Jerome Merchant + Partners

Can anyone please advise on sec 138, if a PDC cheque is bounced on account of EMI, signed by a director of a pvt limited company, the loan was a commercial loan by the bank, wherein due to business loss the company could not pay the EMI amount when due.  the cars were repossessed and sold by the bank for a considerable amount, can the director be prosecuted for cheque bounce under sec 138 and what are the implications of sec 142 of N.I Act.

Right to Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Definition of Right to Information:

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

(i)                 inspection of work, documents, records;

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

(iii)             taking certified samples of material;

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

Procedure of Application & Publication of Request:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fees:

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

Exemptions:

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

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

Penalties:

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

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

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

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

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

As Sanjay walked across the corridor,past the judges' chambers and into the courtroom, he couldn't help but steal a glance at all the lesser men who were in awe of him.His scintillating lawyering had bedazzled the bench and his opponents alike,and it was time for the verdict.Even as the verdict was being read out, he was overwhelmed with pride- and justifiably so - he had successfully prosecuted the most dreaded criminal of the times.Once the proceedings were over, he walked out of the now clamorous courtroom , and was approached by a starstruck junior when  - PONK! - the piece of chalk thrown at him by the professor had done its job.He woke  up with a start , only to realize that he had dozed off in the middle of the jurisprudence lecture. 

 " You are the dirtiest fellow in this class, I say!"

"Sir,I'm sorr-"

"Get out you dirty mongrel!"

 Insulted,he left quietly,and walked backed to the dormitory,pondering over ways to get even.  "Who does he think he is? H.L.A.Hart? Huh, old fart!"

He had his lunch, and then worked to finish pending projects.He now had all the time in the world to settle scores with the prof. His devious mind conceived many a wicked plan,but none as simple and failsafe as the one he was to execute the following day.

After the day's final lecture,he drove to a pay phone not very far away from the campus.

He dialed the prof's number.

"Hello?" the prof croaked at the other end.

"Have you read the Ramayana?"

"Who is this?"

"Yes or no?"

"Yes."

"Do you know Raavana?"

"Who are you,you  rascal?"

"Yes or no?"

"Yes."

"You should.You're his descendant."

"Aaaiy scoouuundrell,I will-"

 "Goodbye."

As he drove back to the campus,he thought to himself:

"At a time when the judiciary deliberates upon the  Birthplace of Lord Rama,His sworn enemy's descendants are doing a fine job of emulating their forefather at Law school." 

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

This is on the recent order of the Delhi Government ordering closure of shops, establishments and cinema halls in the national capital on Oct 3rd & 14th on the sidelines of the Common Wealth Games - More of a security measure, this would paralyse normal life and result in loss of earnings to shop keeps, Cinema Hall Owners etc., Can this be construed as a 'Bandh'? A Bandh need not be necessarily be called by Political parties or activists. This is my view.  Views and expressions invited for debate. 

A brief glimpse into the history of post independent India reveals that there has indeed been a phenomenal transformation in the socio-economic dynamics of country leading to a perceptible enhancement and improvement in the living standards of our people at large. But it is also true that there has been an abysmal decline in ethical and moral values which were once our most cherished attributes.

                There was a time when India was hailed as the land of saints, sages and scholars. But now it has earned the dubious distinction of being a land of seams, scandals, sleaze and swindles in the comity of nations. It appears the more we set higher goals to achieve in the mundane realm, the more we seem to be distancing ourselves from our own souls and we start behaving in a robotic and mechanical manner rather than in a truly humane manner. Our approached to life has changed more to suit our convenience rather than to our conscience. The subtle names of piety, equity and humanity are nowhere to be seen in our day to day life. Self aggrandizement has become the motto of our life, making one’s ends meet whether with fair or foul means is considered to be a rare quality that propels one to success and such person are euphemistically adored as TACTFULL persons.

              It is thus clear that there is something radically wrong with our system that has given rise to such degeneration in our society. No one bothers about the concepts of morality and merit. Money and muscle power instead hold the sway in all walks of our life. This steep perversion in our thinking has provided a very fertile and conducive environment to dishonest, unscrupulous, self serving persons to exploit the situation to the best extent possible to serve their vested interest. Corruption has spread its tentacles so virulently that often it appears difficult, if not impossible to do without it. Whatever be the apparent causes /reasons for the spread of corruption, over the years the menace has grown both horizontly and vertically. Graduating in an endemic way from the pale of a few INDIVIDUALS to the level of INSTITUTIONS, it has adversely affected the very ethos of our society. It is so much ingrained into our body polity that it sounds often anachronistic cribbing about it.

While honesty is an article of ones faith, it has the sterling quality of exclusiveness which inhabits its growth so easily and extra efforts have to be made to locate, assimilate, consolidate and join the ISOTOPS of this precious element in the core of our society. Dishonesty, the main provenance of corruption, on the other hand has the inherent culpebelity of inclusiveness and tendency of cohesiveness which facilitates it to multiply its ranks smoothly in the society. That is the reason why the valued Diaspora of honest persons in the society is not unified or consolidated and is often scattered so wide apart that it is difficult to locate and identify them. Special efforts are made to locate and consolidate them in this vast ocean of humanity brimming with the scrounge of dishonesty and acquisitiveness. This is the root cause of degeneration in our society and unless this issue is addressed to buy all concerned in a dispassionate, expeditious manner, it would result into anarchy. While ever growing surge of dishonesty needs to be curbed by all means, what is all the more important is to attach due premium to HONESTY in our life and accord due respect, honor to the fast vanishing endangered species of honest people in our society. This would have a salutary impact on the psyche of our people and motivate them to adopt HONESTY AS THE BEST POLICY in real sense in their dealings. For this all out social, educational, political efforts are to be made with desired vigour and sincerity.

            But in a country where power hungry leaders are putative to be mostly dishonest and persons of dubious antecedents are PURPOUSLY appointed to high positions to serve their vested interests, they have lost credibility in the esteem of the people at large and it would be simply futile expecting them to  do something worthwhile in this regard.

            A collective WILL of the people alone can now do the much MIRACLE or else we are destined to doom.

I'm always surprised as to why non-judicial minds are given authority to decide litigations. I'm practicing at District Kathua (J&K) since last more than nine years. According to the J&K laws, the revenue appeals are heard by the revenue officers, who either are the IAS or KAS Officers. And to everyone's surprise only 5 to 10% of these Officers do possess the knowledge of law. To add the chaos, I must tell you, all of these Officers are entrusted with the primary job of Administration and they are so occupied in their Administrative jobs that they hardly find time to dispose off the litigations/appeals and concequently the judicial files are piling up in the Revenue Courts and the disposal is almost negligible. Most of the times, the litigants find that the Officer is busy in attending the meeting involving the agenda of administration, like to discuss the measures of any calamity, prepare for the Minister's visit, prepare for the Board Meeting, Issues involving tranquility, etc, etc...
My suggestion to the Government is that why not a special post be created at the District or Sub-District level, headed by the Presiding Officer having the knowledge of law and entrusted with the exclusive authority to dispose off the litigations only. In this way, the long pending matters would be easily disposed off and the litigants would also get speedy justice, afterall we have been grown up listening "Justice delayed is Justice denied".
I hope through this blog, the eminent and busy lawyers may get time to think on these notes.
Thanks for the patient reading. The comments of the readers are solicited.

