Monday, December 28, 2009

JUDGES AND THE RIGHT TO INFORMATION ACT - By Justice Shylendra Kumar

JUDGES AND THE RIGHT TO INFORMATION ACT

Who are the judges afraid of;

What are the judges afraid of;

It is a matter of utmost paradox that the Chief Justice of the most powerful Supreme Court in the world should be expressing, apprehension for the safety and security of the judges of the superior courts in this country by saying that revealing the particulars of assets of the judges and throwing open the information to public domain may result in harassment to judges and in turn prevent the judges from performing their duties without fear or favour. He has also expressed his fear that this may impair the independence of judges and affect their functioning.

It is equally ironic that the apprehension should have been expressed by the Chief Justice of the Supreme Court of India, that too in an interview given to a news daily and as the Chief Justice of the Apex Court of the country and in the context of the applicability or otherwise of the provisions of Right to Information Act [RTI Act], a piece of legislation which was commended for legislation by the very Supreme Court in terms of its judgment in PEOPLES UNION FOR CIVIL LIBERTIES vs UNION OF INDIA [AIR 2002 SC 2112J]. This Judgment upholds the high moral principle that the rule of law should operate uniformly; that the Constitution is above every one; that rights of citizens guaranteed under Article 19(1)(a) of the Constitution of India, i.e. right of expression, should outweigh the personal difficulties and hardships that can be pleaded by persons occupying high positions and serving as public servants. It must be remembered that the Supreme Court had emphatically ruled that no immunity can be claimed by any person, including one holding a constitutional position on the ground of any possible exposure to harassment and consequential difficulties if the particulars of the assets held by persons in such high public positions are revealed and made public. As is well known, the Right to Information Act was enacted with the object to provide for setting out the practical regime of right to information for citizens by, ensuring access to information on any given issue.

Continued here :- http://sites.google.com/site/justdvskumar/judges-rti

Sunday, December 27, 2009

JUDICIAL ACCOUNTABILITY BY JUSTICE D.V.SHYLENDRA KUMAR

Sourced from here- http://sites.google.com/site/justdvskumar/netizens-1

Justice D V Shylendra Kumar

Judge, High Court of Karnataka

Bangalore,

24^th December, 2009

NETIZENS AND CITIZENS,

I greatly value your tremendous response to my earlier communication dated 17^th December, 2009.

While I will respond in a detailed manner a little later, for the present, I would like to clarify and impress upon you all that as a sitting judge, I will not be able to respond individually or collectively to your reactions. Your responses are only to create a better awareness and can be circulated.

I have contributed an article titled Judicial Accountability, at the request of the organizers of IX Conference of Karnataka State Advocates, sponsored by the Karnataka State Bar Council, Bangalore and cosponsored by the Bar Association, Hubli, which is being inaugurated on 27^thDecember, 2009 at Hubli, on which occasion, a souvenir containing my said article will be released.

I am herewith posting the article in advance for information and the benefit of all viewers of my web-site, particularly for the benefit of the advocate viewers, who can, on reading the article, debate the contents in the conference in a meaningful way.

With regards and my good wishes for the new year.

Justice D V Shylendra Kumar

Judge, High Court of Karnataka

JUDICIAL ACCOUNTABILITY

BY JUSTICE D.V.SHYLENDRA KUMAR

Judicial accountability is a phrase, which sounds incongruous and can convey conflicting messages.

The phrase has assumed importance in the wake of the improper, irregular, incorrect manner of functioning of judicial officers, which was not an unknown phenomenon earlier but has assumed greater significance and importance in the present context, particularly in the wake of the incidents of misconduct on the part of the judges, even amongst the judges in the superior courts, being on the rise, attracting adverse public attention, media attention and conveying an impression to the people of the country that the members of judiciary are not behaving in a proper manner, are not behaving in a responsive manner are even indulging in acts of misconduct, have even misused and abused their offices for non-judicial purposes and are virtually abusing their position and powers for personal gains.

The irony is that such misconduct, improper or irregular acts and even illegal acts can never be said to be judicial acts, as such, but as things are taking place in the name of exercise of judicial functions, it has become inevitable for the people outside the judiciary to wonder as to whether there is any judicial accountability and if there should be judicial accountability, in what manner it can be ensured and enforced.

In the true sense of the phrase ‘judicial accountability’, an order passed on the judicial side can be made accountable only before a higher appellate forum and if the order or judgment is incorrect in law, it can be corrected by higher judicial body in accordance with law and as enabled in law through appeals, revisions etc. Other than this method, there is no other way of correcting an improper, irregular or even illegal judicial order.

