Judicial custody illegal, violated rights, says Sahara chief

shaharaThe Supreme Court was Thursday told that its March 4 order sending Sahara Group chief Subrata Roy and two other directors to judicial custody was foundationally illegal and unconstitutional and must go.

While assailing the March 4 order passed by the bench of Justice K.S. Radhakrishnan and Justice Jagdish Singh Khehar, the judges were told to recuse themselves from hearing the matter. The court was told this in the course of a hearing of the maintainability of a petition by Roy challenging the March 4 order on the grounds that it violated his fundamental rights, particularly under Article 21 of the Constitution.

Ram Jethmalani, who appeared for Roy, said the judges should recuse from hearing the matter if his client has apprehension of prejudice and let the same be heard by another bench.

As Jethmalani said this, counsel C.A. Sundaram – also appearing for Roy – said: “I am not invoking the doctrine of bias as has been alleged.”

Distancing himself from the position taken by Jethmalani, Sundaram said his argument was that if Roy’s petition under Article 32 of the Constitution challenging the March 4 detention order was maintainable, then the same should be heard by a different bench.

Counsel Rajiv Dhawan told the court that moments come in the profession, though rarely, when the court is told that it is “terribly, terribly wrong as it has violated the constitution and rule of law”.

Describing as an “extraordinary situation” where a person (Roy) in the middle of contempt hearing is sent to jail, Dhawan said: “Has the court made a mistake, serious enough, giving rise to the presumption of bias even if it is not there?”

Assailing the “insincerity” of the Securities and Exchange Board of India (SEBI) in the entire matter, Dhawan said the contempt is of whole order passed by the court Aug 31, 2012, and subsequently “if (we) go to entire thing, then it can’t be said that we (Sahara) are not cooperating”.

Invoking the bar (lawyer fraternity), Jethmalani told the court: “Kindly acknowledge human failure and accept your mistake. Article 21 is violated. No opportunity was given to him (Roy).”

Appearing for market regulator SEBI, counsel Arvind Dattar told the court the petition by Roy under Article 32 for enforcing of his fundamental rights against the order of the court was not maintainable.

Dattar said the order of the court could only be challenged under a petition seeking its review and not by way of writ petition under Article 32.

Meanwhile, the SEBI has rejected a fresh proposal by Sahara to deposit Rs.20,000 crore with it in five instalments starting with Rs.2,500 crore, followed by three instalments of Rs.3,500 crore each June 30, Sep 30 and Dec 31, and the balance of Rs.7000 crore March 31, 2015. The SEBI said the fresh proposal which Sahara gave March 25, was not in conformity with the Aug 31, 2012, order and amounted to revising it.

(Source: IANS)

SC to hear Sahara plea Thursday

sahara shreeThe Supreme Court will Thursday hear the plea by Sahara group chief Subrata Roy challenging the court’s March 4 order sending him to judicial custody, which he described as illegal.

The bench of Justice K.S. Radhakrishnan and Justice Jagdish Singh Khehar said they would hear the matter Thursday as they have to go through the pleadings.

Seeking his release forthwith, Roy in his plea sought the setting aside of the March 4 order saying it was illegal.

Roy said he was confined in Tihar Jail since March 4 and continues to be incarcerated for an indefinite period and does not know how long he will remain in custody and why he was in custody.

At the outset of the hearing, counsel Ram Jethmalani referred to the A.R. Antulay judgment and said that by the said judgment, the Supreme Court was obliged to rectify its own errors.

Jethmalani told the court it was embarrassing to tell the two judges that their order was not right.

“It is a deep embarrassment for me. If your lordship wants to hear me, then I have no problem,” he said.

Justice Khehar then said: “We will see if the pleadings embarrass us. We will see it. You should know, you have drafted it.”

The court directed the hearing of the matter for 2 p.m. Thursday.

Roy said in his petition that all he was aware of was that Justice Radhakrishan and Justice Khehar wanted to enforce an order of his alleged obligation to return the investors’ money.

He said the company liable has shown that it has fully complied with the order and provided adequate security for the small portion not fulfilled.

The court without compliance with law and principles of natural justice has incarcerated him under a law which does not exist and without following the ordinary cannons of natural justice, Roy said in his petition.

