Blackmoney: Supreme Court rejects Centre's plea

The Supreme Court on Wednesday (March 25) rejected Centre's plea to recall its order for setting up a Special Investigation Team (SIT) to probe all cases of black money, saying it stepped in as for over six decades "the government failed to bring back the money stashed in foreign banks to the country". "Let us see the SIT will do things which this country is dreaming of," a three-judge bench headed by Justice H L Dattu observed while dismissing the Centre's plea and pulling it up for its reluctance to accept the SIT headed by two retired judges of the apex court. The apex court said its two-judge bench in its July 4 2011 order for setting up of SIT felt that "no effort was made to bring back the money stashed in foreign banks" which could have been accounted and pumped into the "mainstream of the Indian economy". "It was the feeling of this court that no effort was made to bring back the money stashed in foreign banks and no effort was made to disclose the names of those whose money were in the foreign banks.  "If the money would have been brought back the economy of the country would have gone up. Per capita income would have gone up. Income tax rate which we are paying at 30 per cent would have been reduced," the bench, also comprising justices Ranjana Prakash Desai and Madan B Lokur, observed. The bench brushed aside the contention of Solicitor General Mohan Parasaran that "the mechanism was already in place" for dealing with issue of black money and expressed its anguish that the Centre was "literally" running away from the SIT-monitored probe. "Since 1947, nobody thought for 65 years to bring these money stashed in foreign banks to the country. Government has failed in its role for 65 years. We are not impressed by your statement, if you had undertaken the exercise there was no need for continuous mandamus and we would have not stepped in," the bench said. "This court in the economic interest of the country thinks that black money lying in different countries should be brought back and the court feels that you have failed in your duty in doing so and so it gave an order for the appointment of the committee headed by former judges of this court," the bench said.  The apex court was also furious that the Centre failed to comply with its July 4, 2011 order for the last three years which otherwise would have benefited the nation. "You have not done the exercise pursuant to the order of July 4, 2011. Three years have passed but you have not done anything for the implementation of the order," the bench said and disagreed with the submission of the Solicitor General that the probe against Pune stud owner Hassan Ali Khan and businessman Kashinath Taporiah was in compliance of the apex court order.  The order was passed on the PIL filed in 2009 by noted jurist Ram Jethmalani and others who had claimed that Rs 70 lakh crores of black money was stashed abroad in foreign tax havens. Justifying the order for setting up of SIT, the bench said the apex court can "ignore" the government organisation "if it loses faith in it". "At the end of the day this court wants that the black money stashed in foreign bank is accounted for and this court took up the cudgel and said the area in which you failed let it be achieved by us."  It also made it clear that if the SIT will feel that it cannot negotiate with the sovereign government it can come to the court and express its stand that it cannot negotiate with foreign banks or sovereign country. "We would be the last person to say that we have failed. We would try our best to achieve our purpose," the bench observed while holding that "there was no merit in the application (of Centre)". The apex court by its July 4, 2011 order had converted the High Level Committee (HLC) formed by the government to monitor all issues relating to black money into an SIT by appointing former apex court judge B P Jeevan Reddy as its head. Another former apex court judge M B Shah was appointed as the Vice Chairman of the 13-member SIT into which Director of Research and Analysis Wing (RAW) was inducted. It included directors of CBI, Intelligence Bureau, Enforcement Directorate, Chairman of CBDT, Director General of Revenue Intelligence, Director General of Narcotics Control, Director of Foreign Intelligence Office (FIO) and Joint Secretary of Foreign Trade. The erstwhile HLC was headed by the Revenue Secretary. The apex court had said that the SIT shall be carrying investigation, criminal proceedings and prosecution relating to the stashing of the blackmoney in foreign banks and also cases arising from the unaccounted money involving Pune-based stud owner Hassan Ali Khan and Kolkata businessman Kashinath Taporiah. While setting up the SIT, the apex court had pulled up the government for the "laggardly pace" in investigations into the issue of black money stashed abroad. http://www.timesnow.tv/Blackmoney-Supreme-Court-rejects-Centres-plea-/articleshow/4450853.cms

Pilgrim of Justice

The judicial function a judge performs is the spiritual function of a man - SH Kapadia, Chief Justice of India

Hopefully a very authentic description of the Chief Justice of India Mr Sarosh Homi Kapadia 

Profile: Chief Justice of India. Age: 64. In his long legal career, he has served as a lawyer at Bombay Bar, a Bombay High Court Judge, a Special Court Judge, Uttaranchal Chief Justice, Judge Supreme Court

His Achievements

·         He is one of the finest judges and administrators

·         He has redefined judgeship

A judge, by virtue of his chosen profession, chooses to become an ascetic, distant from the society he lives in, yet immersed in it so deep that he is confronted with the rawness of its existential struggle every day. Chief Justice of India SH Kapadia is a person who understands it too well. 

“A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions,’’ Kapadia said while delivering the MC Setalvad Memorial lecture on Judicial ethics in April 2011. 

Since taking over as the Chief Justice on May 12, 2010, Kapadia has worked tirelessly to restore the diminishing dignity and credibility of the Supreme Court as the final forum for justice seekers. With a single stroke of the pen, he stopped reckless mining in Bellary . He disqualified the crucial appointment of Central Vigilance Commissioner  (CVC) reminding the prime minister and his government that processes must stand the test of integrity. In the Vodafone case, Kapadia pointed out that laws are not open to unduly liberal interpretations. A corporate lawyer said that the Vodafone judgement reinforced to the world the independence of the country’s judiciary. 

In a few days a Constitution Bench headed by Kapadia will decide on the Presidential Reference made to it after the SC quashed 122 telecom licences and asked the government to conduct auctions to allocate natural resources. He is also expected to frame guidelines for the media on reporting on matters that are being heard in court.

Chief Justice Kapadia will be remembered for some of the landmark judgements he delivered. And the way he lived as a judge will never be forgotten. It can only be called exemplary. In a now famous and widely quoted letter that he wrote to former Justice VR Krishna Iyer, Kapadia said: “I come from a poor family. I started my career as a class IV employee and the only asset I possess is integrity...’’ 