While judges of the subordinate judiciary, which is judiciary up to the level of district courts in a state, i.e. on the civil side, civil judge (junior division), civil judge (Senior Division) and district judge and on the criminal side, comprising of judicial magistrates of first class, chief judicial magistrates and sessions judges, are all made accountable in respect of their acts, judicial or non-judicial, as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states within which the subordinate courts are located, and that can definitely, to a great extent, take care of the need for ensuring judicial accountability of the judges in the subordinate judiciary.

However, the position insofar as judges of the superior courts i.e. the judges of the high courts and the supreme court, are concerned, it is strictly governed by the provisions of the Constitution of India and in so far as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by the Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, reads as under:

Continued here.....
Also Blogged here....

Saturday, December 26, 2009

Karnataka judge declares assets online - News

Karnataka judge declares assets online - Indian Express

A judge of the Karnataka High Court, who has favoured public declaration of assets by willing judges, under the Right to Information Act, has put details of his assets and liabilities in the public domain — on a personal website. (http://sites.google.com/site/justdvskumar/asset-particulars)

Justice D V Shylendra Kumar has put up the details of his assets alongside his article, Judges and the Right to Information Act, which contradicted the Chief Justice of India’s observation that judges in general are opposed to being under the purview of RTI.

Following up on the article in The Indian Express last week, Justice Shylendra Kumar had on Monday placed a declaration of his assets before the Registrar General of the Karnataka High Court with instructions to make it available to the public. The Registrar General had on Tuesday said a decision on putting the asset declaration of the judge will have to be taken at a meeting of all the judges of the High Court. On Wednesday afternoon, Justice Shylendra Kumar, who has said that he has been searching for an avenue to declare his assets, put up the details on a personal website http://sites.google.com/site/justdvskumar/asset-particulars. “Particulars of assets of Justice D V Shylendra Kumar, Judge, High Court of Karnataka is being displayed here as the Hon’ble Chief Justice of the Karnataka High Court has prevented the information from being displayed on the High Court website,” states the introduction to the web document.

As per details put in the public domain by Justice Shylendra Kumar, the sum of the value of properties acquired, bank balances held and investments is Rs 42.86 lakh. A footnote in the declaration says the information “furnished may not be accurate to the pie or to the decimal, but is sufficient to serve the purpose for which it is furnished”. A credit of $15,000 from Justice Shylendra Kumar’s brother to his bank account in July 2008 and a Rs 98,750 worth purchase of shares of a company last year are among the assets declared. He has a 1996 Maruti Zen car. He is the first sitting judge of the Karnataka High Court to put the details of his assets in the public domain.

Times of India - He is the second judge after Justice K Kannan of the Punjab & Haryana High Court to disclose his assets. The latter did so to advocate Prashant Bhushan, convener of a campaign for judicial accountability and reforms.

Impeachment procedure does not work in reality : Justice Kumar - High Court judge fires another salvo -Deccanherald

High Court judge fires another salvo
Bangalore Dec 25 DH News Service
In yet another salvo, Justice V Shylendra Kumar, on Friday, said in clear terms that acts of misconduct and misdemeanour on the part of the some judges of the higher judiciary amounted to gross violation of the principle of judicial accountability.

In an article titled ‘Judicial Accountability’, written for the Conference of Karnataka State Advocates which will be inaugurated in Hubli on December 27, Justice Kumar refers to, without taking names, the inaction and inertia of the higher judiciary in relation to the strong allegations of corruption and misdemeanour against Karnataka Chief Justice P D Dinakaran. Justice Kumar’s article which is posted on his website (http://sites.google.com/site.justdvskumar), comes a few days after five judges of the HC including he, held a closed door meeting on Justice Dinakaran continuing to discharge administrative duties. Referring to the impeachment motion moved against Justice Dinakaran in the Rajya Sabha recently, Justice Kumar holds the view that for the present, there is no other mechanism to discipline an errant judge of a superior court. He says “If the past experience is any indication, the impeachment procedure does not work in reality and practice. More so in the present political system in the country with fragmented political parties and views.” Stating that the impeachment mechanism is not a ‘practical methodology of disciplining an errant judge of a superior court,’ Justice Kumar in effect, hints at a more foolproof system of accountability since he believes that superior court judges are immune from any oversight. Virtually questioning the moral authority of the Chief Justice of India (in the backdrop of CJI K G Balakrishnan’s role in la affaire Dinakaran) Justice Kumar says that the CJI’s “moral authority to ensure that erring judges fall in place and behave themselves is a misnomer and misconception.” In this context, Justice Kumar points out that “the moral authority of the CJI is of no value or significance, unless it can have some binding effect, which is not provided under the Constitution.” He goes on to liken the CJI to a fangless serpent who can only hiss and not bite. Clearly directing his ire against Justice Dinakaran and indicating that he “is a brazen person on whom no moral authority binds,” Justice Kumar indirectly seeks a stronger mechanism to ensure that errant judges are held accountable. He exhorts the lawyers to ensure that the judges conduct themselves in a proper manner in discharging their judicial functions.

