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08 January 2011
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The Indian judiciary and the hierarchy of courts is a perfect solution for such a huge and diverse democracy. In present case, I am talking about Punjab, Haryana and U.T. Chandigarh. The Capital of Punjab and Haryana i.e. Chandigarh, has almost all the Tribunals and appellate courts i.e. High Court, DRT, SCDRC, AFT, ITAT, CAT etc. for the said states.

The solution was establishing all such tribunals and appellate courts in one city and dealing with all the related work at one junction. But the solution is turning to be a problem more severe than it is felt. Establishing the appellate courts/tribunals in a single city tends to create opportunities for lawyers practicing at such city at the expense of denial to other lawyers of other districts in that state. Now, when work flows people tend to flock the said town in search of work, which further creates innumerable problems for the said town in terms of housing, traffic, infrastructure etc. 

My point here is if the government decides to establish all these tribunals, appellate courts in different towns of the state, the same will ensure dual benefits. Firstly, it will offer equal opportunity of work to lawyers in all the districts of that state. Secondly, the problems of traffic, migration and infrastructure will be reduced drastically and will ensure uniform growth for whole of the state rather than over burdening a single town and concentration of work at the hands of few. The increasing number of lawyers and shrinking amount of work, makes it even more important to provide equal opportunity to each lawyer in every district, rather than making it monopoly of few.

03 November 2010
About external articles

This Article was originally published on CLATGyan.com

As you all know, CLAT’s paper is divided into 5 sections. However, no one can ever be sure of what kind of questions one will have to face. In CLAT 2008, the system of differential marking was used by NLSIU, where each Legal Reasoning question carried 3 marks while each General Knowledge question was given half a mark. In CLAT 2009, on the other hand, every question had one mark and surprisingly, there was no sign of Legal Reasoning. Further, in 2010, the Legal Reasoning questions were put up in the Logical Reasoning section and the Maths section was unhinged.

This is what we “think” it is, based on reliable sources and the statements that are coming from NUJS and the CLAT Organizing committee. While the sources are reliable, you shouldn’t take this as the basis of how you intend to prepare.

General Knowledge

Unlike CLAT 2010, the paper will have almost all the questions based on the Current Affairs. Static GK might be asked if it is in the news nowadays. For example, something about Babri Masjid’s history might come as it’s pretty much talked about in the news. So, make sure you stay updated with what’s happening around and do follow the Current Affairs Compendiums which are put up weekly on CLATGyan.com

A note for those who have been frantically roaming around, tensed and worried that they’ve been concentrating only on Static and not on Current: No worries. You’ve done a good thing, static CAN NOT be completely absent, and it is necessary that you do have your basics with you. In my opinion, the important Current Affairs comes from August onwards. We will try and bring you compendiums of current affairs starting January 2010 if possible, but don’t worry much about the “older” months. One yearbook or a few good Pratiyogita Darpan year-roundup issues should be help you out.

GK requires you to stay calm and determined. Nothing that you study is unimportant, everything shall be put to use, if not in your test papers, then at least in Law School.

Logical Reasoning

This, without any incertitude, will be the make or break section. In 2011, the whole section will emphasize on Critical Reasoning rather than Analytical Reasoning. It can also be said that this will be the section where you will have to use your mind the most. Also, this section will contain the lengthiest questions of the paper.

Legal Aptitude

NUJS, who is conducting CLAT 2011, wants people who can THINK and have great reasoning abilities. Hence, we do not expect any Legal GK question in this edition of CLAT. It will be like NLU Delhi’s 2010 Paper, in which the whole Legal Aptitude section had Legal Reasoning Questions. However, there might be some reasoning questions with one word answers like : In Ram v. Shyam, Ram can never be what? … The options were defendant, plaintiff, prosecutor and complainant. (Defendant was the correct answer and this question was asked in CLAT 2010).

So, do as many Reasoning Questions as you can and beat the greatest enemy of yours… the time! (same applies with Logic section)


Getting the same “test of reasoning” thingy, this section will focus on Reading Comprehension/Passages and Grammar. There will be no vocabulary at all. You need not worry about mugging up words and scratching your head when you forget them. Even here, the same rule applies… the more you practice, the much better.


First of all, do not expect Factors, Square roots or Prime numbers. CLAT 2010 is a very bad example of CLAT’s maths. NUJS has a reputation of having a good standard of maths and you shall see, they will keep it up. However, Solving a question will not be a huge task. But, solving it without taking much time will be the key.

And Finally, I would like to end this with three advices. Firstly, Practice as much as you can and never ever even think of stopping it. Secondly, this is CLATGyan’s theory of CLAT 2011 and not an official one. So, dont blame us if something we said will not come, comes. Thirdly, this does not apply to any other entrance exams like SET, NLU O or NLU D.

All the very best,
Mohammad Asadulla Shareef (Asad),
Batch of 2015,
NALSAR University of Law.