Early days

The destiny of Sarosh Homi Kapadia was uncertain when he was born on September 29, 1947 in a nation that came into existence barely six weeks before him. Not many people in the world who watched the birth of India gave it a chance as a democracy. The odds were stacked against Kapadia at birth because unlike the illustrious Parsis of Bombay, his father had grown up in a Surat orphanage and had worked as a lowly defense clerk. His mother Katy was a homemaker. The family could barely make ends meet but that did not weaken their robust values.

“My father taught me not to accept obligations from anyone, and my mother taught me the ethical morality of life,’’ Kapadia recalled at a Bombay Parsi Panchayet felicitation when he became CJI. Young Sarosh, however, had decided that he would make his own destiny. He wanted to become a judge and nothing else. 

At the felicitation, Panchayet trustee Khojeste Mistree talked about his student days. Kapadia would walk down Narayan Dhabolkar Road in Mumbai, past the Rocky Hill flats, where a number of judges lived, and dream that one day he would progress from being an advocate to becoming a judge and have the honour of living in those very same salubrious surroundings, Parsi Khabar, an online community web site, reported Mistree as saying. 

Many years later, when Kapadia became a judge at the Bombay High Court, he always sat in court room number three on the ground floor, which perplexed many because as judges rose in seniority they also moved up the courthouse building. Kapadia revealed the reason why he was fond of the room when he was invited to tea at the Bar just before taking over as the Chief Justice of the Uttaranchal High Court in 2003. Early in his career as a low-grade employee, he used to end up at the Fountain area near the court for work. He didn’t have anywhere to go to spend his lunch break. For three years lunch often used to be a small cone of roasted chana (gram) and courtroom number three was the place to relax because it let in good breeze. A lawyer in Mumbai who was present says that Kapadia recalled how his interest in law was fuelled by the sessions in that courtroom.

Kapadia began his career as a grade four employee with Behramjee Jeejeebhoy where his main job was to deliver case briefs to lawyers. Behramjee Jeejeebhoy was the owner of seven villages in Bombay and had a lot of land revenue as well as a number of land-related disputes to settle. Those cases were handled by Gagrat and Company where a young lawyer, Ratnakar D Sulakhe, used to work.

“Sarosh used to come very regularly to our offices. That is how I first met him. He had a keen interest in law and I encouraged him to take it up,’’ remembers Sulakhe, who is now legal consultant with the Godrej group.

Kapadia studied law and enrolled at the bar. By that time he had a keen grasp of issues related to land and revenue and began taking up such cases. As a junior lawyer, he quickly gained a reputation for his preparation and ability to cite authority while arguing. Kapadia then joined Feroze Damania, a feisty labour lawyer reputed to be partial to poor and marginalised people. 

In 1982, Kapadia argued a case for people living in Ghatkopar, a suburb in Mumbai. The area was formerly salt pans and fell under the control of the Salt Commissioner. The commissioner had ordered summary eviction of about 3,000 tenements. Kapadia fought the case which resulted in a landmark judgement laying down the principle that governments cannot invoke summary eviction laws to throw out people when there is a genuine dispute on the title.

“It was not about money. He was genuinely interested in the welfare of marginalised people,’’ a colleague who worked with him at Damania’s offices told Forbes India . He did not wish to be named. 

The colleague says, at the time Kapadia became interested in Buddhist and Hindu philosophies, especially in the teachings of Ramana Maharishi, Swami Vivekananda and Ramakrishna Paramahansa. Later he became a frequent visitor to Belur Math on the banks of the Hoogly in Kolkata. A monk at the Math says he learnt meditation techniques. He has read everything about Ramakrishna and also what Swami Vivekananda wrote. 

Kapadia’s worldview is highly influenced by Indian thinkers but is also tempered by the observed realities of the modern world. It has also shaped his thinking as a judge who believes in continuous learning. 

“What we need today in India as far as the judges are concerned is a scholastic living,” Kapadia said in December 2008. Delivering the JK Mathur memorial lecture in Lucknow , Kapadia went on to define the context of modern day justice and the legal profession. In that speech he said how important it was for judges to understand the various concepts in different fields, including economics and accountancy. Kapadia himself is a qualified accountant and has vast knowledge of economics. That came in handy in a case where Orissa’s tribals were pitted against a miner.

There were no jobs, hospitals or schools in the area the company wanted to mine. Kapadia analysed the accounts of the company to find out whether it could set aside a portion of profits for tribals’ welfare. He dissected the accounts segment-wise to discover a profit of about Rs 500 crore when without the standard of accounting the profit would be only Rs 15 crore.

“A judge sitting in tax matters knows the accounting standards. It helps us to decide matters in the context of socio-economic justice enshrined in the Constitution… This is where I emphasise the knowledge of the basic concepts.’’ 

A Mumbai lawyer who knows him from the time Kapadia was a lawyer and later judge, says that he has evolved into a complete jurist. Yet, the Chief Justice has not stopped learning. 

In July 2011, the Supreme Court gave a verdict in a case involving limestone mining in Meghalaya’s East Khasi Hills by Franco-Spanish cement company Lafarge Umiam Mining. Almost a year-and-a-half before that, the company had been asked to stop mining by a Bench headed by Justice KG Balakrishnan. When the hearing resumed, Justice Balakrishnan had retired and Kapadia was presiding on the three-judge bench. 

As Harish Salve began to argue for Lafarge, Kapadia realised that he did not know enough background. So he asked the senior lawyer to brief the court on the history of environmental jurisprudence. A stumped Salve said that would be like reading a textbook. To which Kapadia replied that he was a Bombay man who understood very little about environmental matters and would Salve not help the court? Every Friday for the next seven weeks the cavernous courtroom turned into a classroom where Salve elaborated on the evolution of environmental jurisprudence in India . 

Unshakeable Integrity

There are two qualities of Justice Kapadia that no one disputes— integrity and compassion.

“His humble beginnings are reflected in his outlook and judgements,’’ says senior lawyer Soli Sorabjee. “A litigant may feel disappointed if he loses the case but no litigant goes back [from Kapadia’s court] feeling he was not fairly or fully heard.’’

