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).

The Prevention of Torture Bill, 2010

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar I
(11.08.10)
(10:00 A.M. to 12:15 P.M.)

The Prevention of Torture Bill, 2010

Moderator : Slahuddin Ahmed.
Presenter : Saadiya.
Discussants : Anubha Dhulia and Jupi Gogoi.
Rapporteur : Utkarsh Yadav.

I. Background
Pursuant to the adoption of the Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by the General Assembly in 1975, the United Nations General Assembly adopted the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment on December 10, 1984. India signed the convention on October 14, 1997 but has not ratified the same till date. Ratification of the convention requires enabling legislation to reflect the definition and punishment for “torture” as provided for in the convention. Although the Indian Penal Code contains certain provisions relating to the subject matter, the term “torture” is not defined in the manner it is provided in article 1 of the convention. In the given circumstance, the government of India felt it necessary that for the purpose of ratification of the convention, legislation should be enacted and therefore an attempt was first made in 2008 when the Prevention of Torture Bill 2008 was proposed which did not see the light of the day. A modified draft of the Bill, i.e. The Prevention of Torture Bill, 2010 was introduced in the Parliament and was passed by the Lok Sabha on May 6, 2010.

II. Overview of the Bill.
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to define the expression "torture" and provide for punishment to those involved in the incidents of torture and specifies the time limit for taking cognizance of the offence of torture. Clause 3 of the Bill defines “torture” as any intentional act for the purpose of extracting confession or information, which causes “grievous hurt” or “ danger to life, limb or health (whether mental or physical)” to any person by a public servant or a person abetted by a public servant. However proviso to the clause excludes those acts, which are inflicted in accordance with procedure established by law. Clause 4 of the Bill penalizes an act of torture which is inflicted on a person “for the purpose of extorting confession” or “any information which may lead to the detection of an offence or misconduct” and “on the grounds of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.”
Clause 5 of the Bill requires the complaint to be made within 6 months from the date on which the offence is said to have been committed. The Bill requires prior government sanction for trying those accused of torture.

III. Issues
1. Whether the definition of torture given in clause 3 of the Bill is broad enough to include all kinds of acts that can be labelled as torture. Can torture be justified in any circumstances as provided for in the proviso to clause 3?
2. Whether the provision given under clause 4 of the Bill defeats the purpose of making torture a punishable offence when the Bill does not penalize “torture” per se as a criminal offence?
3. Is the Bill a sincere effort on the part of the legislature to ratify the convention? Is there any justification for not bringing it in conformity with the convention in toto?

Suggested Readings:
1. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984.
2. The Prevention of Torture Bill, 2010.
3. D.K. Basu v. State of West Bengal AIR 1997 SC 610
4. Ravi Nair, “Prevention of Torture Bill: A Feeble Attempt”, 55 EPW 25 (2010)
5. Arun Ferreira, “A Critical Appraisal of the Prevent ion of Torture Bill, 2010” 55 EPW 10 (2010).
6. M.P Jain, Indian Constitutional Law, 1118-1120 (Wadhwa Nagpur, New Delhi, 5th edn, 2008)
7. Michael Goodhart, Human Rights: Politics & Practice 298 (Oxford University Press, New York 2009).

Civil Liability for Nuclear Damage Bill

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar XI
(31.03.10)
10:00 am-12:15 pm

The Civil Liability For Nuclear Damage Bill ,2010

Moderator : Jupi Gogoi Presenter : Amandeep Kaur Sandhu
Discussants : Devendra Singh and M. Ramesh
Rapporteur : Shantanu Singh

I Background
The Indo-U.S. Civilian Nuclear Agreement was enacted successfully in October 2008. The agreement was to facilitate civilian nuclear partnership between United States and India along with many other mutual benefits on the condition that India will differentiate between its civilian and military nuclear facilities and put civilian facilities under the International Atomic Energy Agency (IAEA) inspection. In order to facilitate nuclear commerce and attract U.S. private companies involved in nuclear commerce, the UPA government prepared The Civil Liability for Nuclear Damage Bill, 2010. The cabinet ministerial meeting approved the Bill on November 19, 2009. The passage of the bill is crucial to operationalise the India-US civil nuclear agreement as the Bill will enable the country to accede to the Convention on Supplementary Compensation for Nuclear Damage 1997, without which the US private companies will not be able to sell nuclear equipments to India. In absence of such law, US firms will not get insurance cover for their projects in India.