09 October 2010
About external articles

Human Rights Violation


“It is the obligation of the State to ensure everyone the right to adequate food, education and enjoyment of highest attainable standards of physical and mental health. These rights have to be respected and made available to the citizens by the State”.

- Justice Anand, Former Chairperson, National Human Rights Commission


            Human rights violation have become very common now-a-days. The Newspapers and T.V. tell us that every day and at every moment, somewhat in the world, Human Rights are being violated. Broadly speaking “Human Right” means the right to life, liberty, equality, and the dignity of an individual irrespective of caste, creed or sex. These human rights are natural rights, required to be protected for peaceful existence of a provisions, the violation of these rights is very frequently taking place. The protection and preservation of Human Rights is a great challenge to every country in the world. Cases of violence, murder, torture, rape, child abuse, death due to starvation, death due to dowry, sexual harassment, custodial death have become rampant in the society.


            The Human Rights of the people have been protected by “The Protection of Human Rights Act, 1993”. It has been amended by Protection of Human Rights (Amendment Act, 2006. The Act is passed for the constitution of a National Human Rights Commission (NHRC), State Human Rights Commission in States and Human Rights Courts for the better protection of human rights and for matters connected therewith or incidental thereto.


The National Human Rights Commission (NHRC) has been able to touch the tip of iceberg of the problem of Human Rights violation. But NHRC can’t be blamed, when the entire society is culpable in respect of Human Rights violations in one way when the entire society is culpable in respect of Human Rights violations in one way or the other. It is not possible NHRC to keep vigil on every human being in the country.


            The Former Chairperson of the National Human Rights Commission, Dr. Justice A.S. Anand has emphasized that it is the obligation of the State to ensure everyone the right to adequate food, education and enjoyment of highest attainable standards of physical and mental health. These rights have to be respected and made available to the citizens by the State, said Justice Anand while inaugurating the two-day Capacity Building Workshop on “Economic, Social and Cultural Rights” jointly organized by the National Human Rights Commission and the Indian Institute of Public Administration.


            “India being a signatory to Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and other international instruments, is legally as well as morally committed to ensure basic human rights to all its citizens and enact laws accordingly”.


            With every passing year, conviction has grown in the Commission that for right to live with human dignity, it is essential to focus in equal measures on economic, social and cultural rights and civil and political rights. The indivisibility and interrelated nature of these rights is a reality and there is a symbiosis between them. Those in the field must, therefore, ensure that the concern and anxiety, which they show for political and social rights, are also manifested in economic, social and cultural rights as we he said.


            The abject poverty prevailed in the country, denies basic Human Rights to millions of poor in our country. Poverty is the major cause of various Human Rights violation. Child labour, Bonded labour and Illiteracy are various vulnerable points of Human Rights violation. The Human Rights of women are violated from birth to death. Even the female’s right to born is taken away by Sex determination tests, with termination of female foetus. Female infanticide is common in many parts of the country even as on date. Sexual abuse of female children, dowry deaths, flourishing flesh trade, rape case, pitiable conditions of windows living in Vrindawan and Varanasi are some flagrant examples of violations of the fair sex. Ours is male dominated society, where women are being treated as their subordinates. Most of the women in real terms, do not enjoy any rights at all, they are just living first as per wish of their parents and after marriage as per whims of their husband and in the old age, as per convenience of their sons and daughters in-law.


            The NHRC has tried to check the human rights violations in wide range of spheres. The Commission has asked the States and Union Territories in April 2000, to compulsorily video film the post-mortem examination in all cases of custodial deaths. The Commission has asked the State governments to sensitize the police and jail officials. The NHRC also taken up the cases of victimized women in all perspective. It has also recommended that the maintenance allowance for divorced women be increased from Rs. 500 to Rs. 5000 per month. Cases of violation of children’s right, like trafficking in children, imprisonment of juveniles, child marriage, have also taken up by the NHRC. NHRC also taken up cases of rape, death and detention without trials, vehemently.


            The Founding Fathers of the Indian Constitution had a vision of the Indian society, which they wanted to realize through the Constitution. That vision was primarily reflected in the Preamble, the chapters on Fundamental Rights and Directive Principles of State Policy is the product of human rights movement in the country. It is the duty of the State to guarantee what is said in the Constitution. But the shocking evidence that the State is itself the culprit, according to Mr. J.S. Verma, the former chairman of the NHRC. According to a statement made by him on Jan. 15, 2003, just a few days before his demitting the office: “It is often the State which is violator of Human Rights in maximum cases in the country. But the maximum responsibility to protect and safeguard the rights of its citizens also lies with the State”.


