Centre fails to take a stand in HC on homosexuality law

The Centre in its reply had taken a contradictory stand with Ministry of Home Affairs favouring the retention of the penal provision for homosexual acts while the Health Ministry was against the enforcement of Section 377 in cases involving consenting adults. 

"Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private," the Home Ministry had said in its affidavit. 

"Deletion of the Section can open the flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts," it had said. 

The Ministry of Health, on the other hand, has not favoured the enforcement of the penal provisions against consenting homosexual adults. 

"Enforcement of Section 377 can adversely contribute to pushing the persons suffering from HIV underground which would make such risky sexual practises go unnoticed," said an affidavit filed by National Aids Control Organisation (NACO), which comes under the Ministry of Health. 

Madhumita murder: Inspector arrested in Lucknow

• The Central Bureau of Investigation on Saturday arrested a police inspector in Lucknow for alleged 'suppression of evidence and illegal confinement of people' in the Madhumita Shukla murder case.
  
• He was placed under arrest after he failed to provide convincing answers, they added.

Indian courts advocate zero-tolerance towards sex crimes

• “Once a person is convicted for an offence of rape he should be treated with a heavy hand. Any undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even encouraging potential criminals,” the judges said.
  
• In 2001, a Pune sessions court sentenced the accused to life imprisonment for his crime. However, the high court felt compelled to increase the punishment as the victim's autopsy revealed eight serious injuries to her genitals, an indication of the “extreme brutality and depravity” of the crime. 
  
• Turning down the defence's plea for mercy on grounds that Rajput had a young son and an elderly mother who were dependent on him, the judges noted that he was an alcoholic and hence was “likely to commit similar crimes against other small girls” and would be a “serious threat and menace to society if allowed to live”.
  
• The high court asserted that courts could not ignore the impact that incidents of sexual violence have on individuals as well as society. “The social impact of crime, particularly where it relates to offences against women, cannot be lost sight of and per se requires exemplary treatment,” the judges said. “Any undeserved indulgence or liberal attitude in not awarding adequate sentence would amount to allowing or even encouraging potential criminals.” 
  
• The judges equated the heinousness of rape with murder, which, under the law, is the most serious of all crimes. “Whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female,” the judges said. “Sexual violence, apart from being a dehumanising act, is also an unlawful intrusion of the right to privacy and sanctity of a female,” the judgment said.
  
• Meanwhile, in an another instance of the higher courts' growing concern over leniency shown to rapists, the Supreme Court upheld the compulsory retirement of a judge in Uttar Pradesh for granting parole to a person convicted of assaulting a minor.
  
• Additional sessions judge Raj Kumar, who otherwise has a good track record, released the convict under the Probation of Offenders Act after finding that he had already served a sentence of over 15 months.
  
  The judge had either overlooked or been ignorant of the fact that, under the law, the crime of assaulting a minor carries a minimum sentence of 10 years' rigorous imprisonment that could be extended to a life term in addition to the imposition of a fine. 
  
  Kumar challenged the judgment in the Supreme Court and, on January 11, he lost
  

India cab drivers to hang for killing Australian tourist

• An Indian court sentenced two taxi drivers to death for the rape and murder of an Australian tourist they picked up at New Delhi airport.
  
• The court said Griggs had struggled against her assailants before being raped and stabbed to death. She was also attacked with a screwdriver.
  
• "The victim in the present case was a foreigner lady who was totally dependent on the hospitality provided to her by our people. She was totally defenceless and unprotected," the judge said in his order.
  
• The defence had argued that there was no direct evidence and no eyewitnesses, and indicated they would appeal.
  
• India's Supreme Court stipulates that the death penalty be used only in the "rarest of rare cases."
  

A family battles loss and legal system

• "For two days we waited at the Nizamuddin police station to get an FIR registered,"
  
• "The lawyer has demanded 10 per cent of the compensation amount as his fee,"
  

• Total number of fatal accidents 853

  Fatal accidents due to drunken driving 11

  Total number of people prosecuted for drunken driving 5,500

  (all figures from Jan-August 2008)

  Total number of people prosecuted for drunken driving 2,900*

  *(for Jan-August 2007)

Foreigners Act

• Mr.V.T.Gopalan learned Additional Solicitor General, appearing for the Union Government contends that the orders have been issued under the provisions of the Foreigners Act and there is no requirement to issue any prior notice or to provide any opportunity to show cause against the proposed order. The executive has full powers to use their discretion and, if in their opinion, the petitioners' presence is found to be objectionable, the action of the executive in directing their deportation cannot be called as illegal.
• Learned Additional Solicitor General also relies on the judgment of this Court in "GILLES PREIFFER v. THE UNION OF INDIA and Ors." reported in 1996 W.L.R.386, in support of his contention that the foreign nationals have no right to claim to continue to stay in India when the conduct of any foreigner comes to the adverse notice of the Government.