This blog originated in the felt need to ponder where it is found that Indian Public authorities are fascinated to interprete laws to their convenience and logic and issue notices as they deem fit, completely devoid of spirit of the enacted laws.


In modern democracies, wide powers vest with Legislators, Judges, with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the ways thus far specified hereinafter. Nevertheless, the authorities in charge may be disproportionately rude if you happen to be in even irrelevant shortcoming. The Scent of power is immense.


The Public Servants / Officials were deemed heard, saying, in the words of learned Professor Upendra Baxi-

(1)As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner; (2) As an Authority of Public Power- I may so act as to favour some and disfavour others; (3) As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it; (4) As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual; (5) 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; (6) As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind; (7) As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people; (8) As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction.


Also, I am given to understand that, all Writs that are filed before High Courts’, 70% of it constitutes the illegal notices that are challenged, so issued by army of public authorities in India, in the pretence of their implied and undefined discretionary powers.


The Supreme Court of India in Nawabkhan Abbaskhan v State of Gujrat allows every person the discretion to make his own decision and disobey the order of the government, if in his opinion, it is illegal. Of course he is answerable and liable, if he turns out to be wrong. (1974) 2 SCC 121; AIR 1974SC 1471.


This is how the above proposition came to establish in our land--
(1) An externment order was passed against one person. He refused to obey that order. (2) He was prosecuted under section 142 of the Bombay Police Act 1951 because he had violated the externment order passed by the Police commissioner. (3) He was acquitted by lower court. (4) The State went into appeal to High court. The accused challenged the validity of the externment order itself. The High court raised a question to itself- “Whether a person can disobey the order with impunity which he thinks is illegal although the order subsequently may have been quashed for being illegal”. (5) This is what High court said- “There is no principle in upholding the Respondent's (accused) claim that he has a right to violate an order passed by an authority having jurisdiction to pass it, although subsequently he can persuade the court that there was an inbuilt lacuna or latent defect in the said order. In other words he claims to have a right to judge for himself whether it is legal or illegal and in anticipation of court upholding his contention, the right to violate it with impunity.”

(6) The accused went into appeal to supreme court. The Supreme court reversed the order of the High court and said- “The individual decision making by private persons of public actions may be considered as a very radical approach. Grave consequences are involved in allowing discretion to disobey, someone may argue, may first lead to anarchy and then to tyranny. But what is the remedy available to a person who has been subjected to an illegal order. Our legal system does not recognize the right to compensation for damage suffered by a person in obeying an invalid order.
Thus the Supreme Court allows every person the discretion to make his own decision and disobey the order of the government, if in his opinion, it is illegal order. Of course he is answerable and liable, if he turns out to be wrong.
However, today any talk about discretion to disobey may sound seditious. In India where judicial process grinds dead slow and grievance procedures are feeble and inefficient, perhaps the discretion to disobey may provide an effective check on the operation of the government machinery in a reckless manner.
There can be many different legitimate ways of dealing with served illegal notices. In my limited knowledge as on today, there can be two ways to deal with those illegal notices.

ONE- The one who is served a notice, which he thinks as patently illegal, should in the first place, make a suitable representation before that issuing authority. If the authority refuses to relent / listen, then, should file a Writ Petition in the High Court concerned under Article 226, not for quashing of that notice, but for directing the public authority concerned to pass appropriate speaking Order on the basis of representation made to that authority. The Orders passed by Public authorities, generally termed as administrative Orders, though are not Court Orders, yet, the Public authorities are bound to listen to the affected persons where it seeks to interfere with the rights of the persons by way of their notices and they are bound to assign reasons for their decisions. Readers may pls refer this link: http://commonlaw-sandeep.blogspot.com/2009/07/litigants-must-fight-for-reasoned.html


TWO- The one who is served a notice, which he thinks as patently illegal, should file a Writ Petition in the High Court concerned under Article 226, asking the Hon'ble Court to dwell upon the limited issue of interpretation of that law, in the exercise of which the illegal notice was issued and asking the Hon'ble Court to settle the position of law, also, so that all litigation in respect of that law, that may arise in future, may be avoided. And once the Court ventures to settle the position of law, you win. The relief you get of quashing of that impugned notice is consequent and automatic of that settling of that law. Therefore, it is quite important to frame appropriate question of law that may be posed before the presiding Judge to dwell upon and adjudicate thus.
It is not desirable to seek directly the quashing of order, in my view. There can be two reasons for not directly asking this Relief before the Hon'ble Court. One- the High Court may refuse to exercise its extra-ordinary jurisdiction under Writ, saying you have alternate remedy and remedy under Writ is yet to crystallize. Second- it may exercise its extra-ordinary jurisdiction under Writ, but, it is quite likely, I feel that, unless the Advocate specifically ask the Hon’ble Court to decide the question of law involved, the Hon'ble High Court may venture to refuse to give you any relief, even without dwelling upon the letter & spirit of law under scrutiny.
There is, I think, fundamental difference between asking the High Court to quash the illegal notice or asking the High Court to settle the position of law. The High Court may refuse to exercise its jurisdiction in the former case, but it cannot refuse to exercise its jurisdiction in the latter, for it is the prerogative of the High Court to settle the law.
And I tell you, in Writ cases, in my strong view, if you succeed in satisfying the Court about jurisdiction, you have won half the battle.


How to file a Writ- may pls check below web link
http://commonlaw-sandeep.blogspot.com/2009/04/how-to-file-writ-petition-or-pil-writ.html

Sandeep Jalan (advocate)
Janhit Manch, Kuber Bhuvan, Bajaj Road, Vile Parle West, Mumbai- 400056.

Like a man write his WILL and wish that after his death his properties shall be given to these people, it appears to me that the mandate of Constitution represents the WILL of our freedom fighters to which we the contemporary people of INDIA are enjoying the legacy of Independence and breathe fresh air of freedom. Nevertheless, the bounden duty remains on our High Courts & Supreme Court to secure that WILL of the testators is given effect to.

In our vast, beautiful, geographical landscape of Independent INDIA, i.e. Bhaarat, again, the Constitution of INDIA, which came into existence on 26th January 1950, is the supreme & fundamental governing volume. This epic governing volume makes a categorical announcement in the introductory passage that people of INDIA are the architect of this volume. The announcement assumes significance because by this announcement, the framers of our constitution propose to acknowledge and give tribute to selfless sacrifice of every men & women who devoted their life for the independence of INDIA.


