31 January, 2009

Companies [Appontment and Qualifications of Secretary] Amendment Rules, 2009 [India]

The Ministry of Corporate Affairs has vide notification dated January 5, 2009 [please refer to the text below] has raised the limit of paid up share capital for compulsory appointment of a company secretary (under wholetime employment) in an Indian company, from Rs. 2 crores to Rs. 5 crores.
This notification shall come into force from the 15th day of March, 2009.
Companies [Appointment and Qualifications of Secretary] Amendment Rules, 2009 - Amendment in Rule 3
NOTIFICATION NO. G.S.R. 11 (E), DATED 5-1-2009In exercise of the powers conferred by clauses (a) and (b) of sub-section (1) of section 642 read with clause (45) of section 2 and section 383A of the Companies Act, 1956 (1 of 1956), the Central Government hereby makes the following rules further to amend the Companies (Appointment and Qualifications of Secretary) Rules, 1988, namely :—
1. (1) These rules may be called the Companies (Appointment and Qualifications of Secretary) Amendment Rules, 2009.
(2) They shall come into force from the 15th day of March, 2009.
2. In the Companies (Appointment and Qualifications) of Secretary) Rules, 1988, in rule 2,
(i) in sub-rule (1) and in the proviso to sub-rule (4), for the words "rupees two crores" the following words shall be substituted, namely:—
"five crore rupees";
(ii) in sub-rule (3), the second and third proviso shall be omitted;
(iii) after sub-rule (3), the following sub-rule shall be inserted, namely:—
"(3A) A company having a paid up share capital of two crore rupees or more but less than five crore rupees may appoint any individual who possesses the qualification of membership of the Institute of Company Secretaries of India constituted under the Company Secretaries Act, 1980 (56 of 1980), as a whole-time secretary to perform the duties of a secretary under the Companies Act, 1956:
Provided that where a company has appointed under sub-rule (3) or this sub-rule, a whole-time company secretary, possessing the qualification of membership of the Institute of Company Secretaries of India, such a company is not required to obtain a certificate from a secretary in whole-time practice under rule 3 of the Companies (Compliance Certificate) Rules, 2001."

Intellectual Property is the Future Strength for the US Economy

Intellectual Property Experts Mark Blaxill and Ralph Echardt in the their forthcoming Book, The Invisible Edge: Taking Your Strategy to the Next Level Using Intellectual Property are of the opinion that the strength of any country's economy is its innovation and Intellectual Property Reserves.
They argue that the strength of US is its IP reserves and Innocation. According to them the US is the Saudi Arabia of IP reserves as it hold 33 percent of the world's patent reserves.
The Intellectual Property Sector is providing a huge trade surplus to the trade accounts of the Beleaguered US Economy. The IP sector alone contributed more than US$ 60 billion in the year 2007.
The Obama Administration should take steps to protect the plethora of IP which it possesses and not make the mistakes which it made in the past by forcing companies to open their patent portfolios. This move was taken in order to promote 'Competition'. Nearly 50,000 patents were given off, plunging many huge american businesses into a 'competitive crisis'.
The reforms in the Patent sector these days risk another massive give away of American knowledge and innovation for free, when the country needs it badly for its economic survival.
Only time will tell how the new Obama Administration would deal with this issue and help protect the Knowledge which America has created over a long period of time.
For more on the Forthcoming book of Blaxill and Echardt please
visit

20 January, 2009

CLOSING ESCAPE ROUTES :Don’t let Brits acquitted of child abuse flee: SC to cops

The Supreme Court on Monday asked Mumbai police to ensure that the two Britons along with their Indian accomplice, acquitted by the Bombay high court in a case of alleged sexual abuse of boys in shelter homes, do not flee India as had happened in a similar case involving a Swiss couple.
This additional measure was ordered by a bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam despite it having already directed the police not to give back the passports to the acquitted accused Allan John Waters and Duncan Grant.
Joining senior advocate Fali Nariman, who argued for petitioner NGO ‘Childline India Foundation’, Maharashtra’s counsel Ravindra Adsure expressed apprehension that mere denial of passport to the acquitted accused was no guarantee against their fleeing the country, as had happened earlier in a similar case.
The bench, while asking the police to ensure that the accused do not flee the country, directed Waters and Grant to mark their appearance before the SHO of Colaba police station in Mumbai twice every month.
Nariman said the act of the accused, who were in charge of the child shelter home, was serious since they abused the very children whom they were supposed to take care of. ‘‘Such relationship between consenting adults is a different thing, but people in supervisory position could not be allowed to go scot-free for their act on the ground that it was an act under consent,’’ he said faulting the HC judgment.
The NGO had stated that the trial court had on March 18, 2005, convicted the accused in the child abuse case for allegedly sexually assaulting the minors at the ‘Anchorage’ shelter home set up by Grant, who had surrendered in June 2005.
Source:-The Times of India Delhi 20 January 2009 2008 P.11
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SC: Pendency of exit poll bill no deterrent for EC

