No Constitutional Bar on More Benches

UP lawyers demanding a western bench of the Allahabad High Court, in New Delhi. Photo: Anil Shakya Though the demand for more High Court benches often turns into an emotional and political issue, there is no law restricting more from coming up ~By Upendra Baxi The Supreme Court, in many decisions, has upheld a basic human right of access to judicial remedies. The Constitution was itself amended by the insertion of a new Directive Principle of State Policy (Article 39-A) which prescribes that the “State shall secure that the operation of legal system promotes justice based on equal opportunity” and that “opportunities for securing justice are not denied to any citizen by economic or other disabilities”. The revision also contained the provision of legal aid which has been enacted. However, this 1976 amendment has not addressed “economic” and “other disabilities”. Surely, the denial of access to justice is a major constitutional disability, which legal aid and services may only partly alleviate. The Supreme Court in 2012 [Brij Mohan Lal v. Union of India] further affirmed that “it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to Justice” so that “every person is able to receive an expeditious, inexpensive, and fair trial”.…
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A Pipe Dream

This method — H-1B Visas — of going to the US is full of hurdles and that includes the Trump administration’s hardline stance. This has led to top Indian firms reducing their visa applications ~By Kris Lakshmikanth There is a lot of news floating around about H-1B filings for the fiscal year beginning January 2019. Let me clear the mist. The total ceiling for H-1B visas for 2019 stands unchanged and is 65,000. In addition, there is a special quota of 20,000 for any person who has done his post-graduation in the US. H-1B filing began on April 2, and will conclude when the immigration authority—the US Citizenship and Immigration Services (USCIS)—determines that it has received enough applications to meet the upper limit of 65,­000 visas that can be issued in a year. Last year, the H-1B visa limit was reached on April 7 (five working days) and for post-graduates too, it was the same date. In 2016, 1,99,000 applications were received. In fact, this was the first time when the total applications fell after 2013. But it went up again in 2017 when the USCIS received 2,36,000 applications. APPLICATIONS TO FALL This year, according to many experts, the number of applications will fall.…
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How Safe Are Our Children?

Above: Children at an orphanage/Photo: globalgiving.org India is a signatory to the UN convention on child rights, and other laws like the JJ Act too have been amended in the interests of the child. But has all that made a difference?   ~By Papia Samajdar The report of an 11-year-old girl giving birth to a baby after she was gang-raped by several men has left the nation in shock. What happens to children like these who have suffered unbelievable trauma and are in need of care? In 1989, the United Nations Convention on Rights of the Child (UNCRC) became a legally binding treaty covering four major categories of rights for children—Right to Life, Right to Development, Right to Participation and Right to Protection—with the child at the centre. One hundred and ninety-six countries and UN member-states have ratified the convention, barring the USA. According to the convention, the State must form laws and policies which are child-centric. As family care is the best form of attention to a child, the UNCRC instructs the State to ensure that a child is not separated from its family. India joined UNCRC in December 1992. The first uniform legislation, Juvenile Justice (JJ) Act, passed in 1986, was amended to Juvenile Justice (Care and Protection of Children) in 2000, 2006, 2011 and 2015, thereafter.…
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Lawmakers and Lawyers

Above: Bar Council of India/Photo: Anil Shakya A petition filed before the Supreme Court seeking a ban on MPs and MLAs practising in courts has triggered serious debate in legal circles ~By Justice Sreedhar Rao The petition filed by Ashwini Kumar Upadhyay before the Supreme Court of India seeking a ban on lawmakers practising in courts has stirred a hornets’ nest and opened up a serious debate within legal circles. Section 49(1)(c) of the Advocates’ Act, 1961, empowers the Bar Council of India (BCI) to enact rules for ensuring the standards of professional conduct and etiquette to be observed by advocates. The BCI Rules 47 to 51 lay down the dos and don’ts for maintaining the integrity and dignity of the profession. An advocate is prohibited from engaging in any business but he may be a sleeping partner in a firm which, in the opinion of the BCI, is not derogatory to the dignity and ethics of the profession. An advocate may be a director or a chairman of the board of directors of a company with or without a sitting fee, but shall not be a managing director or a secretary of a company. An advocate shall not be a full-time salaried employee of the government or under any person, including legal entities.…
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Save Valuable Judicial Time

