Santosh Kumar Singh v. State, through CBI

THE INDIAN LAW INSTITUTE

LL.M. (Two Year Course)

Wednesday Seminar X

(27. 10. 2010)

10:00 am – 12:15 pm

Santosh Kumar Singh v. State, through CBI[1]

Moderator : Irwin Lalmuanpuii Hnamte

Presenter : Vida Abdaly

Discussants : Manish Chahar and Sudhir Yadav

Rapporteur : Vishwanand Singh

I. Facts

THE SUPREME COURT delivered the final verdict on October 06, 2010 in this 14–year old case in which Priyadarshini Mattoo, a law student, was stalked, raped and murdered by the accused Santosh Singh, leading to massive public outcry and media coverage. The father of the accused himself being a high-ranked police official, the investigation of the case was handed over to CBI. The trial judge who acquitted the accused, remarked that though he knew that “the accused is the man who committed the crime”, but he was forced to acquit him, giving him the benefit of doubt. In appeal, the Delhi High Court termed the approach of lower court “perverse”[2] which “mauled justice”[3] and “shocked judicial conscience”.[4] Accordingly, the high court convicted the accused and sentenced him to death ruling that the mitigating circumstances under which leniency was begged for by the accused were not enough and the brutal rape and murder does fall in the bracket of "rarest of rare" cases.[5] An appeal was filed before the Supreme Court challenging the same.

II. Judgment

The Supreme Court, while upholding the conviction, concurred with the opinion of the high court on most points on which the latter had found fault with the verdict of the lower court. The court found it surprising that the trial court, after holding almost all the crucial circumstances in favor of the prosecution, went on to order unmerited acquittal of the accused.[6] The Supreme Court also agreed with the findings of the high court on the dubious role of law enforcement and investigative machinery. However, after upholding the conviction, the court adopted a different line of reasoning on the question of sentence. The court observed that where the choice is between a life sentence and a death sentence; the options are extremely limited, and if the court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser sentence should be awarded, this being the underlying philosophy behind `the rarest of the rare' principle.[7] Negating the suggestion that the accused is not capable of reform, the apex court adjudged that “the balance sheet tilts marginally in favour of appellant, and the ends of justice would be met if the sentence awarded to him is commuted from death to life imprisonment”.[8]

III. Issues

1. Can mandatory death penalty be prescribed for any offence? If yes, is it desirable to bring about a legislative change to make the crime of rape and murder punishable with death?

2. How far the Supreme Court is justified in excluding the present case from the ‘rarest of the rare’ category? Is there a need to formulate a sentencing policy to regulate the exercise of sentencing discretion by the judiciary?

3. Keeping in view the dangers of stalking as exposed in the instant case, is there a need to have an anti-stalking law in India?

4. In view of the irregularities in the investigation and functioning by the police pointed out in the instant case by all the courts, do you think there is an urgent need to implement the long impending recommendations for police reforms?

Suggested Readings:

1. Mithu v. State of Punjab (1983) 2 SCC 277.

2. Dhananjay Chatterjee v. State (1994) 2 SCC 220.

3. Bachan Singh v. State of Punjab, AIR 1980 SC 898.

4. Ajay K Mehra, “Police Reforms at Sixty”, 45 (35) Mainstream 31-37 (2007).

5. Asha Shamandas Bajaj v. Meeran Borwankar, MANU/MH/1016/2008; (2008) 110 BOMLR 3586.

6. Mukul Mudgal and Nitin Mishra, “Need for sentencing policy in India”, 2 (4) Nyaya Kiran 1-31 (2008).

7. Vijay Ghormade (ed.), Death Sentence: A Struggle for Abolition, Essays in the Honour of Padma Bhushan Dr. L.H. Hiranandani (Hind Law House, Pune, 2008).

8. Mihir Desai, “Red Herring in Police Reforms”, 44 (10) Economic and Political Weekly 8-11 (2009).

---

[1] Criminal Appeal No. 87 of 2007, 06.10.2010.

[2] State through CBI v. Santosh Singh, 2007 Cri LJ 964, para 53.

[3] Id. para 53.

