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Friday, May 28, 2010

An Interesting Find - Instant Indian Online Divorce Papers, Rs.4,508-00 Do it Yourself Divorce Forms.

An Interesting Find on the Net that sounds more Competition for the Lawyers practicing in India.

OurDivorceAgreement.com: Instant Indian Online Divorce Papers, Rs.4,508. Do it Yourself Divorce Forms.

Get a complete Indian Premium Uncontested Divorce for what you would pay for the first hour of legal fees!



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Here's how it works:

Enter your information in our easy online agreement and filing forms.

Click... your complete divorce agreement and filing forms are instantly created for you.

Print your documents to file them with the divorce court in your jurisdiction.


It's that simple !




A Sample Divorce Form onthe site - here


FAQs :-



Q: Will this site work for my country?


A:   Yes. OurDivorceAgreement.com guides you to generate your Property Settlement Agreement, specifying how to handle the issues of your divorce - and Child Care Plan (if you have children). This portion of our site will apply throughout India.
Then, you are linked to your court filing forms for completing your divorce. The filing forms are specific to the different religious groups within India.  
The site also generates a spreadsheet, listing  the division of your assets and liabilities and  financial disclosure forms for you and your spouse that are required by the Court.

Some more FAQs on the site....

Thursday, May 27, 2010

A Lawyer with Naik as his Last Name - Amol S. Naik: McKenna Long & Aldridge LLP

Amol S. Naik: McKenna Long & Aldridge LLP

Amol S. Naik


Associate - Atlanta
303 Peachtree Street, NE
Suite 5300
Atlanta, GA 30308-3265
TEL: 404.527.8553
FAX: 404.527.4198
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Experience

Amol Naik focuses his practice on representing elected officials, corporations and other political entities with respect to federal, state and local election law, campaign finance, lobbying law and ethics issues. Mr. Naik is a member of the firm’s political law team and has experience representing clients before the federal election commission and state ethics commissions.
Most recently, Mr. Naik lead the firm's Political Law Team in the launch of its Pay to Play blog. The blog is dedicated to helping readers monitoring the status of proposed pay to play legislation and is set to become a leading online community for analyses on the impacts of pay to play regulations on the state level in reference to lobbying, contributions and gifts. Please visitwww.paytoplaylawblog.com for the latest information on this topic.
Mr. Naik also maintains an active complex litigation practice. His experience includes participation in numerous commercial litigation cases, various employment disputes, and insurance matters.
Prior to joining McKenna Long & Aldridge, Mr. Naik served as Chief of Staff to the Georgia Senate Minority Leader. In that capacity, he drafted legislation, analyzed proposed law and coordinated communications efforts for the Minority Caucus.
During law school, Mr. Naik was Notes and Comments Editor of the Emory International Law Review, president of the Sports and Entertainment Law Society and co-founder and chairman of the Emory Law Young Democrats. He was also the recipient of an Atlanta Bar Association Minority Clerkship.
Before law school, Mr. Naik was a journalist, including a stint at the Washington DC bureau of an international daily newspaper. Mr. Naik has written articles that have appeared in numerous publications, including the (Toronto) Globe and Mailand (Raleigh, N.C.) News and Observer. Additionally, articles ghost written by Mr. Naik for elected officials have appeared in various publications including theAtlanta Journal-Constitution.
Mr. Naik has extensive experience with political campaigns, having actively participated in numerous federal, state and local campaigns. He is a member of the University of North Carolina Young Alumni Council, a Truman National Security Project Fellow, and serves on the Boards of Directors of the Red Clay Democrats and Indian American Leadership Initiative. Law & Politics and Atlanta Magazine recognized Mr. Naik on their 2010 list of Georgia Super Lawyers Rising Stars. He is also a member of the 2007 L.E.A.D. Atlanta Class of Leadership Atlanta.

