Friday, September 27, 2013

N Srinivasan can't assume position till matter is in court, rules SC

 The Supreme Court on Friday allowed the Indian cricket board to go ahead with its Annual General Meeting (AGM) slated for Sunday in Chennai but with a rider that president Narayanaswami Srinivasan cannot take charge even if he is re-elected for a third term. 

The apex court bench headed by Justice A.K. Patnaik said that in case Srinivasan gets re-elected, he will not take charge till the court decides on a petition by the Cricket Association of Bihar (CAB), which is not recognised by the Board of Control for Cricket in India (BCCI). 

CAB secretary Aditya Verma on Monday moved the Supreme Court seeking to restrain Srinivasan from getting re-elected as the president of the BCCI on the ground that his son-in-law Gurunath Meiyappan is facing probe on the allegations of spot fixing and betting. 

Verma, in his application, also sought to restrain the BCCI from inducting Srinivasan in any of its committees as a member or allow him to participate in any of the proceedings in any capacity. 

The pressure is mounting on Srinivasan not to seek a third year as BCCI chief in view of Meiyappan being charged by Mumbai police in the Indian Premier League (IPL) betting scandal, but he is adamant on seeking re-election. 

Meiyappan, who is the principal of IPL side Chennai Super Kings, owned by Srinivasan's company India Cements, has been named in the 11,500-page charge sheet along with Bollywood actor Vindoo Dara Singh. 

Srinivasan has distanced himself from Meiyappan, who was among the 22 people formally charge by the investigators. 

The charge sheet does not mention any instance of spot-fixing in the IPL matches. All the accused have been charged with cheating, gambling, conspiracy and forgery. 

Srinivasan's name also figures among those charged by the Central Bureau of Investigation (CBI) in a corruption case involving YSR Congress party chief Y.S. Jaganmohan Reddy. 

Supreme Court gives voters right to reject all candidates

NEW DELHI: In a landmark judgement on Friday, the Supreme Court for the first time allowed voters to cast negative vote by pressing a button saying none of the candidates is worthy of his vote. 

The SC asked the Election Commission to provide None Of The Above (NOTA) button on EVMs and ballot papers.

The apex court said the right to vote and the right to say NOTA are both part of basic right of voters.

"When a large number of voters will press NOTA button, it will force political parties to choose better candidates. Negative voting would lead to systemic change in polls," the apex bench observed.

The bench also observed that implementation of NOTA option was akin to 'abstain option' given to MPs and MLAs during voting in respective houses.

The SC directed the EC to start implementing NOTA button on EVMs forthwith in a phased manner and asked the Centre to render all assistance.

A bench headed by Chief Justice P Sathasivam said that negative voting would foster purity and vibrancy of elections and ensure wide participation as people who are not satisfied with the candidates in the fray would also turn up to express their opinion rejecting contestants.

The bench noted that the concept of negative voting is prevalent in 13 countries and even in India, parliamentarians are given an option to press the button for abstaining while voting takes place in the House.

The court said right to reject candidates in elections is part of fundamental right to freedom of speech and expression given by the Constitution to Indian citizens.

It said that democracy is all about choice and significance of right of citizens to cast negative voting is massive.

With the concept of negative voting, the voters who are dissatisfied with the candidates in the fray would turn up in large number to express their opinion which would put unscrupulous elements and impersonators out of the polls, it said.

The bench, while reading out the operative portion of the judgement, did not throw light on a situation in case the votes cast under no option head outnumber the votes got by the candidates.

It said that secrecy of votes cast under the no option category must be maintained by the Election Commission.

The court passed the order on a PIL filed by an NGO, People's Union for Civil Liberties (PUCL) which had submitted that voters be given the right to negative voting.

Agreeing with the NGO's plea, the bench passed the path-breaking verdict and introduced the concept of negative voting in the election process, saying that it would further empower the voters in exercising their franchise.

The latest verdict is part of series of judgements passed by the apex court on the election process.

Earlier, the apex court had restrained people in custody from contesting elections.

The apex court has also ruled that MPs and MLAs would stand disqualified after being convicted of serious crimes. The government has brought an ordinance seeking to negate the court's judgement striking down a provision in the electoral law that protected convicted lawmakers from immediate disqualification.