In his pursuit of flawless integrity, Kapadia has hermetically sealed himself. He even said in a speech that judges and lawyers should work like a horse and live like a hermit. When Forbes India sought to interview him for this profile, the CJ’s office said the strict code of conduct binding Supreme Court judges does not allow him to agree. Kapadia’s personal code of conduct is more severe. Retired Justice VR Krishna Iyer told Forbes India that he had gathered from his colleagues that he was too dignified to even meet other judges, rarely meets anybody at random and when he speaks he is taciturn. 

Kapadia does not accept even official invitations if they fall on a working day. He once rejected an invitation to represent India at a conference of the Commonwealth Law Association in Hyderabad because it fell on a working day. On the first day in office as CJI, he cleared 39 matters in half an hour. Kapadia has practically dedicated his life to the profession, rarely taking holidays even.

During the first summer holidays after he became chief justice, Kapadia is said to have come to office everyday to streamline the SC registry. 

According to several lawyers, the registry had deteriorated into a corrupt office where ‘bench hunting’ was common. Bench hunting is gaming the allocation process to make sure that a certain matter appears before a certain judge who the lawyer thinks will rule in a particular way. Kapadia has put an end to it and is now said to review the day’s board of case listings and pull up the SC staff if he finds something amiss. 

The CJ has also stopped out-of-turn mentioning of cases to be taken up urgently, which has caused some consternation among lawyers. Earlier, lawyers could request the judge while the court was in session to take up an unlisted matter because it was urgent. Now they have to file an urgency petition a day in advance. The system exists because there is a mountain of pending cases in the judicial system. And since the SC is the final authority, it gets overburdened. “It will not be long before we have a 100 judges in the SC,’’ says a lawyer. The SC currently has 30 judges, excluding the CJI. 

The Indian justice system had drawn a lot of flak over the past few years after the integrity of several past and sitting judges was questioned. But Kapadia defended the system in his Law Day speech last November. 

“I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system,’’ he said. He also said that the backlog of cases is not as huge as is made out to be. “Seventy-four percent of the cases are less than five years old,’’ he said and added that the focus is on quickly disposing of the rest of the cases.

Kapadia has certainly restored the confidence and pride in the Supreme Court of India. 

 “He will certainly be remembered for the landmark Vodafone decision,’’ says Percy Billimoria, senior partner at corporate law firm AZB and Partners.  “Whenever anyone complains about the retrospective amendment of the tax law on this issue, I always retort by reminding them that the fact that the decision held that the government’s stand on a matter with such far reaching revenue implications was contrary to the law at the time shows that at least our judiciary is fair and independent.’’

By the time Kapadia hangs up his cloak and collar on September 29, he would have left an indelible mark on India ’s judicial history. Former Justice VR Krishna Iyer told Forbes India: “While I have seen during the last 97 years of my life among good judges with great credentials, there was hardly anyone to compare with Kapadia the like of which no eye had seen, no heart conceived and no human tongue can adequately tell.’’

Comments by Col LK Anand Retd

I do not know who is the author of this write up on Justice SH Kapadia, the Chief Justice of India. However, I am extremely thankful to him for having penned down such details about this really great man. I along with all Indian Citizens, hope that he would not allow the pinnacle of justice in India to ever get desecrated and prevent the Indian judiciary from being committed, at the behest of some interested few, in the top echelons of our ruling party or the ruling Government of the day, a few instances of which have been seen in the very recent past.

I HAVE FULL FAITH IN OUR LEGAL SYSTEM

by Col (Retd) TN Raman

In our country, those who have faith in our Courts of Justice, are never let down.  A number of examples can be quoted. But, let us take just two cases. Two ladies, both Politicians, one is presently the Chief Minister (CM) of Tamilnadu, and the other previous CM of UP.

 The great Political satirist, Cho Ramaswamy, has written a short parable on the Mayawati’s case, in his magazine, Thuglak.

  “There was a burglary in a big bungalow. Due to a lot of controversies, the Supreme Court (SC) had taken up the case and ordered CBI to investigate.  The CBI while investigating the case found out that the accused of the Bungalow burglary was also involved in a case of Bank Robbery. Therefore, the CBI started investigating both the cases. After investigation, the CBI files FIR (First Information Report) on both the cases. But, the SC comes down heavily on the CBI for exceeding its brief. The honourable Judges pointed out, “How can you investigate on the Bank Robbery, when we had tasked you to investigate only the Bungalow burglary? You have exceeded your authority. Hence we quash the FIR on the Bank Robbery.”

 In support of the verdict, some legal pundits argue that the SC did not say that the accused who had committed the Bungalow Burglary did not commit the Bank Robbery. It only pointed out that the CBI should not have linked both the cases and submitted before the Court. Therefore, the CBI can still pursue the case of Bank Robbery and file a separate FIR afresh. The present verdict has not declared the accused as innocent.

 Let us see the case of Mayawati. The SC had ordered CBI to register an FIR and enquire into the Taj Corridor case, on 18 September 2003. On 5 October 2003, the CBI registered two cases, No 18 relating to the Taj Corridor and No 19 relating to Disproportionate Assets (DA) under the Prevention of Corruption Act.

 The Taj Corridor case failed. The Governor of UP, TV Rajeshwar, in June 2007, in his 23 page order, had stated that the 17 crore was sanctioned by the Central Govt through the PSU. Therefore, no case.  Though the advocates challenged the Governor’s Order, the Special Judge refused to take cognisance, since the CBI kept silent, because only the Law Ministry can permit it to challenge the Governor’s order. The political environment at that time required Mayawati’s support to UPA.

  As for the second case, No 19 on DA, Mayawati had challenged the same in the Allahabad High Court. On 22 October 2003, the Court only directed that she should not be arrested till the investigations were over.  In addition, the SC itself, when a case was filed for the status report on the cases, on 19 July 2004, gave directions to the CBI, to complete investigations on case No 18 ( Taj corridor) in 8 weeks and for Case No 19, (the DA case) in three months.

 According to CBI, the assets of Mayawati increased fifty fold, from one Crore in 2003 to 50 crore in 2007. In 2012, as per her own affidavit filed along with her nomination papers for Rajya Sabha, her wealth stands at 111.64 crores.

