Jerome Merchant + Partners

I am in a familiar territory! Hi! I came here long ago. Does anyone remember me? No one remembers a traitor you'd say. I turned a traitor to LegallyIndia blogs. I take the blame.

However, I thought I should come here; just for the kicks (hard ones at the right place). Here is something reproduced from here.

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Lawctopus is not a blog. I cringe when people call it a blog. It’s a website and mind you we pay for the website hosting! :)

Now I’ll argue, with my left leg on a chair, that you should write a law blog instead of writing for a law journal. Why is the left leg on a chair? Well, I heard that some lawyer has his right leg on the chair and he argues really well. I wish to see how much truth is there in the legs doing the talking!

Here you go with the pointers.

1.  Autonomy- Autonomy, according to the three people who are better than me, the likes of Seth Godin, Dan Pink and a few others (that makes more than three, but who cares) is the first pre-requisite to be happy.

A law journal states “12 points, Times New Roman, 1.5 spacing”. What if the writer wants to shout and in 72 points? Hey! That curbs my fundamental right of expression and my autonomy.

A law journal states “3000-10,000 words, inclusive footnotes”. Well, brevity is the soul of wit. Law journals then, are soul-less pages stitched together (in bad glossy, supposedly professional covers).  Bad joke.

It states many other things. It puts many conditions. And it makes the writer and the readers unhappy. It is full of rules. It kills autonomy. So if you write art and not for one bullet point in your CV, a law blog is better.

2.  Faster, simple publication: You can publish a write-up on a blog while following the minute hand of the clock. People at law journals work while following two sets of calendar.

Everyone likes freshly baked eats; stale smells. And I wonder, in a six month time don’t many of the law journal write-ups become obsolete?

Moreover, you don't have to boot lick the publishers.  You are the master of your fate; you decide the title, the cover and the credits, not the publishers.

3.  Dull: Law journals can’t afford pictures and photos and mind maps. It is an uncreative workforce that does the writing, publishing and distribution. And hence most of the law journal articles are dull! If you aren’t dull, you should write a legal blog.

4.  More readers: SpicyIP, LAOT and ever LI blogs had dedicated readers. Lots of them. The figures sometimes touched nearly 500 per day. You can never expect it for a law journal article. And there are many reasons for this.

Readers ‘search’ for knowledge, revelation and other such noble things. When they ‘find’ they read your legal blog article. Google is the king of ‘search’ and no law journal can match it. And hence you get more readers.

Note: Oxygen and water and not the point of life, but without them there is no life. Readers are not the point of writing, but without readers there is not point writing. Just see how many print law journals are really read by sane people and you'll realize that there is no point writing for law journals.

5.  More impact and engagement: A blog is an automatic way of getting your article peer reviewed. The comments of a blog take care of the peer review. It can flame up a debate and flower insights. You listen to your readers; answer them, question them. You engage with them. This makes you and your writing grow.

And since a blog is on the world wide web and not in a ‘enclosed in an ugly glossy paper bundle of papers’ it has more readers (I said it before) and thus has more impact. Every writer wants more readers, more impact. Every writer needs readers to clap and slap.

PS- this is a one sided view.

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More later. To recapitulate this post:

1. Autonomy.

2. Faster, simple publication.

3. You won't be dull.

4. More readers.

5. More impact and engagement.

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Images from here, here, here, here and here.

From its very conception, the Rights of Persons with Disabilities Act has been fraught with controversies; quite a surprising situation given that most factions fighting for disability rights in the nation supposedly desire to present a united front. India, having signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) in October 2007 with astounding alacrity, took almost three years to decide to draft a new piece of legislation, instead of bringing about over 100 amendments to the existing The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995, to align laws in the country with international obligations.

The recent past has seen a flurry of activity in the written media about the working draft of the Act that was released on the 20th of November, 2010. As is the situation in case of every decision dealing with a great number of people with divergent ideas, this draft too has come under fire on several grounds and has received bouquets as well. The only crucial factor, however, is that the draft, termed as a working draft seeks not to be a decision, but a deliberative instrument meant to change as substantive suggestions come in.

One of the principal opponents of the law, Mr. Javed Abidi, Convenor of the Disability Rights Group, is of the opinion that the current draft legislation is, in entirety, against the letter and spirit of the UN CRPD. His opinion is based on the belief that the voices of persons with disabilities went unheard in the drafting process and that the Committee set up to draft the law is inept and displays a lack of “brain trust”. He has made it clear that in his belief, the Committee has lost any faith that he had in it and that it, along with the legal consultant, ought to be dismissed. 

Taking a strongly opposing stance, Mr. Prasanna Pincha, Special Rapporteur at the National Human Rights Commision, in his open letter detailing his opinion of the draft on first reading, states that “the working draft, in a certain sense, is way more radical/progressive than even the UNCRPD.” He goes on to congratulate the Committee and the legal consultant for executing the task of drafting such landmark legislation “with remarkable sensitivity and alacrity”.

Mr. Abidi insists that expert knowledge and the requirements of persons with disabilities have been disregarded time and again by the legal consultant, Dr. Amita Dhanda, and the Committee. On the other hand, the legal consultant informs that sub-groups had their deliberations with the legal consultant after consulting with larger civil society. These opinions were proactively obtained by committee members, for example on women with disabilities, even whilst in consultation with the legal consultant. The duty to seek opinion of civil society was on Committee members’ not the consultant; it was a duty which the members fulfilled in both letter and spirit. 

Another source who was intrinsically involved in the drafting process and worked on accessibility points out that the civil society has been involved throughout. The one meeting in September where the civil society was invited, “they derailed the entire process”. Also, the chair was always open to suggestions via e-mail. Mr. Mahesh Chandrasekhar, Advocacy Coordinator at CBR Forum opines that the manner in which the draft law has been published without any explicit statement soliciting civil society participation facilitates the creation of a situation where “the few people who have been in someways [sic] connected to the members of the committee are somehow trying to be engaged in this process”

It is, however, interesting to note that the very idea behind having a working draft is to listen to the suggestions of experts and concerned parties and make changes if required. The first explanatory note stating that “this working draft has been put together so that the Committee, the Disability sector, the larger civil society and the duty bearers can through a process of dialogue and deliberation arrive at a draft which can be accepted by all” seems like an explicit enough solicitation of expert opinion and civil society participation. It seems unwise to squander such an opportunity, basing one’s arguments, against the fruit of eight months’ worth of effort of numerous individuals, on grounds such as the fact that the Committee met for short hours with long gaps of forty days in between and that it was “lazy”. 

While much of the criticism leveled against those involved in drafting the law may be justified, one wonders whether it makes a substantive difference in ensuring there exists robust disability rights legislation within the nation. Given the parallels being drawn between the drafting process of the UN CRPD and that of the draft law under discussion, it would perhaps be pertinent to highlight the united efforts of the disability sector in the case of the former to present constructive criticism. The remarkable contribution of disability rights groups in the framing of the UN CRPD came from a conscientious attempt to criticize effectively and provide feasible alternatives. It certainly would be preferable if those criticizing the current working draft had substantive changes in mind and alternatives to offer, as was the case during the drafting of the UN CRPD. While much has been said about representatives who weren’t allowed a say in the drafting of the law, the fact that deliberations on the working draft are on and this is the ideal time to send in any substantive or structural changes that one would want to see in the draft seems to be ignored.

A question that has gained prominence of late is the suggestion of a Disability Code with dedicated legislation for special situations and for authorities such as the Disability Rights Authority. The suggestion was made for several reasons, such as the requirement of dedicated legislation that details the functioning of important bodies like the DRA and the constraint in space if an all encompassing law was to be drafted. 

Critics claim that multiplicity of laws is against the wishes of the disability sector and a code is not legally viable while Dr. Dhanda states that it is a mere suggestion that arose out of practical discomfort and that it would effectively deal with issues of reconciling inherent differences and also allow for greater detailing to define the accountability of the DRA or rules governing it, etc. Mr. Pincha also wholly endorsed the concept, affirming that “common law to address commonalities, and specific laws, to address specificities depending on need and necessity” is what is required. A meeting held by CBR Forum in Bangalore on the 20th of December simply concluded that the idea required further discussion on public forums. All that this goes to show is that various shades of opinion exist within the disability sector and constructive suggestions and open discussions alone can hope to solve the deadlock one seems to notice forming. What effort has, thus far, been expended at criticizing issues that can neither be mended nor bear any consequence to the progress of the law, could perhaps now be used constructively to build on the foundation that the working draft sets.

It has been said quite succinctly that “There is no odor so bad as that which arises from goodness tainted.” One cannot help feeling that those advocating unity amongst and justice for the 70 million people with disabilities in India are the very same stalwarts who leave the sector fragmented. It is, perhaps, time for sincere attempts at reconciliation and for real and substantive criticism, if this landmark piece of legislation detailing the rights of the aforementioned 70 million people is to finally materialise.