Pendency of a bill in Parliament intending to regulate publication of exit and opinion polls would not deter the Election Commission from issuing appropriate orders restraining media from going public with results of such psephological exercises, the SC ordered on Monday.
A bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam, hearing a PIL filed by D K Thakur, was persuaded by additional solicitor general Amarendra Saran to overcome its initial reluctance and pass this order.
The bench, acceding to Saran’s request, said, “We make it clear that the EC would be at liberty to pass any direction.” This means, the pendency of the contentious law banning exit polls would not in any way influence the EC from passing an appropriate order.
This clarification suited the Centre as Saran’s effort throughout had been to impress on the SC to clear the confusion by leaving it to EC’s discretion. This clarification will hold good till the Lok Sabha polls as the court adjourned hearing on the PIL without giving any date for the next listing.
The bill, proposing complete ban on exit polls, was passed in Rajya Sabha, but is pending in the Lok Sabha. The petitioner’s counsel, senior advocate P Narasimhan, argued that till the time the bill became a legislation, a mechanism should be put in place to regulate exit polls.
Source:-The Times of India Delhi 20 January 2009 2008 P.11
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MAYA ASSAULT CASE:SC admits plea against Mulayam’s acquittal

Samajwadi Party supremo Mulayam Singh Yadav appears to be in for some tough times in the Supreme Court ahead of the general elections.
Close on the heels of it questioning the CBI’s volte face to close the DA cases against Yadav and his kin, the apex court on Monday admitted a petition by BSP leader Barkhu Ram Varma questioning the acquittal of the former chief minister in the case under the SC/ST (Prevention of Atrocities) Act for the alleged manhandling of BSP supremo Mayawati in a Lucknow guest house in 1995.
When Mulayam Singh Yadav was in power, the Allahabad high court had on January 28, 2004, quashed the charges under the SC/ST Act against Yadav and others saying the offending words were used in Yadav’s residence, which was not a public place and that the public was not present at that time.
The HC, taking a lenient view, had termed that it was a mere heated discussion between two rival parties and that there was no evidence to indicate that the accused had an intention to humiliate members of the SC community.
The HC had quashed the chargesheet against Yadav, Azam Khan, Masood Ahmad, Beni Prasad Verma, Dhani Ram Verma, Baby Ram Yadav, Uma Kant Yadav, Mohammad Arshad, Sangram SIngh, Shiv Pal Yadav and Mohsin Khan.
Appearing for the Mayawati, senior advocate K K Venugopal and additional advocate general Shail Kumar Dwivedi, argued that the HC erred completely in construing what is a public place under the SC/ST Act.
Source:-The Times of India Delhi 20 January 2009 2008 P.11
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JUDGES BACK JUDGES :CIC Order Asking CJI To Disclose Details Stayed; Notice Issued To RTI Applicant :Judges’ assets: HC comes to SC’s rescue

Faced with an unprecedented situation of the Supreme Court petitioning it against a ruling, the Delhi High Court on Monday stayed an order passed by the Central Information Commission asking the Chief Justice of India to disclose if judges of the apex court have declared their assets to him.
Acting on a petition filed by the CPIO of Supreme Court challenging the January 6 order passed by the CIC, Justice S Ravindra Bhat also appointed noted jurist Fali S Nariman as the amicus curiae (friend of court) to assist the court and fixed February 12 as the next date of hearing in the case. HC also issued notice to CIC and RTI applicant Subhash Chandra Aggarwal.
In the petition, SC said that information relating to declaration of assets by the apex court judges to the CJI was not a mandatory exercise under the law and it can’t be ordered to disclose it. Senior counsel K K Nigam and standing counsel for CIC, O P Saxena accepted the notice on behalf of CIC.
The petition dubbed as ‘informal’ the judges conference at which a resolution was passed on May 7, 1997 requiring every judge to declare to the CJI assets including properties or any other investment in the name of their spouse and any person dependent on them. It maintained the resolution wasn’t a law and CJI being a constitutional authority wasn’t bound by the RTI Act.
‘‘Neither is the office of CJI a public authority nor does the information relating to judges’ assets come in the public domain,’’ SC has said. On January 6, the CIC had asked the Supreme Court’s registrar to provide information to Aggarwal, within 10 days, whether the judges of the apex court declare their assets to the CJI. Aggarwal appeared in court through his lawyer Prashant Bhushan. Meanwhile, the apex court supplied a copy of May 1997 resolution to the CIC and the registry said there is nothing under the Constitution or any law which required judges to declare their assets to CJI.
Under RTI Act, Aggarwal sought to know if the SC judgesdeclare their assets to CJI.
Source:-The Times of India Delhi 20 January 2009 2008 P.9
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Assault outside class not corporal punishment: SC

‘Teacher’s Act Can’t Be Condoned’
A teacher slapping a student outside the class for something not connected with studies, even if the incident happens within the school premises, cannot be condoned as corporal punishment, the Supreme Court said on Monday while upholding a five-day jail term for a teacher.
The teacher in a Gujarat school actually got away lightly with a lenient high court verdict even though a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam refused to entertain arguments from advocate Meenakshi Arora for a clean acquittal.
The accused had slapped, boxed and abused a Scheduled Caste student of the school for switching on the ignition of his scooter and leaving it in that state for a long time. More than the physical assault, the student appeared hurt by the mental bruises and committed suicide under a train the same day — July 1, 1992.
The trial court found the teacher guilty under Section 306 of IPC (abetment to suicide), Section 323 (causing simple injury) and also under various provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He was sentenced to 10 years imprisonment under Section 306, one year under Section 323 and life sentence under the SC/ST Act.
The HC took a lenient view and acquitted the teacher of charges under Section 306 and those under the SC/ST Act. However, it convicted him under Section 323 and ordered a jail term of that which he had already undergone — five days — and a fine of Rs 1,000.
Challenging the HC verdict before the apex court, Arora tried to seek a clean chit for the teacher, arguing that as the incident happened within the school premises, it should be viewed as a form of corporal punishment.
The Bench headed by the CJI flared up at the argument and said, “It is no corporal punishment. You have no business to assault somebody in this manner. This incident happened outside the classroom and has nothing to do with the education system.”
What he meant was that the judiciary was willing to take a lenient view of the action of teachers in chastising unruly students in the classroom, even if it involved administering minor corporal punishment.
Source:-The Times of India Delhi 20 January 2009 2008 P.9
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18 January, 2009