A two-judge bench of the apex court had felt that the issue on negative voting needed to be adjudicated by a larger bench as there were certain doubts over the interpretation of the ruling passed by a Constitution Bench in the Kuldip Nayar Vs Union of India case relating to a voter's right.

Under the existing provisions of Section 49(O) of the Representation of People Act, a voter who after coming to a polling booth does not want to cast his vote, has to inform the presiding officer of his intention not to vote, who in turn would make an entry in the relevant rule book after taking the signature of the said elector.

According to the PUCL, Section 49(O) was violative of the constitutional provisions guaranteed under Article 19(1)(a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot.

Monday, September 23, 2013

Aadhaar purpose in doubt as SC says its not must

NEW DELHI: The Supreme Court on Monday dealt a crippling blow to UPA's showpiece Aadhaar scheme by ruling that it can only be issued to those with proven Indian nationality and cannot be mandatory for accessing public services and subsidies.

"In the meanwhile, the Aadhaar card cannot be made mandatory. If anyone applies for Aadhaar card, then you have to verify whether he is a citizen of India or not. These cards cannot be issued to illegal migrants," said a bench of Justices B S Chauhan and S A Bobde as they frowned upon the unique identity numbers being issued without verifying the antecedents of individuals.

The move is a serious setback to the government's plans to transfer cash and subsidies directly into bank accounts of beneficiaries. Meeting the verification criterion laid down by the apex court could prove to be a tough task because only a small part of the population has proof of nationality such as a passport. That the Unique Identification Authority of India, an entity floated by UPA-2 for rolling out the ambitious Aadhaar scheme, is a lean body dependent on vendors only adds to the complication. The UIDAI enjoys no legal backing either.

However, the SC order may come as a respite to citizens who were harried by the growing demand of authorities to link delivery of a whole array of services and subsidies such as those for cooking gas to Aadhaar cards. In states like Delhi, even marriage registration is now dependent on Aadhaar. Given the huge number of complaints about access to the cards, the insistence has become a major irritant for households.

The court's order came on a petition protesting the issuance of Aadhaar cards to illegal migrants.

Before the bench passed the interim order on a PIL filed by retired Karnataka High Court judge K Puttaswamy, solicitor general Mohan Parasaran and additional solicitor general L Nageswar Rao put up a mild resistance saying the cards were issued on voluntary basis and clarified that it was never meant to be mandatory.

"The enforcement machinery is tightened. Just because one or two aberrations being reported by the media does not mean the Aadhar cards are being issued to all and sundry," Parasaran said

The law officers denied that the Centre had issued any direction to states to make Aadhaar cards mandatory even as petitioners' counsel Anil Divan and Shyam Divan cited the Maharashtra example where government employees have been ordered to get Aadhaar cards issued in their name so as to receive salary.

The counsel also alleged that Aadhaar cards were being issued to illegal migrants and made mandatory for getting gas connections and even registration of marriages, a charge denied by the Centre.

However, Shyam Divan countered saying that even the Bombay High Court registrar general's order asking all, including judges, to get Aadhaar cards were made to facilitate smooth transfer of salaries.

The bench wondered how such a direction could be issued when the Union government, the brain and financial power behind the scheme, was clear that it was a voluntary scheme.
After clarifying the voluntary nature of Aadhaar cards, the law officers requested the court not to pass an interim order restraining issuance of these identification cards to illegal migrants on the basis of their place of residence.

The bench said, "How does this order affect the Union government? If we say the Aadhaar cards must not be issued to illegal migrants, who gets affected? Why can't the government check whether a person is an Indian citizen or not before issuing the card?"

The court had issued notice on the PIL on November 30 last year. The petitioner had questioned the grant of UID numbers and Aadhaar cards to illegal migrants at a time when a bill to this effect, pending before Parliament, has already been rejected by the concerned parliamentary standing committee.

The PIL had requested the court to restrain the government from issuing UID numbers and Aadhaar cards till Parliament took a decision on the bill.

The petitioners, Justice Puttaswamy and another, said they had ascertained that the Unique Identification Number Project proposed to give UID numbers not only to citizens but also illegal migrants pursuant to a scheme framed by the government through an executive order of January 28, 2009.