Note: This article was published on oneindia.in in two parts and can be accessed at:  http://news.oneindia.in/feature/2011/01-04-rights-of-person-disability-act-draft-part1.html and http://news.oneindia.in/feature/2011/01-04-rights-of-person-disability-act-draft-part2.html

From the Project Cloud Desk

4 January 2010

Welcome to the new year! Let me take this opportunity wish you a great year ahead. 

One of the focus points at Project Cloud is about attending conferences. From the broader perspective, a conference is a great opportunities to learn and make friends. With a little attention to detail, a conference can be a great resume booster.

So how does one know which conference to attend? There are two approaches to attending conferences.  One is to be conservative and attend only a few selected ones. The other, logically, is to attend many. Take the example of Ravi K. He attended only a few select ones throughout his law school. His reasoning was that he did not want to attend a conference for the sake of attending one. He was also sure of being a criminal lawyer which is why he concentrated on attending conferences; confident that each conference put him one step ahead of his peers.

Then there is Ashish D. He attended ten conferences before he graduated. While most of them were related to corporate law, he ventured into arbitration and cyber law too. So when he decided to go for his higher studies, he could choose which conference he wanted to mention tailored as per his course options. 

Each strategy has its advantages and disadvantages. In our next post, we will discuss how to get the most from one conference.

Good luck!

The Project Cloud Team

Website: http://projectcloud.info

Facebook: http://www.facebook.com/projectcloud

The Bill "Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010" has been put up on the law ministry website for comments. I thought of going through it in curiosity  to see what new developments it unfolds according to new generation lawyers/advocates. But I must say that it does not and could not impress me. 

Firstly, there are several flaws in the Bill which will come out as a continuous tug of war between  the Legal Services Board and the Bar Council of India/ Bar Councils. May be, the same get cured before transforming into an Act but I doubt, in fact I am sure enough that this can not be eradicated completely since the tussle of power between the BCI/BC and the LSB is the core area of dispute under this Bill and in fact the Bill is introduced simply to shift away the Regulatory Authority status of the BCI over advocates to the LSB. Initially the LSB shall not regulate advocates but all other legal professionals. This shows that the Ministry is trying to please BCI as well. But of no avail since this is just the beginning and provisions say that another authority shall take over regulatory status over advocates from the BCI when the Government incorporates such authority. Other provisions also leave great and interesting scope for war of words between the BCI/BC and the LSB. 

But the provision I was concerned and shocked with was that now we advocates /lawyers would not be dealing with clients but consumers whom we will sell our services. Does it sound good for the profession which is still treated as the "Noblest" one and because of this nobility we are restrained from doing certain acts.

The definition goes as follows : “Consumer of Legal Profession” includes the clients of legal professionals and anyone who might have recourse to legal services  because of a legal issue and those who are using or are may be contemplating using services provided by the legal professionals in relation to the legal services arising out of a legal issue".

This clearly says that the term we will be dealing with shall be "CONSUMER" which may include "CLIENTS".

The definition of client has been confined in four corners of power of attorney.

“Clients” means the clients of the Legal Professionals who engaged such Legal Professionals by executing a vakalatnama / letter of authority, by whatever name it may be known". 

Again it says that every "Legal Practitioner" shall be duty bound to provide free legal services to persons who fall just above the income levels of Legal Services Authority Act.  Here we do not know who shall fall under the term "Legal Practitioner" since it has not been defined in the Bill. It may be a typographical error hence if it means legal professional, then it shall apply to each and every lawyer working in the legal profession. 

The definition says that “Legal Professionals” means the Advocates as defined in the Advocates Act, 1961 and includes the qualified lawyers engaged in legal practice confined to their chamber, engaged in drafting and conveyancing, practitioner of income tax and sale tax and those appearing before the relevant authorities, giving advise to the clients for a fee, gain or reward in the areas of customs, immigrations, trademark and patent services and all other professional services where legal issues are involved."

This again seems impractical approach of the Government against legal professionals. Why don't they put such binding duty on doctors. I do not say that we should not help poor in fact I am always ready to do so, but why  to make such a binding duty for which action may be taken by that person against a lawyer if he refuses to do so. If the professional is practicing in courts then it shall not be a problem for him but imagine if the same happens to a corporate/tax practitioner or any lawyer not visiting courts quite often. Without any fault of his, he will be forced to appear, wasting his whole day, before authorities under the Act.   

I had certain rational approach towards the Bill in mind before reading it. I was of the view that this Bill may prove to be milestone for our profession which craves for quality and dignity but after going through the Bill, I am shocked that it chiefly talks about taking away authority of the BCI. 

The second main object which the Bill speaks about is regulating all other legal professionals who are not advocates. Again, the approach towards it is keeping other legal professionals out of the ambit of Advocates Act since instead of amending the Advocates Act, they are placing a new act.

We have seen BCI/BC, now we will have to see other regulating authorities. I don't think anything is going to change in the manner they work. Those authorities will only act as some more pressure on us rather than the reforming ones. I don’t believe that any revolutionary change will be brought about by them.

I doubt when this Bill will be passed and even passed when it shall be notified. I am sure it is not going to be notified soon but even when notified, we lawyers must be given rights as a seller instead of being confined under the boundaries of nobility.

Every day you wake up to something new. The day is afresh, your mind clear of things of yesterdays past, ready to take things ahead with a stride.

today i am sitting and thinking what can be better doing internship with a lawyer

or with a law firm

...

may b a law firm let's c wat happnes

u guys there i wnt ur hlp in finding an internship

thanku n love u all

The lawyers, as I have seen in the Bombay High Court, are constrained to spend considerable time in doing not really productive work while waiting for their matters to be called out, and it is customary that many of the matters quite often are not called out, fixed for hearing for the day. I believe that the story is similar in other High Courts, don’t know about SC.

Moreover, there are instances when a single, yes one matter eats away the whole day of the Court and rest of the lawyers glued to the electronic display board, for their case number.

Can we do something whereby lawyers can more effectively put to use the time they are spending in court while waiting for their turn……

Can we do something whereby the lawyers can (a) prepare his/her case, (b) do research work, right in the court room.

Also, can we facilitate a mechanism whereby a lawyer, arguing before His Lordship, and in urgent need of a certain Judgment, or the precise definition of a legal term or pharse, get the same, instantly.

This can be done, if Lawyers can………

(a) SMS Judgment “Municipality of Ratlam versus Vardichand” to AAAAA, and he instantly receive a text of entire judgment.

(b) SMS Case laws on “IPC section 420” to AAAAA, and he instantly receive latest judgments on IPC section 420.

(c) SMS Legal Term “Double Jeopardy” and legal pharases like “to the satisfaction of the authority” to AAAAA, and he receive the meaning of “Double Jeopardy” and “to the satisfaction of the authority ” as propounded by SC & HC.

(d) SMS …………

I hope, AIR, SCC, Gujrat Law Herald etc are listening.

Sandeep Jalan

Advocate

Mumbai.

“Plead Guilty and bargain Lesser Sentence” is the shortest possible meaning of Plea Bargaining. “Plea bargaining” falls into two distinct categories; first category is “charge bargaining” which refers to a promise by the prosecutor to reduce or dismiss some of the charges brought against the defendant in exchange for a guilty plea. The second category, “sentence bargaining” refers to a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea. The concept of plea bargaining was introduced in India Criminal Justice System in the year 2005 by means of Criminal Law (Amendment) Act, 2005. By this amendment, a new Chapter XXI A has been introduced in the Code of Criminal Procedure.

Earlier the Criminal Jurisprudence of India did not recognize the concept of “plea bargaining” as such. However, reference may be made to section 206 (1) and Section 206 (3) of the Code of Criminal Procedure and section 208 (1) of the Motor Vehicles Act, 1988. These provisions enable the accused to plead guilty for petty offences and to pay small fines whereupon the case is closed.

The Government was hesitant to take a policy decision on the introduction of the plea bargaining in the criminal justice system due to opposition from the legal experts, judiciary etc. The Hon’ble Supreme Court has criticized the concept of Plea Bargaining in its judgment namely, Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929

Further, the Hon’ble Supreme Court in the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr 1980CriLJ553 strongly disapproved the practice of plea bargain. The Apex Court held that practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice. Similarly, in Kasambhai v. State of Gujarat, AIR 1980 SC 854 the Supreme Court had expressed an apprehension that such a provision is likely to be abused.

The Law Commission of India advocated the introduction of ‘Plea Bargaining’ in the 142nd, 154th and 177th reports. The Law commission noted that the experience of United States was an evidence of plea bargaining being a means for the disposal of accumulated cases and expediting the delivery of criminal justice.