• in reply, Mr. AR.L. Sundaresan contends that the facts of the case reported in 1996

  W.L.R.386 will not apply to the facts of the present case. That was a case in which the accused was found to be indulging in activities adverse to the security of the country, whereas in the present case, the petitioners have been charged with criminal offence and pursuant to their conviction they have also preferred an appeal. Therefore, the rights of the individuals to pursue the appellate remedy cannot be barred by directing them to leave the country.

• I have considered the submissions of both sides. A perusal of the provisions of the

  Foreigners Act discloses that no reasons are required to be stated while directing deportation of the foreign citizens. Section 3 of the Foreigners Act, 1946 reads as follows.

  "3. Power to make orders:

  �

  (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India, or their departure there from or their presence or continued presence therein.

  �

  (2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner(a)shall not enter India, or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed.

  �

  (b) Shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

  (c) Shall not remain in India or in any prescribed area therein;

  (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal.

  (d) Shall remove himself to, and remain in, such area in India as may be prescribed;

  (e) Shall comply with such conditions as may be prescribed or specified-

  i. requiring him to reside in a particular place;

  ii. Imposing any restrictions on his movements;

  iii. requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed and specified; iv. Requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;

  v. requiring him to submit himself to such medical examination by such authority and at

  Such time and place as may be prescribed or specified;

  vi. Prohibiting him from association with persons of a prescribed or specified description;

  vii. Prohibiting him from engaging in activities of a prescribed or specified description;

  viii. Prohibiting him from using or possessing prescribed or specified articles;

  ix. Otherwise regulating his conduct in any such particular as may be prescribed or specified;

  x. otherwise regulating his conduct in any such particular as may be prescribed or specified.

  (f) Shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;

  (g) Shall be arrested and detained or confined.

  And may make provision for any matter which is to be or may be prescribed for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.

  �

  (3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f) of Sub-section (2)." 12. While interpreting the said provisions, the Supreme Court in SC/0074/1955 cited above, has in clear terms, stated that the Foreigners Act vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains with the Government.

• It is no doubt true that the learned counsel for the petitioner seeks to distinguish the facts of the said case with the present case and contends that the petitioners in this case have got a fundamental right to pursue the appellate remedy. I am unable to accept the said contention. The fact remains that it is open to the petitioners to pursue the appeal before the appellate Court through their counsel and their personal appearance is not required. The petitioners have come to the adverse notice of misbehavior and had been prosecuted under Sections 294, 354, 323 and 506 Part II read with Section 34 I.P.C., which are serious offences. The offences for which the petitioners stand charged cannot be said to be minor charges which can be easily ignored.
• 
  

Trial court orders further investigation in Sabharwal case

A trial court, hearing the high-profile Prof H S Sabharwal murder case, has ordered further investigation and seizure of original negatives of photographs and video tapes, on which the media recorded the incident, video recorders and video editing machines.

District Judge II B A Sheikh, who is hearing the case, directed the Government of Madhya Pradesh to seize the material since the investigation in the case had to be done properly. The order came in response to an application under section 173 (8) of the Criminal Procedure Code (CrPC) moved by Advocte Pratul Shandilya, special public prosecutor.

Prof Sabharwal died after being allegedly assaulted by activists of the Akhil Bharatiya Vidyarthi Parishad (ABVP) on the premises of Madhav College in Ujjain on August 26, 2006. The assault took place after the college authorities cancelled the elections to the students union on the grounds of insufficient quorum.

The case was being heard by a court in Ujjain, but Himanshu Sabharwal, Prof Sabharwal's son, moved the Supreme Court with a plea to a shift the case to a court outside Madhya Pradesh, saying a fair trial was not possible in that state because it was ruled by the Bharatiya Janata Party. The apex court ordered the case to be shifted to Nagpur.

Its for the Govt to do something................................