Education

  • J.D., Emory University School of Law, 2005
  • B.A., University of North Carolina at Chapel Hill, 2001

Admitted

  • Georgia
  • United States Court of Appeals, Eleventh Circuit
  • U.S. District Court for the Northern District of Georgia
  • U.S. District Court for the Middle District of Georgia
  • Supreme Court of Georgia

Wednesday, May 26, 2010

Justice Shylendra Kumar visits District Bar Association, Karwar


After taking over as the Administrative Judge of the District, Justice Shylendra Kumar of the Karnataka High Court, came visiting to Karwar, on the 18th May 2010. These pictures were taken in the Karwar District Bar Association, where His Lordship addressed the lawyers assembled in full quorum.


The District and Sessions Judge - Sri. B. M. Angadi, Fast-Track Judges - Sriyuths Balekai and Sarvodaya Shettigar, Senior Civil Judge and CJM - Sri. Narayanappa, Additional Senior Civil Judge - Sri. Siddalinga Prabhu, and Junior Civil Judge and JMFC - Smt. Pallavi, were also present.

Justice Shylendra Kumar, then inspected the New Court Complex, and the on-going Construction of the First Floor of the Complex. He found glaring defects in the Construction and advised the Bar Members to file Criminal Complaints against the erring Officials and the Civil Contractor. Interestingly, the PWD Officials, and the Contractor or his workmen were not present on that day.


His Lordship also inspected the site where the Construction of the Lawyers' Chambers was in progress, next to the existing Sessions and District Court building, built during the British times at Karwar.

The President, Secretary, B. S. Pai and other Senior Members of the Karwar Bar accompanied Justice Shylendra Kumar.


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Tuesday, May 18, 2010

Online Introductory Course in Ecommerce Law - Asian School of Cyber Laws



Course name:Online Introductory Course in Ecommerce Law
Conducted by:Asian School of Cyber Laws
Course starts:1 Aug 2010
Course ends:30 Sep 2010


Online Regiistration Form Available herehttp://www.asclonline.com/oic/ecom/index.html


Contact
  • Asian School of Cyber Laws,
    6th Floor, Pride Senate,
    Opp Sigma House,
    Senapati Bapat Road,
    Pune - 411016.
    India

Monday, May 17, 2010

How law students should use LinkedIn - LEORA MACCABEE at Lawyerist.com


There is no doubt about it – if you are a law student and do not have a vibrant, comprehensive, and frequently-updated profile on LinkedIn, you are missing an essential tool in your job hunting, professional networking, and personal branding tool box. Kevin O’Keefe was spot-on in his post last Sunday about law students and LinkedIn.
From one law student to another, here are the five B’s to mastering LinkedIn: the Basics,Beefing up your profile; Building your network; Branding yourself; and Best practices for job searching.

The Basics:

  1. Every sentence on your LinkedIn profile is an opportunity for Search Engine Optimization (SEO). Using common keywords, industry terms and active language makes LinkedIn and Google searchers more likely to find you. However, a LinkedIn profile should be more chatty (read: networking) than a formal resume (read: job search). Make sure your profile is completely truthful.
  2. Describe your education and employment history in detail. The “summary” is your new elevator speech. “Activities” is for personal tidbits like your love for biking or singing. Include professional skills in your “specialties” and craft a pithy “title” for your profile that reflects your status and interests. For legal confidentiality purposes, do not mention current or former clients without their consent.
  3. Add links to your websites, blogs or twitter feeds that you wish to make a part of your professional brand. Your LinkedIn “status” is immediately projected onto your connections’ home pages. Update your status once-a-week at minimum. Avoid mentioning in your status any non-public aspects of cases you are working on as doing so may violate your client’s confidentiality. A professional looking photo is a “must.”
  4. Create a “Vanity URL” for your public profile. On the “edit profile” page, click “public profile,” and change the link from http://www.linkedin.com/in/1234skdfjdjf tohttp://www.linkedin.com/in/leoramaccabee (insert your name here). This will increase your profile’s Google ranking and will be easier to promote on business cards.