The origin & the authority of the Indian legislatures, of the Indian govt, of the Indian judiciary and of the Indian bureaucracy flows from this “Peoples' Governing Volume”.

Every injunction of this governing volume represents the wishes and ambitions of our countless freedom fighters; and our law makers, the government, the Indian judges and the bureaucracy owe their origin & discharge their all responsibilities while taking inspiration from this “Peoples' Governing Volume”.


And therefore I will say that this fundamental governing volume should not be read and interpreted like any other statutes of legislatures. This fundamental governing volume is to be read and interpreted keeping in mind the aspirations & demands of people then who were instrumental to our national freedom movement, the aspirations which can be found in various injunctions of this fundamental governing volume.

And therefore, should this governing volume, i.e. constitution of INDIA and the legislations, laws, bye laws, rules, regulations, resolutions, policies, notifications that get sanctity or flows from the constitution itself, be read & interpreted overlooking the events that has characterized our national movement and which paved our way to Independence on 15th of august 1947 ? And, should the Constitution of INDIA and the legislations, laws, bye laws, rules, regulations, resolutions, policies, notifications that get sanctity and flows from the constitution itself, be read & interpreted while continuing the discriminatory behavior, non transparent & suppressive policies of governance that were existing at british times.


In my considered view, the Constitutional courts, while dealing with any issue of constitutional importance before it for adjudication, while looking at the relevant words of the constitution, should also look behind the words of the constitution, i.e. what is the history behind those words, i.e. the court may look into historical national event relevant to the issue at hand.

Like for example-
Without turning the pages of history, it can very well be said that during colonial times of British, the people of INDIA were not having any say nor they were knowing how appointment of judges were made. Those were the judges who has conducted farce trial of Balgangadhar Tilak and sentenced him for sedition and ordered the hanging of our young beloved Bhagat singh. Therefore, while constitutional courts ventured to decide on issue of appointment of judges, should consider answering this question- should it be presumed that the then people of INDIA has decided that colonial opaque practice of appointment of judges be continued ? should it be presumed that people have decided that they will have no right to know how judges will be appointed ?


Also, it comes to my mind that Bhagat singh, Bal gangadhar Tilak, Mahatma Gandhi, Subhash Chandra Bose, Maulana Azad and many countless brilliant laid down their entire life to seek freedom from British rule, not because for the sake that they were white Englishmen, but because these white Englishmen were practicing discrimination, inflicting merciless exploitation on Indian poor lot and devising suppressive penal laws towards Indians. The British govt decision making process were non transparent and Indians were not consulted. Britishers were told to go back not because merely we wanted our men at place of power but because it was seen that Britishers didn’t gave dignity of life to the Indians.

Our then national leaders thought that if INDIA will be ruled by its own people, there will not be any discrimination, there will be no exploitation and no suppression that is existing in British colony. It was thought that if Indians will rule, every policy of discrimination, exploitation & suppression will be repealed at the threshold.


It comes to my mind a stray thought that if our then leaders were short sighted to have thought that Indians will govern their fellow brothers & sisters with great care & respect. There is hardly any need to establish that people of INDIA are worse governed by their own counterpart.

It is painful and equally frustrating to see that we the Independent people of INDIA have in many respects continued with British system of ruling. The first thing that immediately comes to my mind is liberty of people vis a vis personality of Police. In British times, then people were so scared of then police for they have assumably and presumably given super powers to arrest and put any one in the lock-up. Freedom fighters and inconvenient persons were put behind bars on the pretext of non bailability of offences.

Nothing much has changed in modern Independent INDIA. We the people yet are so afraid of police for they have assumably and presumably continue to have super power to arrest and detain anyone in the lock up. In today Independent INDIA, a man is liable to be arrested merely on a complaint of non bailable offence if so registered with the police.

Today, we have forgotten that these were the issues of liberty for which our then leaders and countless people have fought with the British. Our govt still blindly follow bailability of offences and interfere with most cherished i.e. liberty of a individual. Whereas we are though gifted with shield of landmark Judgment given by Hon Supreme Court in Joginder Kumar case in 1994, yet arrests are effected with fascination of ignorance. In Joginder Kumar case Supreme Court has given clear guidelines for arresting any one. Readers may check this link. one has to copy and paste to get access to this link. http://commonlaw-sandeep.blogspot.com/2009/06/final-word-on-law-of-arrests.html


I will say that we the people, though enjoying fruits of Independence and also enjoying public holidays earmarked in the memory of our brilliant freedom fighters, but otherwise we have severed our ties with history of freedom struggle and we have merely moved forward and we have forgot the issues for which the freedom was sought from the Britishers.
It also feels that we the people of INDIA have not properly understood our freedom struggle or perhaps the history is not told to us in the right way. Moreover, it also comes in the mind that this “People's Governing Volume” is interpreted like any other act of legislature.

I will also add here that "a constant affair with thy nation" should become personal obligation of every Indian citizen.

Sandep Jalan(advocate)
Mumbai.

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A Less interesting Case took nearly two hours of Bombay High Court (dated 24.09.2010) and the Division Bench at Court No.2 presided by Smt.Justice Ranjana Desai and Mr Justice R.V. More were constrained to observe and say to the arguing Counsel-- So should we discharge rest of the Board for the day ? I tell you, its the most learned Bench I have ever seen in my brief exposure to Bombay High Court. Both Judges were found shooting relevant questions to every arguing Counsels, that I have never seen so far.

The facts leading to the filing of above cases by Hindustan Coca Cola (5510 of 2010) & Pepsico India (5867 of 2010) are few and simple. Sangli Municipal Corporation issued Notice / Bills of Octroi to be paid on Re-usable Empty Glass Bottles of Beverages to above parties. It is the case of Sangli Municipal Corporation that above parties have imported within municipal limits, say about 100 filled Soft drink Glass bottles and therefore, they are liable to pay Octroi on 100 Re-usable Empty glass bottles.

And Parties, instead of making due representations before the Sangli Municipal Commissioner, preferred, though rightly, a Writ, challenging the notices / Bills. Interim relief were granted to parties and Municipal authorities were directed not to take any action till further order of this Hon'ble Court.

The Sangli Municipal Corporation were heavily relying on Judgment of Hon'ble SC in M/s Acqueous Victuals Pvt. Ltd. v. State of U.P. and Others, JT 1998 14 SC 195. Although the facts of the case in this case were quite different that from present case at hand, the above judgment, among other things, stated that Parties may claim refund of octroi after paying the same and also that principles of Sales Tax and Excise cannot be applied in cases of Octroi.

The Counsels of Pepsico (Sr.Advocate Janak Dwarkadas & Learned Advocate Rajeev Talasikar) were also in fact relying on above SC Judgment and also one unreported Judgment of SC in S.M. Ram Lal & Co. v. Secy. to Govt. of Punjab and were of the view that in the light of interpretation of relevant words "consumption, use or sale”, no liability to pay Octroi accrues.