[4] Ibid.

[5] State through CBI v. Santosh Singh 2006(92)DRJ270.

[6] supra note 2.

[7] Supra note 1, para 38.

[8] Ibid.

All India Bar Examination

THE INDIAN LAW INSTIUTE

LL.M. (Two Year Course)

Wednesday Seminar VIII

(29.09.10)

(10.00 am-12.15 pm)

All India Bar Examination[1]

Moderator : Devendra Singh

Presenter : Khushboo Anand

Disscussants :Garima Budhiraja and P.Gnana J. Flower

Rapporteur : Atiur Rahman Khan

I. Background

THE FIRST ALL INDIA BAR EXAMINATION is scheduled to be conducted on December 5, 2010.[2] In 2009, during the hearing of a matter[3] before the Supreme Court of India, the Bar Council of India[4] had come up with the idea of instituting AIBE. At present, for being enrolled as an advocate, the person has to fulfill the qualifications mentioned in section 24 of the Advocates Act, 1961, like, being a citizen of India; has completed the age of 21 years; has obtained a law degree; fulfills such other conditions as may be specified in the rules of State Bar Councils; pays the requisite stamp duty, if any and requisite fees for enrollment; and makes an application for such enrollment to the State Bar Council.[5] Twice attempt have been made by BCI to lay down additional conditions for enrollment i.e., (i) maximum age limit 45 years and (ii) compulsory training for enrollment as advocates, but both these initiatives were set aside as being ultra-vires the powers of BCI.[6] From 1961 to 1964, all law graduates in India were required to compulsorily undergo training for a period of one year and then pass an examination prescribed by BCI to get themselves enrolled as an advocate.[7]

II. Present Scenario

The AIBE is intending to test an advocate’s ability to practice the profession of law in India. This shall be mandatory for all law graduates passed out from the academic year 2009-2010 and onwards.[8] The law graduates passed out, prior to academic year 2009-2010, need not to appear in this examination. Enrollment with State Bar Council is a pre-condition for the appearance in the AIBE. The AIBE will be conducted in nine different languages.[9] The test will be a multiple choice open book test in OMR format, with 100 questions, divided into two parts, each part requiring a minimum passing mark separately as well as an aggregate passing mark and no negative marking will be there. BCI will not release any scorecard. The candidates will only be informed whether they have cleared the examination or not. A candidate may attempt the test any number of times.

Many have raised a hue and cry against the AIBE. Questioning the AIBE, nine writ petitions have been filed in different high courts in India. The State Bar Councils are of the view that the BCI had not taken the consent of the State Bar Councils and such examination is not going to improve the quality of lawyers and the exam would disadvantage this year’s law graduates from rural areas.[10] Then a petition came before the Supreme Court praying that all nine writ petitions should be clubbed and heard in the Supreme Court itself. The Supreme Court passed an order that all nine writ petitions will be clubbed and heard at Delhi High Court.[11]

III. Issues

1. Whether the decision of BCI to conduct AIBE and to regulate the rights to practice, in the absence of any statutory provision, is ultra vires of its powers?

2. Whether the classification between students passed out in the year 2009-10 and onwards and students passed out prior to academic year 2009-2010 can stand the test of reasonable classification under article 14 of the Constitution of India?

3. Whether the BCI is justified in regulating entry into the legal profession by conducting AIBE for law graduates notwithstanding the fact that it exercise control over legal education? Is it desirable to have such dual control?

Suggested Readings :-

1. Shankar, S.P, “Advocates Act 1961- Sections 34 and 35: Power of High Court”, AIR 2005 (Jour.) 142-144.
2. Lahoti, R.C, “Legal Education and Legal Profession: An Introspection”, AIR 2002 (Jour) 83-87.
3. Rafiq, Fareed Ahmed, “Professional Legal Training In India at Crossroads: A Study of Post Sudeer Scenario”, 7 Kashmir University Law Review 128-42 (2000).

---

[1] Hereinafter referred as AIBE.

[2] BCI notification dated 12^th June , 2010 available at www.barcouncilofindia.org/all-india-bar-examination-rules-2010-notified.