Tuesday, December 22, 2009

Ghosts in their cupboards | Hard News

The worst of fears on the right to information (RTI) campaign have come true. The rules of the RTI Act stands amended in Bihar. Now, public information officers (PIO) have the power to split the information sought by people so that the financial burden on the applicant can increase. For instance, a question can be broken into different parts. The applicants will thus have to shell out an extra Rs 10 for each question asked. That is, the local bureaucracy has found a way to nip the RTI bud at the first point of entry itself.

The worries don't end here. The information seekers who belong to the economically weaker sections - a sizeable number - will not be able to avail of more than 10 pages of information free of cost. It is this section, despite scores of welfare schemes over several decades, which is still reeling under acute poverty. "The RTI is a weapon for the oppressed sections of the Indian society," says Information Commissioner ML Sharma. Hence, it is this section which should be empowered through this Act, so that they can check how the funds marked for them are being siphoned off by an organised nexus of officials and local mafia for years.

Multiple problems continue to hamper the speedy implementation of the law. Most governments seem disinterested. The fiasco in Bihar happened because the central government has not been able to frame basic rules that would govern the RTI all across the country. "We have time and again drafted and submitted rules to the concerned authorities," says Aruna Roy, noted RTI activist.

Hardnews was informed by a senior official in the Central Information Commission that the government does not want to tamper with the federal character of the law where state governments and other institutions have the power to frame their own rules.

A government-sponsored study, recently done by Price WaterhouseCoopers, found that only 25 per cent of the people were satisfied with the information provided to them under the RTI. When one such petitioner approached the Supreme Court for information of all cases related to terrorism and fundamentalism, he was told that the information is there on the internet. "So how many in this country have access to the internet," asked an activist. It is a fact that the majority of people in India are neither computer literate, nor do they have access to computer networks.

When the petitioner filed the first appeal, he alleged that the first appellate authority of the Supreme Court asked him to explain in English which he apparently had to do through a friend. The petitioner than lodged a complaint with the law minister, the chief justice of India and the Central Information Commissioner. The law ministry reportedly did not act. Later, again, a RTI petition was filed to know the status of the complaint; but no information was given by the office of the law minister.

The archaic system of recording everything in paper files has made the task of maintaining records arduous and cumbersome. Not enough has been done to convert them to an electronic form which can be accessed with a single click. This is used by the bureaucracy to block information since the files have to be dug out. "There is an urgent need to improve the record management system in the country. There is a need for a task force to make the records digital, starting from the lower most villages and block level," feels Medha Patkar, leading social activist.

Experts feel that a RTI module must be incorporated into the training process of all government employees. The PIOs suffer from lack of basic knowledge. Also, lack of incentives demotivates them. Activists argue that dynamic programmes and ideas should be put in place to raise awareness levels. A mix of traditional and modern methods must be envisaged so that even the most deprived sections can be targeted.

Recently, a lot of noise has been made about the proposed amendments to the RTI Act. A strong lobby within the bureaucracy wants to exempt file notings from being disclosed. It is these notings which reveal the entire decision-making process and who are the decision makers. In a democratic set up, people have the right to know about the decision-making process.

This facet of the RTI Act has been facing stiff opposition from bureaucrats and ministers who do not want to be exposed. It has also strengthened the hands of honest officers, since the corrupt ones fear that they will be publicly exposed. "It is the higher bureaucracy which is most corrupt," one information commissioner told Hardnews. Activists believe that file notings is the essence of RTI.

Also, there is much lobbying on the issue of frivolous or vexatious applications. Experts say that had the government proactively disclosed all information under section 4, the problem of frivolous applications would not have arisen. What the government terms as frivolous is actually the information which should be voluntarily put out. Several times, information is concealed under the pretext of it being a State secret.

The working of the various information commissions is under a cloud. The pendency level of appeals has taken gigantic proportions, even while some state information commissions like that of Gujarat and Rajasthan have just one information commissioner. There are reports that information commissioners are not serious, and the information commission has become a dumping ground of ex-bureaucrats.