Above: Illustration by Anthony Lawrence Magistrates’ Courts can be made more efficient by overhauling the case distribution system and reducing the time taken for the daily roll call ~By Aabad Ponda With the ever-increasing population of the country, particularly in a metropolis like Mumbai, and there being no corresponding increase in infrastructure or appointment of judicial officers, the incidence of crime has gone up. The fear of law has also reduced because the public believes that courts cannot cope with the workload of cases. One needs to call a spade a spade. In fact, in magistrates’ courts in Mumbai, cases are only adjourned and further adjourned, giving rise to the tareek pe tareek syndrome, a popular slogan in a Hindi movie to criticise the functioning of lower courts. As a practising lawyer who started his career from the lower ranks of magistrates’ courts and who learnt the ropes of the trade from the grassroots stage, it pains me to see how the sheer workload and inability on the part of the staff of these courts to deal with it has led to justice being eluded. This is not just for the needy, old and poor, but for righteous citizens too who bolster the courage to approach the judiciary to redress their grievances.…
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Acts of Omission

There are glaring omissions and inconsistencies in the PMLA 2002 which compel close examination. They relate to criminal misappropriation and criminal breach of trust, among other things By Aabad Ponda The legislature seems to have failed to include offences related to criminal misappropriation punishable under Sections 403 and 404 of the Indian Penal Code (IPC) as well as offences of criminal breach of trust punishable under Sections 406 to 409 of the IPC while drafting the Schedule to the Prevention of Money Laundering Act (PMLA) 2002. The Schedule gets its importance from Sections 2(x) and 2(y) of the Act which define Schedule and Scheduled Offences, respectively. A combined reading of these two sub-sections along with the main definition of proceeds of crime as defined under Section 2(u) and Section 3 of the Act clearly indicates that unless an offence falls under the Schedule of the Act, it gets excluded from the ambit of PMLA 2002. In other words, in order to invoke the provisions of the Act, it is mandatory that there must be a Scheduled Offence—an offence falling under Parts A, B or C of the Schedule to the Act. This is clear from the definition of money laundering under Section 3 of the Act which requires that there has to be proceeds from the crime as defined under Section 2(u) and which, in turn, relates to a Scheduled Offence.…
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Political Funding: The Foreign Hand

An amendment to the FCRA Act, 2010 will allow political parties to receive foreign funds without scrutiny. Is it another step towards the opacity of political finance in India?   ~By SY Quraishi  While parliament has been in a deadlock for the last two weeks, it has managed to quietly pass a bill, an amendment to the Foreign Contribution (Regulation) Act (FCRA), 2010, that exempts political parties from scrutiny of foreign funds received by them. There was no debate on the bill and unsurprisingly, no political party seemed to be upset that it was passed in parliament. The Foreign Contribution (Regulation) Act was first passed in 1976. The clause that prohibits political parties from accepting funds from abroad defines a foreign firm as that which has “more than one-half of the nominal value of its share capital held” by “corporations incorporated in a foreign country or territory”. The FCRA, 1976, was later replaced with the FCRA, 2010. The FCRA, 2010, is a consolidating Act with the aim to “regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto”.…
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When Police Drag Their Feet

The object of incorporating Section 173 (8) of CrPC was to give investigating agencies the power to put forward new evidence before the court after submitting the final report. But it is being misused   ~By Abad Ponda There can be no fundamental right more precious than that of freedom and personal liberty. This is dear to the very existence of every human being. Liberty to a person is akin to light to the eyes, sound to the ears and smell to the nose. In the case of blind, deaf or otherwise impaired people who cannot enjoy these basic senses, there is always a sense of extreme uneasiness. Similarly, arrest and detention in custody is always extremely painful and difficult to endure for anyone. The legislature has incorporated the provisions of Section 167 in the Criminal Procedure Code (CrPC). This provision inter alia stipulates that where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, the maximum period for which a person arrested can be detained in custody is 90 days. In other cases, the maximum period is 60 days. On expiry of this maximum period, if the final report or chargesheet is not filed, then the accused has a statutory right to be released on bail.…
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Right to Die is now a “fundamental right” in India

