marriage of their family members; or you see it on operation in the case of acquaintances. So as an example, I have seen dowry in operation in the case of a family friend where her in-laws insisted on a car as a part of the marriage (and even specified the type of car that was requested). They had accepted that this was a price to be paid for getting their daughter married (and one should fault them equally for being so desperate to get their daughter married). Of course, in all cases of dowry, the boy's side is always evaluating the value they can get for their boy and have no qualms in demanding the same.
A lot of this dowry expectation is now baked into society, and there do no seem to be any easy solutions (people giving dowry expect that this is the price they need to pay to get their daughter married, and those demanding dowry do not care that such expectations are illegal in law). To make the scale more even, the Government of India has introduced a number of laws that seek to even the scales, and empower women. However, in trying to even the scale, the laws give a lot of power to women, and in some cases, there has been misuse. There have been many reported cases where the threat of usage of such laws (and consequent police action) is used as a level to force settlements; it has been pointed out in court cases and by many pro-male organizations. And when the Chief Justice of India points this out, you can be sure that this is a deep matter of concern:

Dealing a blow to women's rights activists who have been stringently defending the Section 498A provision of the Indian Penal Code, Chief Justice of India K G Balakrishnan on Saturday said that in some cases this section — that deals with matrimonial cruelty — was being `grossly misused'. Elaborating on false cases being filed in recent times, the CJI said that relatives not involved with a matrimonial dispute were unfairly implicated. "In some cases, 498A is grossly misused,'' he said. Balakrishnan was speaking at a seminar, `Marriage laws -- issues and challenges', organised by the National Commission for Women.
The IPC section allows for immediate arrest of the husband and in-laws by the police on the basis of a woman's complaint and has been controversial.

The various laws that were supposed to empower women, even though trying to balance the scales, do not maintain the old adage of all people being equal before the law, and that everyone is presumed innocent until proved guilty. Unless the law allows for a better investigation and penalties for misuse, misuse will continue.

Labels: Discrimination, Dowry, Investigation, Judicial, Law, Police, Reform, Responsibility, Review, Welfare, Women

Corruption in the judiciary is a difficult issue for the Government and for other investigative arms such as the media to handle. The judiciary has a much higher respect that most other arms of the Government, and the judges are also armed with contempt laws that can scare most people. So it has been the stuff of rumors and whispers, this entire talk about corruption in the judiciary. It is exceedingly hard to remove a sitting judge, especially when the judges are in the higher courts. The first such case that reached the stage of Parliament was the case involving Justice Ramaswamy in 1990 (Parliament ultimately did not vote to impeach him since the Congress MP's decided to abstain).
Corruption in the judiciary takes 2 main forms - one form is when judges are accused of deciding cases based on extraneous factors or under some influence (and the related case is similar to the case in Chandigarh where a huge amount of money was delivered at the doorstep of a judge); the other case is when the judges are accused of misusing money to augment their lifestyle - consider this case where the judges misused the Provident Fund money (the hard earned money that goes towards the pension needs for workers)

The CBI has unearthed shocking details of how hard-earned provident fund savings of class III and IV employees of Ghaziabad courts were illegally spent on furniture, crockery, mobiles, gadgets, laptops, rail tickets, taxi fares and other luxury items for judges. The report shows that the district judges, who were heading the Ghaziabad judiciary during the scam period, not only made expensive purchases from the scam money, they also spent it on photography and video-recording of family functions and marriages.
The preliminary findings reflect the judges' weakness for electronic goods, especially mobile phones. "As many as 45 original bills have been seized from a Ghaziabad showroom denoting sale of many expensive electronic gadgets and appliances to various members of judiciary," the status report reveals. After a preliminary probe that tracked Asthana's mobile call details, the CBI chanced upon purchase of four laptops, miscellaneous computer peripherals including monitors, CPUs, cameras and printers. The probe was entrusted to CBI by the apex court after the UP police, which first investigated the matter, chickened out terming the task of investigating 35 judges as daunting.

The redeeming factor in this entire case has been the attitude of the Chief Justice of India who has apparently shown that he wants to try and take a much harder line of cases where judges have either been accused of corruption or of misuse. In this case as well, the CBI has been investigating the case after clearance from the CJI, and even though there are many other instances of judges feeling themselves to be above everybody else (case being where the judges refuse to let themselves come under the ambit of the RTI law), these cases of corruption are important to take to their legitimate conclusion.