Says Arvind Kejriwal, RTI activist, "A bureaucrat or a non-bureaucrat is not a problem. But the transparency record of the official must be taken into account before entrusting him with such responsibilities." There are also reports of public authorities not complying with the orders issued by information commissioners. The commissioners have failed to penalise the PIOs for their repeated misgivings despite strong, punitive provisions.

Even if the RTI reveals a corrupt practice, there is no mechanism in place to follow up on that and initiate proceedings. Courts take months/years. This leaves ample time for erring officials to sanitise records. Now, there are demands of a national grievance redressal commission for swift action on such cases of corruption.

The RTI Act, born out of a sustained movement by grassroots activists, has come a long way in its brief journey of four years. The awareness is steadily increasing, although the government is not a hero in this success story. The situation of RTI Act in the country, noted activists like Aruna Roy and Shekhar Singh argue, is better than other countries, including South Africa, the UK and Mexico, where similar acts exist. Reportedly, in South Africa, only 22 per cent of the applicants get the information they want.

"A kind of grievance redressal mechanism for petty complaints has thus developed. The stipulated time period of 30 days for providing information is sometimes looked upon as 30 days for solving the problems of the applicant," says Shekhar Singh.

An application under the RTI Act has also become a source of information for higher officials who otherwise would normally not inquire into what their sub-ordinates are doing. Now, the task of disseminating information is entrusted on a high-ranking official.

The judges of the Supreme Court have to declare their assets. The chief minister of Karnataka, BS Yeddyuruppa was forced to announce that he will not be spending a crazy amount of money in renovating his house. And at last, some long kept secrets, held close to their hearts by possessive bureaucrats and politicians, are now coming out of the closets.

Thursday, December 17, 2009

BHOPAL GAS DISASTER - Judicial Failure - From the Frontline

BHOPAL GAS DISASTER - Judicial failure - V. VENKATESAN

Source - Frontline

Twenty-five years after the disaster, the principle of absolute liability, the cornerstone of litigation, faces the risk of being diluted.

THE 25th anniversary of the Bhopal gas disaster has justifiably attracted considerable attention not only to the plight of the survivors but to the failure to secure justice for them. How prepared the country is to meet disasters of a similar scale and force their perpetrators to compensate the victims adequately is an equally important issue to consider during the anniversary.

For long, the Indian judiciary’s attitude towards mass disasters was governed by the rule laid down in the English case Rylands vs Fletcher (1866). According to this rule, there are certain industrial activities which, though lawful, are so fraught with the possibility of harm to others that the law has to treat them as allowable only on the term of insuring the public against injury. The rule is also called the principle of strict liability.

The facts in that case were that the defendant, who owned a mill, constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the mill owner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. The mill owner was made liable for the damages resulting from the flooding.

There are many activities that are so hazardous that they may constitute a danger to the person or property of another. The principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. Permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes as an appropriate item of its overheads. Over the years, this principle got severely diluted in England, and several exceptions to the rule were recognised by English courts. Such exceptions included natural disasters, the act of a third party (sabotage), the plaintiff’s own fault or consent, and the natural use of land by the defendant or a statutory authority.

Traditionally, the principle of strict liability allowed for the growth of hazardous industries while ensuring that such enterprises would bear the burden of the damage they caused when a hazardous substance escaped. The Supreme Court of India got the first opportunity to review this rule in 1985, soon after the Bhopal tragedy. This was the Shriram gas leak case, which was decided by the Supreme Court in December 1986. In this case, the petitioner M.C. Mehta, an environment lawyer, sought the court’s directions to close and relocate the caustic chlorine and sulphuric acid plants of the company Shriram, which were located in a thickly populated part of Delhi. Shortly after Mehta filed the petition, on December 4, 1985, oleum leaked from Shriram’s sulphuric acid plant, causing widespread panic in the surrounding community. The ongoing Bhopal litigation influenced the court’s decision in this case considerably.

In the wake of the Bhopal gas leak disaster, Union Carbide Corporation (UCC), the parent company of Union Carbide India Limited (UCIL), which ran the pesticide unit, presented a sabotage theory to shield itself from the claims of the victims. UCC alleged that a disgruntled employee working in the factory had triggered the escape of the gas. Such a theory afforded a defence under the rule of strict liability.

The Supreme Court rejected the rule of strict liability, and in its place applied its new doctrine of “absolute liability”. According to this, where an enterprise is engaged in a hazardous or inherently dangerous activity and an accident in such an operation results in the escape of a toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions under the rule of strict liability.