RESTRAINED FROM MAKING IT A PRIVATE CO :HC stops Rajan Nanda from converting Escort

The Delhi High Court on Friday restrained industrialist Rajan Nanda from converting charitable trust of Escort Hospital into a private company. A division bench of Justice Mukul Mudgal and Justice Manmohan admitted the plea of Anil Nanda challenging a single bench order, which has earlier dismissed his plea challenging conversion of Escorts Heart Institute and Research Centre (EHIRC) from a trust hospital into a company. Rajan was involved in a legal battle with his younger brother Anil Nanda over the sale of the heart institute to Ranbaxy controlled Fortis Healthcare Ltd for Rs 565 crore.
The court's decision is a set back to Fortis HealthCare, which had raised money through a public issue of equity shares to fund the purchase of EHIRC. This could also affect the functioning of the hospital under the present set up of commercial operation.
"The present appeal is allowed and the order of single bench is set aside," the court said adding that suit is restored in its original position and interim order of 2005 is also restored. In September 2005, the High Court had stayed the sale of the Escorts Heart Institute. Anil Nanda had sought the cancellation of the sale of the institute to Ranbaxy-controlled Fortis Healthcare Ltd.
The single bench had on July 3 last year rejected the plea of the younger Nanda on the technical ground that he did not seek the court's permission before filing the suit. Section 92 of Civil Procedure Code (CPC) says that a private person has to take a permission from the court before filing a suit pertaining to a public trust. "We are of the view that the primary prayer in the suit filed by Nanda was for declaration that amalgamation of EHIRC Delhi with EHIRC Chandigarh and subsequent conversion of amalgamated society with the company was void, is an issue which is not covered by section 92 of CPC," the court said while setting aside the single bench order.
The court also pointed out that "Section of 12 of Societies Registration Act permits amalgamation of two societies with similar objects but does not at all permit amalgamation of charitable societies with a non-charitable or an alleged fraudulent conversion of a charitable institution into a private hospital."
Source:-The Times of India Delhi 17 January 2009 2008 P.23
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Tougher law must to check vandals: SC

Seeks Centre, States’ Response On Making Leaders Accountable For Violent Agitations
Pained by the inability of governments to take to task the unruly among agitationists indulging in destruction of public properties, the Supreme Court on Friday asked the Centre and states as to why such people be not dealt with stringently by providing teeth to the existing benign law.
The suo motu notice of destruction of public property and inability of police to protect them was taken by the SC in 2007 in the wake of the widespread Gujjar violence in North India. It had then appointed two committees — one headed by former SC judge K T THomas and the other by senior advocate Fali Nariman.
Having read the contents of both the reports that suggested providing teeth to existing provisions of the Prevention of Damage to Public Properties Act, 1984, and making the leaders of an agitation accountable for vandalism, a bench comprising Justices Arijit Pasayat and A K Ganguly asked the Centre and the states to respond to them by February 20. To rub it in, the bench pointed out the perceived inaction on the part of state governments to strictly deal with violent agititations and said: “We find that people are coming on camera and taking credit for burning buses and trains. That is the most unfortunate part. Either the statute is ineffective or prosecuting agency is not acting.” Should the leaders be not made accountable, the bench wondered and gave the Kerala experiment of holding the political party, which organises rallies and protest marches, pay for any damage caused to public property.
Solicitor General G E Vahanvati, who was the convenor of the Thomas Committee, had earlier informed the court on the basis of the responses received from state governments that they seldom resort to the provisions of the 1984 Act to punish those destroying public property and recover the cost from them.
Instead, the state governments have regularly resorted to the stricter provisions of the Indian Penal Code, despite the specific law being in vogue, to bring the offenders to book, Vahanvati had said.
Source:-The Times of India Delhi 17 January 2009 2008 P.9
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बेवफाई के लिए पत्नी भी सजा पाएगी!

दूसरी पत्नी को मुआवजा दिलाने के लिए प्रस्तावित कानून को लेकर पैदा हुए विवाद ने उसे ठंडे बस्ते म डाल दिया है। लेकिन पति-पत्नी से संबंधित एक और नए प्रस्ताव पर सरकार को अब निर्णय करना है। उसे अब यह तय करना है कि बेवफाई के लिए पति की तरह क्या पत्नी को भी सजा दी जानी चाहिए? केंद्र के कानून विभाग द्वारा आईपीसी की धारा 497 में संशोधन करके उन पत्नियों को सजा देने का प्रस्ताव तैयार किया गया है, जो दूसरे पुरुष से 'अनैतिक' संबंध रखती हैं। मलीमथ समिति ने कानून में इस तरह का संशोधन करने की सिफारिश की है। महाराष्ट्र सरकार को भेजे पत्र में केंद्र ने प्रस्तावित संशोधन के बारे में उसकी राय पूछी है। मतलब यह कि नए मुख्यमंत्री अशोक चव्हाण को इस 'आमूल' संशोधन के बारे में कैबिनेट से चर्चा करके राय बनानी पड़ेगी। राष्ट्रीय महिला आयोग इस पेशकश पर विरोध दर्ज करा चुकी है। मौजूदा कानून में 'व्यभिचारी' पति को पांच साल की सजा का प्रावधान है। लेकिन इस तरह के गुनाह के लिए पत्नी को सजा देने का कानून नहीं है। वैसे भारत में महिलाओं द्वारा इस तरह के आचरण के मामले बहुत कम होने का अनुभव है। फिर भी पुरुष एवं महिलाओं के साथ एक जैसा न्याय करने की भावना से मलीमथ समिति ने यह संशोधन प्रस्तावित किया है। मौजूदा कानून के तहत पति अपनी पत्नी के गलत बर्ताव के लिए उसके 'प्रियकर' के खिलाफ मामला दायर कर सकता है। सूत्रों ने बताया कि संशोधन करने का यदि फैसला होता है तो पति से बेवफाई करने वाली पत्नी को पांच साल की सजा या जुर्माना या दोनों हो सकता है। अमेरिका में इस किस्म के गुनाहों के लिए सजा है पर बहुत कम! वहां मुआवजा देने पर जोर दिया जाता है। भारत के लिए यह प्रयोग नया है। इसलिए सब यह देखने के लिए आतुर हैं कि सरकार और महिला संगठनों द्वारा इस बारे में क्या रुख अपनाया जाता है।
Source:- 16 December 2008 Navbharat Times