[3] BCI v. Bonnie FOI Law College & Others, Special Leave to Appeal (Civil ) No(s) 22337/2008.

[4] Hereinafter referred as BCI.

[5] Section 24 (3) (d) (i).

[6] Indian Council of Legal Aid & Advice & Ors. v. BCI & Others, 1995 (1) SCC 732; V.Sudeer v. BCI AIR 1999 SC 1167.

[7] Section 24 (d) – “ he has undergone a course of training in law and passed an examinationn after such training both of which shall be prescribed by the State Bar Council”. The term “…passed an examination…” was deleted by Advocate Amendment Act, 1964. The section 24 (d) was omitted by Advocate Amendment Act, 1974, w.e.f. 31.1.1974.

[8] BCI amended rules of BCI Rules in respect of Rules 9, 10,11.

[9] Hindi, Telugu, Tamil, Kannada, Marathi, Bengali, Gujarati, Oriya and English.

[10] http://www.lawetalnews.com/NewsDetail.asp?newsid=1880 (visited on September 22, 2010)

[11]http://www.thehindu.com/news/national/article548343.ece (visited on September 22, 2010) , Anoop Prakash Awasthi & Ors. v. BCI (WP) (C ) No. 253/2010 heard by the Bench of S.H. Kapadia, CJI, K.S. Radhakrishnan and Swatantar Kumar,JJ

The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

THE INDIAN LAW INSTITUTE

LL.M (Two Year Course)

Wednesday Seminar VII

(22.09.10)

(10.00 am – 12.15 pm)

The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010[1]

Moderator : Mehbubul Hassan Laskar

Presenter : S. Mercy Deborah

Discussants : Abhishek Kumar Pandey & Navtika

Rapporteur : Senthiyanger

I.Background

THE BILL TO PROTECT whistleblowers has been introduced in the Lok Sabha[2] to shield those people who stand up for truth and public interest, often at great personal risk. This Bill is the result of a circuitous and protracted outcome of the Supreme Court’s strong pitch for a mechanism to protect whistleblowers. This it did while hearing a PIL on the murder of Satyendra Dubey, the Bihar-based engineer with National Highways Authority of India (NHAI) who was killed for exposing irregularities in road contracts. The pressure applied by the court led the central government to the issue of an order[3] in early 2004 authorizing the Central Vigilance Commission (CVC) to receive and act on complaints of whistleblowers and to protect their identities, pending the enactment of a law. This interim arrangement is finally set to become a law.

II.Overview of the Bill

The legislation seeks to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause to inquire into such disclosure and to provide adequate safeguards against victimisation of the person making such complaint and for matters connected therewith and incidental thereto. Under the Bill “Disclosure”[4] would mean a complaint relating to an attempt to commit or commission of an offence of corruption or wilful misuse of power or wilful misuse of discretion or criminal offence by a public servant and such disclosures shall be treated as public interest disclosure under the Bill. It lays down that such disclosure be made before the “Competent Authority”. [5] Every disclosure shall be made writing.[6] At the first instance, the competent authority makes a discreet inquiry.[7] If the disclosure requires to be investigated, it shall seek comments or explanation from the head of the department of the concerned organization, but the identity of the complainant shall not be revealed.[8] If, however, it becomes necessary to reveal the identity, the authority may reveal to the head of the organization, who shall not directly or indirectly reveal the identity.[9] If after conducting an inquiry, the facts or allegations are found to be frivolous or vexatious, competent authority shall close the matter[10] and such frivolous or vexatious complaints will attract penalties.[11] If, however, the reports confirm the allegations, then it shall recommend initiation of proceedings against the concerned public servant.[12] The authority shall not investigate a complaint made after expiry of five years from the date on which the action complained against is alleged to have taken place.[13] For the purpose of making discreet inquiry or obtaining information from the organisation concerned, the competent authority shall be authorised to take assistance of police authorities.[14]

III.Issues

1. Whether the definition of ‘disclosure’ under clause 2(d) and making of such disclosure to a single authority under clause 3(1) of the Bill defeats the very purpose of legislation?