The Madhya Pradesh High Court first applied the absolute liability theory to support its award of interim compensation to the victims, on April 4, 1988. The High Court’s view was that after the no-exception standard of Shriram, UCC’s liability was “unquestionable”. However, this judgment was never implemented in view of the final settlement reached under the auspices of the Supreme Court in 1989.

In 1992, however, the Supreme Court, while hearing a petition from UCC to review the final settlement, recognised the corporation’s right to raise and urge defences, thus questioning the validity of its own “without exception” absolute liability principle. This ruling of the Bhopal Review Bench was a setback to the court’s enunciation of the absolute liability principle in the Shriram case.

Fortunately, the court, in 1996, accepted the validity of the absolute liability principle in the Bichhri case. In this case, units located in an industrial complex in Bichhri, Rajasthan, devastated the environment by discharging untreated toxic chemicals and sludge. The court found that all the regulatory agencies, including the Central government, had failed to force the polluter to pay. The court disagreed with the finding of the Bhopal Review Bench that the absolute liability principle laid down in the Shriram case was obiter dictum. It held that it was bound by the principle. In another case, involving pollution caused by the discharge of untreated effluent by industries in Tamil Nadu (Vellore Citizens Welfare Forum vs Union of India, 1996), the Supreme Court applied the principle of absolute liability to even non-toxic pollution cases.

The court explained that the polluter pays principle required the polluter not only to compensate the victims of the pollution but also to pay remedial costs to restore the damaged ecology. It also held that once the activity carried on was hazardous, or inherently dangerous, the person carrying on such activity was liable to make good the loss caused to any other person by his activity, irrespective of the fact whether he/she took reasonable care while carrying on his/her activity. The principle stems from the logic that the enterprise alone – and not the person affected – has the resource to discover and guard against hazards or dangers. The person affected cannot do so because of the practical difficulty in establishing that reasonable care was absent or that the damage to him was foreseeable by the enterprise.

In January 1991, Parliament enacted the Public Liability Insurance Act (PLIA), giving statutory recognition to no-fault liability. Under this Act, victims of a hazardous industrial accident are entitled to compensation at prescribed levels, without providing any proof of negligence. The maximum compensation under the Act, however, is limited to a measly Rs.25,000 although the right of a victim to claim larger damages under any other law is expressly reserved. To ensure prompt payment of compensation to victims, the Act requires all hazardous enterprises to obtain sufficient insurance cover and provides for an independent machinery administered by the District Collector for the filing for and adjudication of claims. The rules framed under the PLIA limit the liability of an insurer to Rs.5 crore for every accident.

With only a few cases reported under the Act, it has not been found to be of any help to ensure timely payment of adequate compensation to the victims of accidents involving hazardous industries. Poor enforcement of the Act by the authorities has meant that its laudable objectives are out of sync with reality.

The National Environment Tribunal Act (NETA), 1995, extended the application of absolute liability without limitation to all cases where death or injury to a person (other than a workman) or damage to any property or the environment resulted from an accident involving a hazardous substance. The “owner”, who is defined as a person who owns or has control over the handling of any hazardous substance at the time of the accident, is liable to compensate the victims on a no-fault basis. Application for compensation may be made to the tribunal established under the Act. The Act is not in force as the government has not yet notified it, allegedly under pressure from business houses dealing with hazardous substances.

The law was enacted in pursuance of decisions taken at the United Nations Conference on Environment and Development (in which India participated) held in Rio de Janeiro in June 1992. The statement of objectives of the Bill stated that it was considered expedient to implement the decisions of the aforesaid conference so far as they related to the protection of the environment and the payment of compensation for damage to persons, property and the environment while handling hazardous substances. The enactment of NETA – and its subsequent non-notification – is seen as representing symbolic compliance with the decisions taken at the international conference, just in order to hoodwink the international community, rather than any genuine interest in the protection of the environment.

NON-NOTIFICATION OF NETA

Meanwhile, in order to skirt uncomfortable questions regarding the non-notification of NETA, the government has come out with another Bill, the National Green Tribunal Bill, 2009, to replace the 1995 Act. In terms of relief to victims of environmental disasters, the new Bill, according to the environmental lawyer Ritwig Dutta, is worse than the 1995 Act. It limits the locus standi of the complainant before the tribunal, making it impossible for human rights organisations to intervene on behalf of the victims. Activists are also aggrieved over the Bill’s time limit for entertaining applications. It stipulates that no application for the adjudication of a dispute shall be entertained six months after the occurrence of the alleged cause of action.