Labels: Corruption, India, Investigation, Judicial, Parliament, Punishment

The year was 1999, with the month being January. The Nandan clan was a well known clan, with the senior, the grandfather being a former naval chief of India, S M Nanda; the father was a very rich arms dealer, Suresh Nanda. With such a household, and with plenty of riches, getting a BMW car for the son Sanjeev Nanda (19 years old at that time) was not something that was seen as difficult, and the son used to drive it. And it was driving it that he ended the lives of 6 innocent people, and caused his and other's family untold grief.
This is a case that shows how the delays of the Indian judicial system have a way of subverting any case. The decision was by the trial court (the lowest such court) and that too 9 years after the incident. Give a rich family like this enough time, and it is a wonder that the case still reached a conclusion where Sanjeev Nanda was found guilty. Witnesses were got after and they consequently changed their testimony, even the prosecuting attorney (and a very respected one) colluded with the defense to try and get a witness to change his testimony.
And yet today, wonders of wonders, he was judged guilty and his term in prison will be set tomorrow

NEW DELHI: A trial court on Tuesday deferred the sentencing of convict Sanjeev Nanda in the BMW hit-and-run case to September 5. Sanjeev, grandson of former Naval chief S M Nanda, was found guilty of committing manslaughter or ‘‘culpable homicide not amounting to murder’’. Additional Sessions Judge Vinod Kumar held that the vehicle that killed those six people early one morning in January 1999 was a BMW car and not a truck, as claimed by the defence, and that Nanda was behind the wheel, inebriated, when he dragged three of them under the bonnet of his car.
Nanda, who had already spent nine months in detention, has been convicted under Section 304(II) IPC which has a maximum penalty of 10 years’ jail.

This is a stiff conviction, that is no doubt true, and the fact remains that he will have to spend some time in jail. This was an important case, and the fact that all the efforts of the defense to try to subvert the case came to nought in this case.

Labels: Alcohol, Court, Judicial

A few months ago, in an important case where the young man of an important and powerful family is on trial for the drunken running over of some poor people in Delhi, there was a lot of commotion. What was revealed was the notion that India's judicial system could be as corrupt as other parts of the executive, when a TV channel ran a sting program that revealed that the prosecution and defense lawyers in the case were hand-in-glove in trying to subvert the case, by offering the chief witness money to change his testimony. There was a lot of commotion and media reports at that time, and even the High Court has suo moto taken up the case. But then the reports died down, and the general impression was that this was a normal occurrence, that there would be a commotion and then things would die down.
However, that was not how this case would turn out. A few days back, the High Court passed its judgment in the case, and ruled that the 2 eminent lawyers (both of whom have been in practise for decades, and have held important positions including as a Member of Parliament) were indeed guilty, and slapped them on the wrist, not by disbarring them or hauling them for contempt of court (subverting the normal proceeding is similar to contempt of court), but by temporarily not allowing them to practise for 4 months.
And what was the response from the Bar Council, they protested against the usurping of authority by the High Court in banning them for 4 months, claiming that only the Bar Council could do so (although they have not done so):

Even though it steered clear of commenting on the merits of the case, BCI, led by its chairman Suraj Narain Prasad Sinha sought setting aside of the verdict, predicting it would set a wrong precedent vis a vis debarring of lawyers from practice. "As far as the merit of the judgement is concerned, we are not bothered... our stand is with regard to the powers encroached by the HC in directing the two senior advocates not to appear in HC and its subordinate courts for the next four months," Sinha said.
When asked what action is the regulatory body planning to take against Khan and Anand now that HC had held them guilty for "obstruction of justice", Sinha pointed out that it was state bar council, Bar Council of Delhi (BCD) which was still examining the issue. "If the disciplinary proceedings were not finally concluded within one year by the state Bar Council, the matter will be transferred to the BCI," the Chairman said. Interestingly, for all its indignation at what it sees as HC's "transgression", even the BCD has made little progress in its proceedings against the guilty duo.

Till the time that this article was written, there has been no action by the Bar Council of India against these 2 senior advocates, R K Anand and I U Khan. They don't care for the merits of the case, and don't care for what the public could think of; no wonder the public have a pretty bad opinion of advocates and lawyers.
http://timesofindia.indiatimes.com/Delhi/HC_encroached_on_our_powers_BCI/articleshow/3398006.cms