The Counsels of Coca Cola (Learned Advocate Madhur Baya & the team of Economic Law Practice) were vehemently arguing that in fact they have already paid Octroi on the Glass Bottle, as they are already paying Octroi on the filled Bottles.

In a way, both Counsels were absolutely correct in their views. But in my humble view, learned Counsels there have failed to appreciate the spirit of Octroi Taxation. And, also, they have failed to appreciate that the Judgment on which Sangli Municipal Corporation were heavily relying upon is in fact in their favour.

The Hon'ble SC in M/s Acqueous Victuals Pvt. Ltd. v. State of U.P. and Others observed in para 21 of the Judgment that principles of Sales tax cannot be applied in Octroi. The Hon'ble Apex Court is very right when it says that principles of imposing Octroi cannot be equated with other taxing statutes. Let me try to illustrate this principle.

Every goods that is manufactured is subject to Excise duty, but the same goods is not subject to Octroi unless that goods is transported to another municipal limit. The short point I am making is that -- “A goods is not subject to Octroi unless it knocks the doors of a Municipal limit expressing its desire to enter into its limits, for consumption, sale or use." Therefore, a goods manufactured is certainly going to be Excised but that goods may or may not attract Octroi. Both taxes operate on different principles.

The sweeping spirit of Octroi Tax is that it becomes payable when the goods are imported within any municipal limit for the purposes of consumption, sale or use; In the present case, it is no case of the Municipality to say that the Parties have brought in Empty Bottles within the municipal limits; and therefore, when Octroi is demanded on empty bottles & empty crates, the taxing municipal authorities must be told to produce documents which show that the person has imported within that municipal limits empty bottles & empty crates.

It is a settled position of law that Taxing statutes are to be strictly construed and logic has little role to play and the persons’ liability to pay 'a tax' must be strictly brought within the four corners of the charging section. I take leave to repeat—“It is the case of Sangli Municipal Corporation that above parties have imported within municipal limits, say about 100 filled Soft drink Glass bottles and therefore, they are liable to pay Octroi on 100 Re-usable Empty glass bottles.”

In the last, I take liberty to take you to the observation of Justice CHINNAPPA REDDY in McDowell & Co Ltd versus Commercial Tax Officer (1985) 3 SCC 230-- “..... In our view, the proper way to construe a taxing staute, while considering a device to avoid tax, is not to ask whether the provision should be construed literally or liberally, nor whether the transaction is not unreal and not prohibited by the Statute, but whether the transaction is a device to avoid tax.”. In the above cases of Hindustan Coca Cola & Pepsico India, it is not the case of Sangli Municipal Corporation that they are evading to pay Octroi duty.

Therefore, the essential question (though not raised by Parties therein) before the Hon'ble Court is-- whether Octroi can be demanded on “Re-usable Empty glass bottles” on the premise that filled glass bottles were imported into municipal limits ?

Anyway, the case is reserved for Judgment. Let’s wait anxiously.

I have apprised Advocates of both parties to consider my this proposition of law and and they may consider to move appropriate Application before Bombay High Court in this regard.

Sandeep Jalan (advocate)

(Former employee at Rajeev & Associates)

Mumbai.

This blog is originated in the felt need to educate myself as what transactions constitutes “Commercial purposes” within the meaning of Consumer Protection (CP)Act of 1986. Section 2(1)(d) of CP Act 1986 stipulates who is a consumer within the meaning of this Act. Following all ingredients must be satisfied to show one is a Consumer of goods Services within the meaning of this Act to qualify as a Complainant-

(1) that he is a person, natural or body corporate;
(2) that person buys any goods / services for a consideration or at price;
(3) that person may have paid, or promised to pay, or have partly paid and partly promised for that purchased goods / services;
(4) He is also a consumer who consumes the goods / services purchased above, with the consent of the original buyer;
(5) The goods / services purchased must not be for reselling it;
(6) The goods / services purchased must not be purchased in the regular course of his/ her commercial or business activity. Therefore, Consumer is a person who buys any goods or avail any service at a price calculable in money terms or otherwise, including the one who uses that bought goods or service with the permission of that former buyer, but he is not a consumer, who though buys any goods or avail any service at a price, not for his consumption but for reselling it or buying it for commercial ends.


The act makes a solitary exception wherein it stipulates that he is still a consumer within the meaning of this Act who buys any goods or service for reselling it, but only if he is running a small business in which he himself only is employed. Thus, this Act of 1986 plainly disallows a transaction of “Commercial purposes” to be agitated before Consumer Courts. A Similar word “Commercial transaction” which ordinarily import the alike meaning, seems to be confused with the same as “Commercial purposes”. In my considered view, both terms are not same, inasmuch as, Commercial transaction is a much wider term and Commercial purposes is relatively a term of limited import. A transaction would fall within the scope of “Commercial purposes” if the transaction is closely & inherently linked to the nature of business activity being carried out by the person alleging defect / deficiency in any goods or services. The nature of goods or services consumed though may aid in the commercial / business venture but goods or services so consumed must be clearly independent of the nature of commercial / business venture to be exempted from purview of “Commercial purposes. Like a company buying raw material for making finished goods is not a Consumer within the meaning of Consumer Protection Act of 1986. However, a Company will be a consumer wherein if it buys office machineries life fax, printers & air conditioners because the company although 'consumes' that fax, printers & air conditioners, but they are purchased not for resale and although fax, printers aid in its commercial activity but their commercial activity has nothing to do with the consumption of that fax, printers & air conditioners.


The more illustrative example can be this one. A commercial venture engaged in xeroxing business (Let me tell you that xeroxing is a big business, if you have otherwise opinion) purchased one xerox machine, is not a consumer within the meaning of this Act, for the xerox machine purchased and nature of business activity being carried out are closely merged to each other. Similarly, a commercial venture engaged in some other business activity happens to purchase one xerox machine for office purposes, is a consumer within the meaning of this Act, for his nature of commercial activity being carried out is distinct from nature of goods / services consumed. At the same time, a man purchasing a xerox machine for earning his livelihood, is still a consumer within the meaning of this Act of 1986.