09 January, 2009

Adultery is offence under Indian Penal Code

Contributed by Deepak Miglani Adv.
According to Section 497 of Indian Penal Code a person is guilty of adultery is a crime.
Essentials of Adultery:- The prosecution must prove the following things for convincing an accused on a charge of adultery-
  1. That the accused had sexual intercourse with the woman in question;
  2. That she was the lawful married wife of another man;
  3. That the accused knew or had reason to believe that she was the lawfully married wife of another man;
  4. That the husband of the woman did not consent to or connive at such intercourse;
  5. That the sexual intercourse so had did not amount to rape.

Adultery is not an offence under the English Law, and some of the most celebrated English Lawyer have considered its omissions from the English Law to be a serious defect.
The cognizance of this offence is limited to a adultery committed with a married woman, and the male offender alone had been made liable to punishment. Thus, under the Indian Penal Code, adultery an offence committed by a third person against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried woman, or with a widow, or divorced woman or even with a married woman whose husband consents to it.
It must be noted that wife can be punishable as an abettor. It is now felt that , with the advance of civilization, it would be more consonant with Indian ideals, if the woman also is punished for adultery.

Defences available to accused:- The following defences are available to the accused of adultery-

  1. There was not sexual intercourse.
  2. The accused did not know the woman to be the wife of another;
  3. The husband of the woman consented to or connived at the act of intercourse; or
  4. The complainant was neither the husband of the woman nor any other person permitted to prefer such complaint under Cr.P.C.

The punishment for adultery is the imprisonment for five years, or fine or both.

Burden of Proof:- It is very difficult to produce direct evidence to prove an act of adultery. Adultery is a matrimonial offence as well as a criminal offence. The requirement of proof in a criminal case is stricter than the requirement in a matrimonial case. In the former case the act is to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and possibilities. Thus the offence of adultery may be proved by:

  1. Circumstantial evidence
  2. By evidence as to non-access and birth of a child
  3. By evidence of visits to brothels
  4. By contracting venereal diseases
  5. Confession and admission to parties
  6. Preponderance of probability

05 January, 2009

LAWS FAIL THE ACID TEST AS ATTACKS RISE


Every year, many women are killed, maimed, blinded or scarred for life by acid attacks. But the country has no laws to regulate the sale of the deadly substance


As 2008 drew to a close, so did 22-year-old Swapnika’s life. A spurned lover had thrown acid at her as the final-year engineering student returned home from college in Warangal, Andhra Pradesh. She died on December 31. Blinded and burnt, her 21-day ordeal ended in hospital.

Swapnika is one of many. Each year, a number of women are killed, maimed, blinded or scarred for life in acid attacks across the country. But they don't even become a national statistic to mourn. The National Crime Records Bureau doesn't collect data on acid attack victims. But piece the picture together from newspaper reports and the gravity of the problem is clear. Just days after the attack that disfigured Swapnika and eventually took her life, acid was thrown at a girl in Delhi as she stepped out of a metro station. She escaped with minor burns but not everyone is so lucky. In August, a 20-year-old Kolkata tailor threw acid at teenaged sisters because their mother had refused to let him marry the younger one. Both girls were fearfully disfigured.

Activists who work with survivors of acid attacks lament the lack of laws to regulate the sale of concentrated acid. “A 10-year-old can walk into a shop and buy a litre of highly concentrated acid over the counter for less than 20 rupees,” says Sheila Ramanathan who heads the Human Rights Law Network in Bangalore. Ramanthan points out that Bangladesh has an Acid Control Act, which regulates the sale of acid and also the way it is produced, stored and transported. But in India, acid is carelessly allowed to become a deadly weapon.

“Prevention is the only way to stop these attacks. There is no other quick-fix as the scars that are left behind are permanent,” says Sanjana, who works with the Campaign and Struggle Against Acid Attacks on Women (CSAAAW). A Bangalorebased coalition, CSAAW has compiled a list of 65 cases in Karnataka alone between 1999 and 2008. “These are just the victims we have met. There are scores of others and not just in Karnataka,” says Sanjana, who has made a documentary film on the subject called ‘Suttaru Sollapavadaru’ (Burnt, but not defeated).

It’s a myth that women are attacked with acid only after they reject sexual advances. Sanjana says “it’s a form of gender violence and often women who exercise their independence are targeted. When we talked to survivors, we found that women of all castes, classes and religions were being attacked by husbands, lovers, employers, jealous colleagues and even landlords.”