Labels: Corruption, Judicial, Law

Most people have their own story about their interactions with the police force, especially in their stronghold (police stations). Let me give an instance of what happened in a police station when I made the mistake of losing a draft (actually the draft did not reach the destination when it was sent via courier, but for the bank, I had lost the draft). I had the counterfoil of the draft, so approached the bank for how to reclaim my money. And this started the adventure.
Given that the draft was sent to an education institute, we did not know that the draft had not reached till it was around 3 months later, since that was the last date of the money to be received; and the institute contacted me. After some back and forth, they convinced me that they had not received the money and things would be terminated unless I sent them the money.
I contacted the bank, and guess what ? They told me a whole lot of things to do - get a notarized affidavit for having lost the draft, get a note from the institute acknowledging that the money was not received, and .... get a FIR from the police station about having lost the draft (since a draft is different from money; more importantly, RBI regulations apparently require it). So, I managed to convince the bank that the institute will not give me a letter; affidavit was made. Now for the police station. That was fun.
First, where was the draft lost ? "Well, it was sent by courier and never reached". I knew I should have made up a story about having lost it at home, or somewhere else that was definite and that did not cause any jurisdictional problems. The police station totally refused to cooperate, since they did not believe it to be their problem. Beaten, I managed to convince the bank after around an year of discussion and got my money back.
Okay, why this long story ? Well, people have faced problems in getting FIR's filed for far more serious stuff - for fraud, criminal assault, modesty / molestation / rape, etc. The weaker you are, the more difficult it is for you to get the police to file an FIR. Having more FIR's filed is liable to get you in the dock when a starred question comes up in the assembly / parliament about number of unsolved cases, so easier option is to try and reduce the number of FIR's filed. Well, the Supreme Court has jumped right in:

Commoners, often harassed by the police's refusal to register FIRs (first information reports), have turned the tables on the men in khaki, thanks to the Supreme Court. Stating that officials in India understood only the "crack of a whip", the apex court on Friday ordered that a policeman turning away a person without registering his complaint could face contempt of court charges and cool his heels in jail if he failed to justify non-registration of the FIR.
The court has provided a detailed mechanism to citizens to make the police accountable. The bench comprising Justices Agrawal and G S Singhvi said if the police refused to register an FIR, the aggrieved person could move the area chief judicial magistrate with a complaint against the concerned officer.

If you read the linked news, you would be able to figure out the mechanism as well as the reasons behind this move. In addition, most states did not even respond to the notice by the Supreme Court, making the court even angrier.

Labels: Anger, Bureaucracy, Citizen, Governance, Judicial, Law, Police, Reform

The Section 498(A) of the IPC is meant for prevention of crimes against women, something that this country has struggled with for quite some time now. If you read the actual Section, it talks about: "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine". This was meant to ensure that a woman subjected to harassment in her matrimonial home can take legal measure to protect herself. However, as with any law that favors one side of the dispute, it is subjected to misuse (and there are numerous complaints about the law being misused - refer to this link).
The main complaints against this law (from whatever I have read so far in various articles, web sites, and email) is that:
- the law has allowed the daughter-in-law to subject the entire family of her husband to its provisions
- the police do not investigate the case, but based on the complaint, have been known to drag all the accused (including elderly people and children)
So here is an update from a directive sent out by Bihar police:

There have been talks about misuse of laws relating to crime against women for quite some time now. Bihar police’s CID also admitted this when it directed all the SPs in the state to ensure proper investigation into FIRs lodged under Section 498(A) of the IPC before going in for arrest of the accused. “Sometimes such cases are framed against in-laws or others just to harass or settle old scores. Hence, the precaution against arrests,” ADG (CID) Yashwant Malhotra told TOI recently.
In his letter to district SPs, government railway police, range DIGs and zonal ADGs/IGs, Malhotra said it has been observed that in cases relating to crime against women, particularly those registered under Section 498(A) of the IPC, all the in-laws of the alleged victim are named as accused. And they are arrested without proper investigation into the case, thus marring the interests of justice.

This is actually a mixed step (in reality). One would like to think that, as per judicial and legal standards, the practice of doing an enquiry and then only proceeding against the named people is the right step. If one considers the law to be a just tool, then this is the right step.
However, there needs to be careful attention paid to the actual implementation of the law, since now proceeding on the basis of a complaint would be subject to the individual police officer of the region, and rural and semi-urban regions are known for police officers bucking under pressure, especially when the families and people involved are known / powerful.
What do people think ? Making sure that the provision is subject checks and balances is a good thing, but do people think that this could lead to a much watered down enforcement of the provisions meant to protect women ?