Similarly, the Bill says no application for grant of compensation will be entertained unless it is made within five years of the occurrence of the alleged cause of action. Both these deadlines are extendable by 60 days if the tribunal condones the delay. It is pointed out that this is no relief at all as in many cases, the environmental impact of disasters is felt long after the occurrence of the disaster. The drafting of the Bill without any consultation with the stakeholders has disappointed environmental activists.

While the executive’s concern for absolute liability standards is dubious, the judiciary appears to be wavering on its decade-long commitment to the principle. The quest of the survivors of the gas tragedy for just compensation and the Supreme Court’s reluctance to grant it – in line with its past commitments – form a sad chapter in the history of disaster litigation in India.

On July 19, 2004, the Supreme Court directed the Welfare Commissioner of Bhopal to disburse the unspent amount of Rs.1,503 crore in the Settlement Fund on a pro-rata basis to all the (5,70,000-odd) victims who had been awarded compensation for death and injury. The court also allowed the petitioners, the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS), the option of filing an application for augmentation of the compensation amount in proportion to the magnitude of the disaster (which turned out to be five times greater than what was assessed at the time of the settlement). But the court dismissed on May 4, 2007, an application they filed seeking enhancement of the compensation by a factor of five, stating that the task of determination of facts was that of the Welfare Commissioner, Bhopal. Both the Welfare Commissioner and the Madhya Pradesh High Court later rejected their plea on flimsy technical grounds.

The petitioners before the Supreme Court had argued that only slightly over half of the $470 million of the Settlement Fund (Rs.713 crore at the then prevailing exchange rate) had been utilised to settle five times more claims than those estimated in 1989. The Supreme Court, on May 4, 1989, directed that 84 per cent of the amount be disbursed as compensation in 3,000 cases of death and 1,02,000 cases under four different categories of injuries, ranging from simple ones to those of utmost severity, and 16 per cent be set aside to compensate those who had lost property and livestock. Thus, out of the Rs.713 crore, Rs.113 crore was set aside for those who had lost property and livestock and for specialised medical treatment and Rs.600 crore was to be disbursed among the assumed number of 1,05,000 gas victims as compensation at an average of Rs.57,143 a victim at the 1989 value of the rupee.

However, as per the report of the Office of the Welfare Commissioner, as on December 31, 2008, not less than 5,74,367 gas victims were actually awarded compensation, which works out to an average of Rs.12,410 a victim at the 1989 value of the rupee. In the order dated May 4, 1989, the Supreme Court had assured the victim groups that if the total number of dead and injured turned out to be more than the number on which the settlement was based, the settlement was liable to be reopened. The Supreme Court did not expect the number of claimants to rise by five times and had asked the Centre rather than UCC to meet the shortfall in the compensation amount, if any. However, the genetic damage caused by the disaster meant that the children of the victims and their descendants also medically suffered the impact of the tragedy in one way or the other and would add to the number of claimants substantially. The gas victims were also denied interest for the period of undue delay in the adjudication and award of compensation – a process that stretched from 1992 to 2004.

These developments in the Bhopal compensation saga have led observers to question whether the executive and the judiciary are indeed keen to follow, as they seemingly claim, the absolute liability principle in letter and spirit.