 After 9 years of labour, why should SC quash the FIR itself?  I am an ignorant Indian. But, I know that those who have faith in our Judiciary are never let down. If anyone has doubt, kindly cross  check this statement with Mayawati, Jayalalitha, A Raja, Kanimozhi, Karunanidhi, Kalmadi, Maran brothers, Ambanis....... sorry the list is very very long. Suffice to say that I have faith in the Judiciary. But, where to go for finances?  I am told that the present market price is very steep. Even to get a bail you have to shell out 6 crorers. Ask, Reddy brothers of Karnataka for guidance.

Lok Pal Bill : Letter from Shri Shanti Bhushan to the Finance Minister

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Indian Judiciary Lacks Will to Settle Pending Litigations

by Col LK Anand Retd

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The right to speedy deliverance of justice is a “Constitutional reality” and has to be honoured mandatorily by the Judiciary. Delay in administration of justice is a cruel form of social injustice and an inhuman act not only to the accused but any citizen seeking justice in any form. No court can compensate any accused for mental torture, social ex-communication or loss of self respect and self esteem, caused due to inordinate delay in delivery of justice.

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There is no denying the fact that Indian judicial system leaves much to be desired, in truly fulfilling the aspirations of Indian population. It specialises not only in delaying every case, much beyond the expectations of the victims, defeating the very basic tenet of “justice delayed is justice denied”, but also is a boon to the culprits who continue to prosper and roam around freely, due to gross lethargy and inefficiency of our enforcement agencies as also due to their own standings and support they enjoy from their corrupt political leadership and their virtual bosses the bureaucracy. No wonder over 150 of such criminals have found their way into the Indian parliament, busy enacting legislature to suite the criminality of their own thought and action.

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Interestingly enough, the political leadership which constitutes the executive organ of the Government, instead of asserting itself in any way to solve this perennial problem, moulds itself to be guided, at the whims and fancies of the highly tainted, unaccountable and irresponsible bureaucracy, which works only for its clan’s and its own personal safety, security, welfare and benefits. The proof lies in the fact that no bureaucrats ever get penalised or punished even for the greatest of blunders committed by them in any field of activity as also for the largest acts of corruption involving them.

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Unfortunately, our law enforcing agencies too, though, may claim to be autonomous, yet, work mostly under the scheming government functionaries including the ministers and their faithful babus ie bureaucrats. As a result, all their actions and activities are often directed and carried out at their behest and their overall performance has hardly ever risen above the ground zero level, to instil any confidence amongst the Indian population. Even the Supreme Court has become highly sensitive to the public opinion and rants that the judiciary also has lost the image of being clean, is no more without taint and has become deeply prone to corrupt practices at all levels. Shanti Bhushan’s declaration that out of 16 CJIs, at least 8 have been corrupt, has never been denied or challenged. So the people have started losing faith in the country’s judiciary and lost hopes of getting timely and proper justice. So, the law taking its own course in India, amounts only to the law taking no course at all. The result is that all the big fish reap the fruits of their positions and the lesser children of India, experience the drudgery of the legal process.

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There are many steps in our legal system right from the lower most courts to the highest Supreme Court, which involve heavy finances for hiring the expertise of our advocates. Unfortunately, the number of people administering judgements, are far too few and never kept pace with the disproportionate rate at which Indian population has been multiplying. There have been gigantic expansions in all Indian cities and hundreds of villages have been sold out to real estate establishments, to make way for accommodating urban population. The court rooms, where all hearings take place and judgements delivered, have continued to exist in the same dilapidated hutments and complexes where they existed even during the pre independence periods.

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Similarly, there have been hardly any additions in the higher denomination courts such as district level, High Courts and the Supreme Court, which could help in settlement of long pending litigations. Increasing the judicatory authorities in tens or even hundreds is no solution to the problem of millions or billions of pending legal cases at all levels. Under such unplanned and miserly distribution of adjudicatory authorities, how can a nation like India expect to ensure justice to be properly administered to its needy population. At times you get a feeling that the Judges at various levels, take a pride in having large and larger number of pending cases under their belt.

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Without doubting the capability and the talent of our advocates who assist the public to take a plunge into the legal system, it can be assumed that they also are seriously responsible for adding to the delays of nearly every case for their own or their clients’ convenience, the fact which is universally well known. Another fact, or irony of it all, in the Indian judicial system is, that a person who is an accused or a convict, on conviction, is awarded a sentence of death or life imprisonment or for that matter any punishment, is compelled to shell out handsome amounts to all the court staff usually through his advocate, under the nose of the judge. To presume that existence of such a system is not known to the judges, is beyond comprehension. It is doubtful thus that legislation of Lok Pal Bill would be able to curb corruption at these levels. If such a state is not controlled or rectified on war footings, our judicial system can be said to be doomed and would never be able to extricate itself from the deep malaise it has landed itself. There is thus a dire need for some tough decisions to achieve tangible results.

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Some suggestions to refurbish our sick and ailing Judicial System are :-

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( a ) Irrespective, of any difficulty in laying down time limits, the Apex Court in consultation with the Law Ministry and experts not necessarily only legal minds, must carry out a thorough introspection of the issue and lay down guidelines for settlement of various types of criminal and civil cases within a practicable time frame. Sufficient pressure must be brought to bear upon the judicatory authorities, to finalise cases within the specified guidelines. A number of attempts have been made in the past to bring in judicial and many other reforms pertaining to enforcement systems, but nothing seems to have been put in proper place, to be of any benefit to the Indian population.

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( b ) All Cases must be monitored at all levels to ascertain whether the delays are really justified or not. In case of unjustified delays, there should be provision of punitive action like fines, reprimands, deprivation of promotions or even termination of service. If such conditions are imposed, it can be hoped that the results would certainly be visible.

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( c ) The decisions of High Courts and Supreme Court must be implemented in letter and in spirit within a specified period of say three to six months. Filing of frivolous review or recall petitions back into the High courts or Supreme Court, at all levels including by government functionaries must be drastically curbed and viewed seriously. The defaulters in this regard must be taken to task and booked by the concerned court, so that, they refrain from resorting to such unscrupulous tactics, just for the heck of it.