Referring to several judgments of the Supreme Court on right to privacy of a citizen guaranteed under Article 21 of the Constitution, the petitioners said, "Collecting biometric information as a condition precedent for the issue of Aadhaar card is an invasion of right to privacy of citizens and thereby this can only be done by a law enacted by Parliament and hence, beyond the executive power."

Ranki Vav step closer to getting Unesco tag

AHMEDABAD: Patan town, considered the parent of Ahmedabad city, is on the verge of vying for the coveted Unesco's World Heritage Site status for Ranki Vav, an 11th century stepwell.

A team of the National Monument Authority (NMA) and the Archaeological Survey of India (ASI) was in Gujarat to hold a series of meetings and workshops between Thursday and Saturday. The members of the group decided to invite the representatives of the International Council on Monuments and Sites (ICOMOS) in the third week of October for the final inspection of the stepwell.

The NMA-ASI team also resolved to list adjoining monuments and a lake near the stepwell for the Unesco nomination. If the ICOMOS team approves Ranki Vav as a World Heritage Site, the stepwell will step into the ranks of the monuments of Champaner and Pavagadh which have acquired the privileged status.

This is crucial step for the Gujarat-ASI which has been taking care of the monument ever since the monument got listed in Unesco's tentative list in 1998. It was in June this year that ICOMOS had informed the Indian government that it wished to inspect the site any time this year. At one of the workshops held in the Vadodara office of the ASI , the team decided to ready the site for inspection. There were a few doubts raised by the NMA regarding the vibration from the nearby railway track.

"The representatives of the Western Railway, who were present in the meeting, had assured that they would immediately order all trains that pass near the monument to slow down," said a senior ASI official. "The NMA was also told that many World Heritage Sites have rail lines that have not affected the structures."

The NMA will be handed over a conservation plan for the Ranki Vav and a 100 metre buffer zone around the monument.

"The other contender is the Qutb Shahi Monument of Hyderabad," said the ASI official.

Tuesday, September 17, 2013

Bombay HC frowns on stringent bail conditions, cites case backlog

MUMBAI: The Bombay high court recently questioned the need for a trial court to impose "stringent" bail conditions while cancelling a warrant when the court is unable to speed up hearing of cases because of backlog.

Justice M L Tahaliyani cancelled the non-bailable warrants issued by a magistrate's court against a 62-year-old south Mumbai resident, Sushma Sharma, and a co-accused, Naresh Trika (52), who are facing charges of assault, wrongful confinement and abduction in an incident that occurred in 1993 at a Juhu hotel. The HC also modified the bail conditions.

The court was hearing a plea by Girgaum Chowpatty resident Sharma challenging the tough bail conditions.

The case against Sharma and Trika is that in January 1993, they allegedly assaulted the cashier of Hotel Horizon in Juhu, accusing him of misappropriating hotel money. The charge sheet was filed in 2005.

According to the petition, the judicial officer issued non-bailable warrants against the two in February 2013 as they failed to appear on one occasion. Sharma claimed she was on a pilgrimage then, while Trika was under treatment in Amritsar where he lived.

Once they appeared before court, the magistrate passed an order cancelling the warrants subject to the condition that they submitted a personal bond and furnished a local surety of Rs 50,000 each. The other conditions said the duo would have to present themselves before the Juhu police every Sunday and could not leave Mumbai or India without the court's permission.

Advocate Aniket Nikam, counsel for Sharma, said, "Merely because the accused, a senior citizen, remained absent on one occasion, the trial court imposed extremely onerous conditions while staying the non-bailable warrant in a 20-year-old case. Such conditions were uncalled for."

Nikam said the two were unable to get a local person to stand surety for them. "For furnishing a surety of over Rs 15,000, the person standing surety has to submit his property papers. This is difficult in a city like Mumbai."

Justice Tahaliyani said, "I have come to the conclusion that the order passed by the magistrate is too onerous to be sustained. There is no necessity to impose such stringent conditions in the bail order, particularly when the magistrate is not able to hear the matter expeditiously due to pendency of other cases."

Modifying the bail conditions, the HC said the duo be released on a bond of Rs 50,000. Additionally, they were given the option of either submitting a surety or a cash deposit of Rs 50,000. The court said they could not travel out of India without permission, but deleted the other conditions including the one that required them to take permission before travelling outside Mumbai and present themselves before the police every week.