Based on the recommendation of the Law Commission, the new chapter on plea bargaining making plea bargaining in cases of offences punishable with imprisonment upto seven years has been included in Crl.R.C and the same has come into effect from 05.07.2006. A consideration of Chapter XXI-A dealing with plea bargaining will show that certain procedure prescribed for plea bargaining under Sections 265-A to 265-L of Cr.P.C are to be complied to make it a valid plea bargaining. As per Section 265-A, the plea bargaining shall be available to the accused charged of any offence other than offences punishable with death or imprisonment or for life or of an imprisonment for a term exceeding seven years. Section 265-B contemplates an application for plea bargaining to be filed by the accused which shall contain a brief description of the case relating to which such application is filed, including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of the punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a court in a case in which he had been charged with the same offence. Sub-clause 4(a) is to the effect that if the court is satisfied with the voluntary nature of the application, then it shall provide time for working out a mutually satisfactory disposition of the case which may include giving to the victim by the accused compensation and other expenses. Section 265-C prescribes the procedure to be followed by the court in working out a mutually satisfactory disposition. Section 265-D deals with the preparation of the report by the court as to the arrival of a mutually satisfactory disposition or failure of the same. Section 265-E prescribes the procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked out. Section 265-F deals with the pronouncement of judgment in terms of such mutually satisfactory disposition. Section 265-G says that no appeal shall lie against such judgment. Section 265-H deals with the powers of the court in plea bargaining. Section 265-I makes Section 428 applicable to the sentence awarded on plea bargaining. Section 265-J contains a non obstante clause that the provisions of the chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A. Section 265-K says that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose of the chapter. Section 265-L makes the chapter not applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.

Unless the aforesaid procedure contemplated in Chapter XXI-A is followed the same cannot be a valid disposal on plea bargaining. Even though 'plea bargaining' is available after the introduction of the said amendment is available, in cases of offences which are not punishable either with death or with imprisonment for life or with imprisonment for a term exceeding seven years, the chapter contemplates a mutually satisfactory disposition of the case which may also include giving compensation to victim and other expenses. The same cannot be done without involving the victim in the process of arriving at such settlement.

The provisions also mandate the court to give accused the benefit of Probation of Offenders Act where so ever it is permissible. Thus, if an admonition or a supervisory order is passed under the Probation of Offenders Act, 1958, then Section 12 of the said Act provides that it shall not cast any stigma on the offender. Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and dealt with under section 3 or 4 of the said Act, shall not suffer any disqualification attached to the conviction. Thus, the Government employees who are released on probation under the Probation of offenders Act are saved from the disqualification which is attached to conviction. See Sh. Charan Singh Vs. M.C.D. (Writ Petition (Civil) No. 18725/2005) decided on 05/10/2006.

Concept of Plea Bargaining should be encouraged and the litigant should be encouraged to avail the remedy of plea bargaining to settle the pending cases. For the successful implementation of plea bargaining and to achieve its objectives, the role of judiciary and the bar is very important.  The member of the bar should encourage the litigant to opt for the plea bargaining rather than to treat the plea bargaining a threat to their profession. With the changing world scenario where all the countries are shifting to ADR from the traditional litigation process which is lengthy as well as complex, the plea bargaining may be one of the best recourse as an ADR mechanism to meet the challenges of disposal of pending cases.

Neeraj Aarora

Advocate

The incidents of war happened in the real world is mirrored in cyber space, given the recent incidents of hacking of government websites by state or non state group of hackers for political, military, espionage purposes. As the world becomes increasingly dependent on the internet and increasingly connected through it, another threat is beginning to loom large – Hacking and defacement of Government website and other cyber infrastructure. Recently, a hacker group from Pakistan calling itself as ‘Pakistan Cyber Army’ made a mockery of the country’s cyber security by infiltrating into the CBI website supposed to be one of the most secure websites as it is maintained by National Informatics Centre, reported to be employing strict cyber security measures.

Today the CBI’s website, connected to the command centre of world police organisation — Interpol — 24x7 has been hacked, but what about tomorrow? What is the guarantee that next cyber attack may take place on something more critical, like the power grid?

The hacking of Government websites is not new and in past too the hackers group with patronage of government establishment successfully penetrated the highly secure websites belonging to Government of India. However, it is not a one sided affair as there are hacker group from either side who in retaliation or out of political or strategic compulsion hack each other websites. It is no more a secret that our neighbors with whom we have troubled relations find it politically and strategically useful to have arms-length relationship with hackers. One blogger has written that the hackers claim that they are sometimes paid secretly by the Chinese government -- a claim the Beijing government denies. There is a number that circulates the web (not confirmed data) that the Chinese government pays to up to 50,000 highly skilled military hackers to use the Internet for specific purposes that are defined by the government officials (cyber expert James Mulvenon told a congressional commission in 2008). The hacker community is diverse with different purposes, for example; (a) Script-kiddies – people, teenagers who are doing it for fun or to show off or to see what they can actually accomplish (b) Criminal Hackers-criminals who are just hacking for financial gains, (c) Patriotic hackers – people that hack websites out of a kind of nationalistic feeling (d) Government backed hackers; There are hackers that are probably employed by the government, probably by the military and the security agencies that are used to attack specific targets for political reasons and last but not the least there are hackers in the military that are thinking about how cyber would be used in an actual military conflict.

The category to which the Pakistani Hackers group who hacked the CBI website is not difficult to imagine. The Pakistan Cyber Army, claim that the Indian Cyber Army had allegedly hacked into the oil and gas regulatory website in Pakistan. The Pakistan Cyber army in retaliation has therefore also hacked the website of CBI. So, the group clearly fall under point (c) mentioned above i.e. patriotic hackers, however it is equally true that they have the government sponsorship too.

As far as the law is concerned, we have Information Technology Act, 2000 on statute book which deals with hacking, particularly the government owned website, say Section 66 (punishing the offence of hacking) read with Section 70 Information Technology Act (punishing access or attempt to access the protected systems). However, these sections are not effective as far as cross border cyber crimes are concerned, more so if one traces the digital footprints of hacking to hostile countries with which we have troubled relations and do not have bilateral treaty. The only solution seems to be is to first identify the critical and vulnerable cyber infrastructure, upgrade their security, setting up of a cyber command structure with experts in cyber security and warfare to continuously look at the cyber security aspects and suggest measures to upgrade the security, make preemptive cyber attacks against enemy cyber infrastructure and last but not the least thwart any similar cyber attacks emanating from foreign land.

The need for international cooperation on these critical issues and the role that international law can play in containing the threat cannot be undermined. As far as the cyber espionage is concerned, there is no known international treaty on this issue, however, on the criminal front there is a convention on cyber-crime drawn up by Council of Europe which is the first international treaty seeking to address Computer crime and Internet crimes by harmonizing national laws, improving investigative techniques and increasing cooperation among nations. However, the problem with this convention or treaty is that most of the major players including India itself have not signed it which could have gone a long way consistent legal enforcement standards across national borders about dealing with instances of cross border cyber crimes. As an alternative to the aforesaid convention, as a short time security measure we can enter into treaty with the Pakistan and China like the one we have with Pakistan to not attack each other nuclear installations, in similar manner we can agree to not launch cyber attacks on each other identified critical cyber installations.

Neeraj Aarora

Advocate

These are interesting times. And it is certainly exciting for any international relations enthusiast, to have multitudes of diplomatic cables on his computer screen. With cablegate leak, we are getting a peek into the secret world of diplomatic exchanges.  But apart from all the excitement of gaining access to forbidden, and after going through many many articles in newspapers all over the world, and tid bits of cables, what I realized was that if, US diplomatic network was bollywood, then the publication of the documents would have been largely similar to publication of any other bollywood gossip magazine. But I add to this a disclaimer that I have certainly not read the whole leak, and my knowledge and research on the subject is largely limited to scanning of multitudes of newspaper and magazines articles.

There are very few things released which we don’t know already. Everyone in India knows that next door there is a hub of terrorists, and that US aid was never fully used against terrorists, it might have been fully used for the terrorists though. Indian foreign secretaries shouted from the rooftops that a great part of that aid is being used against India, but we had to wait for the cablegate to convince the world.

What we have largely got to know is the gossip in the American diplomatic network, and yes it does get juicy at times, such as the graphic discussion of lavish wedding at a small Caucasus country, Dagestan, with area little more than Mumbai. (But all those description of food, wine, the gold gifted, fireworks, firearms, was like a déjà vu to any Indian. Come on, you will find as much food and wine in every Punjabi wedding, Jat weddings are never complete without their sturdy ‘tau’ firing a shot or two from his gun, Gujratis are happy to display multitudes of fireworks, and in South Indian weddings, don’t even try to count number of gold ornaments. And all this happens in millions of weddings across India every year). It got amusing on how Saudi Arab King called Mr. Zardari a ‘rotten head’, but we Indians knew it already. (As said by a friend of mine, ‘how come an entire nation cannot find a sane person to rule it for 63 years’). Also, there was an interesting piece on a how Gaddafi goes nowhere without his Ukranian nurse, which was like a gossip straight out of a college campus, because some prints claimed it to be four blond Ukranian nurses. I am sure number and appearances of the ladies in question will keep on varying.