2. Does the Bill provide for effective operational system for protecting whistleblowers and whether the provisions of the Bill will fuel activism or deter potential whistleblowers?

3. Given the fact that most of the public functions have now been taken over by the private sector, is it prudent to exclude the private sector from the purview of the Bill?

Suggested Readings-

1. Law Commision of India, 179^th Report on The Public Interest Disclosure and Protection of Informers (December 2001), available at www.lawcommissionof india.nic.in/reports/179rptp1.pdf

2. Chêne Marie, “Good Practice in Whistleblowing Protection Legislation (WPL)”, available at http://www.u4.no/helpdesk/helpdesk/query.cfm?id=207

3. Gupta Ruchi, “Comments on the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill”, available at http://bourgeoisinspirations.wordpress.com/2010/08/11/draft-comments-on-the-public-interest-disclosure-and-protection-to-persons-making-the-disclosure-bill/

4. Nayak Vankatesh, “Whistleblower Bill in India – A case of the right hand not knowing what the left hand has done”, available at http://www.c-nes.org/nycu/755.html

5. Venkatesan V., “Secrecy around Bill”, Frontline, p. 29, September 10, 2010.

---

[1] Bill No. 97 of 2010. Hereinafter referred to as “Bill”.

[2] Introduced in Lok Sabha on August 26, 2010.

[3] Vide Resolution No. 89, dated April 21,2004, The Ministry of Personnel, Public Grievances and Pensions notified a resolution, called the Public Interest Disclosure and Protection of Informers’ (PIDPI) resolution.

[4] Cl. 2(d).

[5] Cl. 3(1).

[6] Cl. 3(4).

[7] Cl. 4(2).

[8] Cl. 4(3).

[9] Cl. 4(4) and 4(5).

[10] Cl. 4(6).

[11] Cl. 16.

[12] Cl. 4(7) (i).

[13] Cl. 5(3).

[14] Cl. 9.

The Cinematograph Bill, 2010

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar VI
(15.09.10)
(10.00am - 12.15 pm)

The Cinematograph Bill, 2010[1]

Moderator : Amandeep Kaur Sandhu
Presenter : Kamlesh Kumar
Discussants : Apoorva K.Sharma & Bhanwar A. Zadon
Rapporteur : Anshu Singhal


I. Background


THE CINEMATOGRAPH ACT, 1952[2] had been enacted, about six decades ago, to regulate the exhibition of the cinematograph films and licensing of places where such films shall be exhibited. The civil society has been advocating a change in the Act for a long time, so as to make it in tune with the contemporary times. There have been voices for and against liberalizing the censorship regime in India. It is, therefore, proposed to introduce this Bill in order to make the process of certification in tune with the changed times and also, to make it an effective tool in combating piracy. This Bill is yet to be introduced in the Parliament.

II. Overview of the Bill

The Preamble of the Bill states that the Bill seeks to make provisions for the sanctioning of cinematograph films for exhibition and for regulating exhibition by means of cinematographs and for matters connected therewith or incidental thereto. The Bill provides for the constitution of the Central Board for Film Certification[3] for the purpose of sanctioning films for certification.[4] The Board shall be guided by the principles of natural justice for sanctioning of films for public exhibition.[5] In this Bill, the term exhibition means display of a cinematograph film to persons not directly connected with the production, distribution, promotion or certification of that film.[6] The Bill introduces new categories of certification that are “12+”and “15+”[7], and does away with the “U/A” certification available under the Act. For certification examination of the film is conducted by the Board and after examining or having the film examined in the prescribed manner the Board may sanction the film for exhibition; or direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for exhibition; or refuse to sanction the film for exhibition.[8] A film shall not be sanctioned for exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.[9]Where the applicant for a certificate in respect of a film is aggrieved by any order of the Board he/she may, within a period of thirty days from the date of such order, prefer an appeal to the Tribunal.[10]

III. Issues

Inspite of providing for multiple certifications for sanctioning films, do you think that provision for censorship is still the need of the day?
Do you think that the distinction should be made between public and private exhibition and only public exhibition should be brought within the purview of the provisions of the Bill? Is there a need of special treatment for documentary films in the process of certification?
Whether the provisions of the Bill propose to bring about substantive changes to bring the process of certification in tune with the changed time.[11]