He contended that the order of incarceration was a complete nullity and it was the duty of the court to “terminate this unlawful detention and release the petitioner forthwith”.

The petition said the court must set right the wrong done by its order as Roy was deprived of his liberty by a “totally unjust remand to jail without judgment of conviction, without proper charges framed or notice issued and without a hearing”.

On Wednesday morning, the Sahara group moved the Supreme Court pointing to the detention of Roy in a matter involving returning investors’ balance of Rs.19,000 crore that its two companies SIRECL and SHICL had collected through Optionally Fully Convertible Debentures (OFCD) in 2008.

Roy was sent to judicial custody March 4 by the bench of Justice Radhakrishnan and Justice Khehar for failing to place before the court an acceptable proposal for securing the investors’ money.

The apex court Feb 20 had directed Roy and three directors of SIRECL and SHICL to be present in the court Feb 26. While the directors presented themselves, Roy stayed away on the grounds of his mother’s ill health.

Apparently displeased over the defiance of its order, the apex court directed police to arrest Roy and present him March 4.

On March 4, the court rejected Roy’s proposal to sell some of his assets to mobilise money to pay to marker regulator SEBI as security to cover the Rs.19,000 crore.

The two Sahara companies – Sahara India Real Estate Corp Ltd (SIRECL) and Sahara Housing Investment Corp Ltd (SHICL) – had collected Rs.24,000 crore from investors through OFCD. The court by its Aug 31, 2012, order had directed the companies to return the investors’ money with 15 percent interest.

Since the court had directed that the entire redemption of OFCDs would be done by SEBI, Sahara was asked to deposit the money with the market regulator.

In December 2012, Sahara had deposited Rs.5,129 crore with SEBI.

(Source: IANS)

Ascertain accused’s rehabilitation before sentencing: SC

supreme courtThe Supreme Court has directed trial courts to determine before pronouncing sentence whether a person convicted of murder or other heinous crimes could be reformed or rehabilitated.

“Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation,” the bench said.

Justice K S Radhakrishnan and Justice Vikramajit Sen in their judgment delivered Thursday said that while it was the duty of the court to ascertain the factors, the state was obliged to furnish material “for and against the possibility of reformation and rehabilitation of the accused”.

(Source: IANS)

SC notice on telecom operators’ plea against CAG audit

supreme courtThe Supreme Court Monday issued notice to the central government and the Comptroller and Auditor General on a plea by the telecom companies challenging the auditing of their account books by the official auditor.

Issuing notice to the government and the CAG, a bench of Justice K.S. Radhakrishnan and Justice Vikramajit Sen declined to put on hold the Delhi High Court verdict that had rejected the telecom companies’ plea challenging the department of telecommunications’ decision to audit their accounts.

Appearing for the telecom companies, senior counsel Harish Salve told the court that the high court verdict was wrong as it was not the mandate of the CAG to audit the accounts of the telcos.

“We will have to consider this,” the court said as Salve told the court that the high court has said that under the revenue sharing model, the telecom companies are account keeper for the government.

“We have no problem with the DoT or special audit but the division bench raises one notch. It says it shall be the duty of the the CAG (to audit telecom companies accounts),” Salve told the court.

As the court declined to stay the operation of the high court’s January order, Salve urged the court to tell the government not to take any coercive steps against the telecom companies.

Allaying the apprehension that government might take any coercive steps, Additional Solicitor General Paras Kuhad told the court that it would take four to five months before report on the auditing of the telecom companies account was finalized and tabled in parliament.

The court directed the listing of the matter Feb 11.

The high court held that CAG can audit that part of telecom companies account from which money goes to the consolidated fund of India under revenue sharing arrangement.

(Source: IANS)

SC seeks details of production, sale of synthetic milk from states

supreme courtThe Supreme Court Thursday asked all states and union territories to file affidavits on the steps taken by them on curbing the production and sale of synthetic milk and prosecution of the offenders.A bench of Justice K.S. Radhakrishnan and Justice Vikramajit Sen also inquired about the steps taken by Madhya Pradesh, Maharashtra, Rajasthan, Punjab, Haryana, Uttarakhand and Delhi to make provision for life imprisonment under the Indian Penal Code’s section 272 for producing and selling synthetic milk and other adulterated food.