II Overview of the Bill
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to give compensation to persons if they suffer nuclear damage as a result of a nuclear incident. Clause 4, inter alia, provides that the operator shall be liable for nuclear damage caused by a nuclear incident in that nuclear installation. However, the total liability of such operator is limited. Further the Bill provides that where a nuclear damage is caused by nuclear incident directly due to a grave natural disaster of an exceptional character or by acts of armed conflicts etc, the operator shall not be liable. Clause 6 specifies that the maximum amount of liability in respect of nuclear incident shall be the rupee equivalent of 300 million Special Drawing Rights and the liability of an operator for each nuclear incident shall be Rs. 500 crore. Clause 7 specifies that central government shall be liable where the liability exceeds the amount of liability of an operator. Under the Bill, the foreign supplier, however culpable it may be for a nuclear accident will enjoy legal immunity because the Bill channels all legal liability on the central government. The Bill further provides that the operator, through a contract, can make the foreign supplier responsible to pay compensation for an accident. But such amount can only be up to the operator’s own liability ceiling. According to Clause 35 no civil court shall have jurisdiction to entertain any suit or proceeding in respect of which the Claim Commissioner or the Nuclear Damage Claim Commission is empowered to adjudicate under the Bill. Another contentious clause is period of limitation to claim damages. It provides that the right to claim compensation for any nuclear damage shall extinguish if such claim is not made within a period of ten years from the date of notification of nuclear incident.

III Issues

1. How far the Parliament is justified in limiting the maximum liability at the rupee equivalent of 300 million Special Drawing Rights, which is not in accordance with internationally adhered benchmarks?
2. Is the Parliament justified in not making the supplier/operator directly and fully liable and shifting the liability to the Indian taxpayer?
3. Whether the limitation on the right to claim damages merely to 10 years after the happening of a nuclear incident is justified, since its effects on health, environment, etc take a long time to manifest?

Suggested Readings:

1. Brahma Chellaney, ”A Radioactive Bill Fraught With Big Risks”, The Hindu 13 March 2010.
2. Gopal Krishna, “Nuclear Liability Bill, US Senate, and Indian Parliament”, available at http://canarytrap.in/2010/03/17/nuclear-liability-bill-us-senate-and-indian-parliament/
3. Convention on Supplementary Compensation for Nuclear Damage,1997.
4. Brahma Chellaney, “Ignoring Lessons of Bhopal & Chernobyl”, The Hindu 16 February 2010.
5. Chernobyl- A continuing Catastrophe, UN Office for the Coordination of Humanitarian Affairs available at http://www.reliefweb.int/ocha_ol/programs/response/cherno/qms.pdf

Seminar X - Foreign Law Firms, RBI and India

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar X
(17.03.10)
(10.00am - 12.15 pm)
Lawyers Collective v. Bar Council of India & Others
Moderator : Farhat Jahan Rehmani
Presenter : Suparna Gaind
Discussants : Saurabh Singh and V. Elanchezhiyan
Rapporteur : Rahul Sharma

I. Facts
The genesis of the case can be traced back to when three foreign law firms, practicing in U.K/ U.S.A had applied to the Reserve Bank of India, seeking permission to open their liaison offices in India. In 1995, the RBI granted permission to open their respective liaison offices, with certain conditions. In the permission letter, it was specifically stated that the permission granted to the law firms is limited to the purpose of section 29 of the Foreign Exchange Regulation Act, 1973. Being aggrieved by the step taken by the RBI, a writ petition was filed in Bombay High Court by the petitioner. The main contention of the petitioner was that the foreign law firms could not be permitted to carry on practice either in litigious or non-litigious matters without being enrolled as advocates under the Advocates Act, 1961. However, the respondents argued that the Advocates Act, 1961 was applicable only to persons practicing in litigious matters and that the Act was enacted by Parliament in exercise of the powers conferred on it under entries 77 and 78 in list I of the Seventh Schedule of the Constitution, which refers to the organization of the Supreme Court and the high courts as well as the persons entitled to practice before these courts. Thus, the Act would apply only to persons practicing before the Supreme Court and the high courts and not to persons practicing in non-litigious matters.
II Judgment
After considering various judgments of the Supreme Court, the Bombay High Court refused to accept the contention that the Act was restrictive in nature. The court held that (i) Act applies not only to the persons practicing before the courts but also to persons who are practicing in non-litigious matters outside the courts and (ii) it applies to courts other than the high courts and the Supreme Court. Further, while observing the fundamental distinction between the professional activity and the activity of a commercial character, the court also held that the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under section 29 of the Foreign Exchange Regulation Act, 1973.