Labels: Court, Dowry, Family, Investigation, Judicial, Law, Morality, Police, Punishment, Security, Welfare, Women

In the mix of the many dowry related laws and court clarifications / edicts, add another one. This one is something that strikes to make sure that family settlements are all equitable, and also rectifying one part of the provisions of the the dowry law. The current dowry laws are harsh, and put a lot of the onus of proving innocence on the husbands in case of dowry related deaths within 7 years of marriage. As with many laws, this one is subject to misuse. If the husband is not on good terms with his in-laws, and his wife dies within 7 years of marriage (and it becomes alleged that he was demanding dowry), then the law essentially puts the onus of proving innocence on the husband. This is not a very comforting feeling, given the basic provisions of fairness which all laws must meet (and let us be clear, such laws were made harsh because of the large number of dowry related deaths and harassment cases in today's society). So this judgment of the court is a welcome clarification:

Supreme Court on Monday ruled that asking for the wife's share in ancestral property from in-laws would not come under the definition of "dowry". This judgment could become a small but significant breather for husbands, on whom the courts virtually impose the onus of coming clean on dowry death charges if their wives die an unnatural death within seven years of marriage and there had been past allegations of harassment.
"Demanding her share in the ancestral property will not amount to a dowry demand," said a bench comprising Justices Arijit Pasayat and Harjit Singh Bedi while dismissing a man’s appeal seeking acquittal in a dowry death case.

We still need to go a long way towards getting rid of the evils of dowry from today's world, but making harsh laws (that open themselves up to misuse at the hands of people out to subvert law) is not a recommended course of action. All such cases should need proper investigation, including the guidance of experts as well as NGO's.

Labels: Court, Dowry, Judicial, Law, Property, Women

Citizens of the country have mostly bad thoughts about interacting with Government bodies; a lot of them come across officialdom who are not responsive and caring about their needs (as an example, making them come repeatedly even for small errors in the red tape process), and so on. There are babus (officials), who are friendly, but most are like hard faced officials, unwilling to come across as caring people. It would be nice for people to live in a gated community (and self-sufficient place) where one would not have to interact with the Government bureaucracy, but that is living in an ideal world. However, there are cases when official responses are such that you would be horrified to read about such cases, and wonder as to how the official structure of the country could be so insensitive to the problems faced by citizens, that too when the situation is due to a fault of the agency themselves. The Delhi Development Authority however has been roundly criticized from time to time over its openness, caring nature (lack of it), and inability to care about what citizens go through. Read this article for more information:

Wondering if DDA derives "some kind of sadistic pleasure" in harassing citizens, Delhi High Court has slammed the civic agency in a case of double allotment of a flat in 1991 due to which the rightful owner was deprived of its possession and had to wage a 17 year legal battle in court.
"Ignoring dictum of law the officials of DDA keep perpetuating their illegal acts giving an impression as if they derive some kind of sadistic pleasure to harass the citizens," HC observed while castigating the civic body for having the nerve to demand double the price of a flat which wasn't handed over to Gandhi in 1991 because of DDA's double allotment mistake.

This case really highlights as to how uncaring an agency can be. DDA double-allotted a flat in 1991, and when the lady in question tried to get the mistake corrected, the DDA did a fresh allotment to her after 10 years and charged her new prices, at double the original cost. In such cases, the Court should also assign individual responsibility and fine officials responsible (including fining officials of the rank of Chairman and Vice-Chairman if they had made such recommendations).

Labels: Court, Governance, Judicial, Morality, Policy, Punishment, Reform

It's been some time now since this case has been in court. Imagine the case where a couple is in love, being of the age when people usually fall in love. Now think about the case where the girl is from a prominent family, politically connected, and very very arrogant in their power. They have access to brute force, along with political connections, and in the past, have shown that they are very much capable of committing violence and not being the least bit concerned that there is such a thing such as law, order and justice. Further, the brother of the girl is a known bad element, with all the arrogance of power as comes from living in a setup where the exercise of power has been the case all through.
If some of you would have seen an Abhishek Bachchan movie called 'Run', it would have reminded you of the situation similar to this one; but in real life you cannot just fight your way through, and life is not a movie. This actually happened in real life, and finally led to the cutting short of a promising life on February 16, 2002 when Nitish Katara, the young man (24 at that time) was brutally killed by a hammer by Vikas Yadav (the brother) and Vishal Yadav (the cousin of the girl). They committed the murder, hid the evidence and burned the body.
In normal cases, given the police investigation conditions and the political power of the accused, the case would have ended. Except for the pressure mounted by a desperate mother who would go to any end in order to get the murderers of her son, a media that saw in these injustices (combined with the cases of Jessica Lall, Priyadarshini Mattoo) as victimisation of the middle class by the connected, and a surge of interest in making sure that these cases do not go away. And now the end result is now visible:

NEW DELHI: The night before the verdict seemed longer than usual, though she had waited six long years for justice. The nervous wait was over in a matter of minutes, as the verdict was pronounced, taking a huge load off her shoulders. Neelam Katara stood vindicated on Wednesday, with the killers of her son Nitish finally proclaimed guilty.
Neelam lost her husband a year and a half after Nitish's death and her younger son Nitin was mostly out of town for studies and work. So for her, it was a lonely battle for justice, braving threats, financial constraints and occasional ill health. However, she laughs it off when called the "lone warrior". "I have had the support of family, friends and media all through. In fact, complete strangers have called me up and visited me, saying they were with me through all that was happening. I have never been alone," she smiles.