Uttar Pradesh, West Bengal and Odisha were the only states which have amended the section to provide for life imprisonment for food adulteration. At present, under the section, punishment for the sale of adulterated food or drink items attracts maximum imprisonment of six months, or a fine which may extend to Rs.1,000, or both.

Apparently displeased with the responses of Uttar Pradesh, Madhya Pradesh and Haryana and highlighting the seriousness of the issue, Justice Radhakrishnan said that for the last two years, he was taking black coffee.The court asked Uttar Pradesh to furnish the details of the prosecutions it had launched under the amended section 272 for those found involved in adulterating food articles, including manufacturing and selling synthetic milk.

The court’s direction came after counsel Anurag Tomar, appearing for petitioner Swami Achyutanand Tirath of Haridwar-based Bhuma Niketan Ashram, told the court that though there were 52 and 22 cases of synthetic milk in the state during 2012-13 and 2013-14 respectively, but in none was prosecution launched under the section. He said it was an admitted position in the Uttar Pradesh government’s affidavit.

Tomar contended that ‘apathy and inaction’ of the central and the state governments in taking ‘effective and necessary’ measures in curbing the sale of synthetic (chemically prepared) and adulterated milk was violative of the fundamental right to life guaranteed under article 21 of the constitution.Noting that three states have amended section 272 to increase sentence for food adulteration to life imprisonment, the court, in the last hearing on Dec 5, 2013, had said: ‘Considering the seriousness of the offence, it is important that similar amendments are to be made in other states as well.’

The court impleaded all the states in the matter after Additional Solicitor General Rakesh Khanna told it that the central government has received responses from 27 states and was awaiting response from four to five others.The court by its Dec 5 order had asked the central government as well as the Food Safety Authority to also file a detailed affidavit of the number of cases they have come across with regard to adding synthetic materials to milk and milk products and ‘what action various states have taken after they have detected such adulteration’.

Giving three weeks time to the central and state government to file their replies, the court directed the listing of the matter Feb 20.

(Source: IANS)

Decide on deemed varsity status of 44 institutions, SC to UGC

bbThe Supreme Court has asked the UGC to examine a report on 44 institutions recommended to be deprived of their deemed university status after their academic standard was found to be far from what was expected and decide their fate.

A bench of Justice K.S. Radhakrishnan and Justice Vikramajit Sen said it was only concerned with the legality of the continuance of deemed university status with respect to the 44 institutions.

It said in its order passed Tuesday that there was “some conflict” between the report prepared by the University Grants Commission (UGC) and that of the Prof. P.N. Tandon committee.

Noting that there were three reports – one by the Tandon committee, another by the UGC and still another by the committee of officers, the court said the UGC “had no occasion to examine” the Tandon report and the other report has not been placed before the UGC.

The court said the UGC (Institutions Deemed to be Universities) Regulations, 2010, enables both the central government and the UGC to inspect the institutions which are deficient in terms of academic standards and infrastructure.

It directed the UGC to examine both Tandon’s and the other report.

The court said institutions were “free to raise their objections against the reports” and the UGC has to consider the same and take a decision in accordance with the law.

After examining the reports and hearing the 44 institutions, the court said the “UGC has then to tender its advice to the central government with its report”.

It, however, noted the UGC’s advice was not binding on the government “but has to be given due weight since the UGC is an expert statutory authority”.

The court also made it clear that it has not given its “stamp of approval to any of the reports and it is for the UGC to consider all the reports, with notice to the 44 institutions, in accordance with law”.

Tandon headed a committee set up to review existing institutions deemed to be universities. The committee in its report submitted in October 2009 divided the institutions into three categories.

In the first category, the report found their working satisfactory and recommended their continued status as deemed university.

In the second category, the committee found them deficient in some respect but recommended giving them three years time to graduate to the first category.

However, it said 44 institutions faced the prospect of being denotified as deemed universities, as they “neither on past performance nor on their promise for the future, have the attributes, in our considered opinion, to retain their status as universities”.

(Source: IANS)

2G case: SC issues notice on Kanimozhi’s plea for quashing charges

supreme courtThe Supreme Court Tuesday issued notice to the CBI on the petitions filed by DMK leader Kanimozhi and others seeking the quashing of the charges framed against them in the 2G case being heard by a special court on day to day basis.