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( d ) Increase the number of lower courts and review courts, on the basis of population of a district and distribute the court complexes in all parts of the district/city or within any rural area, if felt necessary. Appoint well qualified judges and empower them suitably for expeditious settlement of all types of cases. There should be no objection to having 100 courts at widespread locations for a district, having population of say 25 lakhs, with one court @ 25000 population. It is learnt that USA has 107 judges per million of population, Canada 75.2 per million, U.K 50.9 per million. and Australia 41.6 per million. against India having only about 10 to 12 judges per million population, which on the face of it looks highly inadequate. Under the circumstances it may be ideal for us to have at least one judges for every 10,000 population. It would also solve unemployment problems besides speeding up deliverance of justice. If Indians can afford to transfer $70 billion or more into foreign banks and create scams to the tune of many lacs of crores, on day to day basis, who would agree that India is short of funds for this purpose or for that matter for any other purpose.

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( e ) Jurisdiction of the courts to handle various types of cases like criminal, civil, marriage, labour, constitutional etc may be specified so that there is no messing up and accumulation of cases unduly with any particular court.

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( f ) Compel courts to function round the clock in shifts if required, as well as to allot dates, so that the cases can be completed within the specified time frames fixed for each type of case. The lawyers adopting delaying tactics and resorting to seeking fresh dates for frivolous reasons must be warned or penalised or fined or debarred from practice or face the liability and consequences of exparte judgements.

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( g ) Every district must have sufficient benches of the respective State High court, which could settle reviews appeals etc within a district, and cut out delays.

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( h ) Similarly, every state capital should have one or more benches of the Supreme Court, functioning directly under the command, guidance and advice of the Chief Justice of India. Some of the past Reports of Law commission especially the 120th Report, have suggested setting up of four additional benches of the Supreme Court in the Northern (Delhi), Southern (Chennai/Hyderabad), Western (Mumbai) and Eastern (Kolkata) regions of India. This report does not seem to have so far, found favours with the Supreme Court. Under the prevailing circumstances it seems unavoidable to set up additional benches of High Courts and Supreme Courts as suggested above. It has also often been represented that no serious attempts have been made by the judiciary to make use of the provisions in the Constitution, for engaging the services of retired judges, both at the Supreme Court or at the High Court levels to facilitate speedy settlement of pending cases.

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( j ) The Supreme Court benches located in Delhi, could perform the review functions of the State level Supreme Court benches, or handle cases pertaining to the central government or interstate cases. Enhancement of strength of judges in High Courts and Supreme Court should be at a scale, so that no less than one judge is available for every 100 cases, admitted therein.

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( k ) There is also an urgent need to computerise or automate the complete legal system, so that all the information of the pending cases category wise, performance of adjudicatory authorities, performance of lawyers/advocates may be viewed and monitored at various levels on periodical basis, and remedial/punitive actions taken where ever necessary.

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If there is a strong willingness amongst the highest judiciary of the country and their administrative machinery, for reforming the judicial system to improve, to be made transparent and effective as also to persevere in reducing the millions of pending cases, we can hope to see a complete transformation of Indian Judiciary, to become totally autonomous, more vibrant and responsive to meet people’s aspirations. There is also a dire need to pay handsomely to all levels of Judicial staff (from Chief Justice of the Supreme Court down to the lowest peon in the lower most court), to cut out taint in all forms, amongst all its constituents, so that under all circumstances it maintains a clean and corruption free image, and deliver correct judgements without any fear or favour.

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By Col LK Anand Retd

elkayanand@rediffmail.com

SC pulls up IT dept for not taking timely action in 2G case

In view of my own experience, this is not a new exposure of any criminal act of I. T. Dept., committed by intentionally omitting its statutory duties. As per my experiences with regard to the matter of Kolkata Land Mafia Mr. Sanjay Kumar Jhunjhunwala, I have documentary evidences, proving that each and every thing in I. T. Dept. is ensured to protect the huge black money of Big Tax Evaders like Mr. Jhunjhunwala, having strong Nexus with powerful Politicians. In fact such intentional omission of statutory duties committed by Income Tax Department virtually abetting the promotion of the Mafia activities of Mr. Jhunjhunwala thus I. T. Department is also responsible for development of such Mafiadom, and liable to be compensate for affects of the same.

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by Milap Choraria
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SC pulls up IT dept
for not taking timely action in 2G case.

From: S. Kalyanaraman
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New Delhi, May 16 (PTI) The Supreme Court today pulled up the Income Tax department for not taking timely action against the companies involved in the 2G spectrum scam and said had it not intervened, the officials would have "slept over it" and the oversees probe would not have proceeded.

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The court said despite the department coming to know about tax evasion cases in 2008, it started taking action only after March this year after it was directed to file action taken report. "We are sure they (IT Dept) would have slept over it otherwise (if it had not intervened). There is no doubt about it," a bench comprising justices G S Singhvi and A K Ganguly said.

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Additional Solicitor General Vivek Tankha, appearing for the department,tried to justify the delay saying that big companies are involved in the case and they are creating obstacles. The court, however, was not satisfied with the submission and said there is no need to say all these things about these companies as they are "prima facie tax evaders".

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"How are they big. What kind of mindset do you have. Prima facie they all are tax evaders. Do not call them big. Do not insult the word," the bench said. The department also informed that all telecom companies, which after the allotment of the spectrum, have sold their controlling stakes to foreign firms through the Mauritius route, have been asked to pay tax on the capital gain from such transactions.

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Tankha submitted that the department has already served notices to these firms and are treating them as assessees. "The Director General of International Transactions has already issued notices to them. Some of them have already admitted that they should be taxed in India and we have issued them notices. They have permanent offices in India and they are assessees now," said Tankha.

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The bench asked the IT department to complete the departmental proceedings against the tax-evading firms within the permitted time. The bench also asked CBI, ED and IT department to cooperate with each other during the probe.