Of course, there is a long way to go. The case will wind its way to the High Court and the Supreme Court, with the good point being that the media will also be there to ensure that no injustice happens at these points. At the same time, this case also provides a lot of lost hope to people who may face similar crimes, but in the semi-urban or rural areas where such injustices can happen and there is no media or pressure to make sure that such cases get highlighted.

Labels: Court, Family, Investigation, Judicial, Law, Nitish Katara, Punishment

India's legal system can work very slowly, what with the massive backlog of cases that it has. Due to this backlog and the time it could take to get a case heard, people resort to their own form of justice or get frustrated waiting for a resolution to the cases. In the case of a bank that has given a loan to a person and the person is delinquent about repaying the loan, the proper procedure is to institute a complaint and follows the proper legal procedure for recovering the loan. This would take a lot of time, and hence banks use the services of goons, loan recovery agents who use force, etc.
This is the position taken by banks when trying to do a half-hearted justification of their willingness to use illegal means to recover their loans, or to get their money back by seizing the asset for which the loan was taken. However, this approach has several problems.
- It is patently illegal. A bank works as part of society, and other members of society have to obey the same rules; a bank cannot claim that it is special.
- There are so many cases where a person lands in a bad financial situation, and is willing to come to an agreement, but the bank hands over the debt to a recovery agent who has a single point agenda about getting the money back
- There could be a dispute between the 2 sides, something that can happen very easily, and instead of trying to resolve the discussion, the bank could hand it over to a recovery agent
Once this debt is handed over to a loan recovery agent, these are in most cases people who use the method of either harassment or the threat of force to do the recovery of the asset. It leads to further complications when the bank may dispose of the asset. Now, from time to time, both consumer forums and the court system have rules against this, but the incidents do happen from time to time. Now, the Supreme Court has repeated this injunction:

The Supreme Court in a landmark judgment on Thursday reiterated its earlier stand that banks cannot deploy musclemen for recovery of loans from defaulters thus forcing them to end their lives.
The court while dismissing the ICICI Bank's plea refused to delete the Delhi High Court's remarks that held the bank and its musclemen responsible for abetting a youth to commit suicide by humiliating him and taking away his motorcycle financed by the largest private sector bank. The court also directed the concerned Deputy Commissioner of Police to submit the investigation report in the Delhi High Court.

This may seem like a tough call to banks, but this is the cost of doing business and banks cannot claim a special right to use force. The SC is actually now threatening banks with de-recognition if they do use force.

Labels: Court, Judicial, Law, Police, Responsibility

In an order delivered this week in the murder trial of Delhi businessman Krishan Sikand, former army officer Lt. Colonel. S J Chaudhary was sentenced to life imprisonment for the murder, and spared the death penalty. This was a great deal of comfort to the relatives of the murdered man who had been waging the fight for justice, and who are credited with having the will and patience to carry through the struggle. The murder was because the wife of the army office separated from him and started having an affair with Mr. Sikand, and the army officer did not like this; so he sent a parcel bomb containing a grenade to Krishan Sikand who lost his life. Well, so this is a normal murder trial, what is so special about this ?
Well, get this - the incident happened in 1982, yes you read it right, the murder conviction and sentencing happens 26 years after the incident. And this was after there was an effort by the nonagenarian father of the victim and an admonition by the High Court to speed the trial up. Read this article and the excerpt for more details:

The conviction ended the agonizing wait of the victim's father for justice. H D Sikand, the owner of car showroom Sikand Motors in the capital, made rounds of courts for more than two decades, waiting for the case to conclude. On Monday, however, the 98-year-old could not make it to court due to ill health. His grandson, Sanjay, called him up seconds after the judgment. "I was sure one day justice will prevail. Now I am at peace with myself," Sanjay quoted his grandfather as saying.
Krishan’s plight was first brought to light by TOI which had reported last year how a 98-year-old man was forced to move Delhi high court to press for his right to speedy trial. The protracted trial got entangled with the day-to-day hearings of the Uphaar fire tragedy case which was also being conducted by judge Mamta Sehgal. The judge had, in fact, cited her pre-occupation with the Uphaar trial as the reason behind the delay in this case. It took a nudge from the HC, which asked the judge to ‘‘spare time before lunch’’ to finish the hearings, for the Sikand trial to conclude on Monday.