A bench of Justice H.L. Dattu and Justice K.S. Radhakrishnan while issuing the notices gave the Central Bureau of Investigation (CBI) six weeks’ time to file its response.

This is the first hearing of the matter after Justice G.S. Singhvi (since retired) requested Chief Justice P. Sathasivam to assign it to another bench in view of his approaching retirement.

Others who have challenged the framing of charges by the 2G special court and on whose petition, notice has been issued including DB Reality’s Shahid Balwa, Reliance Telecom Ltd, and its top executive Surendra Pipara, Gautam Dosi and Hari Nair.

All the petitioners had moved the apex court challenging the framing of charges against them.

Initially they had moved Delhi High Court, but on the plea by the CBI, the matter was put on hold as the apex court bench of Justice Singhvi and Justice Radhakrishnan said that they would first decide the challenge to their April 11, 2011, order by which the high court was barred from entertaining any plea against the orders of special CBI court hearing 2G cases.

The court had said that if they recall their April 11, 2011 order, then the high court would hear their pleas otherwise it would dealt by the apex court.

The court by its Sep 3, 2012, order rejected the plea of corporate honchos Shahid Balwa, Vinod Goenka, Rajiv Agarwal and Asif Balwa as well as by Ravinder Kumar Chandolia, a former aide of ex-telecom minister A. Raja, challenging its April 11, 2011 order.

As the plea by Kanimozhi, Shahid Balwa, Reliance Telecom Ltd and others was awaiting to be taken up Jan 7, an apex court bench headed by Chief Justice Sathasivam said that the matter would be heard Jan 21 after senior counsel Abhishek Manu Singhvi mentioned it.

Urging the court to list the matter, Singhvi had told the court that the plea for the quashing of charges was pending for quite some time and the trial in the matter going on.

Kanimozhi had moved the apex court July 24, 2012, for the quashing of charges framed against her by the special 2G court and also the charge sheet by the CBI. The special court had framed the charges Oct 22, 2011.

The daughter of party chief M. Karunanidhi had contended that she was one of the directors of the Kalaignar TV for a short period of two weeks from June 6, 2007 to June 20, 2007 – when she resigned and she had nothing to do with channel’s financial transaction.

Kanimozhi was charged under section 120-B (conspiracy), read with 420 (cheating), 409 (criminal breach of trust), 468 (forgery for purpose of cheating), 471 (using as genuine a forged document), 193 (punishment for false evidence) of Indian Penal Code and other provisions of Prevention of Corruption Act.

The CBI had argued that Kanimozhi was an active brain behind the operation of Kalaignar TV and was in constant touch with Raja for the launching of the channel.


Apex court orders transport money to deaf and dumb

supreme courtThe Supreme Court has directed the central and state governments to grant transport allowance to deaf and dumb employees as is given to blind and orthopaedically handicapped people, and said any distinction between the two was discriminatory.
“We are inclined to allow and direct to grant transport allowance to deaf and dumb people at par with blind and orthopaedically handicapped employees of the centre and state governments and other establishments,” said the apex court bench of Justice K.S. Radhakrishnan and Justice A.K. Sikri in a recent judgment.
The court said this while allowing a petition by two associations representing the hearing and speech impaired people. The petition sought directions to the central and state governments to grant transport allowance to employees suffering from hearing impairment.
“The deaf and dumb people have an inherent dignity, and the right to have their dignity respected and protected is the obligation on the state,” said Justice Radhakrishnan pronouncing the judgment. The court said: “Human dignity of a deaf and dumb person is harmed when he is being marginalised, ignored or devalued on the grounds that the disability that he suffers is less than a visually impaired person which, in our view, clearly violates Article 21 of the Constitution of India.”
“Comparison of disabilities among ‘people with disabilities’ without any rational basis is clearly violative of Article 14 of the Constitution,” the court said. The court said the recommendation made by the ministry of health and family welfare for extending transport allowance to the hearing and speech impaired employees of the government was “perfectly legal and in consonance with Articles 14 and 21 of the Constitution of India”.
The court rejected the view of the finance ministry that “a visually impaired person cannot be equated with hearing impaired person since people who are deaf and dumb are not physically dependent on others for commuting from one place to another”. “We are of the view that travel undertaken by deaf employees is equally arduous and burdensome compared to people having other disabilities,” the court said.
It said deaf people would not be able to hear sounds of horns and passing vehicles and cannot communicate with bus conductors, auto and taxi drivers as normal people can do. Thus, they have to seek the assistance of a stranger, and the “time and effort required to reach a destination is considerably more compared to normal people”.