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The department said that it was following the Vodafone case, where the UK-based telecom giant bought controlling 67 per cent stake in the Hutchison Essar using the DTAA (Double Taxation Avoidance Agreement) route in Mauritius and claimed exemption. However, the apex court asked it to make part payment of Rs 2,500 crore.

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"In such cases, transaction and the beneficiaries were outside India, but the companies were physically present here," Tankha contended. Prashant Bhushan, counsel appearing for the NGO, Centre for Public Interest Litigation (CPIL), submitted that companies from the US, Europe and the Gulf were taking the Mauritius route by opening "post box companies" and taking tax benefits.

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As per the DTAA agreement signed between India and Mauritius, if a firm pays tax in the island nation, then it is exempted from paying any tax here. Telecom firms such as Swan, had sold their equity to the foreign partner through Mauritius route and claimed tax exemptions. It has been alleged that Swan telecom after securing the 2G

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licence, sold its stake to Mauritius-based Delphi Investments, which later transferred its stake to a Mauritius-registered subsidiary of Dubai-based Etisalat.

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http://economictimes.indiatimes.com/news/politics/nation/2g-scam-sc-pulls-up-it-dept-for-not-taking-timely-action/articleshow/8369202.cms

Wake Up Call for the Chief Justice of India:

by Ashok Arora,
Former Secretary Supreme Court Bar Association
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Chief Justice’s sermon to the judges (Indian Express 13.3.11) that they should not give lectures to society, should not judge the wisdom of legislatures and should not speak anything beyond the principles of a particular case sent a shock wave down the spine of even the spineless souls. It is a heartbreaking commentary on the evolvement of mankind and reaffirms the truth that wisdom is not an automatic byproduct of age or of the position one occupies. It is sad that the Chief Justice of the world’s largest democracy is to be reminded of the oath he took, “I will bear true faith and allegiance to the constitution of India as by law established, will uphold the sovereignty and integrity of India, will duly and faithfully perform the duties of the office without fear or favour, affection or ill will and will uphold the constitution and laws.” The constitution on which the CJI took oath to uphold starts with the pledge to secure for all its citizens justice social, economic and political & equality of status.

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We all know that the dream of the framers of the constitution to wipe the last tear from the last eye is nowhere near realization only because of corruption at higher places. It is high time all of us including the judges perform all our duties in the light of this fact that corruption is the root cause of miseries of millions of fellow citizens who go to bed on an empty stomach. More than seventeen thousand farmers committed suicide during the year 2010. Millions have no access to drinking water, basic health facilities and primary education. About twenty lakh children die every year within five years of their birth and almost fifty percent of children are malnourished. Even as per the Government’s own survey about thirty seven percent Indians are living below the poverty line and one third of districts are affected by violence. About two hundred and eighty lakh crore have been siphoned to tax havens and no sincere efforts are being made to bring back that money. The real cause of misery to millions of fellow human beings, who are not able to get even one square meal a day leave alone a dignified life is rampant corruption, which is at its peak and no institution including the Parliament, Armed Forces and Judiciary can claim to be unaffected.

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It is the fundamental duty of not just the Chief Justice but every citizen of India as per article 51 A of the constitution to abide by the constitution. This article also exhorts the citizens to uphold and protect the sovereignty, integrity and unity of India, to promote harmony and brotherhood and to safeguard public property. We all know of the serious allegations of loot against the legislatures and other corrupt wings of the society. It is difficult to find role models for the gen next and CJI still insists that the judiciary should refrain from lecturing the society. In a way CJI exhorted the judges not to perform the fundamental duty of even an average citizen. An enlightened poet said it so beautifully,

IS SADI MEIN TERE HOTON PER TABASUM KE LAKIR

HASNE WALE TERA PATHAR KA KALEJA HOGA

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Which means that if despite knowing the miseries of the poor you can still have a smile on your face that means you are a stone hearted person.

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His Excellency A. P. J. Abdul Kalam, the then President of India on his visit to the Supreme Court of India gave his message in somewhat these words – “You are 26 Judges of the Supreme Court. You are 26 role models of judiciary for this nation of more than one billion people. People look up to you for vindicating their grievances and for removal of injustice. You must come up to their expectations. You must have a vision and do your best to give shape to your vision”. Manusmriti says, ‘If justice was destroyed by injustice, or truth by falsehood and if the judges were mere spectators, then they will be considered as offenders.’ It also divided the guilt of injustice to various people. One quarter of the guilt of an unjust decision falls on the offender, one quarter on the false witness, one quarter on all the judges, one quarter on the king.

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At the demise of one of the most popular though controversial judge of this century, Tony Blair said, “Lord Denning was prepared to use the law for its true purpose in the interests of fairness and justice. He had a tremendous feel for ordinary people." I am sure lord Denning must be turning in his grave to digest the sermon of CJI. The other two great judges of Supreme Court justice Krishna Iyer and former CJI Justice Verma have quite often lectured the society and have never minced words while speaking in favour of the common man. I feel proud to belong to a judicial system, which rightly boasts of many wise judges starting from a small cause court to the Supreme Court but I am sorry to say that CJI has not shown the statesmanship and concern for millions of the poor while delivering the above speech.

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We all know how the legislatures cutting across party lines were allegedly involved in Jain Hawala case. Who can forget the total subversion of democracy by the legislatures in JMM case and ultimate failure of Supreme Court at the historic moment? The recent ‘Cash for Vote’ scandal is yet another example of their wisdom CJI talked about. Neera Radia’s tape and her conversations with Rattan Tata exposed the unscrupulous deeds of legislatures and judges but no one worth his salt from Tata’s highly placed community said a word against him. In fact many are perceived to be helping him despite this expose.