Thus, in every case of Complaint before Consumer Court, the test thus to identify a transaction whether suffering from “Commercial purposes” would be- (1) to objectively observe the nature of business activity being carried out by the Complainant; and (2) then to see the transaction which is alleged as defect / deficiency in any goods/ services. (3) If nature of business activity being carried out is independent of the nature of transaction alleged, then, in my view, the transaction is not suffering from “Commercial purposes” although the transaction may have all attributes of Commerce. The fact that legislature chooses its word very carefully cannot be lose sight of. And arises another equally controversial issue that keep crops up time and again and I take leave to address it with my limited knowledge. First let me reproduce the relevant portion that needs to be expounded and unfolded here. Explanation to the definition of Consumer as contained in section 2(1)(d).-- For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;


Coming to the controversial issue – Who is that man who fits in the shoes of “....earning his livelihood, by means of self-employment”. There are two terms here - “livelihood and Self employment” that needs to be understood in the literal sense of the common man. I have to turn the pages of Oxford & if necessary other authoritative dictionary to find out the literal meaning of these two terms. Oxford Dictionary says – Self Employment is -- working for oneself as a freelance or the owner of a business rather than for an employer; and Livelihood is -- A means of securing the necessities of life. Therefore, in my view, a Complainant alleging any defect or deficiency in any goods or services and claiming benefit of this Explanation part must satisfy two conditions:
(1) He must be carrying on some occupation or business venture; and (2) By that occupation or business venture he merely able to manage the basic necessities of life. The wisdom of our Parliamentarians in inserting this Explanation can never be lose sight of, and it is to protect a small man whose life and livelihood otherwise may be jeopardized by reason of defective goods / services he has purchased in the regular course of his occupation / business venture. That small man cannot be told to agitate his grievances before extremely procedurally complex, time consuming and expensive contemporary litigation in our traditional courts.






What you say ?

Sandeep Jalan (advocate)
Janhit manch, Kuber Bhuvan, Bajaj Road, Vile Parle West, Mumbai – 400056.

[Aside from the jokes begging to be made about the lead singer of U2, I would like to state for the record that this is a very serious post.]

Before the QLTS scheme came into effect this month, qualifying in the UK via the QLTT route required you to gain 40 hours of contentious experience. This could be gained in one of two ways- either you did six months in the litigation department of the firm or you went to clinics to advise those who couldn’t otherwise afford legal advice. Being highly focussed on transactional work, I did not want to spend six months of my training contract in the litigation department- I completed my contentious hours advising at various legal advice clinics. This is their story.

There is no pretty way of describing these legal aid clinics. They are usually pretty out-of-the-way, ramshackle basement offices with poor lighting and they all possess a peculiar dank, musty smell. At times, a defunct photocopier and/or receptionist clutter the area.

Getting back to the story, with half a dozen visits, I finished the required hours. However, what had started on the side as a means of completing a particular requirement for my qualification suddenly had become an extremely important part of my experience as a lawyer in London. Why did I keep going back to these holes-in-the-wall even when I didn’t have to, you ask?

The answer to that question lies with those clients who’d queue for hours outside the clinic just to consult us, braving the harsh London winter. To date, I have seen a huge variety of clients at the clinics- the homeless, the debt-ridden, the recently retrenched- to name a few. Some clients were angry, some were plain rude, some were in tears, some had long criminal records- but above all what they all needed was to tell their stories. And I haven’t yet been able to get myself to stop listening.

I detest it when people classify pro bono as charity. On the contrary, I believe that pro bono helps corporate lawyers by providing perspective. I may have closed a multi-billion pound acquisition the same day, but pro bono has taught me that a few hundred pounds can be much more important. In some ways it’s a cleansing exercise- a panacea for the guilt of having sold out to the corporate world, the champagne dinners and the wasteful ways in which money is burnt around us.

Most importantly, pro bono taught me that my learning can be valued in non-monetary terms, i.e., when the clock isn’t running at 350 quid an hour. It has taught me to be on top of my game at all times because even when the advice isn’t paid for, the effects of poor advice are very real for the people involved. It taught me that just listening to people wins you their undying gratitude.  

Many a time I have cursed myself for being on my way to one of these clinics when I could have been enjoying a pint at the Banker on a glorious summer evening. Nevertheless, every time I’ve walked out after finishing a pro bono session, I’ve been on the top of the world. 

You can follow Nandii Reywal on Twitter at twitter.com/nandiireywal

Hi Folks !

I am in the fourth year of my painstaking 5yr NLU course. If 5th yr gives everyone the creeps, the rueful fourth gives the jitters. "Rueful" ?? YES ! RUEFUL!

After 3  of your fun and frolicking years in Law school comes the fourth year with a wave of sorrow and regret. Sorrow- to some for leaving the law school and the friends; and to some for the stark realisation of the fact that you are getting old and the best days of your life will only remain as memories (however, i guess such people are few) Regret for apparent reasons: "I could have done well" which is mostly followed by a huge " SIGH..."

Usually the vacations preceding by the fourth year a great. Mine for one went amazingly well! It was like a summer course in introspection. I know a lot of my friends planning with great gusto their career paths, who, after mere 1 month of the beginning of the classes, get engulfed by fear and anxiety. All those bright and happy faces now sit in the corners of the classroom in a stupor of negative thoughts. 

With every new recruitment comes a wave of anxiety among the 4th yrs...(" Yes dear..i am happy that you got selected...look i am smiling my widest smile...but atleast be considerate of my feelings...what will happen to me!! )

Fourth year is like a purgatory you know, to cleanse all the sins of the previous years. 

As I sit in my ergonomically designed chair and look out of my office window (a favourite pastime), my mind wanders to the dangers of being a lawyer in today’s day and age.  While lawyers of the past have faced angry clients and been targeted by hit men, apart from alcoholism and stress-related disorders the modern lawyer faces demons of his own. 

Based on my experiences at Colby, Hewitt and Richards LLP, I present to you a list of the top ten hazards faced by the lawyers of today:

1 Being mistaken for a chair by your myopic, obese boss.

Result:  Seeing stars in the day, wind being knocked out.

Recuperation: 20 minutes. 

2. Creating the perfect document by working 14 hours straight.    

Result: Deep Vein Thrombosis, severe numbness of hindquarters.

Recuperation: 48 hours.

3. Keyboard and BlackBerry overuse.

Result: Carpal Tunnel Syndrome, lack of sensation and inabilty to use fingers to change TV channels.

Recuperation: 2 months.

4. Prolonged exposure to landlines.    

Result: Inability to unstick neck from slightly tilted position

Recuperation: 6 months.

5. Lugging your work laptop around everywhere you go.                  

Result: Slipped disc, vertebral sprain

Recuperation: 1 year.

6. Using words like “prima facie” in normal conversation.

Result: Being dumped by your girlfriend/boyfriend.

Recuperation: 3 years. 

7. Walking in on your happily married boss “taking something out of his secretary’s eye”.

Result: Mental scars, underserved promotion.

Recuperation: 5 years.

8. Telling people you enjoy your job.

Result: Sudden increase in workload (since the above translates as you need more to do.)

Recuperation: 7 years.

9. Spending all your waking hours at work with good-looking people.

Result: Career suicide, sexual harassment suits.

Recuperation: 10 years.

10. Zipping up too quickly because of the tight deadline set by demanding client. 

Result: Embarrassing visit to the hospital.

Recuperation: N/A

Hardly a safe workplace environment if you ask me- ENTER AT YOUR OWN RISK!