            The former Chairperson of the National Human Rights Commission, Dr. Justice A.S. Anand stressed the need for making human rights the focal point of good governance. He called for greater role for National Human Rights Commission in the work of United Nations, its treaty bodies and specialized agencies, stressing the need to further develop cooperation between them. He made these observations while delivering a Statement to the 60th Session of the Commission on Human Rights at Geneva on 14th April 2004.


            He emphasized the protection of human rights not only requires vigilance by various agencies but sustained cooperation at regional and international levels.


            No commission or no Police station can police every nook and corner of the country. No NGO, no any other agency can be present everywhere to protect the Human Rights. It is the we people; it is the duty of every civilized person to rise to the occasion. This can be brought about only through general awakening which make everyone understand the eternal values of life and dignity of an individual irrespective of caste, creed or sex. In the words of Swami Vivekananda that the “Self in you is the Self everywhere.”


            It has always been a mystery to me how men can feel honoured by the humiliation of their fellow beings.”

-         Mahatma Gandhi

Deepesh Mittal
V Year, B.A. LL.B.
New Law College,
Bharati Vidyapeeth University, Pune
Contact No.: 921 441 2554

05 October 2010
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Right to Information

India is a democratic country. The head of the country is elected by the people of the country. The Government of the country possesses the authority to work for the welfare of the country on behalf of the people. The final decision making power regarding the welfare of the country is in the hands of Government.

            The people of the country want to know how the government is functioning. People have many questions regarding the functioning of the government. So, to answer all the questions of the people, the Parliament passed a new Bill known as “The Right to Information Act, 2005”. The Bill was presented in Parliament on 22nd December, 2004. After intense debate till 15th June, 2005, it was finally passed on 15th June 2005 and came into force on 12th October, 2005. The Right to Information Act aimed at ensuring transparency in the functioning of Central & State Governments. The Act provides for setting out the practical regime of right to information for the people to secure access to information under the control of public authorities to promote transparency and accountability in the working of every public authority, the Central Information Commission and State Information Commissions have been constituted for this purpose.

            Before passing of this Act, Disclosure of Government Information in India was governed by a law enacted during the British rule named as Official Secrets Act of 1889 which was amended in 1923. After 1923, it has taken India 82 years to transition from an opaque system of governance, legitimized by the colonial Official Secrets Act, to one where citizens can demand the right to information.

            The Right to Information is derived from our fundamental right of freedom of speech and expression under Article 19 of the Constitution of India. It says, “All the citizens shall have the right to freedom of speech and expression.” The main idea is that if the people do not have any information regarding the functioning of the Government and public institutions, then people cannot express any informed opinion on it. In a system of democracy where citizens being at the centre of government – rule of the people. For such a democracy to function, Freedom of Press is necessary to be understood first. The main reason for a free press is to ensure that the citizens are informed. Thus, it clearly flows from this that the citizens’ right to know is paramount.

Supreme Court on the Right to Information as a Fundamental Right:

In a famous case of State of UP v. Raj Narain, Justice Mathew ruled, “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security”.

In Bennett Coleman Case, the right to information was held to be included within the right to freedom of speech & expression guaranteed by Article 19 (1) (a).

In S. P. Gupta Case, the right of the people to know about every public act, and the details of every pubic transaction undertaken by public functionaries was described.

            The Right to Information has been recognized as a fundamental human right, which upholds the inherent dignity of all human beings. The Right to Information forms the crucial underpinning of participatory democracy. It is essential to ensure accountability and good governance. The greater the access of the citizen to information, the greater the responsiveness of government to community needs. Alternatively, the more restrictions that are placed on access, the greater will be the feelings of ‘powerlessness’ & ‘alienation’. Without information, people cannot adequately exercise their rights as citizens or make informed choices.

The free flow of information in India remains severely restricted by three factors:

a.                   The legislative framework includes several pieces of restrictive legislation, such as the Official Secrets Act, 1923;

b.                  The pervasive culture of secrecy and arrogance within the bureaucracy; and

c.                   The low levels of literacy and rights awareness amongst India’s people.

The primary power of RTI is the fact that it allows the individual Citizens to requisition information. Hence, without necessarily forming pressure groups or associations, it puts power directly into the hands of the foundation of democracy – the Citizen.

The new law passed by Parliament places India among the 55 countries to have such legislation. The Act provides the citizen the right to seek information on many matters but not on all matters. It does not permit citizens to seek information of certain matters affecting security, strategic, scientific or economic interests of the country. It gives citizens a legal right to be informed about utilization of public funds, progress reports of ongoing projects, state circulars, contracts, etc.

Definition of Right to Information:

The right to information is defined in Section 2(j) of the Act which means the right to information accessible under this Act which is held by or under the control of any public authority & includes the right to –

(i)                 inspection of work, documents, records;

(ii)               taking notes, contracts or certified copies of documents or records;

(iii)             taking certified samples of material;

(iv)             obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

Procedure of Application & Publication of Request:

The Act & its rules define a format for requisitioning information, a time period to provide information, method of giving information & some exemptions when no information can be requisitioned:

Section 4 of the Act makes a duty of public authorities to maintain records for easy access & to publish within 120 days the name of the particular officers who should give the information & in regard to frame rules, regulations, etc. Under the Act, all authorities covered must appoint their Public Information Officer (PIO).