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If despite seeing the miseries of millions we remain silent and sermon others to do so, we must introspect and reflect upon our thoughts and deeds. I strongly feel that CJI has demoralized the force he is leading and millions of citizens looking to Judiciary as the last hope to save the country. I am amazed that despite knowing fully well how seriously the bills are discussed in the parliament and legislative assemblies, how the legislatures behave, how many of them are allegedly involved in serious criminal offences and how many of them are role models for the society, CJI still says don’t judge their wisdom. Who else will judge if not a Judge? If the constitution mandates even the common man to uphold the constitution and to safeguard public property do we mean that a judge is not to perform even the fundamental duty of a citizen and is to be a meek spectator to the loot of national resources? How wonderfully the great poet Iqbal commented upon such a situation,

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“WATAN KI FIKR KAR NADAAN MUSIBAT AANE WALI HEIN,

TERI BARBADIYUN KE MASHWARE HEIN AASMANO MEIN,

NA SAMJHO GE TO MIT JAOGE AIE HINDUSTAN WALO,

TUMAHRI DASTAN TAQ BHI NA HOGI DASTANO MEIN”

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Which means take care of the nation which is on the verge of calamity, the whole universe is aware of your miseries, if yet you don’t act, you will not even find mention in the stories.

How aptly the poet wrote about those in deep slumber even after seeing that fifty crore are going to bed on an empty stomach not to talk of leading a dignified life and equal status dreamt by the framers of constitution. It is good that sensitive and wise judges like Markandey Katju and A K Ganguli have ignored CJI’s advice and lectured the society the very next day of his sermons. I feel that CJI has lost the moral authority to lead because of his insensitive and irresponsible speech. People have already started speculating that CJI is trying to woo the legislatures with an eye on retirement plans and they seem justified after this speech. A leader has to lead from the front especially in the hour of crisis and if despite knowing the plight of fifty crore, CJI chose to dissuade the forces, the only option left with him is that he must resign at the earliest to pave way for an able statesman who can refurbish the moral and image of the judiciary. (20.3.11)

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Ashok Arora,

Former Secretary Supreme Court Bar Association

Fast Justice Delivery System - A Proposal

I must thankful to Mr. Bhagvanji Raiyani, Chairman and Managing Trustee of Forum For Fast Justice, Mumbai, for organising on 19th May, 2011 at India International Center, Delhi, a Meeting of likeminded people having interested in reforms for Fast Justice Delivery System, and also thankful for I was also invited in the aforesaid meeting.

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Since, I am not familiar with the working of the Centers for Empowerment of the People; as such I was not much helpful for the meeting on this particular subject. However, outcome of the meeting was also connected with the innovation of the better management of litigations and expeditious justice delivery system, which was one of subjects of my social working.

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In the year of 1983-84, I made indepth study of Civil Procedure Code and its 51 Orders, 703 Rules, and thousands Sub-Rules, besides 151 Sections and several hundred sub-sections and found that the object behind these provisions were to ensure free and fair justice, and prepared a Draft for Model Civil Procedure Code. In fact in India, Civil Procedure Code prevailed since dominion government in the line of law in United Kingdom, thus under the Indian impacts it became a mixture of ‘Butter’ and ‘Honey’ and converted as poisonous having instrumental to misuse of the Administration of Justice to harass and blackmail the opponents. Some people files litigations thinking that they can obstruct the object of opponent for several years. A democracy cannot survive for a long time unless Justice is protected and ensured. Having this concept in mind, I forwarded the said Model of Civil Procedure Code to the then Law and Justice Minister Shri Asok Sen by letter dated 15th March, 1985 by Regd. Post.

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On 3rd March, 1995 I sent it to A. M. Ahmadi, CJI, as then he was, by Registered Post. Subsequently, in 1996 I submitted the aforesaid draft for Model of Civil Procedure Code before the Hon’ble Supreme Court by filing a Public Interest Litigation being Writ Petition (Civil) No. 151/96, along with several suggestions with regard to reforms of several dominion laws, including Official Secret Act. During the hearing Mr. Justice A.M. Ahmadi praised my working and advised me by observing that I should forward my suggestions to Law Commission of India, which I complied. But it is now transpired that on the other hand Justice Ahmadi constituted an Unofficial Committee headed by Mr. Singhvi and also written a long Article as co-authored with Mr. Singhvi, on the issue which was published in USA.

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My concept of the Draft is based on Article 51A of the Constitution, which defines Duties of Citizen. Therefore, this is responsibility of every citizen to file only genuine litigations based on truth. I am submiting hereby my aforesaid draft for model of Civil Procedure Code for academic dicussions.

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DRAFT FOR MODEL OF CIVIL PROCEDURE CODE

The “Justice delayed Justice denied” is due to long-long-time-taking procedures adopted under the said code for Civil litigations, and also responsible for increase of crimes related to such civil litigations.

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In my study I find that the main reasons for delay in litigations are unwarranted adjournments of trials on various grounds, interlocutory proceedings, which is removed in this model, transferring the non-judicial process now runs by the trial courts, upon the Advocates making them more responsible inviting their more direct involvement in Administration of Justice and also to make them more accountable to their clients. Under this Code, necessity of the creation of the new post of the Judges is less required. Certainly Government should bear the cost of the Penal Advocates performing their Duties under this procedure. New Comers will given equal opportunity to develop their skill.

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I have prepared the Model Code to ensure the Free, Fair and Fast Justice within time bound program described as under:-

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Service of summons  - 40 Days

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Collection of documents by the Advocates of defendants 60 Days

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Filling of the Defence 60 Days

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Interrogations and answers from both side parties 60 Days

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Recording of evidence 90 Days

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Finding of Facts 90 Days

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Judgments 60 Days

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Maximum adjournments permissible 60 Days

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A total of 520 Days

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Execution of Judgments (If Appeal not filed) 180 Days

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Total 700 Days

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Under this model code, adjudication of litigation, is divided in to four parts. Up to the interrogatories and answers, the record of the suit will kept with the court of the Registrar at a Sub-division level, who will also maintain Registers for the following business:-

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a) Registration of all litigations in one Register irrespective of any Police Stations under the Sub-division.

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b) Publication of a List of the Penal of Advocates; (the entire list of Members of a Bar Association of a Sub-Division will constitute such list on seniority basis.

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c) Filing of the evidences recorded by the Penal Advocates of the litigation who will be appointed on rotation basis.

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d) Allotment of litigations for the courts of Munsif on rotation basis to record findings of facts.

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e) After return of the file of litigation from the concerned court of Munsif, allotment of litigation to a court of Asst. Dist. Judge to pronounce its Judgment.