What is new and revealing is, the literal horse trading of Guantanamo prisoners. I say literal, because Arab King did suggest implanting chips in detainees just as they do with their horses. Interviews with the President, routes for Afghan War, incentive packages, etc. were instruments of negotiations to transfer the prisoners.

However, sensitive information on how so called Arab friends of Iran, asked for American help in stopping Iran’s nuke projects, is actually something, which I personally feel, shouldn’t have been leaked out. Iran had bragged of befriending all Arab nations, contemporaneously to the UNSC sanctions against it. It would have made negotiations, cajoling, prodding et al, easier if Iran had continued to believe the same. Now Iran is cautioned, will be more paranoid than ever and even though disclaiming the entire cablegate leak as another conspiracy of USA, it would surely go on a reality check and would constrict itself more.

Another set of documents, which according to me shouldn’t have been revealed, is the details of wishful planning of US and South Korea to merge North Korea with the latter. The documents detailing these terminate in February 2010, when North increased its military maneuver against South. Such planning  will obviously be seen as conspiracy by the north, and could result in more hostility and acrimony in the peninsula.

Even though, somewhere in back of minds of common janta like us, it might be impalpable, that the subject matter of leaks weren’t already known in diplomatic circles all over the world, say, Iranian diplomats already knowing that Arab countries were just feigning friendship or North Korea test detonated a nuclear bomb just to put US –South Korea speculations to rest ; David Brooks of New York Times, strikes a chord when he writes that ‘quality of a conversation is determined by level of trust which is now damaged by exposure, just as our relationships with our neighbours would be damaged if every private assessment were brought to the light of day’. However, his fears of disruption of world order and catastrophe in international relations, can be countered by Hillary Clinton’s assurances that diplomacy will survive as no one is offended by the leaks, and that an assuring voice from a certain quarter that, ‘you should see what we say about you’, puts a comic relief to the whole discussion. And pragmatically analyzing, of course diplomacy will survive, nations are not so naïve to close diplomatc channels and prepare for wars.

But certainly, denial of service attacks against wikileaks, INTERPOL alerted on founder of wikileaks Julian Assange, and he being (amusingly) charged with charges of murder, rape and sexual abuse, certainly indicates that damage has been done and it is anticipated that more will be done. But Assange is confident that even if he is arrested, wikileaks will continue, and if he is put in mortal danger, password would be made public in order to reveal all the leaked matter for once and for ever.

Coming days promise to unravel whether world order will be disordered, or diplomacy will diplomatically change the way of its functioning, or is it a mere shuffle in kaleidoscope of international relations, which might mean slight change in attitudes but no major altering of relations.

As I said, we are surely living in interesting times.

The only book that deals with pornography in India has finally crossed the hurdles of editing and printing. The provocative book on Pornography (Bangalore Mirror) is authored by Brajesh Rajak, a 3rd year student (now in 4rth year) of National Law School of India University.  The author makes a bold attempt to churn out the intricacies of anti -pornography laws in the United States, U.K. , Japan, South Korea and India with the help of a comparative outlook.  The first chapter of this book provides a jurisprudential overview of the prickly problems of pornography.  The second chapter gives a wide overview of the porn industry in India.  The author has made an attempt to identify the key role players in the porn industry in India.

Other chapters deal with adjudication of pornography in United States, United Kingdom and India and the restrictions imposed upon it in the name of curtailing freedom of speech. The beauty of the book lies in the fact that it does not only indicate with the defects of anti- pornography laws but it also provides for candid solutions and recommendations to correct the loopholes in the anti- porn laws prevalent in our country.   The last chapter analyzes the contractual aspects of pornography.

The book makes for a brilliant reading. Universal Law Publishing Co. Pvt. Ltd. holds the copyright of this book.  I would recommend this book to everyone.

This blog is off-shoot of a BIFR Order dated 30.09.2010 in the case of India Foils Limited. The BIFR sanctioned and approved the merger of M/s India Foils Limited (IFL Transferor Company) with M/s Ess Dee Aluminium Limited (EDAL Transferee Company).

The strange & absurd exchange ratio of the scheme is- the shareholders of India Foils will get 1 share of Ess Dee Aluminium Ltd for every 1285 shares held of India Foils Ltd.

I have recorded a letter to SEBI. I have questioned the legal possibility of the Merger and not of the exchange ratio. It is quite interesting, I think. Complaint / Notice

27.11.2010
From,
Sandeep Jalan, Advocate
C/o Janhit Manch,
Kuber Bhuvan,
Bajaj Road, Vile Parle West,
Mumbai – 400056.


To,
Shri C. B. Bhave,
Chairman, SEBI,
SEBI Bhavan, Bandra Kurla Complex,
Bandra (E), Mumbai - 400051.


Subject of the Complaint

The Order passed by Hon'ble Board dated 30.09.2010 in the case of India foils limited, is illegal, inasmuch as, the said Amalgamation is beyond the contemplation of Sick Industrial Companies (Special Provision) Act 1985 [For short SIC Act 1985]

There is a “Legal Impossibility” of the Amalgamation of M/s India Foils Limited (IFL Transferor Company) with M/s Ess Dee Aluminium Limited (EDAL Transferee Company), in the light of section 17(1) of SIC Act 1985 & Regulation 30 of BIFR Regulations 1987.

INDEX

Particulars Page No.
1. Facts of the case

2. Relevant provisions of law

3. Application of law to facts of the case

4. Provisions of law under which the public authority is obliged under the law

5. Legal Expectation

6.The consequences that may follow

7. SC Judgment in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India

8. Important Points Revisited

9. Attachments

10. Post Script:

Dear Sir

In continuation of my earlier communiqué in this regard, received by your above office on 23.11.2010, again I am writing to you, under instructions and on behalf of my Client Mrs Laxmi Girish Jalan, residing at 56 C Amba Jyoti Apartment, flat no.303, near SBI, Trimurti Nagar, Nagpur.

1. Facts of the case-

A. My Client is holding about 17,300 shares of India Foils Limited.

B. On date: 19-05-2006 India Foils Ltd has informed the Exchange that the Company has been registered as Sick Company with The Board for Industrial and Financial Reconstruction under Case no.08/2006 and after hearing, the Bench of BIFR was satisfied that the Company fulfilled the various criteria for sickness under the ACT and have become a sick industrial company in terms of section 3(1)(o) of the Act and accordingly declared it to be sick company. The Bench of BIFR has further appointed ICICI as the Operating Agency with directions to prepare a viability study report and revival scheme for Company.

C. On date: 20-11-2008 India Foils Ltd has informed the Exchange that: "In terms of the rehabilitation scheme ("Scheme") sanctioned by Hon'ble BIFR dated August 18,2008, the Board of Directors of India Foils Limited in their meeting held on November 19, 2008, has altered its Authorized Equity Share Capital by splitting the unissued equity shares of Rs.10/- each into equity shares of Re.1/-each. (i) Pursuant to Scheme mentioned herein above the Board of Directors has issued and allotted the following equity and equity linked instruments. 13,60,00,000 equity shares of face value Rs.1/- each fully paid up to Ess Dee Aluminium Limited and 1250000, 0.01% optionally convertible redeemable non-cumulative preference shares of face value Rs.100/- each fully paid up to Sterlite Industries (India) Limited, an affiliate of Madras Aluminium Company Limited. (ii) Further the Board has also issued and allotted 13953423, 0.01% redeemable non-cumulative non-convertible preference shares of face value Rs.100/- each fully paid up and 9628115, 0.01% redeemable non-cumulative non-convertible preference shares of face value Rs.100/- each fully paid up to Sterlite Industries (India) Limited and Ess Dee Aluminium Limited respectively. (iii) With the issue of above shares, Ess Dee Aluminium Limited has become the majority stakeholder in the India Foils Limited and thereby it has became the subsidiary of Ess Dee Aluminium Limited".

D. The Hon'ble Board / BIFR, vide its Order dated 30.09.2010, inter alia, sanctioned and approved the merger of M/s India Foils Limited (IFL Transferor Company) with M/s Ess Dee Aluminium Limited (EDAL Transferee Company) in terms of the modified Rehabilitation Scheme. The above BIFR or Board Merger Order could not be located on the website of the BIFR. Therefore, the Appellant relies on the communiqué issued by Ess Dee Aluminium Ltd in this regard. The undated communiqué of Ess Dee Aluminium Ltd underlines the salient features of BIFR or Board Merger Order. Pls find Attachment 'A', the copy of this communiqué.

2. Relevant provisions of law: The Role of BIFR or Board comes into play once a reference is made to it or a information is received by it under section 15 of the SIC Act 1985.

Section 16 contemplates, among other things, Inquiry into the working of the Sick Industrial Company by the BIFR or Board. When a reference is made to a BIFR or Board, the BIFR or Board makes such inquiry or appoint any operating agency to determine whether the referred Industrial Company has really become a Sick Industrial Company within the meaning of this Act of 1985.