Section 6 of the Act provides that any person can submit the request for information in Hindi or English or in official language of the area accompanying prescribed fee without assigning any reason for the request or any personal details except his name and contact particulars. Such a request shall be made to:

(a)                the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;

(b)               the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be.

It is the obligation on the PIO to provide information to the person requesting for such information under the Act. If the request pertains to another public authority (in whole or part), it is the PIO’s, it is the PIO’s responsibility to transfer/forward the concerned portions of the request to a PIO of the other area within 5 days.

In addition to this, every Public Authority is required to designate Assistant Public Information Officers (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority.

Section 7The Act specifies time limits for replying to the request:

·         If  the request is made to the PIO then the reply must be given within 30 days of the receipt of request on payment of prescribed fees.

·         If the request is made to the APIO, then the reply must be given within 35 days of the receipt of request on payment of prescribed fees.

·         If the PIO transfers the request to another public authority (who is better concerned with the information), then the reply must be made in 30 days but the period must be computed from the day after it is received by the PIO of the transferee authority.

·         When the information is relating to life or liberty of a person, the information shall be provided within 48 hours.

·         Information concerning corruption and Human Rights violations by scheduled Security agencies (those listed in the Second Schedule of the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.

If the request is rejected then the rejection of request shall be communicated under Section 7(8) with valid reasons of rejection, specifying the procedure & proof for appeal & the designation of the appellate authority.

Section 7(9) says that information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.


It is mentioned that a fee of Rs. 10.00 is payable along with the application. In addition to this, a fee of Rs. 2.00 per page or Rs. 50 for CD etc. is also mentioned. If the applicant is Below Poverty Line, then no fee shall apply. Such a person has to provide a copy of his BPL Card along with the application to the Public Authority.


It provides certain exemptions when no request for disclosure of information shall be entertained as per the contents stated in sub-clauses (a) to (j)  of Section 8. Sub-clause (b) exempts information, which is expressly forbidden by any court of law or tribunal or the dispute of which may constitute contempt of court. Sub-Clause (g) exempts information the disclosure of which would endanger life, or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purpose. Sub-clause (h) exempts information, which could impede the process of investigation or apprehension or prosecution of offenders. Sub-clause (i) exempts Cabinet papers.

·         The Right does not extent to Jammu & Kashmir or to security agencies like IB, RAW & BSF. File Notings by Bureaucrats won’t be made public under the Act


Section 20 of the Act has provided for penalties against Central Public Information Officer or State Public Information Officer, as the case may be:

(i)                 If the concerned Public Information Officer refuses to receive any application or do not furnish information within the time specified in the Act or malafidely denies the request for information or knowingly gives incorrect or incomplete information then a penalty of Rs. 250 each day shall be imposed till information is furnished or received by the person. The total amount of penalty shall not exceed Rs. 25000.

(ii)               The penal provisions are the strength of the Act, which ensure that the Public Information Officer does not treat citizens’ demands for information in a cavalier manner.

The Right to Information is derived from our fundamental right of Expression under Article 19 of the Constitution of India. If we do not have information on how our Government and Public Institutions function, we cannot express informed opinion on it. So, it is recognized as a very important right and people should avail and make good use of this right.

Deepesh Mittal
V Year, B.A.LL.B.
New Law College,
Bharati Vidyapeeth University, Pune
Contact: 921 441 2554

03 October 2010
About external articles

In the Ayodhya Verdict, it remains a confusion, whether it was a Legal Judgment or a Political Judgment. Afterall, a suit is either to be decreed or dismissed. It was nobody’s case to divide the disputed land (suit property) into three parts and allocate it to the different claimants. But the Trial Court has returned to the finding, which was nobody’s claim. Another question which lurks in my mind is what has dismissed the plea of Adverse possession by the Babri Masjid. It is accepted fact that the Babri Masjid was constructed in the year 1528 and uptill 1949 the Hindus not ever whispered or moved their little finger to object the adverse, hostile, open, continuous possession of the Babri Masjid over the suit property, (which according to law of easements, only 12 years’ continuous, open & hostile possession is required to be established) then how come the claim of the Muslims has been turned down. In such manner, I am not supporting the claim of the Muslims, but I simply want to know the interpretation of law and how the same was applied in the present set of circumstances. Without prejudice to anybody, and with utmost respect to the Judicial verdict, I want to state here that the Courts are not expected to pass Judgments on the policy of appeasement. The rule of law howsoever rigour may be, is to be delivered and Justice is not only been done, it should shown to have been done. The Public has great faith in the pious institution of Justice and I donot think a single verdict will shake this faith. However, what I try to maintain is that the logical conclusion of the matter is always expected of a civil litigation and if something goes against the logic, it shatters the faith in Judicial system. Now, the role of the Hon’ble Apex Court of the land is awaited. Reader’s comments are invited.