Wednesday, September 4, 2013

Disqualification of convicted politicians: SC refuses to hear Centre's review plea

The Supreme Court on Wednesday refused to entertain the Centre's plea seeking a review of its verdict on disqualification of MPs and MLAs on being convicted in a criminal case.

The apex court, however, agreed to hear the Centre's petition seeking review of its judgment barring arrested persons from contesting elections.

Earlier, the Union Cabinet on August 22 had cleared the proposal to allow convicted lawmakers to retain their membership till an appeal is pending before a court while suspending their voting rights.

According to the law ministry's proposal to amend the Representation of People Act, an MP or MLA can retain membership even after conviction if his or her appeal is pending before a court and sentence is stayed, but he or she shall neither be entitled to vote nor draw salary and allowances.

The move was necessitated after the Supreme Court ruling disqualifying a legislator in the event of a conviction for an offence attracting a sentence of more than two years.

The proposal also suggests adding a new clause to the Constitution to say that a person can contest elections even if he can't vote. It states that a person cannot cease to be a voter while in detention as his or her right is only temporarily suspended. It was argued that as the name of the person in jail continues to be on the electoral role, he or she also continues to be an elector and can file nomination for election.

The amendment to the RP Act shall come into effect from July 10, 2013, the day the Supreme Court gave the landmark judgment which was seen as a big step towards cleaning up the political system.

At an all-party meeting, political parties across the board opposed the apex court order, arguing it could be misused to settle scores. Political parties voiced concerns about "judicial overreach" and argued that the supremacy of Parliament must be maintained and if required, amendments must be brought in the Constitution.

Mamata’s allowance to Imams unconstitutional: Court

Calcutta High Court on Monday rejected an allowance announced by West Bengal government for Imams and Muezzins, ruling it to be unconstitutional and against the public interest.

A division bench of Justice P.K. Chattopadhyay and Justice M.P. Shrivastava passed the above order on a writ petition challenging the announcement.

The court said the allowance violated Articles 14 and 15/1 of the Constitution, which provide that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.

Chief Minister Mamata Banerjee had in April 2012 announced an allowance of Rs. 2,500 for each Imam, later also extending one to muezzins, who say the Azaan, of Rs. 1,500 each.

That decision was challenged in high court by BJP state general secretary Asim Sarkar who contended that India was a secular country and the allowance went against constitutional provisions ensuring equality of religion.

It was also claimed that the allowance was not in the public interest and would cost the exchequer Rs. 126 crore annually, Sarkar’s counsel, Kaushik Chanda, said.

Opposing the petition, the counsels for the state government claimed it could lawfully extend the allowance and added that the Assembly had okayed the expenditure.

Refusing to accept the contention, the court today ruled in favour of the petitioner and directed that the allowance be stopped immediately as it was in violation of the provisions of the Constitution.

Tuesday, September 3, 2013

Contract for primary school kits: HC upholds Vadodara DDO’s decision

The Gujarat High Court on Tuesday upheld the decision of Vadodara District Development Officer (DDO) to award the contract for primary education kits for schools in the district to the lowest bidder. It was an intelligent decision of the DDO that saved the state exchequer Rs 47 lakh. But it did result in a court case by the rejected bidders and personal vilification campaign against him. The HC also heaped praise on the watchfulness with which the department functioned.
On February 27 this year, Vadodara's Primary Education Department floated a tender to call bids for supplying primary education tools for about 2,300 schools. Rs 2.3 crore was sanctioned by the state government for this. These kits comprise 17 educational items, like the compass, calculators, geometric models, models of vegetables, fruits and human anatomy and weights and measures. Its price for each school was fixed at Rs 10,000. By March 26, the department had received five bids - three of which quoted Rs 9,981, Rs 9,991 and Rs 10,000 respectively. Two bids were rejected on technical grounds.The three bids were finalised on April 14, a day before the officer in-charge was transferred.
When Ravikant Arora took charge as the DDO for Vadodara in April, he came across the three bids and felt something was amiss. On April 26, the DDO returned the file with a note stating, "With utmost care it must be seen that the rates of these three seem to be on higher side. The technical committee must re-examine if the other bids can be opened or not."
Accordingly, in May, two initial bids that were rejected on technical grounds were opened and the tender was eventually awarded to one bidder, Education Emporium, that had quoted Rs 7,839. An officer of the department says, "The DDO had raised a point that the three bids that were finalised had a very narrow price difference, which was suspicious."
However, as soon as the tender was awarded to Education Emporium, the bidder from Ahmedabad, Ankur Enterprises, dragged the DDO office to court, filing a Special Civil Application in July this year and calling the reevaluation of the bids an act of 'malice' by the DDO. The HC heard the petition on eight occasions. In its ruling on Tuesday, HC observed that the "officer had acted with due diligence and had helped save Rs 47 lakh of the state exchequer by awarding the tender to the most deserving contractor."
Arora said, "We are happy that the court has upheld our decision and that we were able to make proper judgment in this matter. It is a cause of concern that the bids went unchecked to the final stage. We are contemplating action against those guilty of this and I will bring it to the notice of the state government."