The CSAAAW famously helped Hasina Hussain get justice after her former boss Joseph Rodrigues poured 1.5 litres of sulphuric acid on her when she quit her job in his financially unstable firm in 1999. The acid melted her face, fused her shoulder and neck, burnt a hole in her head, merged her fingers and blinded her for life. In 2006, the Karnataka high court sentenced Rodrigues to life imprisonment.

It was a landmark case, now the source of hope to many who survive acid attacks. But experts say the existing laws are sorely inadequate. In the absence of a specific law, acid attacks come under the purview of Section 326 of the IPC, which deals with voluntarily inflicting grievous physical injuries with a weapon. But it is a bailable law and carries a maximum punishment of seven years in prison. Consequently, the victim is left to face life scarred and disfigured forever but her attacker is granted bail and can hope for a trial delayed for decades.

But that could change. The National Commission for Women (NCW) has prepared a draft of the Prevention of Offences (by Acids) Act, 2008. The Bill, which has been sent for approval to the Union ministry of women and child development, specifically deals with acid attacks. It includes schemes to treat and rehabilitate victims. “The NCW’s proposed amendments to the IPC will make acid attacks a cognizable, non-bailable offence, which will attract a prison term of not less than 10 years,” says Samarender Chatterjee, member-secretary, NCW.

Activists welcome the proposed law but say the focus should be controlling the sale of acid rather than punishing the perpetrators. “It is a band-aid solution. For an acid attack victim, no amount of money for plastic surgery or punishment for the accused can wipe the pain and trauma away,” says Sanjana.

What the NCW proposes

It aims to classify acid attack as a separate offence

Move to amend IPC to make acid attack a cognizable, non-bailable offence carrying a prison term of less than 10 years

Amendment of the Evidence Act and Section 357 of the CrPC to make the survivor’s statement good enough to book the accused and force him to pay compensation

Setting up of a National Acid Attack Victims Assistance Board

Source:-The Times of India Delhi 4 January 2009 2008 P.16
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No justification needed to seek info, says CIC :YOUR RIGHT TO KNOW

In a landmark order, the Central Information Commission (CIC) has said the public interest clause cannot be invoked for denial of information and directed Benaras Hindu University (BHU) to provide complete text of its MD/MS question paper.
Central Information Commissioner Shailesh Gandhi passed the order quoting the rarely used clause under RTI Act’s section 3. The section states that subject to the provisions of the Act, all citizens shall have the right to information. ‘‘As per the Act, citizens right to access information is absolute, subject only to limitations prescribed under it. The section 3 forms the core of the Act and is a crisp, unambiguous declaration of the aims and its objectives. To make this right meaningful and effective, citizens aren’t required to give any justification for seeking information,’’ the order said.
BHU’s Public Information Officer had denied the information quoting an earlier CIC order denying information on All India Institute Medical Science’s ‘‘answer key and question booklet’’. The 2007 CIC order had denied the information on the ground that the AIIMS ‘‘is taking all the precautions in conducting the examination in a most satisfactory manner and they have also evolved a fool proof system’’.
Gandhi, after hearing the arguments in a six-page order said that right to information is one of the fundamental human right recognised by the world community and stands incorporated in the universal declaration of human rights and international covenant on civil and political rights.
Source:-The Times of India Delhi 4 January 2009 2008 P.9
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02 January, 2009

National Council in offing to check quality, accountability of hospitals

A five-year-old Mumbai child, who recently fractured his wrist, waited overnight to get it attended to, at a private hospital. This instance highlights the urgency for accountability among hospitals. If all goes well, consumers could finally access quality medical service. A senior official in the ministry of health and family welfare hopes the Clinical Establishments (Registration and Regulation) Bill, 2007, will be cleared in a few months. As mentioned earlier in these columns, the proposed legislation provides for both registration and regulation of clinical establishments in the country, as also prescription of minimum standards for medical facilities and services.
For the purpose, the bill proposes a National Council, which will not just formulate standards for the segment and classify clinical establishments, but also compile, maintain and update their national register. The official says, “We have done lot of groundwork (on the council), with the expectation that the bill would be passed soon. We have started preliminary work on the body, which is currently purely technical in nature.’’ In another fortunate development, many states have responded positively to the bill.
“It will be applicable to those states, which request for it,’’ says the official, considering health is a state subject. Currently, each state has its own regulatory mechanism for hospitals. In Mahashtra, Mumbai’s corporation and private hospitals are monitored by the executive health officer; and those at the district and rural level by the director of public health.The new bill, if passed, will ensure a uniform country-wide body for regulation of hospitals in the form of the National Council. As Dr Sujit Chatterjee, CEO at Mumbai’s L H Hiranandani Hospital, says, “Health may be a state subject, but healthcare is the responsibility of the state of India.’’ Hiranandani Hospital is one of the 23 hospitals to have secured accreditation from the National Accreditation Board for Hospitals & Healthcare Providers (NABH), a constituent board of the Quality Council of India. NABH was set up to establish and operate accreditation programme for healthcare organisations. The NABH website adds, “The board is structured to cater to much desired needs of consumers and set benchmarks for progress of health industry.’’
Till the new standards are in place, NABH accreditation appears to be the only national mark of assurance of a hospital’s quality. Other than hospitals, nursing homes and blood banks can also apply for voluntary accreditation. Dr B K Rana, deputy director at NABH, says currently applications of nine blood banks and about 55 more hospitals are in the pipeline. To popularise the initiative among medical establishments and consumers, the board holds awareness programmes in cities and in districts, through the year. “We try to amalgamate the process through media, websites and seminars It (an NABH accreditation) is not an expensive process.’’
However, accreditation depends on a total of 530 criteria. Says Chatterjee, “It is an Indian standard. But fact of the matter is NABH is a member of ISQUA, which is the International Society for Quality in Health Care.’’ ISQUA is an international body that grants approval to accreditation bodies in healthcare. “It is the gold standard for healthcare in the world.’’ Besides, NABH accreditation is not a one-time process. It is reviewed every 1.5 years, he says.
List of NABH accredited hospitals
1. B M Birla Heart Research Centre, Kolkata 2. MIMS Hospital, Kozhikode 3. Kerala Institute of Medical Science, Thiruvananthapuram 4. Max Super Speciality Hospital, New Delhi 5. Max Devki Devi Heart & Vascular Institute, Delhi 6. Moolchand Hospital, Delhi 7. Narayana Hrudayalaya, Blore 8. Dr L H Hiranandani Hospital, Mumbai 9. Fortis Hospital, Noida 10. Sagar Hospitals, Bangalore 11. Columbia Asia Medical Centre, Bangalore 12. Manipal Hospital, B’lore 13. Nethradhama Superspeciality Eye Hospital, B’lore 14. Lakeshore Hospital & Research Centre, Kochi
Source:-The Times of India Delhi 2 January 2009 2008 P.20
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SC Orders Fresh Probe, Imposes Fine Of Rs 50,000 On Army-Run School For Ignoring ’97 Ruling :Army inaction on sexual abuse draws flak