By Srishty Raj and Rajesh Kumar The constitutional bench of judges comprising of CJI Dipak Misra, Justice A K Sikri, Justice Ashok Bhushan, Justice D Y Chandrachud and Justice A M Khanwilkar passed a landmark judgment on March 9, 2018 in which it held that Right to life includes right to die with dignity and allowed passive euthanasia, permitting living will with advanced directives (advance directive is a document/will by which a person makes provision for health care decisions in the event that, in the future, he/she becomes unable to make those decisions). The petitioner NGO filed a writ petition, under Article 32 (constitutional remedy in case of infringement of fundamental right) of the Constitution of India, for declaring right to die with dignity‖ as a fundamental right within the fold of right to live with dignity‖ guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled My Living Will and Attorney Authorisation‖which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the Living Wills.…
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Towards a Super-Fast Trial?

The case of Additional Sessions Judge Kamini Lau who took the evidence of 22 witnesses on the first day of a trial stirred a hornet’s nest. But surely justice hurried need not be justice buried ~By Upendra Baxi Recently, two news items appeared concerning Additional Sessions Judge (ASJ) Kamini Lau—she apologised for some remarks which had so offended the Delhi High Court that it initiated criminal contempt proceedings against her. A bench of the Supreme Court of India, presided over by Chief Justice of India Dipak Misra, is now considering the case on its merit. The CJI (who was for some time the chief justice of the Delhi High Court) has assured Lau that her interests will be protected. Judge Lau is supposed to have said that a reviewing court should judge the judgment and not the judge. In an unrelated case, Justice (Dr) S Muralidhar and Justice IS Mehta of the Delhi High Court found “merit” in the contention that grave prejudice was caused to the accused by “disproportionately” taking the evidence of 22 witnesses on the first day itself of the trial. “Unable” to appreciate the “super-fast” track procedure, it wondered why it was “necessary to rush through the prosecution evidence in a case of this nature” and how “she failed to realise that it would result in a grave injustice”.…
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Please, release me…

Above: A sister celebrating Raksha Bandhan with her brother imprisoned in a Jaipur jail/Photo: UNI Is it fair not to set free undertrial prisoners on bail under the stringent provisions of certain statutes when even murderers and money launderers can avail of this right?   ~By Aabad Ponda With the alarming rise in the number of undertrials, there is a need for the legislature to make amendments in various statutes relating to the provisions governing bail and bail bonds. The need for this arises because crime only multiplies when these undertrials mix with hardened criminals in jails for long durations. This leads to conspiracies being hatched by undertrials whose idle minds act like devils’ workshops. In special statutes such as the Narcotic Drugs and Psychotropic Substances Act, 1985; Unlawful Activities Prevention Act, 1967 and the Maharashtra Control of Organized Crime Act, 1999, grant of bail on humanitarian grounds like sickness, infirmity, being under 16 years of age and being a woman is not permissible. But in a case of murder or even multiple murders, magistrates who are in the lowest rung of the criminal judiciary are empowered to grant bail on the same humanitarian grounds mentioned above. However, high courts, much less sessions courts, are virtually disempowered from granting bail to those arrested under the stringent conditions of these special statutes.…
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Don’t Harm the Institution

Above: The Chief Justice of India, Dipak Misra and the Supreme Court/Photo: Anil Shakya An attempt to impeach Chief Justice Dipak Misra will affect the credibility of the judiciary and should be weighed against any likely political gain ~ By Justice Narendra Chapalgaonkar It has been reported in the media that some politicians are toying with the idea of initiating impeachment proceedings against Chief Justice of India (CJI) Dipak Misra. This appears to be in reference to the recent controversy about allocation of work among four brother judges of the Supreme Court by the CJI. A judge of the Supreme Court is not removable during his tenure except by adopting the procedure prescribed in Article 124(4) of the Constitution. The motion recommending his removal has to be only on the ground of proved misbehaviour or incapacity. Protection has been given to the judges of the Supreme Court and high courts in the interest of their independence. They should dispense justice without fear or favour. There is a material difference between the motion of no-confidence against a council of ministers and one that seeks the removal of a judge. A motion of no-confidence in a legislature serves an opportunity to criticise the policies of the government in office.…
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