(Source: IANS)

Reduce train speed in forests to protect elephants: SC

eeThe Supreme Court Tuesday asked the railways to take steps for reducing speed of trains passing through reserve forests so as to save elephants who die after being hit by the fast-moving trains. A bench of Justice K.S. Radhakrishnan and Justice Dipak Misra also asked the railways to explore restricting the movement of trains including goods trains through the reserve forests at night.
The court also asked railways to mull the option of diverting the route between Siliguri and Alipurduar section. The court also directed the presence of a senior railway official on the next date of hearing on Jan 21, 2014 to respond to its queries.
Noting with regret that most of the states which were made party to the petition have not responded, the court directed the re-issuance of the notice to Assam, Odisha, Kerala, Karnataka, Tamil Nadu, Madhya Pradesh, Uttarakhand, Uttar Pradesh, Madhya Pradesh and Jharkhand.
Their response has been sought by Jan 21, 2014. The court noted that from 2007 to 2012, 77 elephants have died on account of being hit by the fast moving trains in the reserve forest. Its response came while taking note of West Bengal government’s submission that in the case of north Bengal, the only solution was reducing the speed of train, discontinue movements of goods trains at night between Siliguri and Alipurduar and divert fast moving and night trains through Siliguri-Falakata route.
Appearing for the petitioner Shakti Prasad Nayak, counsel Sanjeev Panigrahi told the court that the speed limit of the train passing through reserve forest should be reduced to 25 km per hour. The PIL petitioner has disputed the official figures contending that the killing of elephants on rail tracks was many times more than what was being officially admitted.
As many as 500 elephants have died due to such accidents in last five years, the court was told earlier. The PIL has sought the framing and enforcement of procedures and mechanisms to ensure the safety and security and protection of this endangered species.(Source: IANS)

Transgenders have right to live with equality & dignity:SC

transgenderResponding to forceful plea for ending the discrimination being meted out to transgender people and recognizing their constitutional rights, the Supreme Court Tuesday asked the government to spell out whether it would recognize them as third sex or give them the choice of being identified as male or female.

A bench of Justice K.S.Radhakrishnan and Justice A.K. Sikri, hearing a plea seeking direction for equal protections and rights to transgenders as was available to male and female citizens, was told the right to live under Article 21, available to all, should also be also available to transgenders to live with dignity and equality.

The court is hearing a petition by the National Legal Services Authority which is seeking the recognition of transgenders as third category so that they could apply for election cards, passports, driving licence, ration card, admission to educational institutions, medical treatment, hospitalization and toilet facilities.

Appearing for NALSA, senior counsel Raju Ramachandran told the court that under Article 14 that provides for equality before law and Article 16 that guarantees equal opportunities in the matter of public appointments, non-recognition of third sex of transgender for availing benefits, facilities and amenities was violative of these articles.

The court was told that considering transgender a legal non-entity was violative of Articles 14, 15, and 16.

“By interpreting the constitution’s Article 15 and Article 21 and taking judicial notice of this (transgender) category of persons (then) all enabling provisions (of the constitution) can be made applicable to them. That is all the benefits extended to social and economically weaker sections of society,” said counsel T. Srinivasa Murthy.

Murthy appeared for NGO Centre for Legal Aid and Rights represented by its president Laya Vasudevasn, a transgener woman and activists Ernest Noronha and independent consultant working on sexual orientation and gender identity issues, Gauri Suresh Sawant.

Advocating that the transgender person should, subject to medical examination, have a choice whether he wants to live and identified as male or female, he contended focus on sexual identification is a negation of Article 15 which is sex-blind.

“You are saying that under Article 21 I have a right to live with dignity. It should also recognize my right to choice of sexual identity,” Justice Sikri said summing up the submission of Murthy.

However, Ramachandran cautioned that in such a situation, there will be practical difficulties and a transgender may face hostilities in using public conveniences in the event of choosing to be recognized as a female.

Hearing will continue on Oct 29.