Suggested Readings: -

1. Anjali Monteiro and K.P. Jayashankar, “A New Pair of Scissors: The Draft Cinematograph Bill 2010”, 45 (29) EPW 19 (2010).
Ranjit D Udeshi v. State of Maharashtra, AIR 1965 SC 881.
Ajay Goswami v. UOI & Others, AIR 2007 SC 493.
Director General,Directorate General of Doordarshan & Others v. Anand Patwardhan and Another, 2006(8) SCC 433.
Annual Report, 2009 on Film Censorship by Central Board of Film Certification, available at www.cbfcindia.gov.in.


[1] Hereinafter “Bill”, available at www.mib.nic.in.
[2] Act No. 37 of 1952. Hereinafter “Act” available at www.mib.nic.in.
[3] Hereinafter the Board.
[4] Cl. 4(1).
[5] Cl. 5(1).
[6] Cl. 2(f).
[7] Cl. 8.
[8] Cl. 6.
[9] Cl. 9.
[10] Cl. 10.
[11] This needs to be discussed in the light of the provisions of the Act, 1952.

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar V
(08.09.10)
(10.00am - 12.15 pm)

The Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010[1]

Moderator : Ajeet Pandey
Presenter : Aparna Gaind
Discussants : Anuranjan Sharma and Prabhat K. Singh
Rapporteur : Tushti Chopra


I. Background


A NUMBER OF foreign educational institutions are operating in the country in collaboration with Indian Universities. But due to dearth of a comprehensive and effective policy for their regulation, it was difficult to assess the operations of these institutions. The Ministry of Human Resource Development has been making attempts to provide an appropriate legal framework for foreign educational institutions in India. There were some recommendations of NKC and Yashpal Committee with regard to higher education and regulation of foreign institutions as well. The Foreign Educational Institutions (Regulation of Entry and Operations, Maintenance of Quality and Prevention of Commercialization) Bill, 2007 was introduced in the Parliament, but it was withdrawn due to severe opposition. Recently, a fresh Bill namely the Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010 has been introduced in the Lok Sabha on May 3, 2010.
II. Overview of the Bill
The Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010 seeks to regulate the entry and operation of foreign educational institutions[2] seeking to impart higher education (higher education includes technical and medical education and the award of degree, diploma and equivalent qualification). As per the provisions of the Bill, every foreign educational institution intending to operate in India has to be notified as a foreign educational provider by the central government.[3] The foreign educational institutions have to maintain a corpus fund of a minimum of Rs 50 crores.[4] Maximum of 75% of any income received from the corpus fund shall be utilized for developing its institution in India and rest shall be deposited into the fund.[5] Revenue generated, after meeting all the expenditure, cannot be invested for any purpose other than development of the educational institution established by the foreign universities in India. [6] The Bill provides for mandatory publication of prospectus, its content and its pricing.[7] The Bill also provides for withdrawal of recognition in case a foreign educational provider violates any provision of the regulations.[8] The central government may exempt any institution from conforming to the requirements of the Bill except the penalty provision and the revenue provision.[9] Any person who offers admission to an unrecognised institution or makes misleading advertisement shall be liable to a minimum fine of Rs 10 lakh (upto Rs 50 lakh) in addition to refunding the fees collected. Any recognised foreign educational provider who violates the law shall be liable to a fine between Rs 10 and 50 lakh and forfeiture of the corpus fund. [10]