DEDICATION

TO EVERY PERSON WHO LOVES WHAT HE/SHE DOES

It was Monday and my boss called me. She was an elegant woman who I had come to respect in the last four months of work. Being a woman, I always believed she was more sensitive to the issues at my firm. That thought was about to be broken.

In two sentences, in 45 seconds, I was told that I needed to speed up my work. My seniors were happy with the quality of the work but my pace was slowing things down for many people. Mumbai, I was told, was not a place for the weak. As I walked out, I knew that was not a warning but an ultimatum.

I didn't feel sorry for myself. I didn't feel sad because I was "slow". I felt unhappy because I was misled. The very reason I joined this firm was because of the emphasis they laid on the quality of work. That, I now felt, was a recruitment gimmick. Did no one here believe that quality precedes quantity?

The reason I worked hard was because I wanted to learn. There was a client somewhere who was paying me for my time. I wanted him/her to have the best that I could give. Most of all, if I just did the work for the sake of doing it, I would lose my interest in the work and secondly, I would not learn anything.

I have decided that I want to love my job and give it everything I have. If this means I have to be mocked for being slow; so be it. I was in this for the long haul....

Man is born free, but in chains.

Jean-Jacques Rousseau

Introduction

The number of love marriages might have gone up in the metros, but the dark reality remains different in villages of many states. To be young and in love has proved to be a nightmare for many young boys and girls, who in the name of “Honor” are being killed that too by their own family members.

Honor Killings or Horror Killings- call them by any name they are just one of other crimes born out of the unholy traditions which survive on the blood of these innocent Romeos and Juliets who dared to marry out of their gotras.

History of Honor Killing in India

The history of such killings in India has its roots rooted deep since the time of partition of the country between the years 1947 and 1950 when many women were forcefully killed so that family’s honor could be preserved. The influence of religion and social factors was so high that there was at least one such killing a day; if not more. Thus it can be seen that the partition years along with other evils gave rise to another such fatal practice that haunts our society even today.

Speaking in a seminar on ‘Prevention of honour killings in Sindh’, organised by the Sindh police, Prof Mohammad Wasim Akmal traced the history of honour killings. He blamed the Objectives Resolution (1949) for not letting Quaid-i-Azam Mohammad Ali Jinnah’s dream of a welfare state come true, arguing wherever there was ‘malookiat’, women were ‘commodified’.

However it should be noted that Honor Killings is not seen in India only, it carries its dark shades even in countries like –

Bangladesh, Brazil, Ecuador, Egypt, India, Iran, Iraq, Israel, Italy, Jordan, Morocco,

Pakistan, Sweden, Turkey, Uganda and the United Kingdom.[1]

Why Honor Killing?

 Honor killings are part of a community mentality. Large sections of society share traditional conceptions of family honor and approve of “honor” killings to preserve that honor. Even mothers whose daughters have been killed in the name of honor often condone such violent acts. Convicted killers often speak with defiant pride and without regret about their actions.

  "We do not consider this murder," said Wafik Abu Abseh, a 22-year-old Jordanian woodcutter who committed a so-called honor killing, as his mother, brother and sisters nodded in agreement. "It was like cutting off a finger." Abdel Rahim, a convicted killer who was released after two months, also said he had no regrets. "Honor is more precious than my own flesh and blood”(New York Times).

     ·         Being victims of rape

·         Refusing to marry someone chosen by their family

·         Engaging in premarital sex

·         Having an affair

·         Demanding a divorce, even in an abusive relationship

·         Talking or flirting with an unrelated male

·         Not following a strict dress code

 It is important to note that even the suspicion of a transgression is reason enough to justify a killing.

 Honor Killing – Some Key Facts

·         The United Nations Population Fund estimates that 5,000 women are victims of honour killings every year.[2]

.

·         Most honour killings of women occur in Muslim countries, although such murders are not sanctioned in Islamic religion or law.

·         Honour killings are likely most pervasive in Pakistan, where they are known as karo-kari. Women are treated as property whilst honour is so deeply entrenched in society, that the government often turns a blind eye to these honour killings.[3] Instead, the murders are reported as suicides or accidents.

·         In a study of female murders in Alexandria, Egypt, 47% of the women were killed after the woman had been raped.[4]

·         In Jordan and Lebanon, 70-75% of the perpetrators of these honour killings were the women’s brothers.[5]

·         In some countries, men who carry out honour killings escape with lesser penalties. In Jordan, honour killings are sanctioned by the law. ^[3]

·         Teenage brothers are often selected to be the executioner as their sentences are generally lighter than those handed down to adults.

 Ironically, any Law, no matter how severe it is, will be unable to check these crimes. The reason is –MINDSET that is cemented over, by the divided society of ours. Changing the mindset of the population today is the toughest thing in the world.

 A law might ban the Khap Panchyats or at the most make Honor Killing a non bailable offence punishable with death penalty; but Honor Killing will continue to prevail till we convince people, be it the illiterate village folk or high educated city dwellers, that what they are doing is a sin and an immoral act.

 Ankara, Turkey -Ignoring the pleas of his 14-year old daughter to spare her life, Mehmet Halitogullari pulled on a wire wrapped around her neck and strangled her - supposedly to restore the family's honor after she was kidnapped and raped…“I decided to kill her because our honor was dirtied,” the newspaper Sabah quoted the father as saying. “I didn't listen to her pleas, I wrapped the wire around her neck and pulled at it until she died” (The Associated Press).

I have been to court numerous times as an intern but when I went to court for the first time as an advocate it was lot different. I was suppose to file a rejoinder and ask the Judge to order the respondent to file the replication to one of the applications which we had filed.  The Judge asked me to argue on the application but I was not aware of it so the Judge was kind enough to give a further date. The most important "Date".

There is a vast difference between going to the court as an intern and going to the court representing someone.Going to the court was more of an picnic as one goes there meets friends who are also interning enjoy the food overhear some cases and came back home with a plan to do a different thing tomorrow.