III Issues
1. Whether the Reserve Bank of India was justified in granting permission to the foreign law firms, under section 29 of Foreign Exchange Regulation Act, 1973 to open their respective liaison offices in India?
2. Whether the Advocates Act, 1961 intends to include both litigious and non-litigious practitioners?
3. Do you think that liberalising legal profession and permitting foreign law firms/ lawyers in India would enhance the quality of legal services, thereby facilitating the adoption of international best practices? If yes, should they be allowed to practice in India?

Suggested Readings
1. The Advocates Act, 1961.
2. Foreign Exchange Regulation Act, 1973.
3. Subodh Markandeya & Haroon S. Kably, The Foreign Exchange Regulation Act, 1973,
213-224 (1977).
4. S. K. Gupta & Ajaya Jain, Foreign Exchange: Law and Practice, 1.151-1.168 (1981).
5. O. N. Mohindroo v. Bar Council, AIR 1968 SC 888.
6. Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45.
7. C. K. Sharma Baruah, “Entry of Foreign Legal Consultants and Foreign Law Firms into India”, 27 (1) Indian Bar Review (2000) 1.

Seminar VI Update - Supreme Court and RTI

The Supreme Court has decided to appeal against the decision of Delhi High Court in Secretary General, Supreme Court of India v. Subash Chandra Agarwal. The high court decision was discussed in the House during Seminar VI. The issue pertaining to the current development was

"3. If the Supreme Court entertains the case, which involves its own Registry, do you think it is justified according to the principles of natural justice?"

The court's rationale for doing so is that the offices of the registrar and chief justice are different. How correct is this understanding? There is no constitutional provision which separates the office of the Chief Justice of India from its administrative wing. Further, the maxim nemo judex in parte sua also speaks of "reasonable apprehension of bias". Considering these aspects, what could be the way out?

It is also possible that a legislation incorporating the 1997 resolution will be enacted.

Mulla & Another v. State of U.P. - Sentencing Policy in India

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar IX
(10.03.10)
10:00 am-12:15 pm

Mulla & Another v. State of U.P.

Moderator : Samreen Hussain
Presenter : Utkarsh Yadav
Discussants : Sreeparvathy G. and Vikesh Tripathi
Rapporteur : Neeraj Tiwari


I Facts

ON 21.12.1995, when Shiv Ratan, Nanhakey, Ram Kishore and Sushil were irrigating their fields, eight miscreants armed with guns reached the spot and made a demand of Rs. 10000/- each, threatening that otherwise they would be killed. Soon thereafter, Harnam, Ganga Dai, Chhotakey and Hari Kumar Tripathi who were returning home after irrigating their fields were also stopped by the miscreants making the same demands. When all of them expressed their inability to pay the money, the miscreants took away five of them including a woman leaving the others to arrange for the money, threatening that the abducted persons would be killed otherwise. A complaint was lodged and the dead bodies were recovered the next day. The appellants were arrested and charge sheet was filed. The trial court convicted the appellants under section 365 IPC and sentenced them to undergo rigorous imprisonment for 7 years and a fine of Rs.10000/- each. They were also convicted under section 148 IPC and sentenced to rigorous imprisonment for 3 years. They were further convicted under section 302 read with section 149 IPC and sentenced to death. The appeal against the judgment of the trial court was dismissed by the high court confirming the death sentence. Aggrieved by the order of the high court, both the accused preferred an appeal before the Supreme Court.

II Judgment

The Supreme Court on appeal confirmed the conviction. However, Sathasivam, J. writing the judgment for the bench , observed that, “We at no stage suggest that economic depravity justify moral depravity, but we certainly recognize that in the real world, such factors may lead a person to crime… Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socioeconomic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. .” Thus the court taking in to account all the aggravating and mitigating circumstances commuted the death sentence in to life imprisonment.


III Issues

1. Is there a need for codification of sentencing policy (based upon the penal policy of the state) which keeps the judicial discretion to bare minimum, in order to avoid arbitrariness and inconsistency?
2. Keeping in mind the conflicting opinions of the Supreme Court, can economic backwardness of the accused be considered as one of the mitigating factors in sentencing?
3. In the context of this case do you think that the Supreme Court is gradually doing away with death penalty by limiting the scope of ‘rarest of rare’ doctrine?