11 August 2010
About external articles A pensioner who said she was "tired" of her life and "suffering from intense pain" has requested Karnataka High Court that she be allowed to end her life, according to newspaper reports today.
22 March 2010
About external articles

Legal process outsourcing (LPO) companies are giving stiff competition to law firms in the talent hunting stakes, writes the Eco Times today.


The article quotes several people working at LPOs, who claim that compared to law firms the companies offer:

  1. better growth opportunities,
  2. decent working hours and less work pressure, and
  3. good salaries.


In the article I briefly argue that LPOs still have an image problem and remain second choice for the top law graduates, despite the recent inroads LPOs have made.


Do you agree/disagree?


Would you ever work for an LPO or is it still not a popular choice for most 'real' lawyers / 'dignified clerks'?


Or do you work at an LPO and can tell the story how it really is?

08 February 2010
About external articles

The     High   Court   at  Calcutta, formerly    known  as   the High Court of Judicature at Fort William, was brought into existence by the Letters Patent dated 14th May, 1862, issued under the High Court's Act, 1861.The High Court of Judicature at Fort William was formally opened on 1st July, 1862, with Sir Barnes Peacock as its first Chief    Justice.  Appointed   on   2nd   February, 1863, Justice Sumboo Nath Pandit was the first Indian to assume office as a Judge of the Calcutta High Court, followed by legal luminaries  such as Justice D. N. Mitter, Justice R.C Mitter, Sir Chunder Madhab Ghosh, Sir Gooroodas Banerji, Sir Ashutosh Mookerjee and Justice P.B. Chakravartti, whose judgments are still revered.

The Calcutta High Court has the distinction of being the first High Court and one of the three Chartered High Courts to be set up in India. It is the oldest High Court in India.

The seat of the High Court is Kolkata, capital of West Bengal. It also has a permanent Circuit Bench in Port Blair, the capital of the Andaman and Nicobar Islands. The court has sanctioned judge strength of 58.


Countless Court officers and litigants flock the magnificent court premises every working day of this great institution. However, the said Court, unlike most of the Courts of a similar stature in India, fails to imbibe the latest technological advancements introduced in our justice delivery system.


NIC is a Premier Information Technology Organisation in India ostensibly providing “state of art Solutions” for information management and decision Support in Government and Corporate Sector. A number of Services are being provided by NIC to all the Government Ministries/Departments/States/Districts. NIC has created the websites of various courts across the country including that of the Calcutta High Court.


A plain comparison of the official websites of the Delhi High Court and the Calcutta High Court would show the number of services which are not available in the hallowed Chartered High Court of Calcutta .

 The website of the Calcutta High Court (http://calcuttahighcourt.nic.in/) does not inform the common litigant of the following:

The roster of the judges and the various determinations

It does not have a display board which informs both the advocate and the litigants regarding the Board as it moves in Court.

NIC, on the website of the Calcutta High Court, states inter alia its activities and the impact it seeks to create:

“List of Business Information System (LOBIS): It is about scheduling of cases to be heard by the courts on the following day. It enabled the Registries of Supreme Court and High Courts in eliminating manual process of Cause List generation thus any manipulation by vested interests. These databases contain details of fresh cases, disposed and pending cases. It is the backbone application of every Court.

Impact :

  1. As Cause Lists are generated automatically by the computer manual intervention has been eliminated resulting in generation of Cause List in time with out any hassle
  2. Cases are listed strictly in chronological order of date of filing; eliminated irregularities
  3. All cases having the same law point(s) to be decided by the courts are bunched/grouped and posted before one bench. This has helped the courts in faster disposal of cases.
  4. It has become simpler to recall dismissed cases when review petitions are filed.
  5. On the spot reliable and instantaneous statistical reports are generated “

Curiously, the Calcutta High Court website fails to provide the Causelist for the Appellate Side. It only provides the Cause list for the Original side. Considering the limited Original jurisdiction of the Calcutta High Court, the website completely fails to reach out to the majority of the litigants of this Court. Similarly, the case status for the Appellate Side is also not provided. Unlike the Delhi High Court website, there is no provision for “judgewise orders/judgements” where one can find out the judgment and read its content when he either knows the name of the judge who passed the order and the date on which it was passed. Similarly, the judgments are not available in PDF format. The website is conspicuous by the absence of the facility to track applications for certified copies of the Court’s orders. The said department continues to languish in the age old system of corrupt monetary exchange and other irritating and disparaging motions of red tapism.