III. Issues
Whether the provisions of the Bill provide for an effective regulation of entry and operation of foreign educational institutions in India?
Should the foreign educational institutions be required to comply with the affirmative action policy of the State?
Does the proposed entry of foreign educational institutions will induce unhealthy competition in the education sector? Considering the fact that budgetary allocation for higher education in India is very less, do you think that higher education institutions in India are placed on a level playing field to compete with foreign educational institutions?
Suggested Readings:
1. J. B.G. Tilak, “The Foreign Educational Institutional Bill: A Critique”, XLV (19) EPW 12 (2010).
2. Recommendations for The Foreign Educational Institutional (Regulation of Entry and Operations) Bill, 2010 available at: www.edgeforum.in.
3. “Protest against commercialization, privatization of education”, The Hindu, Aug 28, 2010.
4. The National Knowledge Commission Report on Higher Education, 2006 available at: www.britishcouncil.org/learning-nkc-recommendation-education.
5. Report of “The Committee to Advise on Renovation and Rejuvenation of Higher Education” (Yashpal Committee’s Report) 2009 available at: www.academics-india.com.
[1] Bill No. 57 of 2010. Hereinafter “Bill”.
[2] “Foreign Educational Iinstitution” is defined as any institution established outside India, which has been offering educational services for a minimum of 20 years and proposes to offer courses which shall be taught through conventional teaching method (including classroom teaching). It excludes learning in distant mode in India.
[3] Cl. 3.
[4] Cl. 4 (3) (b).
[5] Cl. 5(2).
[6] Cl. 5(3).
[7] Cl. 6.
[8] Cl. 7.
[9] Cl. 9.
[10] Cl. 8.

The National Food Security Bill, 2010

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar IV
(01.09.10)
(10.00am - 12.15 pm)

The National Food Security Bill, 2010[1]

Moderator : Saurabh Singh
Presenter : Pragya Singh
Discussants : Rebecca Lalrindiki and Aditya Gupta
Rapporteur : Abhishek Kumar Pandey

I. Background

INDIA HAS ACHIEVED food self-sufficiency 30 years ago through dramatic investments in technology, institutions and infrastructure. According to Food and Agriculure Organisation (FAO) of the United Nations, one fourth of the world’s undernourished population (251.5 million people) lives in India.[2] In recent years, the battle against hunger has been placed at the centre of the development discourse in India. This has come about as a direct result of a writ petition filed in the Supreme Court of India by the People’s Union for Civil Liberties[3], to recognise right to food as fundamental right under article 21. In addition to these judicial developments, Indian Legislature has taken steps to provide a statutory framework in the form of this Bill. The Bill entitles families living Below Poverty Line[4] (BPL) to certain minimum quantities of food grains per month through Targeted Public Distribution System[5] (TPDS).

II. Overview of the Bill
The Bill provides that every identified BPL family within the number fixed by the central government shall be entitled to receive every month 25 kgs food grains such as rice and/or wheat at subsidized issue prices. These prices will be fixed from time to time by central government.[6] The central government shall fix the number of the identified BPL families for each state for coverage under the TPDS on the basis of poverty estimates notified by the Planning Commission of India.[7] However, if any state government is to extend its support to additional families over and above that is provided under clause 3, it may do so with its own budgetory resources[8].The central government shall be responsible for procurement of wheat & rice for the central pool[9] and states. In an event of inability to deliver the required allocation for any state, the central government shall compensate by funds to the state.[10] The state government is also made responsible for making payment of “Food Security Allowance”[11] to the beneficiaries of the Bill, in case of failure to supply in any month the entitled quantities of foodgrains to such families.[12]For ensuring transparency in functioning of TPDS and accountability of the functionaries, every state government shall set up a vigilance committee as per the rules.[13] clause 16 further says that whosoever contravenes the provisions of this Act shall be liable for penalties as provided under section 7 of Essential Commodities Act,1955.
III. Issues
Whether the provisions of the (draft) Bill confer an enforceable right to food to every identified BPL familiy? If no, is the state justified in not conferring such a right?
Notwithstanding the Wadhwa Committee Report on the failure of TPDS in India, is it prudent on the part of Indian Parliament to adopt it again via this Bill for the purpose of distribution of food grains?
Looking into the present status of Indian economy and its dynamic growth, whether Indian Government is justified in not enforcing article 47 even after 60 years of independence?
Suggested Readings:
1. Reetika Khera, “Right to Food Act: Beyond Cheap Promises” 45 EPW 40 (2009).
2. PUCL v. The Union of India and Others,2000 (5) SCALE.
3. Justice Wadhwa Committee Report on Public Distribution System (PDS) (2009).
4. P. Sainath, “Food Security- of APL, BPL & IPL”, The Hindu, July 6, 2010 available at http://www.thehindu.com/opinion/columns/sainath/articles501693.ece.
5. D.D.Basu, 3 Commentary on the Constitution of India 4158-4166 (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 8th edn. 2008).
[1] The proposed Draft Bill. Hereinafter “Bill”.
[2] Food and Agriculture Organisation Report available at http//www.fao.org/countries/5528/en/ind.
[3] PUCL v. The Union of India and Others, 2000(5) SCALE.
[4] Cl. 2(b).
[5] Cl. 2(u).
[6] Cl. 3.
[7] Cl. 4(2).
[8] Cl. 4(3).
[9] Cl. 2(c).
[10] Cl. 6(2).
[11] Cl. 2(h).
[12] Cl. 7(8).
[13] Cl. 10.