• Apart from the victims, who suffered an agonising wait of 10 long years to see this day, the plight of the accused was no less. The right to speedy trial of the accused, read into right to life under Article 21 of the Constitution by the Supreme Court, went for a toss.
• In fact, the Supreme Court had in 2006 said the Centre, states and all authorities concerned must take necessary steps immediately to enforce the right to speedy trial of an accused.
• But most of the criminal trials take decades to conclude, thanks to the huge backlog of cases. About three crore cases are pending in various courts across the country, of which 2.54 crore are in subordinate courts. In the past, the judiciary and the government have blamed each other for the mammoth problem. But the fact is over 3,000 posts of judges in subordinate courts are lying vacant against the sanctioned 15,900 judges.
• The Law Commission in its 120th report had recommended that the number of judges for every 10 lakh people should be increased from 10.5 at present to 50. A few months ago, Law Minister HR Bhardwaj told Parliament that the present judge-population ratio in India was 14 judges per 10 lakh population. But that obviously is not enough.
• Chief Justice of India KG Balakrishnan has been rightly pointing out that lack of infrastructure and vacancies were the main reasons behind undue delay in disposal of cases.
• India spends barely 0.2 per cent of its GNP on the judiciary. It is high time the government increased it to at least one per cent, as demanded by the CJI, otherwise the situation would only get worse.

Need to amend law against drunken driving: Lawyers

• “There is an urgent need to amend section 304 (A) (causing death by negligence) of the Indian Penal Code (IPC) as it was last amended when it was made in 1861,” said Naveen Matta, a lawyer.

• He added that this section was prepared at a time when there were very few vehicles and thus very few cases of road accidents.

  Section 304 (A) offers a maximum punishment of two years of rigorous imprisonment along with a fine.

• “I welcome this judgement but there is also a need to reform our judicial system as it takes more time to come to conclusion,” said senior Supreme Court advocate Prashant Bhushan.

Nanda guilty, criminal justice hijacked by rich: court

• Holding Sanjeev Nanda guilty in the sensational BMW hit and run case, the court in New Delhi on Tuesday said the entire criminal justice and trial had been hijacked by the rich and influential persons.
• The maximum imprisonment for the crime under Section 304 (2) of the Indian Penal Code is 10 years.
• This is one of the first instances that a court has convicted the accused in a hit and run case under Section 304 (2). In most cases, the conviction is under Section 304 (1) - causing death by rash and negligent act - in which the maximum sentence is two years.
• “I am of the considered opinion that this is simply not a case of hobnobbing between the defence counsel and prosecution but also at some stage in the background, the investigating officer has been influenced who deliberately indulged in such perfunctory investigation that it causes serious prejudice to the prosecution,” said the judge.
• 
  

HC convicts senior advocates Anand, Khan in BMW expose case

• The court held the two guilty of “... obstructing the administration of justice”.
• The court has debarred the duo from appearing in high court and lower courts for four months. It has recommended that they be stripped of their designation of senior advocate.
• The High Court’s order evoked sharp reaction from bar associations of the four district courts, which called a one-day strike on Friday. According to them, only the Bar Council of Delhi or Bar Council of India can debar a lawyer from practising, not a court.
• On May 30 last year, NDTV aired a sting operation showing public prosecutor Khan and Nanda’s lawyer Anand negotiating separately with witness Sunil Kulkarni to turn hostile and save Nanda. The next day the high court had initiated contempt proceedings against the lawyers.
• After 15 months of hearing and close scrutiny of the tapes, a Bench of Justices Manmohan Sarin and M.B. Lokur said: “We are not dealing with a young lawyer who, driven by ambition and desire to make his career and in his over-zealousness, transgresses the limits by crossing the Lakshman Rekha. We are dealing with senior advocates who are expected to become role models for younger members of Bar.”
• The debate in the legal circles is whether the court has the authority
  to suspend the licences of lawyers. An eminent senior Advocate, KTS
  Tulsi has expressed shock over why the court has not utilized the
  audiovisual proofs to send the duo to prison.
  
• "I will not give a carte blanche statement that judges cannot be
  corrupt…I have seen some very odd judgments in my time," said Salve.
  
• Salve recollected the time when society had zero tolerance for such
  instances and the accused would hang their head in shame.
  
  "But society has now accepted corruption as a part of life," lamented Salve.
  
• "The errant judges must be punished. There is no doubt about this that
  those at fault will definitely have to be appropriately dealt with in
  accordance with the law," said U C Bannerjee.
  
• In a particular case two years ago, a court in Gujarat had issued
  bailable arrest warrants against the then serving President of the
  country. Isn't that a manipulation of courts or is it a simple case of
  influence finding its way?
  
  "If the court has ordered it, the court must have justifiable reasons
  for that and if the court has ordered it, I have nothing more to add
  or to say," commented Banerjee.
  
• "It is tragic but I am not totally shocked," said a pragmatic Singh.
  "What shocked me is the leniency of the sentence. It seems that if you
  belonged to a privileged fraternity, you can get away with murder.
  Even more shocking is the support the legal fraternity is giving to
  the people the court has punished," Singh added about the Delhi
  District Lawyers Association support to Anand and Khan.
  