Section 16(4) stipulates the appointment of a Special Director by BIFR or Board. This sub section 4 of section 16 is pressed into by the Parliament to safeguard the interest of the Company from the likely ill-doings of the present management, the incompetent management / Board of Directors who have made the Company Sick and were forced to refer the Company to the Board. According to information available, Shri K. Raghuraman has been appointed as the Special Director under Section 16(4) of the Sick Industrial Companies ( Special Provisions ) Act, 1985 on the Board of India Foils Limited.

Section 17 outlines the Powers of the BIFR or Board to make suitable order on the completion of the inquiry. The section says- after making an inquiry under section 16, if the BIFR or Board is satisfied that the referred Company has become the Sick Industrial Company within the meaning of this Act of 1985, then, after taking into consideration all relevant facts and circumstances of the referred Sick Industrial Company, the BIFR or Board proceeds to decide whether or not the said Sick Industrial Company can make its net worth exceed the accumulated losses within a reasonable time.

Here the section makes it obligatory on the part of BIFR or Board to take into consideration all relevant facts and circumstances of the referred sick industrial company before reaching to the decision as whether the said Sick Industrial Company can make its net worth exceed the accumulated losses within a reasonable time.

When the BIFR or Board considers all relevant facts & existing circumstances of the referred Sick Industrial company and decides that the said Sick Industrial company cannot make its net worth exceed the accumulated losses within a reasonable time, it may undertake to adopt all or any measures specified in section 18 of the SIC Act 1985.

The measures under section 18 broadly enumerate (i) financial reconstruction of the sick industrial company, (ii) take over or change in the management of the Company, (iii) the amalgamation of the sick Industrial company with any other company or amalgamation of any other company with the said sick industrial company; and such other preventive, ameliorative and remedial measures as may be appropriate. Section 18 is a elaborate section comprising various measures that can be undertaken to revive the referred Sick Industrial Company.

The Regulation 30 of the of BIFR Regulations 1987 is under Chapter VI of-- Procedure & Preparation And Sanction of Scheme under section 18. Regulation 30 contemplates the consideration by the Board / BIFR of the suggestions and objections that it may receive from the Sick Industrial Company or from the Transferee company or from the Operating Agency or from any other company concerned in the proposed amalgamation.










3. Application of law to facts of the present case-

At this point, I will be primarily agitating on the “Legal Impossibility” of the Amalgamation of M/s India Foils Limited (IFL Transferor Company) with M/s Ess Dee Aluminium Limited (EDAL Transferee Company) provided vide BIFR or Board Order dated 30.09.2010.

I am advancing argument on the presumption that the Order of BIFR or Board dated 30.09.2010 was made under section 18(1)(c) of the SIC Act 1985.

(A) It is my grand argument that a measure stipulated under Section 18(1)(c) contemplates a new management for the sick industrial company. Amalgamation under section 18(1)(c) of SIC Act 1985 presupposes the change of Managament. The words in the statute “any other company” contemplates other company, a different managament.

(B) And, therefore, it is imperative to understand how this section 18(1)(c) has evolved.
(i) Section 18(1)(c) comes in the backdrop of section 17(3). Section 17(3) is the off-shoot of section 17(1).
(ii) Section 17(1) speaks about consideration of all relevant facts and circumstances by the Board before adopting the course of measures contemplated under section 18.

(C) Thus, it can safely be submitted that all measures sought to be undertaken by the BIFR or Board under section 18 is based on its consideration under section 17(1) of relevant facts and circumstances of the case.

(D) To illustrate this--
(i) I say that, when the BIFR or Board under section 17(1) considers “all relevant facts and circumstances” of the Sick Industrial company, can we take a pause to ponder for a while as what could be the relevant facts & circumstances which the Board may be considering to reach to the decision that the said Sick Industrial company can or cannot make its net worth exceed the accumulated losses within a reasonable time.
(ii) In this respect, I can safely argue that the Board of Directors of a Company are the most important people of the Company. In fact they are the people who are the driving force behind the success or failure of the Company. They are the people who make the Company Sick and take the Company to BIFR.
(iii) Again, I can safely argue that-- “Who are the persons in the Board of Directors of a sick industrial Company” is the principal & paramount fact of consideration of the BIFR or Board in reaching to the decision that whether the said Sick Industrial company can or cannot make its net worth exceed the accumulated losses within a reasonable time. (iv) Therefore, when the Board decides that the said Sick Industrial company cannot make its net worth exceed the accumulated losses within a reasonable time, it actively takes into account the worth or the competence of the present Board of Directors of the sick industrial company.

(E) If for a moment, it is presumed that section 18(1)(c) can be invoked for the amalgamation of companies which are run by same management, then we reach to this absurd proposition, i.e. --
“The BIFR or Board while looking at the present management of the sick industrial company comes to the conclusion that the said Sick Industrial company cannot make its net worth exceed the accumulated losses within a reasonable time and therefore decides that the sick industrial company, under section 18(1)(c) should be amalgamated with another company. The Management of the new amalgamated company will be the same old management of that sick industrial company.”

(F) Without prejudice to my right to rely on earlier submissions--
(i) If the amalgamating companies relying on the words “any one or more of the following measures”, contained in section 18(1) to say that amalgamation of this sort is permissible under the Act of 1985; Then it may also be noted that this measure of amalgamation contained in clause (c) was not existent in the original Act of 1985, when the words “any one or more of the following measures” were there. This clause (c) came into effect from 01.02.1994 by virtue of Act 12 of 1994.

(G) Without prejudice to my right to rely on earlier submissions-- I say that- conflict of interest of litigating parties forms the basic feature of our adversary style of litigation. I invite the attention of SEBI to Regulation 30 of BIFR Regulations 1987. The Regulation 30 of the of BIFR Regulations 1987 is under Chapter VI of-- Procedure & Preparation And Sanction of Scheme under section 18. Regulation 30 contemplates the consideration by the Board / BIFR of the suggestions and objections that it may receive from the Sick Industrial Company or from the Transferee company or from the Operating Agency or from any other company concerned in the proposed amalgamation.

Tell me, if the Management of both - Sick Industrial Company and of Transferee company are same, then, the rights of the Sick Industrial Company to forward any objection to the Board or BIFR with regard to proposed amalgamation with the transferee company becomes meaningless.

And, therefore, it can again be safely argued that measure contemplated under section 18(1)(c) of Amalgamation pre-supposes two entirely distinct entities, being run by different management.

(H) While looking at the rehabilitation scheme ("Scheme") sanctioned by Hon'ble BIFR or Board dated August 18, 2008 wherein, among other things, Ess Dee Aluminium has become the majority stakeholder in the India Foils Limited and thereby the India Foils Limited has became the subsidiary of Ess Dee Aluminium Limited". At present, India Foils is already under the active management of Ess Dee Aluminium Limited.


















4. Provisions of law under which the recipient Public Authority is obliged under the law to attend the nature of the Complaint narrated hereinbefore and to take needed action in this regard..

I invite attention of the Chairman to Section 11(1) of SEBI Act 1992 which reads as -- “Subject to the provisions of this Act, it shall be the duty of the Board to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, by such measures as it thinks fit.”

I invite attention of the Chairman to Section 14 of General Clauses Act 1897. Powers conferred to be exercisable from time to time.- (1) Where, By any (Central Act) or Regulation made after the commencement of this Act, any power is conferred then (unless a different intention appears) that power may be exercised from time to time as occasions requires. This section applies also to all (Central Acts) and Regulations made on or after the fourteenth day of January, 1887.


















5. Legal Expectation:
Therefore, in this whole background, I humbly request you to, in the exercise of powers vested upon you under section 11(1) of the SEBI Act 1992, and in all seriousness, look into the matter of this amalgamation / Merger, and make suitable representation before the BIFR or before the Appellate Authority to quash its said Order dated 30.09.2010.

However, if you are satisfied that there is no anomaly in the said BIFR or Board Order of 30.09.2010 and my submissions are merit less OR if, SEBI argues that it has no powers to approach BIFR or AAIFR to make suitable representation on behalf of the Retail investors--

then, SEBI may please record its such satisfaction OR lack of powers, as the case may be, and please make a reply to us of SEBI's such satisfaction or lack of powers, as the case may be, within 30 days of receipt of this Complaint / Notice.




























6. The consequences that may follow: This is to inform you that your failure to comply to legal expectation as stated hereinbefore may compel us to institute legal Proceedings under Writ Jurisdiction, at your personal cost, as settled by Hon'ble Supreme Court of India in below Salem Advocate Bar Association, Tamil Nadu Vs. Union of India case.













































7. SC Judgment in Salem Advocate Bar Association, Tamilnadu Vs. Union of India: I wish to inform you that in Salem Advocate Bar Association, Tamilnadu Vs. Union of India (UOI), (2005) 6 SCC 344, the Hon'ble Supreme Court has, among others, observed and directed “…

The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.

A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State.

Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation.

The replies shall be sent after due application of mind. Despite, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.