 As a common litigant and an officer of the Court having a pan India practice, it becomes extremely difficult to track cases listed in the Appellate side of the Calcutta High Court, procure orders , apply for certified copies, inform my Client as to the name of the Judge likely to hear a fresh matter, track matters and the next date of hearing together with orders.
I am confident that the said website does not convenience a vast number of advocates practising on the Appellate Side and even the Advocates on the Original Side who are not as privileged as their Delhi High Court counterparts. Considering that this noble profession in time has turned into a major service sector/industry with globalization, rise in international trade  and when we are debating only on the timing of entry and practice guidelines of  foreign law firms and not whether they should be allowed to practice law or not, the Calcutta High Court website fails to cater to provide the basic information to the majority of its Litigants and officers of its own Court.


27 January 2010
About external articles


With the advent of service tax, an interesting question has arisen whether tax is deductible at source under the IT Act even in respect of the service tax component of the professional fee/contract amount payable to the service provider/contractor.

The issue of TDS on service tax is getting hotter by the day. This issue got fuel with the issuance of a circular by the CBDT. In this circular, board has clarified that tax deduction at source under section 194-I of the Income Tax Act, would be required to be made on the amount of rent paid/payable without including the service tax. (Cicular No. 4 dated 28-04-2008). Reason given by CBDT in this circular that service provider only acts as a collection agent for the government.

After ths clarification, every body was of the view that the principal enunciated by ths circular is applicable to all the payments made by the assessee and accordingly no TDS is deductible from on the part of service tax whether it is professional's bill or contractor's bill.

But, to settle the issue, CBDT has issued another clarificatin vide circular F no. 275/73/2007IT(B) dated 30-06-2008 can not be extended to the payment made under section 194-J (Fees for professional and technical services). Therefore, TDS is to be deducted on the gross amount inclusive of service tax where the payment is being made u/s 194-J.

From the reading of both the clarifications, the reasons for two stands in two situtations can be discussed as under :

CBDT has given clarification on the matter by issuing circular stating that u/s 194-I TDS is deductible only on the rental income & not on service tax (circular no. 4 dated 28-04-2008) and u/s 194-J TDS is deductible on gross amount i.e. inclusive of service tax. (Dated 30-06-2008). The reason given by CBDT are that provisions of section 194-I requiers deduction of tax at sources on "any income by way of rent", whereas provisions of section 194-J requires deduction of tax at sources on "any sum payable" by way of professional fee, for technical services, royalty & non compete fee.

CBDT states that as 194-I requires deduction on income & service tax does not form part of income, thus TDS is not deductible on TDS. While in case of 194-J CBDT lays stress on "any sum payable" & forgets the part "by way of professional fee, fee for technical services, royalty & non compete fee." Now, Service tax does not form part of professional fee, it is over and above the professional fee which the service provider has to collect from the service recipient & pay to government. Thus it is not part of "any sum payable by way of professional fee".

From the above discussion I conclude that TDS should not be deducted on service tax component. The following reasons for this are as under :

1.      The money collected (by way of service tax) is instantly diverted by over-riding title.

2.      If we read basic charging section of TDS (Section 190), it requires the deduction of tax on income of  the recipient. (service tax is not the income as accepted by the CBDT).

3.      If CBDT accept in their circular that service provider only acts as a collection agency. Then why not for professional service provider is a collecting agency of government for the purposes of section 194-J, they only stress on the wordings of section 194-J, this is not a true law and has to be amended by finance ministry department.

CA Pankaj Galhotra

Email - galhotra.rishaan [at] gmail.com

Mob. 9915793-007

25 January 2010
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As citizens, observers and above all individuals who have the potential of being harbingers of social change, we have thoughts and avowed beliefs in the state of Indian democracy aplenty. But those vary between euphoric ideals which bind us together and the stark realities which force us to question those very fundamentals.  

Today, on the eve of India's 60th year as a Republic, I was drawn into thinking about the man who gifted us our constitution – Bhimrao Ramji Ambedkar – a great statesman, democrat, administrator and the first law minister.

I also instantly recalled Ambedkar's warning, which is discussed by eminent historian Ramachandra Guha's article "Ambedkar Desiderate" in a special issue of Outlook magazine:

There was "nothing wrong", said Ambedkar, "in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness." It worried him that in India, "bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship."

The write-up and especially that excerpt made enough sense for me understand that greatness lies not in idolisation of a person, but rather in imbibing the cherished concept of what makes the nation great.

The "Ambedkar Desiderate" article encapsulates the contemporary problems stemming from historically prevalent dogmas and exigencies that have governed and continue to dominate our socio-political existence in India.

A look at our constitution offers a glimpse of India's history and the important events that shaped it and the way it shaped our society.