The Army has been slammed by the Supreme Court for not following its landmark judgment mandating setting up of committees at workplaces to look into women employees’ sexual harassment complaints.
The rap came in a case relating to a lady principal in an Army Public School (APS), Pithoragarh. She was allegedly shown the door immediately after accusing a senior army officer of sexual harassment. Stricturing the Army for the lapse, a bench comprising Justices S B Sinha and Cyriac Joseph ordered a fresh inquiry into her complaint.
The bench said: ‘‘It is a matter of great regret that the Army which is a disciplined organisation failed to provide a complaint mechanism and ignored the decision of this court which was bound to be given effect to in terms of Article 144 of the Constitution of India.’’
For its lapse in not putting in place the committee to look into sexual harassment complaints, it imposed a cost of Rs 50,000 on the APS which would be paid to the principal to cover cost on litigation. The prestigious Gen B C Joshi Army Public School, Pithoragarh, run by the Army Welfare Education Society ran into trouble for sacking its principal few days after she levelled sexual harassment charges against a serving colonel, who was also the deputy chairman of the school management committee.
The bench was surprised to find that her complaints, instead of being looked into, were brushed aside by the authorities. This led to its adverse comments against Army for failing to put in place the mandatory inquiry mechanism to deal with sexual harassment charges, as was directed in the SC’s famous Vishakha case judgment in 1997.
To deal with complaints of sexual harassment at workplace, the apex court had ordered every organisation to constitute a committee headed by a woman to inquire into such allegations. Prior to this, there was no such redressal mechanism and the judgment is still the law of the land as Parliament has not yet enacted a law on this issue.
After hearing the APS management and the sacked principal, the Bench asked the Uttarakhand high court to appoint a three-member committee headed by a woman to inquire into the sexual harassment charges of the lady who allegedly faced the music for bringing to the notice of the management an objectionable love letter written by the colonel. ‘‘In the event, it is found that the writ petitioner (the principal) was subjected to sexual harassment, the report thereof may be sent to the Army authorities for initiation of disciplinary action against the Colonel and the chairman of the Army School on the basis thereof,’’ said Justice Sinha, writing the judgment for the bench.
Source:-The Times of India Delhi 2 January 2009 2008 P.12For any query:- legalpoint@aol.in

Prosecution can’t suppress proof that can help accused: SC

Let the trial be fair, said the Supreme Court in a ruling that prohibited the prosecution from suppressing any evidence that could help the accused to prove his innocence.
If there was a duty cast on the prosecution to present its case properly so that the guilty is punished, it had a strong obligation to be fair towards the accused, said SC in a recent judgment acquitting a person convicted of setting fire on his wife. Allowing Samadan Dhudaka Koli’s appeal challenging his conviction and life sentence in view of contradictory dying declarations given by his wife, a Bench comprising Justices S B Sinha and Cyriac Joseph castigated the Maharashtra prosecution for not bringing to the trial court’s notice another declaration which was recorded by a magistrate and putting forth only the two contradictory ones recorded by police.
‘‘Prosecution must be fair to the accused. Fairness in investigation as also trial is a human right of the accused. The state cannot suppress any vital document from the court only because the same would support the case of the accused,’’ said Justice Sinha. Taking the two declarations, one giving a clean chit to the husband and the other accusing him of pouring kerosene and lighting the matchstick, the Bench said it was improper on part of court and the Bombay HC to assume the guilt of the accused on basis of one of the statements of the wife, prior to her death.
‘‘Consistency in the dying declaration is a relevant factor. Such a relevant factor can’t be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. Corroboration must be sought from other evidence on record,’’ the Bench said.
Source:-The Times of India Delhi 2 January 2009 2008 P.11
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01 January, 2009

Justice eludes women victims


Conviction In Cases Of Crime Against Women Has Dropped To 14.9%: Report

A secure environment for women appears to be a far cry in India. Crime against the fairer sex is steadily increasing, and less and less number of accused are getting convicted. National Crime Records Bureau (NCRB) data tells this sorry tale, prevailing for the last three years.