It may happen that the High Court, like the Supreme Court had questioned the Prime Minister Manmohan Singh's silence on application received from Subramanium Swamy on 2G Scam, may question – why you have remained silent -EXPLAIN.















8. Important Points Revisited
(i) On 19-05-2006 India Foils Ltd has informed the Exchange that the Company has been registered as Sick Company with The Board for Industrial and Financial Reconstruction under Case no.08/2006

(ii) On 20-11-2008 India Foils Ltd has informed the Exchange that: "In terms of the rehabilitation scheme ("Scheme") sanctioned by Hon'ble BIFR dated August 18,2008, among other things, Ess Dee Aluminium Limited has become the majority stakeholder in the India Foils Limited and thereby India Foils Limited has became the subsidiary of Ess Dee Aluminium Limited"..

(iii) The Hon'ble Board / BIFR, vide its Order dated 30.09.2010, inter alia, sanctioned and approved the merger of M/s India Foils Limited (IFL Transferor Company) with M/s Ess Dee Aluminium Limited (EDAL Transferee Company) in terms of the modified Rehabilitation Scheme.

(iv) It is legitimately presumed that the Order of BIFR or Board dated 30.09.2010 was made under section 18(1)(c) of the SIC Act 1985.

(v) It is my grand argument that a measure stipulated under Section 18(1)(c) contemplates a new management for the sick industrial company. Amalgamation under section 18(1)(c) of SIC Act 1985 presupposes the change of Management. The words in the statute “any other company” contemplates other company, a different management.

(vi) Section 18(1)(c) comes in the backdrop of section 17(3). Section 17(3) is the off-shoot of section 17(1).Section 17(1) speaks about consideration of all relevant facts and circumstances by the Board before adopting the course of measures contemplated under section 18.

(vii) All measures sought to be undertaken by the BIFR or Board under section 18 is based on its consideration under section 17(1) of relevant facts and circumstances of the case.

(viii) If for a moment, it is presumed that section 18(1)(c) can be invoked for the amalgamation of companies which are run by same management, then we reach to this absurd proposition, i.e. -- “The BIFR or Board while looking at the present management of the sick industrial company comes to the conclusion that the said Sick Industrial company cannot make its net worth exceed the accumulated losses within a reasonable time and therefore decides that the sick industrial company, under section 18(1)(c) should be amalgamated with another company. The Management of the new amalgamated company will be the same old management of that sick industrial company.”

(ix) The Regulation 30 of the of BIFR Regulations 1987 is under Chapter VI of-- Procedure & Preparation And Sanction of Scheme under section 18. Regulation 30 contemplates the consideration by the Board / BIFR of the suggestions and objections that it may receive from the Sick Industrial Company or from the Transferee company or from the Operating Agency or from any other company concerned in the proposed amalgamation. Tell me, if the Management of both - Sick Industrial Company and of Transferee company are same, then, the rights of the Sick Industrial Company to forward any objection to the Board or BIFR with regard to proposed amalgamation with the transferee company becomes meaningless.

(x) SEBI is the Principal & Solemn institution to safeguard the interest of retail investors. In fact SEBI came into being to safeguard the interest of retail investors. The retail investors are simply incapable of engaging themselves into the conventional expensive and time consuming court litigation. And, therefore, whenever the retail investors face unlawful loss to their investment, they turn to SEBI.

(xi) I submits that my Client has a very good case on merit and serious prejudice & irreparable loss will occasion to my Client and to many other shareholders of India Foils Limited. Moreover, by allowing this Amalgamation, a wrong precedent will set in, which may encourage such illegal mergers in future.

Thanking you in the anticipation of your effective action in this regard.

With Regards

Sandeep Jalan

Advocate

9. Attachment ' A'.






























10. Post Script:

Discretionary powers of Public Servant: Discretion being an element in all powers, but the concept of discretion imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment or personal dislike. Discretion allowed by the statute to the holder of an office is intended to be exercise according to the rules of reason and not according to personal opinion.

Discretionary powers are never absolute. Even if a statutory pronouncement state explicitly that the discretion it grants is absolute, this discretion is interpreted as requiring the holder of the authority to act strictly according to some procedure such as granting a hearing and acting impartially and acting in such a way to achieve the goal of the legislation for which the authority has been granted.

If a decision on a matter is so unreasonable that no authority could ever have come to it, then the courts can interfere. The repository of discretion must be prepared to justify in court the reasonableness of his belief and in arriving at a decision in the exercise of his discretionary powers. It is not enough to say that the discretion was exercised honestly by the authority.

It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India. Krishna Swami Vs Union of India. AIR 1993 SC 1407

LORD GREENE, MR in Associated Provincial Picture House Ltd Vs Wednesbury Corp observed that it is a established law that a Person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his considerations matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably.

The abuse of discretionary power is like saying- “as an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable.

Reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial; and reveal a rational nexus between the facts considered and conclusions reached. Union of India Vs Mohan Lal Capoor (1973) 2 SCC 836

The Apex Court in one case viewed that when statute confers discretion on a holder of public office that should be exercised reasonable and rationally. U.P. State Road Transport Corporation V Mohd Ismail (1991) 3 SCC 239.

In our humble view- The basis of every law or every rule OR EVERY EXERCISE OF DISCRETION or every decision govt or govt agencies take, is on the premise of greatest good of the greatest number of people. The forms of accountability may differ but the basic idea remains the same that the holders of High Public Office must be able to publicly justify their exercise of power not only as legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of the people. Every exercise of Power depend on this ideal for its validity.

A note was struck by Apex Court in Superintending Engineer, Public health, U.T. Chandigarh V Kuldeep Singh when it observed: “Every Public servant is a trustee of the society; and in all facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence & efficiency in public administration. ...”

End

If you are a final year student reading this, you shall be indebted to me for writing this post. If you are a recruiter reading this, well…This is why I haven’t revealed my real, unemployed name on my blog. Final year students are looked upon by their faculties as people who know their responsibilities, won’t do anything to tarnish the reputation of their colleges, will grab hefty pay packages which add on to the glowing record of the placement committee.

Now, it’s not an easy job when the placement coordinator, your parents, your seniors, your friends, your neighbours (one going through a nasty divorce and one in jail for stabbing one of his colleagues....wow, if they had been nicer to me when I was a kid, maybe I could have fought their cases!!) throw free advice at you, even if you don’t want them. Like:

1)      Smile, but don’t smile showing your teeth. Just stretch your lips slightly. But don’t beam. Or don’t grin. It should come from the eyes, not from your teeth.

2)      Don’t fiddle with your hair. Don’t rub your nose. Body language experts say that means you are lying or you aren’t completely sure of what you are saying. Don’t shift in your chair. Don’t change your posture. Don’t nod a lot. Just shake your head slightly.

3)      Don’t blink a lot. If they offer water, take it, but don’t gulp loudly. If you have a cold, don’t sniff.

4)      Be polite. Greet everyone with a ‘Good Morning’. Check your watch, if it is good morning or afternoon.

5)      If they ask you, your reading habits, don’t tell them you read Mills and Boons, the Twilight saga or Harry Potter. (Now, this is too much)

6)      Don’t make fun of your faculty with them (???)

7)      Don’t discuss what they asked inside, with your batchmates. Lie to them.

8)      No need to take up a job outside your hometown. You can save the rent and food by staying at your hometown. (And who is going to earn and become independent? My father-in-law??)

9)      Don’t message in front of them (WHY? WHY? WHY would I want to jeopardize my own career by forwarding Rajnikanth jokes to people during my interview ?)

10)  Don’t tell them you blog and crack jokes (I have proudly said I blog, and even cracked jokes with the panel- Yes, if the panel looks strict, you must sober down- but both were well appreciated by them!!)

What do people think? You are just going to get in the room, jump on the table and do belly dancing? You becoming a lovesick, brainless loser if you read Twilight? Or you are a kid if you read Harry Potter? You are so stupid that you are going to rant about your college problems or your hostel toilet which leaks sometimes? The most rotten advice I’d gotten was to take the side of the company I am representing even if they are doing something which is very harmful to the public. My argument was that I can take their side, but I would also try to look for some other options which would not harm the public in anyway. India has a lot of population, but this is no excuse to harm people and mint money.

I’m one for becoming completely honest and being yourself when it comes to interviews. What’s your take?

Hon'ble benches of the 'Supreme Court of India' took Judicial Notices of the unethical practices adopted by some of the 'Advocates on Record' , the Hon'ble benches of the Supreme Court shown its displeasure many times about the said prevalent practices time to time some are reported in; (2009)2 SCC 399 [State of Punjab Versus Ashok Singh Garcha], in (2010)1SCC 166 [Vijay Dhanji Chaudhary Versus Suhas Jayant Natawadkar ] and in 2010(3) SCALE 266 (Smt. Poonam Versus Sumit Tanwar) ultimately on 30.10.2009 the bench of Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice G.S. Singhvi  had sue moto issued notices to 'Supreme Court Bar Association' and 'Advocates on Record Association' to assist the Hon’ble Court to find appropriate solutions and to provide necessary checks and balances regarding the Practice and Procedure of Hon'ble Court.