So even though the victim and his family finally got closure, one can argue as to whether this is really a legal system that works ? After 26 years of the crime having taken place, the sentence is finally delivered. And to do the same, the father of the convict has to put in a lot of effort. Such a long time would tire out the most patient of people, and in many cases, the people who are struggling like this either back out, or in many cases, actually die.
Speedy legal justice helps in preventing influential accused from perverting the system, or from getting witnesses bought off, and also assures society that criminal acts can actually be punished fairly quickly. We need a legal system that can do that; and there are many studies and commissions that have recommended measures that can do that
- Fill in judicial vacancies faster
- The Government is involved in a large number of cases, and can reduce the number of cases by settling many of them
- Use the recently activated system of plea bargaining to resolve cases
- Have more courts such as the evening courts introduced by Gujrat

Labels: Court, Governance, Judicial, Law, Punishment, Review

For decades, the Indian Government and the legal system has been lopsided in favour of tenants, with the Rent Control Act being one-sided to protect tenants. The Act has reduced property rights, not letting landlords get their property back when they need the property for their own use, and not letting them raise rents in accordance with annual inflation trends. The Rent Control Act has scared landlords so much that there are many property owners who cannot envisage letting out their currently vacant properties for fear of not getting these properties back, or who let out properties on 11 month leases and get them vacated within 2 years so that properties do not get tenants who refuse to let go.
This situation had prevented the healthy growth of the market for tenancy and led to an artificial scarcity; so there was a great jubilation among property owners when the law was weakened some time back; the change allowed landlords to get their property back when they could demonstrate that they needed the property for their own needs, however, this was only for residential properties. Commercial properties were excluded. So you had the case where prime properties in commercial centers such as Connaught Place were on rent for decades old rentals of Rs. 100 per month; the landlord could only watch as their properties were used by tenants to make big money and they themselves got a pittance as rent. This would lead to a situation where the landlords would not invest anything on maintenance for these buildings. Finally the Supreme Court has corrected this, letting owners of commercial properties evict their tenants when they could prove that they needed the building:

For 50 years, tenants in shops and commercial premises in many prime areas of Delhi have had the upper hand over landlords. They lived without fear of eviction and paid a paltry rent as they were protected by laws that froze the amount negotiated decades ago. This special protection was because the law said that a tenant could be asked to vacate only residential premises, and not commercial property even if the premises were required for personal use. But all this has changed.
The court said the restriction on eviction of tenants from commercial premises was inserted in the law 50 years ago mainly because of the limited commercial space available in the city at that time. But that was a long time back. Now the scenario has undergone a sea change and a fairly large number of buildings and premises were now available on rent for non-residential and commercial purposes. Restricting landlords from seeking eviction of tenants from shops was no longer justified, the Bench said.

This is a judgment that was long awaited by landlords. There is no equitable reason why a landlord cannot get his / her property back when they need it. This judgment does not go all the way, given that it still does not give a way for a landlord to get rents raised to reflect current prices; one byproduct of this judgment however will be that landlords will try whatever tactic that they can to show that they need this property for their personal use and get the tenants evicted.

Labels: Cricket, Judicial, Law, Neighbourhood, Property, Reform

It appears that there is some amount of conflict within the Supreme Court of India, if one goes by recent judgments; there was the recent judgment where the 2 judge bench made scathing remarks about the tendency of the judges to stray into areas that are outside the judicial domain, and into areas where the legislature and executive should be responsible. They took numerous cases, such as the nursery admission case, sealings case, etc; cases where it is the responsibility of the executive to uphold law and do as per law (so, letting illegal constructions stand and creating a law to make them legal is the normal response of the executive and legislature, because there are too many pressure groups that will not allow them to act in another way).
This judgment and the comments were seized upon by politicians of all shades and hues as a vindication of their recent protests that the judiciary was over-stepping its brief; they could not care less that they are failing to respond as per law or not creating law where it is required (as another example, for handling sexual discrimination in the office-place, the current approach is laid down by the Supreme Court in a prior case, and not due to any law passed by the legislature). This judgment and the observations made were quoted in filings made by lawyers working for the Government in different cases. It is another matter that a larger bench struck down these observations as not valid, and said that the court will continue to work as it has before, helping the various junior courts that were affected by the observations of the court. Well, this seems to be happening again, although in a reverse way:

In a strong disapproval of a Supreme Court judge's direction, a Bench headed by Chief Justice K G Balakrishnan on Thursday held that courts should "desist" from issuing general directions affecting executive and legislative policy unconnected to a particular case.
The court must ensure that its orders and decision do not create any doubt or confusion on legal position in the minds of any authority or citizen, a three-judge bench, including Justices R V Raveendran and J M Panchal said. Justice Katju, in a concurring but separate judgement, had given directions to Uttar Pradesh government to issue an Ordinance for restoring the provisions of anticipatory bail in the state.
However, the three-judge Bench held that Katju's directions "are not directions to be complied with".