In 2005, a whopping 1.55 lakh cases of crime against women were registered across India, but convictions were recorded in only 30,826 cases — a mere 19.8%.

In 2006, case registration jumped to 1.64 lakh, but convictions declined to 28,998, or 17.5%. Continuing the trend, more than 1.85 lakh cases were registered in 2007, but the trial courts found the charge sustainable only in 27,612 cases, a meagre 14.9%.

In Delhi, where working women’s security has been a concern, conviction in these cases remained lower than national average in all three years — 10.8% in 2005, 12.4% in 2006 and 13.4% in 2007.

Andhra Pradesh remained at the top of the list in terms of number of cases relating to crime against women — 20,819 in 2005, 21,484 in 2006 and 24,738 in 2007. And there were convictions in 5,353 cases in 2005 (25.7%), 3,579 in 2006 (16.6%) and 3,911 in 2007 (15.8%).

Such mismatch between cases registered and conviction not only casts an ominous shadow on functioning of the justice delivery system at the lower levels, but also raises serious questions about the ability of the police to conduct proper investigation and prepare a watertight case.

In Maharashtra, the conviction rate remained abysmally low at around 4% in each of these three years — 616 of 13,370 cases in 2005, 584 of 14,452 in 2006 and 597 of 14,924 in 2007.

This trend negates the consistent efforts of the Supreme Court to sensitize judges to the heinous crime that scars the victim for rest of her life. It had in numerous rulings said: ‘‘Courts must hear the loud cry for justice by the society in cases of heinous crime of rape of innocent helpless girls of tender age, and respond by imposition of proper sentence.’’

This passionate appeal of the apex court through its ruling appears to have gone unheeded even in Delhi, where the conviction rate in these three years has remained low despite the city registering an increase in such cases from 10.8% in 2005 to 12.4% in 2006 to 13.4% in 2007.

While 4,351 cases of crime against women were registered in 2005, the trial courts recorded conviction only in 473 cases. In 2006, as many as 4,544 cases were registered, but conviction was recorded in 565 cases and in 2007, 4,804 cases were registered, while courts found the police case true in 646 cases.

West Bengal was another state, like Maharashtra, that recorded very low conviction rate, or as statistics tell us, the accused went scot free.

If in 2005 the conviction rate was 6% of the cases registered, it recorded a small increase to 7.8% in 2006 before falling to 2.8% in 2007.

With these statistics staring at us, another missive of the Supreme Court to the trial courts has fallen in deaf ears.

It had said: ‘‘Protection of society and deterring the criminal was the avowed object of law and that was required to be achieved through appropriate sentencing policy.’’

But, if the police does not prepare a watertight case, there is little the courts can do to bring the culprits to book.

Uttar Pradesh and Tamil Nadu appear to have somewhat acceptable levels of conviction rate.

In UP, 2005 saw a conviction rate of 43.5%, but it steadily declined to 41.5% in 2006 and 32.9% in 2007. Tamil Nadu, which had recorded a conviction rate of 53.5% in 2005, also showed a downward trend — 45% in 2006 and 27% in 2007.
Source:-The Times of India Delhi 31 December 2008 P.13
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Legal body rapped for RTI delay

For all his declarations of making judiciary in the Capital more responsive to the Right to Information Act, Delhi High Court chief justice A P Shah’s message appears to be lost on his subordinates. And again, it’s been left to the Central Information Commission (CIC) to point this out.
Unhappy with the manner in which an 83-year-old RTI applicant was made to run from pillar to post by Delhi Legal Services Authority (DLSA) — which refused to acknowledge the RTI filed by him regarding legal aid — the CIC has summoned its PIO. It has also slapped a show cause notice on DLSA, demanding an explanation as to why it shouldn’t be penalized by way of a hefty fine for sitting over the RTI plea for almost three months.
Chief information commissioner Wajahat Habibullah has asked the DLSA official to appear before him on January 7 to answer why the plea of one Prem Chand Gupta has been ignored despite it being routed twice via HC. There was no response from the authority even though it has an office in HC itself and must have received the query in time.
The PIO will also have to prepare a defence against slapping of extra penalty by CIC because according to Gupta, he overstayed in Delhi awaiting a response to his plea. Meanwhile, he ran out of money and was thrown out of the hotel for being unable to foot his bills. Irked at DLSA’s non-serious approach, CIC warned DLSA in its show cause notice that it might be asked to cough up compensation to Gupta if unable to explain this delay.
The case stemmed from an RTI plea filed by Gupta in August in which he sought a copy of an order passed in his case by the then chief justice who had been transferred. Since the decision of HC was in connection with legal aid to be provided to Gupta, he also filed an RTI before member secretary HC Legal Services Committee, Dharmesh Sharma.
On not receiving any response from Sharma, Gupta filed another RTI plea before HC only to see it passed on to DLSA which sat on it for months. Intrigued at DLSA’s attitude to a plea forwarded by none other than HC, Gupta moved court for the third time in October, politely reminding the officials of his advanced age and poor finances. But the authority remained unmoved, refusing to even respond to his RTI plea by due date.
SNAIL’S PACE RESPONSE
CIC summons DLSA official for its failure to respond to an RTI plea of an 83-year-old
CIC also slaps showcause notice
Litigant claims DLSA’s delay led to his being thrown out of the hotel where he was staying as he ran out of money
Source:-The Times of India Delhi 31 December 2008 P. 7
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New law: No arrest for crimes with max term up to 7 years