Suggested Readings:

1. G.Kameswari & V. Nageswara Rao, “The Sentencing Process-Problems and Perspectives”, 41 JILI (1999) 452.
2. V.R Dinkar, “Structuring Judicial Discretion in Sentencing by Guideline Judgement”, 26 Academy Law Review (2002) 135.
3. Dr. K.N Chandrasekharan Pillai and Dr. N.S Soman, “Rarest of Rare Case-A Myth”, 25 Academy Law Review(2001) 157.
4. State of Rajasthan v. Madan Singh, AIR 2008 SC 1292.
5. Santosh Bariyar v. State of Maharashtra, ( 2009) 6 SCC 498.

Seminar VIII - University of Kerala v. Council of Principals of Colleges, Kerala and Others

Please find below the abstract for the upcoming seminar. Kindly post your clarifications, views and comments on the issues identified herein. Comments may include insights, suggestions for improvement etc. We will try and align the discussions with the presenter.

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar VIII
03.03.10
(10:00 A.M. to 12:15 P.M.)


University of Kerala v. Council of Principals of Colleges, Kerala and Others


Moderator : Vikram Singh.
Presenter : Garima Budhiraja.
Discussants : Pragya Singh and Subhagam Kumar.
Rapporteur : Pathak Rakesh Kaushik.


I. Facts

THE GENESIS of the case dates back to the writ petition filed in the Kerala High Court dated 24-6-2004 by the Council of Principals of Colleges in Kerala against the directions issued by way of letters/circulars by respective universities to conduct elections to the colleges’ unions. The high court quashed the letters/circulars and left the colleges free to follow the system of their choice. Against the aforesaid judgment, the University of Kerala filed the appeal by special leave. The court by an order dated 12-12-2005 directed Ministry of Human Resource and Development to appoint a committee and accordingly a committee was constituted. The committee headed by Mr. J. M. Lyngdoh submitted a report to the court on 23-5-2006. The court by a detailed order dated 22-9-2006 directed that the recommendations of the committee shall be followed in all colleges/universities elections as an interim measure, until further orders. When the matter came up again before the present division bench, a question arose as to the validity of the said interim order.

II. Judgment

The division bench comprising of Katju J and Ganguly J expressed divergent views about the validity of the interim order. Katju J opined that the interim order dated 22-9-2006 prima facie amounts to judicial legislation which is not legally permissible. Ganguly J, on the other hand, was of the view that the Indian Constitution does not expressly incorporate separation of powers, save and except as provided under certain articles. Insofar as judicial power is concerned, no limitation is imposed under the Constitution and articles 141, 142 and 32 enable the Supreme Court to declare the law which shall be binding on all the courts within the territory of India and the court can pass such orders as required to do complete justice in the case. Both judges, after expressing divergent views, referred the matter to the constitution bench.


III. Issues

1) Whether the court can validly direct constitution of committees and implementation of their reports as done by the Supreme Court in University of Kerala v. Council of Principals of Colleges, Kerala, (2006) 8 SCC 304?
2) Whether under our constitution the judiciary can legislate and if so what is the permissible limits of judicial legislation? Will judicial legislation not violate the principle of separation of powers broadly envisaged by our constitution?
3) Whether article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee Report without authority of law?


Suggested readings:


1. Lyngdoh Committee Report available at http://www.education.nic.in/higheredu/Lyngdohcommitteereport.pdf
2. M. P. Jain, Indian Constitutional Law 1021-1026 (5th edn., Wadhwa, Nagpur, New Delhi, 2006).
3. M. P. Jain & S.N. Jain, Principles of Administrative Law 31-38 (6th edn., Wadhwa, Nagpur, 2007).
4. B.P. Jeevan Reddy, “Judicial Activism : A Perspective”, available at http://www.thehindu.com/2008/04/30/stories/2008043055791000.htm
5. Anil Divan, “Judicial Activism and Democracy”, available at http://www.hinduonnet.com/2007/04/02/stories/2007040200941000.htm

Welcome!

We are pleased to announce the launch of a blog dedicated to discussions related to Wednesday Seminar proceedings of Indian Law Institute. It would provide a platform for all members of the House to engage in pre-seminar discussions for enhancing the understanding of issues. It would also provide a forum for post-seminar deliberations and updates on the Seminar Report, which will be published after each seminar. We are looking forward to your co-operation, acceptance and involvement in making this blog an engaging exercise.

Welcome, once again!