Some birthday facts about the Indian constitution:

  • The Constituent Assembly took two years, eleven months and seventeen days to complete the task of drafting the Constitution spread through eleven sessions covering a total of 165 days.
  • Late in the evening of 14 August 1947 the Assembly met in the Constitution Hall and at the stroke of midnight took over as the Legislative Assembly of an Independent India. 
  • The Drafting Committee under the chairmanship of Dr B R Ambedkar was formed on 29 August 1947 to prepare a Draft Constitution for India.
  • A total of 7,635 amendments that were tabled, the Assembly moved, discussed and disposed of as many as 2,473.
  • The Constitution of India was adopted on 26 November 1949 and 284 out of 299 members appended their signatures to it on 24 January 1950.
  • The Constitution of India came into force on 26 January 1950, since then the Assembly ceased to exist, transforming itself into the Provisional Parliament of India until a new Parliament was constituted in 1952.
  • It is the longest written constitution of any sovereign country in the world, containing 395 articles in 22 parts, 14 schedules and 94 amendments.

In honour of the Constitution's 60th birthday, do you think the document has achieved what its writers had set out to do? Where has it failed us and where have we failed it? And what is our role as lawyers to help it change and adapt?

19 January 2010
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An innocent girl, an avid tennis player, 14-year old Ruchika Girhotra had not the faintest idea of what fate held in store for her, when she walked into the office of the then Inspector General of Police and head of Haryana Lawn Tennis Federation, S P S Rathore. 

What commenced as a crime of molestation committed on a young girl has today, after 19 years and pittance of a punishment, translated into the molestation of the faith that the people of this nation vest in the judiciary and investigation authorities. Though an internal police inquiry had found him guilty within two weeks, according to Haryana’s former Home Secretary, J K Duggal, ‘political pressure’ prevented the filing of an FIR 

As if the meager punishment that has been awarded to the offender was not enough to humiliate the tireless efforts put in, there is incessant political mud-slinging about which government is responsible for burying the truth or which is responsible for promoting Rathore to higher ranks. 

It very conveniently lost sight of the fact that plight of the victim’s family is not lessened by discussions of how or why the offender was glorified after having committed a crime. 

To my opinion, this case highlights not just the failure of the judiciary in handing warranted punishment to Rathore but also seeks to ignite an argument on the need to free the judicial and investigating authorities from the clutches of politicisation. 

There is public outcry when a judgment such as this is pronounced, but the problem has to be dealt with at the grass-root level. Such cases, instead of being opportunities to wash dirty linen in public and proclaim ‘self as saint’ on the part of many officials, must be treated as an eye opener to the current situation.  

The case discloses a harrowing tale of what a victim’s family was made to go through for 19 long years. It has been stated by the father of the victim that successive chief ministers, including Bhajan Lal, the late Bansi Lal and Chautala ‘virtually shielded’ Rathore and promoted him. 

It is a wonder why the offender was not tried for abetment to suicide though in the initial stages itself, the special CBI Court Ambala held that a case for abetment to suicide was also made out. 

It is of little consequence that the victim took the ultimate decision of ending her life after three years of the incident and this should not mitigate the punishment nor absolve the offender of any possible charge. 

The extreme anguish that went on in her mind due to constant harassment of her family by the police compelled her to end her life. This case shows in a brazen manner the treatment that victims of molestation, rape and other instances of outraging of a woman’s modesty receive. As far as the woman is concerned there is not much difference. All of them are indicators of a society dominated by political whims, administrative hassles and judicial incapacity, and not to forget, social ostracisation. 

The Union Law Minister, M Veerappa Moily immediately spoke of ‘fast-tracking’ cases relating to women, especially those of rape, dowry and molestation. According to Moily, classification and prioritisation would ensure that such cases were fast-tracked in courts.

However, what has to be ensured is that such plans are actually put into practice so that the anguish faced by the family of Ruchika Girhotra is not endured by any other. 

As the State toyed with the idea of whether to place Rathore under Section 305 (abetment of suicide of a minor) or Section 306 (abetment of suicide of a major), the accused had been projecting himself as a hapless victim of the media.

Though the Special Public Prosecutor, CBI, C P Pandey, has said that they have received the requisite sanction to file an appeal for enhancement of Rathore’s six month sentence, the court of Additional District and Sessions Judge R S Atri has extended SPS Rathore’s bail till 8 February 2010. 

What remains to be seen however, is whether the public outcry and the immediate pacifying announcements by the State, in actuality do help the family of Ruchika Girhotra to taste justice. 

13 January 2010
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A group of ministers (GoM) on aviation security has recommended that hijackers should get the death penalty.

"The clause on death penalty to the hijackers had been a debating point as some ministers had a view on the legal aspects of this section. But it has been cleared," a civil aviation ministry official told Indo Asian News Service.

A report by human rights NGO Amnesty International on the death penalty in India estimates that at least 140 persons were sentenced to death between 2006 and 2007. Around 44 were sitting on Indian death row around 2007 according to Amnesty, although the Government does not release official figures.