After appearances  the 'Advocates on Record Association' had filed its suggestion in this matter which cannot be said to be practical and feasible solutions because even all the Advocates on Record are not members of that association, at the relevant time the Board  of Executive of SCBA had resigned and Interim Board Management was functional, such IBOM without calling the General Body of SCBA had made suggestion which was not  acceptable  to majority of the Advocates which causing dissatisfaction among the practicing  members, ultimately the members of “THE SUPREME COURT ADVOCATES ASSOCIATION (NON-AOR)” had decided to file its intervention application in that case and assist the Hon'ble Court, according by a team work legal research was done and an application for impledment is being filed in the matter, and in the interest of justice and for finding solutions and providing necessary check and balances in the present situation, the applicant SCAA made following Suggestions:

(I)      Pursuance to the SCBA resolution dated 4.3.2009 the exemption available to the “Attorneys” and “Solicitors” under Rule 5(i)[(aa)] and (ii)(a) respectively in “SCR 1966”, the similar exemption may kindly be granted to the Advocates-Members having ten years Standing at Bar (SCBA) and experience of conducting / incharge Advocates who draws the Cases etc. of 100 or above in all, be exempted from the passing of Exam./test as prescribed in the Order IV of “SCR 1966” for registering / enrolling themselves as A.O.R. of this Hon’ble Court; And/Or

 (II)     Pursuance to the SCBA resolution dated 4.3.2009 to amend the “SCR 1966” and make a provision therein that whenever a cases; like SLP/WP/Applications etc. are filed, in those cases the name of the conducting / incharge Advocates who draws the Cases etc. may be required to be mentioned in the petition and Registry also publish their names in the Cause Lists and Office Reports issued by this Hon’ble Court along with names of AORs. ; And/Or

 (III)    Just to protect the AORs, the Certificate of the conducting / incharge Advocates made to be filed mandatory mentioning therein Bar Council Enrolment nos. in support of cases; like SLP/WP/Applications etc. concerning the merit of the matter, as well as signature of the Translators be taken on the translated documents, so that no one should escape himself before the Hon’ble Court from the responsibility, so that litigants interest be fully protected in the dispensation of justice. 

Now the case is adjourned for 7.12.2010 for hearing of the parties, and we hope by some solution the Public at large interest will be protected by the Hon'ble Court.

---------- Forwarded message ----------

BIHAR STATE BAR COUNCIL

BAR COUNCIL BHAWAN, PATNA-1

PH-0612-2505583

                                Press Release

                             Lawyers to abstain from Evening Court

Patna, Nov. 14

Bihar State Bar Council has appealed to the advocates of Bihar to abstain from working in evening court scheduled to be started from Nov. 15, 2010.

 The members of the Council in its emergent meeting held today were of unanimous view that the law and order situation in the State as well as the infrastructure in civil courts, especially the poor power supply position, can’t make such courts workable.  By an unanimous resolution it has been decided to abstain from the evening court and decided to request to High Court to withdraw the Notification and to fill the pending vacancies of the judicial officer in the State of Bihar.  The members also felt that the situation in Bihar is quite different from Gujarat where un-interrupted power supply is maintained and suitable communications are available for coming to and going from the evening court for clients and lawyers.

 Twenty two out of twenty six members attended the meeting which was presided by Shri Baleshwar Prasad Sharma, Chairman of the Council.

 The Council further decided to consider further line of action for opposing such evening court if the same is not withdrawn, in its next meeting fixed for 5^th of December 2010.

                                                                                                            Officiating Secretary

                                                                                                         Bihar State Bar Council

Deliberating on the need for initiating legal reforms in infrastructure, experts from the industry and legal profession are and have always been unequivocal on the need for a clearly defined legal and regulatory framework to improve the infrastructure sector in India. The prevailing system of administration of justice has, over the years, proved to be inadequate, for various reasons. On the theoretical plank it gives rise to certain fundamental jurisprudential issues, e.g. the adequacy and efficacy of the present adversary or accusatory system, and the damning dominance of form and procedure in the justice delivery process.

Apart from such basic issues, the system faces a grave crisis of notorious delays, procedural pitfalls and the credibility of the process and personnel involved: the judges, the lawyers and the ministerial apparatus. The experiments like Loknyayalaya and mediation-conciliation cannot claim to be the substitutes for the system. At best, they can be alleviating factors to help the harassed litigant.

India’s legal and judicial systems are highly sophisticated and well developed. Despite that, it has not kept pace with the changing needs arising from increasing population, increase in number of laws, increase in industrial activities and other changes resulting in inordinate delays in disposal of cases.

The present system owes its existence to the colonial rule. Since its inadequacy is thoroughly exposed, now is the time to go into the fundamental question of its compatibility with the Ethos of this country. Today, we find a dichotomy between the real ‘Truth’ and the ‘Truth as stated on Oath in a Court’. A litigant gets away with this in the present system. If the system is made inquisitory and the burden is on the authority to find the truth, truth will come out and the battle between assertions and denials ends. The old Nyaya Panchayat system needs to be revived and supported. For the purpose, an inquiry of the system that was in vogue in ancient-India is useful.

The backlog of millions of cases in all categories of courts is the most damning evidence of the inadequacy of the apparatus. Urgent resolution of the problems pertaining to all the factors must be sought within a time frame.

The number of judges reflects no reasonable equation with the growing population and litigation. Adequate funds, infrastructure and political will are necessary to provide for additional law courts and judges to match the pending and future litigation. The conditions of service should be such as would attract talent and ensure integrity. Training / workshop may help even the High Court judges.

The lawyers have a significant role. Their training in law as well as professional ethic is thoroughly inadequate. Law as a profession has deteriorated. Concrete steps are necessary to stem the rot and to lead a new path.

Efficient Administration and organization of the docket in courts would be able to avoid thoroughly unnecessary procedural delay. A little imagination and a pragmatic (as against the dogmatic) approach can lessen the burden on courts and litigants.

The procedure is termed as the ‘handmaid’ but in practice it rules. Drastic changes in the procedures to be followed in courts are urgently warranted. Every case must reach a time bound destination. The system today has developed a vested interest in delay. If necessary it should be dismantled without remorse.

Justice delivery system, particularly in criminal court needs complete review. The present system punishes the innocent and permits the criminal to go unpunished. Drastic changes in procedure are necessary.

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA

“I am never satisfied with the progress, I want things to move faster…” this was said by ASEAN Secretary General, H.E. Mr. Ong Keng Yong to the Business Standard, a business news publication, on the sidelines of a seminar organised by non-aligned Research and Information Systems and the Federation of Indian Chambers of Commerce and Industry (FICCI).

It is indispensable to appreciate the significance of intra-regional trade as it has a positive impact on the other countries, which forms the inter-regional trade. An important trend has been the growth of the intra-regional trade. Some people view world trade as consisting generally of intra-regional trade and the        inter-regional trade. There is also talk of regionalisation versus globalisation of world trade. In 1980s, the share of intra-regional trade in total world trade increased in Western Europe, North America and Asia. In 1990 intra-regional trade in goods accounted for 61% of total trade in goods of the European Community – 41% for Asia and 35% for North America. Over 60% of the trade of the Pacific rim nations stays within the area. Regional integration schemes tend to increase intra-regional trade. Trade between the 12 members of the European Community (EC) increased to 60% in 1990. Intra-regional trade increased in the European Free Trade Association (EFTA) and the Association of South East Asian Nations (ASEAN).

Now, coming to one of the most important economic grouping in Asia – ASEAN and its relation with India a burgeoning developing country.

This paper makes an attempt to describe the panorama of trade within ASEAN and outside it, with other countries. The Association of Southeast Asian Nations (ASEAN) is a political, economic, and cultural organization of countries located in Southeast Asia. Founded on August 8^th 1967, its aim is to foster cooperation and mutual assistance among members. The member countries meet annually every November in summits. The current member countries of ASEAN are, Indonesia, Malaysia, Philippines, Singapore, Thailand, Brunei, Viet Nam, Laos, Myanmar and Cambodia. Papua New Guinea enjoys the status of an observer in the ASEAN. The first four countries as mentioned above are its founding members. ASEAN regularly conducts dialogue meetings with other countries and organizations, collectively known as the ASEAN dialogue partners. They are Australia, Canada, The People’s Republic of China, North Korea, South Korea, the United States, India, Japan, Mongolia, New Zealand, Russia, and the European Union. ASEAN Headquarters is located in Jakarta, Indonesia.