In an ironical twist, the statements made by the judge about directing the Uttar Pradesh Government were made by the same judge who had earlier bemoaned the way in which his fellow judges were trying to over-reach into areas beyond their domain. In this case, the observations made by the learned Supreme Court judge had no reference to the case in hand, and deserved to be struck down.
However, this whole matter leads itself to confusion, since different benches of the Supreme Court ruling on judgments made by another judge are unseemly, and the Honorable Chief Justice should step in and ensure that such divisions are resolved.

Labels: Court, Governance, Judicial, Law, Parliament, Politics

The Governor of Karnataka, Rameshwar Thakur, must be a most worried man. In this time and age, it is clearly understood that the Governor is the man of the Central Government, and hence in this case, the Governor would be seen to be acting in the best interest of the Congress. However, past judgments by the Supreme Court have severely bound the hands and feet of the Governor in terms of biased or arbitrary action. In fact, Karnataka is the home of the SC's Bommai Judgment where the Supreme Court started setting ground rules for what the Governor can do and cannot do in cases of political uncertainity. This was then followed by the judgment in the Bihar case that singed the Congress Government, cost them a pliant Governor and also earned them black marks from the President who was for the first time castigated by the Supreme Court for non-application of mind.
Till a couple of days back, the Congress seemed to be in a superior position, with Deve Gowda refusing to support the BJP. The Congress could then work on willing JD(S) members, and eventually get enough numbers to escape the anti-defection act. The wily farmer saw this coming, realized that he was standing on the edge of political insignificance, and quickly swallowed his pride and went back to the BJP. And now that the MLA's supporting the Congress's white hope have fled in the pursuit of power in the hands of the BJP, the Congress is left with little options.

Marked by a day of frenzied political activity, the BJP-JD(S) leaders fulfilled the formality of mustering 129 MLAs, more than the 113 required to form the government, and paraded the MLAs before governor Rameshwar Thakur for a head count on Monday.
The Congress, which triggered off the political activity in Karnataka on October 7 by submitting the letters of its MLAs seeking dissolution of the assembly, is awaiting word from the high command to act. Its strategy will be to foil BJP-JD(S) government from being formed. But whether this will be done before the government formation or if Yeddyurappa gets an opportunity to seek a vote of confidence on the floor of the House is to be seen.

One things is for sure, if the Governor does not accept the letters from the MLA's representing a current majority of the assembly, this battle will head for the Courts, and given current thinking, the Courts are likely to crack the whip hard. It's more likely that the Governor will give in and let the BJP form the Government.

Labels: BJP, Congress, Court, Judicial, Minority, Parliament, Politics

Somehow, the polity in India has accepted two major concepts: If you are a politician (and especially a Minister), there is a minimal chance that you will be prosecuted for anything; secondly, that the threatening and taking of human life in the form of a homicide or murder is not all that big a deal. However, recently there has been a trend that both of these theories are getting challenged. For the second one, there are many cases where ordinary people have challenged the almost casual investigation into murder and forced the Government and police into doing major investigations (such as into the Jessica Lal case and the Priyadarshini Mattoo case). As regards powerful people, courts in recent times have not hesitated to move against politicians, many times forcing investigating agencies to do a better role (and even though we have had shameful cases such as the Congress Government ordering the CBI to so little that both Mayawati and Shibu Soren have got off); still there have been many cases of prosecutions such as the case of Shahabuddin, Anand Mohan, and a few others who have been prosecuted and sent to jail (and maybe scared the others facing court cases).
One case that has shocked Uttar Pradesh has been the case of the poetess Madhumita who was having an affair with the politician Amarmani, and Amarmani's wife Madhumani did not appreciate this affair, eventually leading to the brutal murder of Madhumita (and since she was pregnant, the murder of her unborn baby as well). The investigations went through highs and lows, but today the verdict is out, and should give more criminal politicians cause for thought.

Four years after poetess Madhumita Shukla was murdered, a special court here on Wednesday sentenced to life former UP minister Amarmani Tripathi, his wife Madhumani, cousin Rohit Chaturvedi besides contract killer Santosh Rai in the high-profile case.
The poetess was found murdered at her Lucknow flat on May 9, 2003. She was murdered at the behest of Madhumani, who was opposed to her affair with her husband.