The death penalty is carried out by hanging in India.

Amnesty criticised the quality of legal representation available in capital cases, as well as concerns about the safeguards to ensure fair trial  in terrorism cases.

While national and aviation security is important, is it a good idea that another offence is added to the capital offences list?

As lawyers, what do you make of the death penalty in India? Do you think it is necessary to keep the peace or is it a violation of fundamental human rights?

“The clause on death penalty to the hijackers had been a debating point as some ministers had a view on the legal aspects of this section. But it has been cleared,” a top civil aviation ministry told IANS.

12 January 2010
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Calcutta University students are still waiting for their LLB exams as the University has not finalised its the new exams as required by the Bar Council of India (BCI).

Local Kolkata paper the Telegraph wrote today that although exams were meant to be held in December 2009, the Calcutta University had not yet ratified the new syllabus and examination rules at the highest level.

The paper wrote that: "A senior CU official alleged that the authorities were reluctant to approach the syndicate because of 'loopholes' in the [BCI's] suggestions."


As far as I understand most law schools have implemented the new BCI rules. Have they made any difference to your lives?

12 January 2010
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Panjab University law school students have called off a hunger strike after several hours as the University caved in to their demands.

The Times of India (TOI) reported today that the Panjab University Student Union (PUSU) and the Hindustan Student Association (HSA) called for a hunger strike to protest against the increase in minimum lectures, to decrease minimum attendance requirements and to reduce the chairman's power.

According to TOI, the students wanted the requirement of minimum lectures in each subject to be reduced from 70 to 33 per cent.

Additionally, the students called for the minimum attendance in an academic session to be reduced to 70 per cent from 75 per cent, allegedly in accordance with the Bar Council rules.

According to the Indian Express the dispute appeared to have come to a head last Friday (8 January) over various issues, including graduate LLM programme reservations for Panjab University students and migration fees to move to the university campus.

An editorial published in TOI today asked whether "Chandigarh cops [are] scared of student leaders", having dropped charges against PUSU leaders who allegedly attempted murder and fired gun shots against a student from another local university last summer.

If all this is true, it sounds like a veritable warzone out in Punjab law school community.

Any thoughts as to what is going on?

And if any Panjab University students would like to elaborate, please get in touch with us. I for one would be interested in hearing the full story behind this.

Last year we also reported on the hunger strikes and four-year battle of students at Hidayatullah National Law University Raipur (HNLU). [SEE NOTE BELOW]

I have received a request from an HNLU student to clarify that the HNLU strikes were organised for a completely different reason and motivation from the Panjab University protests. I would therefore like to state for the record that the two are not directly related except for the fact that both involved hunger striking law students. Apologies for any confusion caused.

11 January 2010
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Either the Times of India thinks that only advocates are lawyers or that law firm lawyers are just not so very top.

While I certainly would not dare disagree with the calibre and legal genius of each of these individuals, could not at least one law firmite have made it to the list?

Here's TOI's full list of top 10 lawyers, along with our nutshell summary of the paper's often brilliant commentary on each:
  1. Fali Nariman
    The "wise man of the Bar" with a stature that "allows him to be blunt in court".
  2. Soli J Sorabjee
    Former glorious AG, fierce free speech and HR advocate, "mad 'bawa' (Parsi) jokes", successful daughter.
  3. Harish Salve
    The "legal robot" and all-round legal talent.
  4. K. Parasaran
    "Articulate" and "ethically driven" "man for all seasons".
  5. Ram Jethmalani
    Passionate about crimes with "rapier-sharp wit", proving crime does pay.
  6. Abhishek Manu Singhvi
    "Buddha of the Bar", youngest additional solicitor general ever and happy enabler of all tricolor-wavers.
  7. Mukul Rohatgi
    Voluble "king" of Delhi HC and Anil's gas dispute trusted counsel.
  8. K.K. Venugopal
    "Constitutional crorepati", Emergency counterweight and collector - but where's the grey hair?
  9. Rohinton F Nariman
    Cheerful corporate stalwart, fast riser to senior counsel, Fali's son.
  10. Ashok Desai
    Reclusive former AG, softly-spoken but packing a serious punch and control.
Ok, so Zia Mody did make it the the list as a footnote but really, is it not time those doing great work in law firms are properly recognised in the public domain?

Possible explanations:

  • court-room work is simply more glamorous than the desk-bound transactional variety,
  • the ones on the list really are a league apart that law firmites have not yet been able to match, or
  • the TOI did not read the Lawyers Collective judgment that "legal practice" includes desk-work.
What's your view?

For Times of India's full list click here - it's a very entertaining read that brings out many a wonderful personality!

08 January 2010
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ballot_box-by-Anthony_KaranjaThe Maharashtra and Goa Bar Council polls closed yesterday (7 January), amid allegations of candidates having used "money, gifts and illegal methods", according to a newspaper report.