Wednesday, December 16, 2009

Justice to the Poor - India's Chief Justice says

India's courts must bring justice to the poor

By Bijo Francis
Column: Incredible India Source

India’s Chief Justice K. G. Balakrishnan has warned that riots could result if the country’s courts do not act to address the judiciary’s inability to deliver decisions in a timely manner. The chief justice was addressing the press in Kochi, Kerala state on Sunday.
The admission of the chief justice suggests that the judiciary is waking up to the reality that the root cause of many internal disturbances is the denial of justice to the people. Court cases sometimes take a decade to be resolved. Yet judicial delay is just one among several ways in which justice is denied to the people.
The Maoist and Naxalite movements are one example. Naxalism and Maoism in India are a collective and violent response against decades of injustice meted out against the poor. Both movements gain their core strength from the poorest of the poor. It is not a coincidence therefore that these movements spread most quickly among the tribal peoples.
Over the past 10 years tribal communities, particularly those in India’s central and southeastern states, have been pushed to the fringes of society. The short-term and profit-motivated mining and deforestation policies implemented by the state as well as the central government have stolen the rich natural resources that the tribal communities depended upon for hundreds of years.
Most industrial schemes in the region were implemented under the excuse of development, and indigenous communities were never consulted before the schemes were designed or executed. This was a denial of these people’s right to a hearing, a complete negation of their indigenous wisdom and an insult to their culture.
The government has repeatedly denied requests by members of tribal communities for a fair hearing and silenced those who protested. Hundreds have lost their lives in the process. In addition, state agencies like the police and the forest department have wreaked havoc in the region by fabricating cases against members of tribal communities.
Officers also engage in criminal activities including rape, murder and stealing tribal properties, but not a single state agent has been successfully prosecuted for any crimes committed. The police firing into a crowd of protesting tribal members at Narayanpatna police station in Orissa state in November is just the latest such incident.
Similar problems have arisen in India’s northeastern states. There was a lack of consultative process even during the period of India’s first prime minister, Jawaharlal Nehru. The leaders of these people were not involved in discussions during the drafting of the country's Constitution.
A chief commissioner or a lieutenant governor, acting as an agent of the president, ruled India’s northeastern state of Manipur for 28 years. Indeed, there was an advisory council appointed by the president in consultation with the chief commissioner, which met once in three months, presided over by the chief commissioner. The council was an advisory body and as such its advice was not necessarily binding on the chief commissioner.
This situation continued until July 1963. The intervening period of criminal maladministration was long enough to create the state of serious unrest that exists in Manipur today.
The institution headed by Justice Balakrishnan has a role to play in Manipur today. The people of Manipur have repeatedly approached the court seeking its intervention against the implementation of the Armed Forces (Special Powers) Act, 1958 in parts of the state.
The draconian law provides statutory impunity to the armed forces and security agencies like the police who operate in the state for criminal acts like murder. Even a non-commissioned officer can shoot and kill a person on mere suspicion under this law, and officers have used their arbitrary authority in plenty. The number of extrajudicial executions carried out in Manipur has been the highest in the country for the past several years.
It is indeed elementary that any law that provides impunity to law enforcement agencies would be misused. Yet the Supreme Court of India lacked the elementary sense each time someone approached the court seeking the court's intervention to quash the law.
Riots and civil unrest in India today are mostly limited to regions that have suffered decades of denial of justice. The worst affected are once again the poorest.
India's courts have in the past spoken for the poor. However, they have also shown a trend of corporatization where the poor have no role. It remains to be seen whether the Indian judiciary can recover its lost love for ordinary Indians.

Tuesday, December 15, 2009

Make judicial system more transparent - Deccan Herald Blog

The issue of selection of an allegedly corrupt Chief Justice of Karnataka, PD Dinakaran, to the Apex Court still remains a hot subject of public interest. While news of Dinakaran hits the headlines almost every day, the Chief Justice of India (CJI), the principal architect of the Supreme Court Collegiums that nominated Dinakaran in the first place, has chosen to keep silent about whether or not Dinakaran should be impeached.

This is on the ground that issues pertaining to the judges’ selection process should not be discussed in an open public forum. But the question is why not? Citizens in any democratic country must have the right to know the background and character of the judges that would decide rights and wrongs of the society. Some try to argue that everything about the judges must remain behind closed doors as otherwise their judicial independence might be jeopardized. Such arguments can possibly have no logical basis.

All federal judges in the USA, even for the Supreme Court, must go through a rigorous cross-examination process by both houses of the Congress before they could be affirmed for the judicial post. The cross-examination is shown to the public in live television. This only provides more transparency to the entire system of judges’ selection and helps to weed out the corrupt and disingenuous persons ever becoming a judge.

Many judges in the US nominated by the president, even those selected for the Supreme Court, have been rejected by the Congress after they failed to perform when questioned about their sordid past in live public television. Justice Clarence Thomas, a sitting member of the US Supreme Court (they have life-time appointment in the US federal courts), went through incredible public humiliation during the public cross-examination process by the members of the Congress before being appointed to the Supreme Court about allegations of sexual harassment and his past relationship with Anita Hill, one of his subordinates earlier in his career. But the intense public grilling of Justice Thomas did not infringe on his judicial independence and instead, it perhaps made him a stronger and better judge in the Apex Court.

There can be no reason for the Indian CJI to go behind the curtain about questions on Justice Dinakaran. Truth is always right and the justice system must not shy away from bringing the truth to the knowledge of every citizen of the country. May be it is time that the Indian lawmakers think about moving forward with the time and make changes in the law for complete transparency in the process of selection of judges.

Posted by : Dr. Kunal Saha Professor, HIV/AIDS Center Columbus, Ohio, USA
Deccan Herald Blog

Monday, December 7, 2009

Rio Tinto’s legal switch puts pressure on London - Times Online

Rio Tinto’s legal switch puts pressure on London - Times Online

Rio Tinto has hired a team of lawyers in India to try to reduce its annual £60 million legal bill by 20 per cent. The move will send a shudder through Britain’s commercial legal market, which earns billions of pounds a year in fees from big banks and multinationals. The Anglo-Australian miner, with CPA Global, a legal outsourcing group, has recruited 12 lawyers in Delhi to work for it on tasks such as reviewing documents and drafting contracts.