Khalid Mundappilly v. Executive Engineer

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar III
(25.08.10)
(10.00am - 12.15 pm)

Khalid Mundappilly v. Executive Engineer
Moderator : Rashmi.R
Presenter : M. Ramesh
Discussants: Krishna Kumar and Navditya Tanwar
Rapporteur : Saransh Jain

I. Facts
A PUBLIC INTEREST LITIGATION was filed by a resident of Aluva challenging the permission granted by the respondents to hold public meeting on the P.W.D. road in front of Aluva Railway Station in Kerala. Petitioner produced several photographs showing the stage constructed on the side of road which partly occupied the tarred portion of the road and people sitting in large number in chairs on tarred portion of the public road, blocking the traffic and causing inconvenience to the public. The photographs produced also show that the Aluva road is busiest in the town. Therefore, the petitioner prayed for prohibting the holding of meetings on roads and road margins in future.
II. Judgment
After considering the facts of the case, the Kerala High Court decided to issue prohibitory orders against holding meetings on the public roads and road margins to ensure free flow of vehicles as well as to prevent loss of lives and injury to the people in the event of rash vehicles running into people assembled in meeting on roadside. However the court felt that the prohibitory order shall not only be benificial to the users of Aluva road but also to the people of the state of Kerala as a whole. Therefore, for effective implementation of the order, the court made the government as additional respondent. However, assuming that the government cannot have any objection against the court which is protecting public interest and lives of people, it was held that there was no necessity to hear the respondent since holding meetings on public roads and road margins itself is illegal. The court also felt that delay in the issuance of general prohibitory order would tantamount to delay in rendering justice to the people and in the interest of public the court instructed the Chief Secretary, Government of Kerala to issue instructions to the Director General of Police, departments of P.W.D, revenue and local administration to implement the judgment.

III. Issues
1. Whether the imposition of prohibition against holding meetings in public roads and road margins would amount to violation of freedoms guaranteed under article 19(1)(a) and 19(1)(b) of the Constitution of India?
2. Whether the court, in the instant case, is justified in reaching a priori conclusion that the state cannot have any objection in this matter and accordingly imposing general prohibitory orders against holding meetings in public roads and road margins without giving to the state a responsible opportunity to be heard?
3. Is the court justified in passing a general prohibitory order, so as to be applicable to whole of the state, against holding of the meetings on public roads without confining to the relief sought by the petitioner in the instant case? Whether such general prohibitory order would amount to judicial legislation which leaves no discretion for the executive?

Suggested Readings:
1. Durga Das Basu, Shorter Constitution of India 247-311 (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 14th edn., 2009).
2. J.N. Pandey, The Constitutional Law of India 169-203 (Central Law Agency, Allahabad, 45th edn., 2008).
3. Mahendra P. Singh, V.N. Shukla’s Constitution of India 134-147 (Eastern Book Co., Lucknow, 11th edn., 2008).
4. M.P. Jain & S.N. Jain, Principles of Administrative Law 385-445 (Wadhwa and Company, Nagpur, 6th edn., 2007).
5. C.K. Takwani, Lectures on Administrative Law 187-211 (Eastern Book Co, Lucknow, 4th edn., 2008).