It was finally Friday. After 40 hours of client billable hours inside the “BEST’” LPO in the world, I was desperate to get out of office .As I swiped out with an   extra flourish,   the   cool Bangalore breeze welcomed me outside. Bangalore in early August is a lot like my home town  Silchar in late   January…Refreshing   weather   .  I dashed to my cab which was waiting and off we zoomed. Our cab on a Friday night gets quite animated. Talks of parties and night-clubs dominate discussion. But I was lost in my world...dreaming about life, law  and love..........In Nagawara signal our cab screeched to a halt....Suddenly, my eyes were attracted to a little gal selling toys and flags....Independence day was very close and she was hoping that the pseudo-patriotism that it generates would help her earn a few extra bucks...If only she knew what independence really meant....That little gal had sparkling eyes and was trying her best to attract attention of the techies driving their flashy cars..She was singing Kannada songs to impress......Some waved her off. ...Some shooed her away... ..Some even didnot look at her as they were busy talking to their gal-friends in their black-berries...Their mobile screens are wider than their hearts.......A family driving  a Fortuner was her best bet.... Her  fortune depended on the occupants of the Fortuner......The little gal in rags could give the Management gurus a lesson or two...She ignored the parents and tried to catch the eye-balls of her target audience...The two kids in the car seemed excited on seeing the toys... .I was praying that they buy it....But their fat father refused......As i saw the glint of hope disappearing in the eyes of the little gal, I felt i should buy a toy....If only to make her day....I usually dont carry cash to office...Actually i dont need to...Sodexos take care of my lunch and transport is free....As my hands opened my wallet with hope rather than conviction, i saw a hundred rupee note...I called the gal and said "Toy Doh"....Her eyes shone with hope....And then the signal turned green....In a split second our car had started....God cheated  that little brave gal one more time....I craned my neck out  of my car but she was gone....She had vanished admits the cars.....I had tears in my eyes....May be she had too. The next Monday, when my cab stopped on the same signal, i started   searching for her .But she was not to be seen. An old man with a hump was selling magazines. Perhaps my little gal has moved on to another signal....trying new techniques to sell her toys....singing new songs to impress......

Note :- If you're waiting for the sequel to Mooting for the Professionals :- Part I, I'm terribly sorry but you'll have to wait just a bit longer. I'm still to finish the second instalment to my satisfaction. All my apologies. As a filler, I've tried my hand at verse instead of the usual prose. The usual disclaimers apply - nothing that follows is intended to have more than the most tenuous connection to reality, everything is firmly tongue-in-cheek and greatly distorted for humorous/dramatic effect, and most importantly, I do not in fact hate corporate law. I just greatly enjoy making fun of it. ;)

From Noob to Nariman (and still no wiser..)

I've got myself a corporate job,

For the power, the money, the fame;

(But how high can you really rise in a firm

That bears someone else’s last name?)

They put me in a tiny cubicle,

They hand me my diligence file;

I will not let it get me down -

If it kills me, Goddammit, I'll smile.

Some people dream of wealth, and

Some people of world peace;

I just want a corner office,

And a set of Beemer keys.

The sea is calm and sparkly;

The sky’s the colour of wine;

The horizon is unbroken,

One day that view’ll be mine.

I encourage the right gossip;

I quietly quash the bad;

My bonuses are squirreled away,

To fund my bachelor pad.

I am seen with the right people,

I laugh at all their jokes;

I cultivate an accent - 

I replace ‘dudes’ with ‘blokes’.

I read my Legally India,

I cheer for L. Bhasin;

I shudder to think of my bonuses, if

They let them white blokes in.

Silk carpet, rosewood sofa,

My secretary is a MILF;

For these, my life's little luxuries,

I am thankful to the SILF.

Years pass, they make me Partner,

Those Beemer keys are finally mine;

I let my chauffeur have them..

(Only he has the time.)

My Blackberry takes over my vacations; yet,

I accumulate air-miles;

The stunning sea-view to the right of me,

Is obscured by a pile of files.

I've gone from Folly Noob to Nariman,

(Kian knows I earn more than I reveal)

So it's odd; I still feel like a hamster,

Doomed forever to a corporate wheel.

No doubt, my shoes are shiny;

No doubt, my suit’s bespoke;

Turns out I’m still just a gold-shod buffalo,

In a golden corporate yoke.

---------------------------------------------------------------

(Edited to Add - A friend tells me 'Beemer' refers only to the BMW bikes and not the cars. Oh well, one lives and one learns. Auto-enthusiasts kindly excuse.)

Are Private Deemed Universities within the purview of Right to Information Act, 2005?

Introduction

In India there are 130 deemed university, out of which a significant number of them are private.[1] Deemed University status was meant to be conferred to the institutions which have created an excellent work in a particular field, but cannot be granted University due to some reasons.[2] The “mushrooming” of the deemed universities has led to commercialisation of education and growth of below standard educational institutions. Deemed Universities in India has been in the recent controversy for various kinds of irregularities, which includes below standard education, facilities, lower faculty-student ratio, poor management and governance, irregular admission procedure, poor research quality.[3]

The University Grants Commission (UGC) Act 1956 (hereinafter UGC Act) provides for establishment of a deemed university status under Section 3 of the Act, which reads as follows: "The Central Government may, on the advice of the Commission, declare, by notification in the Official Gazette, that any institution of higher education, other than a University, shall be deemed recognized to be a University for the purpose of this Act, and on such a declaration being made, and all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2".

Taking into consideration the recent controversy, for transparency it is important to understand and find out whether Right to Information Act, 2005 (hereinafter RTI Act) is applicable on the Private Deemed Universities.[4] The preamble to the Act states, “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority...” The Right to Information has been guaranteed a fundamental right which arises from two fundamental rights guaranteed by the Constitution – the right to freedom of speech and expression, guaranteed by Article 19(1) and the right to life, guaranteed by Article 21.[5]  Justice K. K. Mathew of Supreme Court of India in his dissenting opinion said that ‘in a government.... where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people.... have a right to know every public act, everything that is done in a public way, by their public functionaries.... The responsibility of officials to explain or to justify their acts is the chief safeguard against oppression and corruption.”[6]

A.    Private deemed Universities are within the purview of “public authority” under Section 3 (h) (d) of RTI Act.

To decide whether Private deemed Universities are within the purview of “public authority” under RTI Act it is necessary to analyse the relevant provisions of the Act. The Section 3 of the RTI Act is as under:

"public authority" means any authority or body or institution of self- government established or constituted–

1. by or under the Constitution;
2. by any other law made by Parliament;
3. by any other law made by State Legislature;
4. by notification issued or order made by the appropriate Government, and includes any–       i.        body owned, controlled or substantially financed;       ii.        non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

The deemed universities, whether private or public are established by a government notification as required under Section 3 of the UGC Act, which states, “The Central Government may, on the advice of the Commission, declare, by notification in the Official Gazette, that any institution of higher education, other than a University, shall be deemed recognized to be a University for the purpose of this Act,...”

Arguably, the private deemed universities are “public authorities” within the meaning of Section 3 (h) (d) of the RTI Act, which states that “public authority means any authority or body or institution of self- government established or constituted by notification issued or order made by the appropriate Government”.

Further, the word “includes” means that the types of institutions constituted by a government notification “includes” but are not exhaustive in nature and has been provided as an example and better understanding of the scope of the Section and such institutions are not limited to the types of institutions as mentioned under sub- clause (i) and (ii).[7] Thus, even if the institution is not owned, controlled or substantially financed; it can still be brought under the purview of the section of the Act construing the exhaustive nature of the section.