The unit is expected to double in size within a year and will save the company 20 per cent of its annual legal budget, believed to be about $100 million (£61 million). Rio has 100 lawyers worldwide and uses law firms such as Linklaters and Baker & McKenzie for external advice.

It began a shake-up of its legal department as part of cost-cutting that that will lead to the loss of 15,000 jobs. Leah Cooper, Rio’s managing attorney, said: “We took a look at our internal costs and the amount we were spending on outside counsel and saw an opportunity to make significant changes.”

Rio Tinto estimates that its Indian team, which has operated since May 1, will be seven times cheaper than comparable lawyers in London. It said that it had already saved more than $1 million. Other big companies, which can spend from £10 million to £100 million a year on legal costs, are thought to be considering similar arrangements. Senior company lawyers are under increasing pressure to slash spending on outside lawyers. This has led to big law firms being squeezed on hourly rates for even complex work, such as tax.

Rio’s move is a particular blow. While some companies have outsourced standard legal work to India, Rio Tinto is believed to be the first big company to recruit a team of fully qualified lawyers to perform substantive legal work that otherwise would have been done by lawyers in London.

CPA Global is a private Jersey company with a $1 billion turnover. It specialises in trademarks and patents and acts for clients such as Microsoft. It has spent more than $50 million on legal facilities in Delhi and expects to recruit 500 lawyers there in nine months. In two years, it aims for 3,000 lawyers in Manila, New Zealand and South Africa.

Saturday, December 5, 2009

McCurry - Wall Street Journal Article

Source - Wall Street Journal

Any trademark lawyers care to weigh in on this case? We don’t know trademark law well enough to answer why we feel this way, we have a sense that U.S. trademark law might have dictated a different result.

The news: McDonald’s Corp. on Tuesday lost an eight-year battle to prevent a family-run Kuala Lumpur restaurant from calling itself “McCurry.” Click here for the WSJ story.

Huh. So McCurry lives on? Apparently so. Sri Dev Nair, a McCurry lawyer, interprets the ruling as meaning that as long as other restaurants distinguish their cuisines from that of McDonalds, other restaurants are free to use the prefix. McDonald’s officials couldn’t immediately be reached for comment, but the Associated Press reported the company’s counsel as saying it will abide by the judgment.

McCurry’s struggle to be known as McCurry has become a cause celebre in Malaysia in recent years. Established in 1999, the restaurant adopted a Western-style fast-food ambience to serve traditional Indian and Malaysian dishes, such as fish-head curry.

“We chose an international-sounding name to attract as many customers as possible,” said P. Suppiah (pictured, left), one of the restaurant’s owners. McCurry, he said, is shorthand for “Malaysian chicken curry,” and the restaurant’s logo displays a bright-yellow chicken giving a thumbs-up sign.

Suppiah’s 24-hour restaurant quickly become a local icon in the Jalan Ipoh district of Kuala Lumpur, with red-and-white signage and a popular menu with Malaysian-style tea, coconut rice with spicy shrimp and chicken, and chicken tandoori.

McDonald’s, however, saw McCurry as a legal threat. They first sued McCurry for trademark infringement in 2001 and a court ruled in favor of McDonalds in 2006.

McCurry appealed, and the Court of Appeal ruled in the Malaysian restaurant’s favor in April this year, pointing out that McCurry serves curry, not burgers. McDonald’s then took the matter to Malaysia’s Federal Court, which on Tuesday ruled that McDonald’s can’t appeal against the lower court verdict.

Again, we’d love a bit of insight here. Seems to us that if a Western-style fast-food sushi restaurant decided to call itself “McSushi,” it might be outta luck.

McCurry Wins Big McAttack in Malaysia
Kuala Lumpur Eatery Defeats Trademark Challenge From McDonald's in Country's Top Court

American fast-food giant McDonald's Corp. on Tuesday lost an eight-year battle to prevent a family-run Kuala Lumpur restaurant from calling itself McCurry, after Malaysia's top court said the Indian-food joint could use the prefix "Mc" in its name.

A McCurry lawyer, Sri Dev Nair, said the ruling means McDonald's doesn't have a monopoly on the prefix "Mc," and that other restaurants could also use it as long as they distinguished their food from McDonald's.

Adv Yogesh Naik's B-law-g

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