Such judgments not only scare politicians that they can be prosecuted for their misdeeds, but also go a long way in reassuring people that the law is the same for the commoner and the high and mighty.

Labels: Court, Governance, Judicial, Law, Punishment

We depend on policemen to act as law-enforcers in society. In addition, in most countries, citizens can depend on policemen to help them out when they land in some kind of trouble or need help. However, mention that to people in India, and a vast majority will laugh, cry, and look at you with amazement. And no wonder, when policemen behave like law makers on their own.
I remember when the case of the shootout in Connaught Place first burst in public view, there was immense shock that a police team could fire many tens of rounds (34) into a car in the middle of the city, and kill 2 innocent people. And what was the defense of the police party ? They had information that these people were indeed a dreaded gangster, and so that justified them using deadly force without being provoked. You know what would have happened if these people were indeed gangsters and not innocent people ? There would have been a lot of justification of the attack, and nary a word of caution.
And that is a problem with letting police get the authority to use deadly force with a valid justification. The checks and balances get blown away, and you see more of such actions happening. In addition, it fosters a feeling of being able to kill criminals as a solution (and something that has passed down to the normal public in terms of public lynchings being more common nowadays); and of course, if a criminal knows that he does not have much chance of surviving an encounter with police, he will be more inclined to take more desperate actions.
In this case, justice has been served (although it took 10 years for this case to get resolved), and the accused have been sentenced.

A Delhi court on Wednesday awarded life term to suspended ACP S S Rathi and nine other policemen, convicted for killing two innocent businessmen in a fake encounter at Connaught Place ten years ago. "I sentence them to life imprisonment," Additional Sessions Judge Vinod Kumar said, pronouncing the quantum of punishment to ten policemen including the then Assistant Commissioner of Police.
During the trial, the policemen had taken the plea that the businessmen were killed under "mistaken identity" of Yaseen, a dreaded Uttar Pradesh gangster and his associate. The court, even after allowing their plea, had found them guilty, saying "I am convinced with the prosecution argument that even if, instead of Goyal and Singh, the wanted criminal Yaseen would have been killed, the accused still be held guilty."

Seems a very valid argument. Essentially, even a criminal has rights, and the police force has no authority to take deadly action to try and kill a criminal, except in self-defense or when the criminal is trying to escape during an encounter.

Labels: Court, Empowerment, Judicial, Law, Police, Punishment

At some point of time, the Central Bureau of Investigation (CBI), the premier investigating agency of the country and the main federal such body will get the kick from the Supreme Court that it so badly needs in order to its job independently and without political influence. Currently the CBI reports to the Department of Personnel, and hence is extremely open to influence. In theory, the CBI works under its director and evaluates each case on its merits, but a review of many recent cases shows the kind of joke this concept is: The acquittal of Shibu Soren, the one/off investigation of Mayawati in the Taj Corridor case, the dismal performance in the Bofors / Quattrochi case, and the current issue about the Disproportionate assets case against Laloo Prasad Yadav and his wife:

The Patna High Court on Thursday held that the Bihar government appeal challenging the acquittal of Railway Minister Lalu Prasad and former CM Rabri Devi in the disproportionate assets (DA) case, an offshoot of the fodder scam, is maintainable.
Solicitor general G Vahanwati appearing on behalf of the CBI submitted as neither the state government nor any its agency was involved in the probe, the state government did not have the right to file appeal against acquittal of Lalu and Rabri.

The facts of the matter are simple. There was a case filed against Laloo Prasad Yadav and his wife by the CBI for possessing more money than their income would allow (something that would mostly be obtained through corruption or other such means). The case was decided against the CBI by the CBI special court, and it would move onto the High Court in appeal under most circumstances.
Of course, we all know that Laloo Prasad Yadav is a special minister in the Central Government, very dependable and many times a trouble-shooter for discussions with allies. And the Congress has a lot of experience with getting the CBI to do what it wants rather than getting an impartial investigation done.
So, the CBI refused to appeal against the judgment and this would have prevented the case from going further except for the Bihar Government acknowledging that it does not believe that the CBI is going to do anything in this regard and deciding to appeal in the High Court. What a shock ? Both the Laloo and the Central Government were aghast, how can the State Government intervene when the CBI is the direct party. Well, now the Bihar High court says that the Bihar Government can intervene, another blow to the credibility of the CBI. The day is not far when the Supreme Court (like it did in the case of Central Vigilance Commissioner) will declare that the ownership of the CBI by the political leadership of the Center is incestuous and the CBI needs to be independent.

Labels: Congress, Corruption, Court, Governance, Investigation, Judicial, Law, Police, Politics, Responsibility