• "There was a time when a client came to you and requested you to study
  and contest his case. But now people come to lawyers with cases and
  ask outright but discreetly, if the lawyer knows any fixer or
  middleman to plug the jury," Salve said.
  
• "I cannot comment of the decision given by the high court. It is not the jurisdiction of the high court to debar or cancel the license of a lawyer. Only the Bar Council of India can take a decision in the matter," K K Menon, Chairman of the Delhi Bar Council, said.
  

"The matter (the lawyers trying to bribe the key witness) is pending before the bar council and it will give a decision in the next hearing," he added.

• Senior lawyer Lalit Bhasin said: "This jurisdiction vests with the Bar Council of India. Generally the Bar takes cognizance of the conduct or misconduct of lawyer in accordance with the Advocate Act and the Bar Council of India's rule."
  
• "A constitutional bench of the Supreme Court has given the power to debar or cancel the license of a lawyer to the Bar Council of India. But what is peculiar is that so much time has passed but the Bar has not taken any decision in this regard.
  

"Moreover the punishment of debarring the lawyers from practice for four months and a fine of Rs 2,000 is highly inadequate. The reputation of the lawyers have taken a beating after the expose and a stringent punishment is called for the guilty," Jaiswal said.

• "The expose is an aberration. The role of legal profession has not taken any beating, as right from the freedom struggle to the current cabinet, the lawyers are contributing largely in the public life," Bhasin said.
  

Legalising homosexuality would help gays: Ramadoss

He said that scrapping of Section 377 of IPC which 'criminalises' men having sex with men (MSM) would help homosexuals to come out of the closet.

Don't refer civil nature for police investigation

Transfer cases of civil disputes to High Court

The Madras High Court on Thursday directed the Registry to withdraw cases all over the State involving disputes of civil nature in which magistrates have ordered police investigation, call for the records and transfer them to the High Court.
Passing further orders on two criminal original petitions, Justice R. Regupathi said the Registry should place the entire material and particulars before the Chief Justice for orders for an enquiry in those matters. Further proceedings of all those cases pending with the magistrates concerned were stayed till the disposal of the proceedings by the court.
The judge said all records, including vigilance reports, might be placed before the Chief Justice for taking appropriate departmental action against the magistrates, in particular III, X, XVII and XVIII Metropolitan Magistrates, Chennai, and Judicial Magistrate-III, Coimbatore and Judicial Magistrate, Paramakudi.
The DGP was directed to instruct police officers who had received orders from the magistrates in such cases under section 156 (3) of the Cr.P.C and the Station House Officers (SHOs) who had entertained similar complaints in the name of �petition enquiry� to obtain opinion from the Director-General/Additional Director-General of Prosecution/Assistant Public Prosecutors and to file interim/final reports before the jurisdiction magistrates within two weeks. The DGP should file compliance report in three weeks.

Perverse Banking

The menace is only growing and unless the CEO of the concerned banks are made accountable for these criminal acts and are arrested and put behind bars, they won’t stop these barbaric practices. Wearing a tie and suit and speaking English with an accent does not make them civilised. They will have to behave like civilised people and shun their barbaric impulses. They must be told that they cannot take law in their hands, directly or clandestinely without the prior permission of authorities.

Under court pressure, Bengal mulls highway action

1. Calcutta high court judge had directed the National Highways Authority of India (NHAI) to ensure free movement of vehicles on the expressway, part of National Highway 2, on which Trinamool supporters are squatting since last Sunday to press their demand for the return of 400 acres to farmers who do not wish to give up their land for the factory.
2. According to a Supreme court directive, acquired land cannot be returned to owners. Instead it has to be used for the public interest. And, if in any case, it cannot be used for the public interest, then the land has to be auctioned. But giving the land back to the farmers is not possible.
3. The Supreme Court had given a clear verdict in this regard, which says, a piece of land cannot be returned to its previous owner once it has been acquired. Even if the acquired land could not be used for the purpose it was intended to, it must be used for purposes related to public interest. Excess land, if any, may be auctioned by the government to the highest bidder. These directives are stated in the verdicts against civil appeals No. 6456 and 4113 of years 1999 and 2000 respectively. In a case between the state of Kerala versus N Bhaskar Pillai and others, the question emerged, “whether the government can assign the land to the erstwhile owner.” The Supreme Court in its verdict in 2004 said, “It is a settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is not other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owners the land should be put to public auction, and the amount fetched through the public auction can be better utilised for the public purpose envisaged in the directive principles of the Constitution.”