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MODEL OF ALTERNATIVE

CIVIL PROCEDURE CODE

ORDER-I: Parties to the Suit (against the existing Order I and part of Order XXII) : All interested parties have right to file, participate or defend any suit subject to bear full actual cost including damage due to suit, if failed to establish his / their claim or defence.

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ORDER- II: Suits (against existing orders II, IV, VII, XI, XIV): a plaintiff shall file the plaint in prescribed form alongwith duplicate copies of all documents in his possession and on which he relies to file the suit; list of documents which would not be in his possession but at the same time, he relies his claim giving the name and address of possessors of such documents, if plaintiff knows; suggested issues; list of witness all pleadings with full facts and full court fees before the Registrar of Trial Courts at a sub-division (There will be no provisions for amendment of plaint or pleadings)

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ORDER-III: Recognised agents and pleaders (against existing Order III) : The Advocate of the plaintiff would be accountable to serve the summons and Advocate of the Defendants would be accountable to receive the (copy of the) plaint and other documents from the Court of Registrar. Such Advocates would work in real sense as court officers as well as agents of their clients.

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ORDER-IV: Summons:

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(a) The Advocate being the agent of the plaintiff as the Court Officer in concerned litigation would serve the summon within 30 days from the date of filing of litigation through his own men as well as by Regd. Post. If in both manner, the service of summon is not possible, he willpublish notice in two local newspapers of sub-division stating suit No. name of the Court of Registrar, name and address of the plaintiff and defendants and himself, without referring the cause of the suit. The date of publication of such notice should be treated as service of summons.

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(b) Copies of the plaint and all other documents would not required to send along with the summon, but shall be deposited with Registrar, from whom, the Advocate being the agent(s) of defendant(s) would collect such copies within 7 days from the date of service of summons.

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(c) The Advocate of the plaintiff would be empowered to sign the summons in the capacity of court officer in the concerned litigation.

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ORDER-V: DEFENCE (against existing Orders VIII, VVV-A, IX, XII and XXIII):

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The Written Statement under existing code would be replaced by the word defence. The opposite parties shall file their defence within 60 days from the date of service of summons in the same manner of the plaint, alongwith Xerox copies of all documentary evidence in his defence, if any, have in his possession, list of any documents if not in his possession with name and address of possessors of the same, if he knows, list of witnesses in support of his defence, and list of additional issues, if any.

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ORDER-VI Documents (Against Existing Order XIII):

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The discovery of documents would be submitted alongwith the plaint. Under the model Code, the possessor of any documents relating to any litigation automatically become the Receiver of the particular documents in his possession for time being, till disposal of the concerned litigation and should supply True Photocopies of such documents on payment of cost within 7 days from the date of notice from the Advocate of either side in the said litigation.

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ORDER-VII: Adjournment: (Against existing Order XVII)

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Adjournment for total period of 60 days between the filing of the litigation and Judgment can be granted by the District Judge only.

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ORDER-VIII: Interlocutory Orders:

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Interlocutory orders like temporary injunction can be granted by the Appellate Court only, which will not effect the adjudication of the main suit at trial courts.

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ORDER-IX: Affidavit, the provision will remain as existing, under order IX.

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ORDER-X: Interrogatories:

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(a) Under the proposed code, interrogatories will become a necessary part of the proceedings of the suit, which also will help judiciary to give findings and judgments on the more stronger basis.

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(b) After filing defence by the defendants, in a suit, both the parties will, if any, make a questionnaires in a prescribed form within a limited period, upon opponent parties who in his turn shall bound to make answers within prescribed times in prescribed form, otherwise shall be debarred from contesting the suit.

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ORDER-XI: Jurisdiction:

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Instead of present jurisdiction of trial courts based on Police Station, all Civil Suits within all Police Stations under a particular Sub-Division shall be comprised as one Jurisdiction to be vested in the Court of Registrar of such Sub-Division.

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ORDER-XII: Recording of Evidences:

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(a) A Court Officer would be appointed for this purpose from penal of Advocates amongst all me.mbers of local Bar of a Sub-Division which shall be declared on the first day of each year, without delisting anyone, but on the basis of seniority.

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(b) Recording of the evidences of the witnesses would be duty of this penal;

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(c) This will be the duty of the plaintiff/defendant to produce his witnesses: before the Court Officer within prescribed time to record evidence in presence of the both side Advocates and parties and within the area of court compound;

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(d) Evidences given by the witnesses would be recorded by the Advocates from the said penal on the rotation basis, and in presence of parties and Advocates of both side parties, and signatures of the witnesses, Advocates, of both side parties as well as parties would be taken over in the prescribed form on which evidence would be recorded.

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(e) Evidences would be recorded in triplicate with the help of carbon paper and one copy each would be served to the first Plaintiff and defendant respectively just at the moment of recording of evidence and original would be submitted before the Registrar of the Trial Courts. Xerox Copies of recorded evidence shall be supplied to other plaintiffs or defendants, if any, after certifying as true copy by the Penal Advocate / Court Officers.

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ORDER-XIII: FINDINGS:

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On the basis of allegations, claims made by the plaintiffs the defence filed by the defendants, answer made by both side parties against interrogatories submitted by either party and evidence recorded by the Advocate Penal, the Court of Munsif will make its findings of facts on the prescribed form.

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ORDER-XIV: Judgment and Execution of Decree:

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On the basis of findings made by the Court of Munsif, the Judgment of the suit after hearing both parties, would be given by a Sub-Judge, who will be assigned the Suit on rotation basis, considering all facts relates to merit of the case and legal side of the suit. If decree is passed, a copy of finding as well as Judgment would be served upon defendant’s Advocate fixing the date of execution of decree. No separate case will be required to be filed for execution of decree under proposed code, but this will be duty of the court to execute the order of decree, if not appealed.

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ORDER-XV: COST:

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If plaintiff succeeds in establishing his case on the basis of merit, he will be entitled to get entire actual cost of the suit and damage caused thereof incurred y him. On the other hand, if he fails in establishing his claim on the basis of merit, he would be compelled to pay all actual expenses and damages incurred y the defendants. If any case lost by either party for the technical or any ground of law, no order would be passed as to the cost.

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She against he in case of female.

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