Ever since he flung his shoes at George Bush on December 14, Iraqi journalist Muntader al-Zaidi has been in custody. But if something like that were to happen here with the Indian president, the assailant might not even be arrested. For, assaulting the President is among a range of offences that are no more covered by the existing arrest regime thanks to amendments recently passed in Parliament. The eight Bills passed by Lok Sabha on December 23 without a debate in 17 minutes included a radically revamped Criminal Procedure Code, which divests the police of the usual arrest powers in all cases where the maximum possible sentence is seven years or less. Since the CrPC amendment Bill had been cleared earlier by Rajya Sabha on December 18, it is all set to pass into law once President Pratibha Patil gives her assent.
Instead of arresting the accused, the police will now be obliged to issue him a “notice of appearance” for any offence punishable with imprisonment up to seven years, which — as it happens — is the maximum penalty prescribed under Section 124 of Indian Penal Code for assaulting a President.
Seven years or less is also the maximum penalty for a host of other offences, including attempt to commit culpable homicide (Section 308) or robbery (Section 393), voluntarily causing grievous hurt (Section 325), cheating (Section 420), outraging a woman’s modesty (Section 354) and death caused by negligence (Section 304A).
The notice of appearance casts a duty on the accused person to appear before the police and “cooperate” with the investigation. It is only if he fails to comply with the terms of the notice that the question of arresting him will arise.
LAW GETS LIBERAL
Revamped Criminal Procedure Code divests police of usual arrest powers in cases where maximum possible sentence is seven years or less.
Instead, police will have to issue accused notice of appearance for such offences Crimes covered under new liberal norms include attempt to commit culpable homicide or robbery, voluntarily causing grievous hurt, cheating, outraging a woman’s modesty and death caused by negligence. Accused can be arrested if he fails to comply with notice issued by cops.
Fewer convictions for crimes against women
An increasing number of women are being targeted by criminals in India while fewer accused are getting convicted. In 2005, 1.55 lakh cases of crime against women were registered across India, but convictions were recorded in only 30,826 cases — a mere 19.8%. In 2006, case registration jumped to 1.64 lakh, but convictions declined to 28,998, or 17.5%. In 2007, over 1.85 lakh cases were registered in 2007, but convictions were recorded in only 27,612 cases, barely 14.9%.
Cops will need court’s permission before arrest
New Delhi: The eight Bills passed by Lok Sabha on December 23 without a debate in 17 minutes flat included a radically revamped Criminal Procedure Code, which divests the police of the usual arrest powers in all cases where the maximum possible sentence is seven years or less.
Under the new law if authorities are still particular about arresting somebody in the first instance, then the police will specially have to give reasons for that in writing in court.
This is how the new law liberalises the arrest provisions:
Section 41A (1) says that in all cases punishable with imprisonment up to seven years, “the police officer may, instead of arresting the person concerned, issue to him a notice of appearance.”
Section 41A (3) conveys the import of this far-reaching devise by saying, “Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police are of the opinion that he ought to be arrested.”
Section 41A (4) explains the remedy that is available to the police whsen the accused does not honour his part of the deal: “Where such person, at any time, fails to comply with the notice, it shall be lawful for the police officer to arrest him...”
Since notice of appearance is now stipulated in the investigation of all offences punishable with imprisonment up to seven years, arrest will cease to be an inevitable fallout for accused persons in a wide variety of cognizable cases, including even those that were traditionally classified as “non-bailable.”
On an offence such as kidnapping, for instance, the police cannot any longer use arrest as a first resort as the offence is punishable under Section 363 with imprisonment up to seven years. Similarly, if a public servant induces a woman in his custody to have sex with him, the police cannot straightaway arrest him as the offence is punishable under Section 376B with imprisonment up to five years.
The more serious IPC crimes on which the police is exempt from issuing notice of appearance to accused persons include murder, rape, dowry death, waging war on State, robbery or dacoity with deadly weapons and kidnapping.
The introduction of notice of appearance is part of a larger attempt to raise the bar for arrest. In case of offences punishable with imprisonment exceeding seven years, the police can arrest merely on “credible information” or “reasonable suspicion”. But in the case of offences punishable with imprisonment up to seven years, the police will also have the burden of recording the reasons for being satisfied that such arrest is “necessary.”

Source:-The Times of India Delhi 31 December 2008 P. 1
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Nude people too have right to privacy: Court

Madison, Wisconsin: A state appeals court ruled on Tuesday that a person who is voluntarily nude in the presence of another still has privacy rights against being secretly videotaped, in a decision that bolsters Wisconsin’s video voyeur law.
The ruling upholds the felony guilty plea of Mark Jahnke, who videotaped his girlfriend while she was naked and while they were having sex. He argued in his appeal that because the woman agreed to be naked around him, she had no reasonable expectation of privacy.
The department of justice argued that shared intimacy does not give a person the right to film another unknowingly. Jahnke’s attorney, Michael Herbert of Madison, argued that the court had found in a previous case that an expectation of privacy existed when a nude person reasonably believed he or she was “secluded from the presence of others.”
In April 2007, Jahnke pleaded guilty to illegally making a nude recording. He was sentenced to three years’ probation and six months in jail, which was put on hold pending his appeal. Jahnke’s ex-girlfriend said she became suspicious when she saw a flash of a red light from beneath a pile of clothes in her bedroom. She then complained to police.
Source:-The Times of India Delhi 1 January 2009 2008 P. 26
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