Erred in RTI panel head decision: SC

 Supreme Court on Tuesday admitted it had erred by directing the government to appoint only retired apex court judges and HC chief justices as heads of information commissions at central and state levels. 
    Restoring the position provided under the Right To Information Act for appointment of chiefs of information commissions, a bench of Justices A K Patnaik and A K Sikri erased the court’s September 13, 2012 judgment which directed that ‘the chief information commissioner at the Centre or state level shall only be a person who is or has been a chief justice of the HC or a judge of the Supreme Court’. 
    Allowing the Centre’s review petition filed in the wake of widespread protests against the SC judgment, the bench said, “As Sections 12(5) and 15(5) of the Act do not provide for appointment of judicial members in the information commissions, this direction was an apparent error. Parliament will consider whether appointment of judicial members in information commissions will improve their functioning.” 
    The bench, however, lamented that an unfortunate experience had emerged over the years where information commissions were not able to harmonize the right to information under the Act and the right to privacy guaranteed under Article 21 of the Constitution. 
    This inability to harmonize two important yet conflicting interests could be because of two reasons: first, persons appointed as CIC or information commissioners did not meet the qualification prescribed under the Act, or second, “they do not have the required mind to balance the interests indicated in the Act and restrain themselves from acting beyond the provisions of the Act”. 
    Writing the judgment for the bench, Justice Patnaik said, “This experience of the functioning of the information commissions prompted this court to issue the directions in the judgment under review to appoint judicial members in the information commissions.”

Monday, September 2, 2013

Passport alone no proof of citizenship: Bombay HC

A birth certificate, passport or even an Aadhaar card may not be enough to prove that you are an Indian citizen if you were born after July 1, 1987. Citizenship laws say a person born in India after July 1, 1987 cannot claim automatic citizenship unless at least one of the parents is an Indian. 

The Bombay high court has refused to grant relief to a man and three others charged with being illegal immigrants even after they produced passports (later terminated), Aadhaar cards and birth certificates to prove they were Indians. 

"The birth certificate of one of the applicants will not (suffice) as under the law it is imperative for such applicant to establish that his parents were Indian nationals. There is no such proof adduced," said Justice K U Chandiwal dismissing their pleas. 

Under citizenship laws, a person is an Indian by birth if born in India on or after January 26, 1950, but before July 1, 1987. If a person is born after July 1987, he or she can claim citizenship if either parent was a citizen. For all born in India on or after December 3, 2004, they can claim citizenship by birth only if both parents are Indians, or if one parent is a citizen and the other is not an illegal immigrant at the time of birth. 

The court upheld a trial court's order punishing Afzal Khan (name changed) and three others with a jail term of six months for illegally entering India. The court also rejected a plea to revert the matter to the trial court so that they could submit identity proof. 

"A birth certificate may show that a person was born in India, and other documents may show that they have lived in India. But the law does not recognize that as proof of citizenship," said additional public prosecutor Swapnil Pednekar, who opposed the applications that challenged the trial court order. The prosecution said the accused were Bangladeshis who had entered India illegally. 

The accused's lawyer claimed that they had passports which showed they were Indians and were in possession of Aadhaar cards and birth certificates which showed they were citizens by birth. They urged the court to quash the trial court's order. The HC dismissed the applications, saying the law "categorically illustrates the person who can be accepted to be an Indian citizen''.