The ASEAN Regional Forum (ARF) is an informal multilateral dialogue of 23 members that seeks to address security issues in the Asia-Pacific region. The ARF met for the first time in 1994. The members include the 10 member states of the ASEAN, the observer Papua New Guinea, and the 12 ASEAN dialogue partners. The association includes about 8% of the world’s population and in 2003 it had a combined GDP of about US$700 billion (roughly equivalent to South Korea) and this GDP was growing at an average rate of around 4% p.a. The economies of member countries of ASEAN are diverse, although its major products include electronic goods, oil and wood. The ASEAN countries are culturally diverse and they include the third largest number of English speakers in any other geopolitical entity (after the US and UK), around 50 million, mostly in the Philippines. ASEAN also includes more Muslims than any other geopolitical entity — about a quarter of a billion, mostly in Indonesia and Malaysia. Other main religions of the various people in the region include large numbers of Buddhists in Thailand, Myanmar, Laos, Cambodia, Vietnam and Singapore and the predominantly Catholic Philippines. This simply proves that ASEAN is the only organisation with such diversity. ASEAN has governments with widely differing views on governance and political process, including practices in areas such as suffrage and representation. Government types range from democracy (capitalism) to communism and socialism. The level of corruption in ASEAN governments is also an area with large disparity.

ASEAN’s interest in India arises from two considerations. First, ASEAN has traditionally engaged all the major powers of the world. India’s rising economic and technological competence has the prospective to provide considerable opportunities for ASEAN countries. Second, ASEAN and India are working towards a free trade agreement, which leaders hope to make operational in a decade. This requires a considerably enhanced understanding of each other’s economic structures, institutions, and political systems.

ASEAN has been a hot topic in India for quite sometime now. There is a lot of talk about how ASEAN can boost Indian economy and how relations with ASEAN can boost India’s foreign trade. India’s engagement with the ASEAN started with its “Look East Policy” in the year 1991. ASEAN has a membership of 10 countries namely Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. India became a Sectoral Dialogue Partner of ASEAN in 1992 and Full Dialogue Partner in 1996. In November 2001, the ASEAN-India relationship was upgraded to the summit level.

The 1^st ASEAN Economic Ministers (AEM) – India Consultations were held on 15^th September 2002 in Brunei Darussalam where the Ministers, after discussing the Joint Study Report decided to establish an ASEAN-India Economic Linkages Task Force (AIELTF). The AIELTF was asked to prepare a draft Framework Agreement to enhance the ASEAN-India trade and economic cooperation before the 2^nd AEM – India Consultations. Subsequently, at the First ASEAN-India Summit held on 5^th November 2002 in Phnom Penh, Cambodia, the former Prime Minister of India Mr. Atal Bihare Vajpayee made the following major announcements:-

·         India will extend special and differential trade treatment to ASEAN countries, based on their levels of development to improve their market access to India;

·         FTA within 10 years timeframe; and

·         India is committed to aligning its peak tariffs to East-Asian levels by 2005.

The Prime Minster of India and the Heads of Nation/Governments of ASEAN members signed a Framework-Agreement on Comprehensive Economic Cooperation between the ASEAN and India during the Second ASEAN – India Summit on 8th October 2003 in Bali, Indonesia. The key elements of the Framework Agreement on Comprehensive Economic Cooperation covered FTA in Goods, Services and Investment, as well as Areas of Economic Cooperation. The Agreement also provided for an Early Harvest Programme (EHP), which covers areas of Economic Cooperation and a common list of items for exchange of tariff concessions as a confidence building measure. The highlights of the Framework Agreement are as follows: -

 (I) FTA in Goods

·            The tariff reductions would start from 1^st January, 2006 and Most Favoured Nations (MFN) tariff rates to be gradually eliminated. While India will eliminate tariffs in 2011 for Brunei Darussalam, Cambodia, Lao PDR, Indonesia, Malaysia, Myanmar, Singapore, Thailand and Vietnam; Brunei Darussalam, Indonesia, Malaysia, Singapore and Thailand will eliminate in 2011 and new ASEAN Member States i.e. CLMV will eliminate in 2016 for India. India and Philippines will eliminate tariffs for each other on a reciprocal basis by 2016.

(II) FTA in Services and Investments

·                       Negotiations to commence in 2005 and concluded by 2007.

·           The identification, liberalisation etc. of the sectors of services to be finalised for implementation subsequently.

(IV) Areas of Economic Cooperation

·            Areas of economic cooperation to include trade facilitation measures; sectors of cooperation; and trade & investment promotion measures.

 (V) Early Harvest Programme (EHP)

·          Based on the inter-Ministerial consultations and apex chambers of commerce, the items for EHP were finalised for exchange of concessions.

Referring from an economic report as made available by Mr P K Basu Managing Director, Robust Economic Analysis Pte Ltd (REAL); and Secretary, India Club, Singapore; he says that India is the fastest growing economies among world democracies.

Never in the history of mankind has a democracy with even 200 million people sustained annual real GDP (Gross Domestic Product) growth of 5.9% over a 24-year period. India’s achievement is unparalleled. In 2003, India had the world’s highest nominal GDP growth. Its because of these, India is closer to fulfilling one of its top priorities – forging stronger economic ties with the Association of Southeast Asian nations or ASEAN. India and the 10-member ASEAN group will sign deals for a plan of action and to promote “shared prosperity” at the annual summit.

It’s because of India’s strong seeking nature that economists and honchos of the trade-world believe that an FTA with ASEAN will give India an opportunity to look beyond trade. This will undoubtedly bring India closer to its target of achieving 2 per cent share in global trade. Geetanjali Nataraj, professor at the Indian Institute for Foreign Trade (IIFT), says “India is looking beyond its traditional trading partners in the West, and taking advantage of ASEAN’s increasing global trade and investment. India has set a target of achieving two-percent share in world trade, and to achieve this target we need to explore new markets, enter new markets, and ASEAN is a big market for India”. At first, ASEAN was slow to respond to Indian overtures, but that is slowly changing.

Asian countries struggled with the financial crisis of 1997, and India’s economy began showing signs of promise. Experts say ASEAN also began to see how India could balance out China’s power in Asia. The relationship has acquired momentum in the past two years. At the 2003 ASEAN summit, India and the Southeast Asian bloc agreed to create a free-trade area in goods, services and investment by 2011. Arvind Virmani, Director at the Indian Council for Research on International Economic Research, says much smaller ASEAN countries stand to gain from access to India’s market of more than one billion people, and in particular, its booming information technology sector.

 He also added that ASEAN has recognized India’s dexterity in IT and in service exports. This is the reason why more countries of the ASEAN who had a mental block to trade with India are slowly breaking out of it. International economists say that by wooing ASEAN, India ensures it is not isolated when regional trading arrangements are “en vogue”. This could include eventual economic integration with economically dynamic East Asia. In fact, New Delhi hopes closer links with ASEAN will help draw it into a larger economic community that includes China, Japan and South Korea. India’s need to build links with developing economies now is pressing as developed nations put up more trade barriers despite preaching liberalization.

 The developed countries are becoming highly protectionist and they are inflicting all sorts of barriers. Non-tariff barriers in the developed world are increasing rapidly which necessitates India to look beyond the developed world to expand its trade and ASEAN countries offer great opportunities to India. India is making better progress with some ASEAN members than with others. It has a free-trade pact with Thailand already, and, in the past year, greater investment from Malaysia and Singapore, with which it has a cooperation deal in the works.

 Still, two-way India-ASEAN trade is far lower than it could be. In 2002 it was about $10 billion, only one percent of overall ASEAN trade. Sceptics doubt India can move fast enough to change that. With Chinese goods flooding the region, India is its own worst enemy, raising tariff barriers higher than countries in East Asia. It has promised to reduce duties, but usually is slow to act. Transport and communication links with the region also need to be improved. However, as India’s economic profile grows, and its industry becomes more competitive globally, there is optimism the relationship will bear fruit.

 (Author PS: Though this article was written by me in 2005; but it does assume importance in the current scenario) 

 ……………………………………………… To Be Continued in Part II

By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA

A bunch of 6 year olds were having a discussion.  The kid from Pune was heard bragging -  "You know man.  My big brother nooo . . .  He can do a wheelie on a bicycle.  Superb da."

Not to be outdone, the kid from Shameerpet, Hyderabad chipped in. "Aaiii ... so what?  My papa can do full wheelie on a scooter also.  He told me that he learnt in school only how to do wheelie!  So don't show off okayyy."  

The kid from Nagharbhavi, Bangalore, who was listening quietly, took over the conversation.  "So what man!  Nothing great.  My daddy can do wheelie on a motorbike.  I even sat behind him one time.  Full vroooom he goes - and then ... on one tyre only ... fully fast ... from heeerreee to theerre ... what you thought?"  he said gesticulating wildly.

The fourth, a slightly overfed kid from Sonipat, Haryana, had to say something.  Bicycles, scooters, and motorbikes were already taken care of.  He had to out beat them.  After all, he was a Jat, and Jats don't take defeat easily.   "All of you stop yapping okay," he said, pointing his palm to the rest.  "Don't show off so much, man. Anybody can do wheelie on cycle or motorbike.  My pappa nooooo, he can do wheelie even when driving a train!"

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Meanwhile, all the dads were working hard to ensure that their kids grow up to be well educated.