 B.     Information about Private Deemed Universities can be obtained under RTI from UGC.

Certain information pertaining to a private deemed university can be obtained under RTI from UGC. Now, the question is how the same can be achieved. As, the universities, including private deemed university are required to file and return information to the UGC under Section 2 of UGC (Returns of Information by Universities) Rules, 1979, which is as follows:

2.     Returns and Information to be furnished:
Every university shall, on or before the date specified by the University Grants Commission every year in this behalf, furnish the following returns and information to the Commission,namely-

Explanations:For the removal of doubts it is hereby declared that for the purpose of this rule, the term university means a university as defined in clause (f) of Section 2 of the University Grants Commission Act, 1956 (3 of 1956), and includes an institution deemed to be a University under Section 3 of the said Act.

Further, the deemed universities are also required to submit certain reports and is subjected to inspection by a committee which can be formed under UGC (Inspection of Universities) Rules, 2009. Deemed Universities are also subjected to inspection under S. 11 as described in Annexure – II , Section. 16, S. 17.1, S. 20 of UGC (Institutions Deemed to be Universities) Regulations, 2010. 

11.1 An institution Deemed to be University shall maintain standards, higher than the minimum, of instruction, academic and physical infrastructure, qualifications of teachers, etc. as prescribed for college level institutions by the Commission or by the Statutory Regulatory body concerned, such as All India Council for Technical Education (AICTE), Medical Council of India (MCI), Dental Council of India (DCI), National Council for Teachers Education (NCTE), Bar Council of India (BCI), Indian Nursing Council (INC), etc. and shall obtain their approval for running various programmes of study, wherever applicable. This shall be periodically monitored by the duly constituted Committee (s) of the Commission.

16.0 Review of the Academic Activities of the Institution Deemed to be University

The functions of the Institution Deemed to be University may be reviewed after a period of every 5 year or earlier, if necessary, by a Committee appointed by the Commission.

17.0 Inspection of the institution deemed to be university by the Commission

i) The Commission may cause an inspection, to be made by such person or persons as it may direct, of the institution deemed to be university, its buildings, fixtures and fittings, laboratories and equipment as also examinations, teaching and other work carried on or done and, if necessary, to cause an inquiry to be made ill respect of any matter connected with the administration or finances of the institution deemed to be university.

ii) The Commission shall, in every case, give notice to the institution deemed to be university of its intension to cause an inspection or inquiry to be made and on receipt of such a notice, the institution deemed to be university shall have the right to make such representations to the Commission as it may consider necessary.

iii) Where an inspection or inquiry has been caused to be made by the Commission, the institution deemed to be university shall be entitled to UGC [Institutions Deemed to be Universities] Regulations, 2010 appoint a representative who shall have the right to be present and to be heard at such inspection or inquiry.

iv) The Commission may communicate the result of such inspection or inquiry together with such advice as it may be pleased to offer as to the action to be taken by the institution deemed to be university to the

Vice-Chancellor who shall communicate the same to the Board of Management.

v) The Board of Management shall give proper consideration to the said communication regarding the result of inspection or inquiry and the proposals for action by the institution deemed to be university and communicate to the Commission the action, if any, which it proposes to take or has taken upon the result of such inspection or inquiry.

vi) Mere the Board of Management does not, within a reasonable time, take any action to the satisfaction of the Commission, the Commission may, after giving due consideration to the explanation furnished or representation made by the Board of Management to it, issue such directions as it may think fit and the Board of Management shall comply with such directions.

20.0 Funds, Accounts. Audits and Annual Report

i) The accounts of the institution deemed to be university shall be maintained in the name of the Institution Deemed to be University and not in the name of the particular Society or Trust,, whether financing or sponsoring the Institute or not. The accounts of the institution deemed to be university shall be kept in such forms as may be laid down by the Board of Management and shall conform to the rules, if any, prescribed by the Commission. The account of the institution deemed to be university shall be open for examination by the Controller and Auditor General of India.

(ii) The annual financial statements and accounts shall be audited by the Chartered Accountant of the institution deemed to be university.

iii) Annual Reports and the Audit Reports shall be submitted by the institution deemed to be university to the Commission within nine months of the closure of the accounting year.

It is clear that huge information regarding a private deemed university is already available with public authorities. `Information’ thus means any material in any form including records etc and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. Thus, this information can be obtained from UGC under Section 2(j) of the RTI Act which is as under:

Section 2(j): "Right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to—

(i) inspection of work, documents, records;

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

(iii) taking certified samples of material;

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

The information that can be obtained from private deemed universities includes admission procedure, faculty, courses, financial accounts, results of students, etc.

The Supreme Court in Khanapuram Gandaiah v. Administrative Officer[8] has held that under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the Public Authority under any other law for the time being in force. In a recent judgment by the full bench of Central Information Commission make the law in this regard more clear. In the case of Bindu Khanna v. Directorate of Education, Govt. of  NCT of Delhi [9] it has been observed that, " The issues relating to management and regulation of schools responsible for promotion of education are so important for development that it cannot be left at whims and caprices of private bodies, whether funded or not by the Government.” The Commission ordered the Directorate of Education to provide information to the appellant about the private school.  

Conclusion

Though apparently, private deemed universities seems to be outside the purview of RTI Act, but a close observation of the law and the recent judgments, it is clearly arguable that private deemed universities come under the RTI Act. Not only information about the deemed universities can be obtained from the UGC, but the deemed universities are “public authority” within the meaning of RTI Act. It is high time, that the deemed universities should appoint information officer as required under RTI Act.

[1] Report Of The Committee For Review Of Existing Institutions Deemed To Be Universities (2009). Available at http://education.nic.in/HigherEdu/RepoRevCom-DmdUniv.pdf .  Accessed on 02-09-2010.        

[2] Ibid.

[3] Ibid.

[4] Note: Public Deemed Universities are no doubt “public authorities” under ambit of RTI Act. So, the scope of the article has been limited to private deemed university.

[5] S.P. Gupta v. Union of India 1982 AIR (SC) 149; .Bennett Coleman & Co. v Union of India, AIR 1973 SC 783; State of UP vs Raj Narain AIR 1975 SC 865;

[6] State of UP vs Raj Narain AIR 1975 SC 865.

[7] In, Bharat Co-operative Bank (Mumbai) Ltd. v. Co-operative Bank Employees Union 2007(5) SCALE 57, the Supreme Court has held that when the word 'includes' is used in the definition, as is the case under Section 2(g) of the 1994 Act, the legislature does not intend to restrict the definition; it makes the definition enumerative and not exhaustive, that is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within the term certain matters which in its ordinary meaning may or may not comprise.;  Donald James Gifford, John R. Salter (1996) How to understand an act of Parliament, Routledge. P. 52

[8] AIR 2010 SC 615

[9] Appeal No.CIC//MA/A/2008/01117 Decision No.5607/IC(A)/2010. Available at http://www.rti.india.gov.in/cic_decisions/5607_IC_A__2010_M_38229.pdf