Beefing Up Your Profile:

  1. Once you have filled in your LinkedIn profile basics, join Groups, add Applications, and get Recommendations. When you join a group, you can see the full profiles of all members, directly contact them on LinkedIn and search among the members using specific keywords (like law firm names, or locations). Join your undergraduate alumni/ae group. If your law school does not yet have a group on LinkedIn, create one. See the group I created forNortheastern University School of Law as an example.
  2. Add applications to your home page (only you see it) and your profile (everyone sees it). Add the “Events” application. Add the “Wordpress” or “Blog Link” application to feed your blog posts directly onto your LinkedIn profile. Add “Company Buzz” to see who is tweeting about you or your potential employers.
  3. A recommendation on your profile helps to make it 100% complete; gets you listed in LinkedIn’s “service provider” directory; and improves your professional brand. Never give false or misleading recommendations to others, and only ask for recommendations from people who knew you well in the capacity for which you are seeking a recommendation.

Building Your Network:

  1. Connect backwards in history: send invitations to high school, college, graduate and law school classmates, former colleagues, family, friends and family friends, old teachers/professors, and anyone in your email address books. And then connect forwards: invite people you meet at conferences and trainings, reporters who interview you, and future colleagues.
  2. DO NOT use LinkedIn’s generic language in invitations to connect. Make the subject line and the message personal and remind the individual how you know them. NEVER say “I do not know” to someone who asks you to connect with them. Doing so tells LinkedIn that the person may be a spammer. If you do not know a person, archive the message or send the person a note saying you forgot how you met, and ask him/her to refresh your memory.

Branding Yourself:

  1. Brand yourself with your profile language and status updates; by creating groups; by asking and answering questions through the “Answers” tab; by giving and getting recommendations; by posting events; or by bringing your connections together (i.e. a job seeker and job hunter).
  2. The “Answers” tab gives you an opportunity to answer questions in your field of interest by posting resources, links or advice. If the questioner ranks your answer as the best response, you are added to LinkedIn’s list of experts for that topic. The more “best” answers you give, the higher your rank. Subscribe to certain types of questions via RSS. Forward your questions to your connections to get their answers and simultaneously grow your relationships. As a law student, if you submit an answer to a legal question, make sure you include a disclaimer stating that your answer is provided for general informational purposes only and does not constitute legal advice.

Best Practices for Job Hunting:

  1. If you’re looking for a job, once your profile is ready, go to the “Jobs” tab, and search by keyword, industry or location. LinkedIn tells you which employers are “in your network” because you are connected to people who work there either directly if they are already a connection or indirectly, if someone you know is connected to someone who works there. You can then send a note to the person you know requesting an introduction to the person at the job you are seeking.
  2. Use LinkedIn to get the inside scoop on potential bosses, colleagues and interviewers by looking up their profiles. Do a “Company Search” to find out who formerly worked at the employer you are looking for and then contact that person via LinkedIn, either directly if they are already a connection, or indirectly through an introduction request if they are one degree removed from one of your connections.
Now you are ready to take the online legal world by storm! Take a long lunch break and do it.

Sunday, May 16, 2010

International Symposium on Pornography- An Emerging Concern -Venue - National Law School of India University, Bangalore

The International Symposium on Pornography- An Emerging Concern will take place in National Law School of India University, Bangalore on 22nd May 2010, with the overarching theme Legal Efforts to Combat Pornography on an international scale.

The conference will be hosted by National Law School of India University and full details, including information on the program, accommodation and travel will be available on the NLS website. It would be a one day symposium. Invited speakers to the conference include members of judiciary, legal luminaries and independent authors and eminent jurists among others. Speakers will also be selected on the basis of abstracts submitted in response to this call
for papers. The working language of the Conference is English.


The areas on which abstracts are invited are:


1. INTERNET PORNOGRAPHY: PROBLEMS AND SOLUTIONS

2. THE NUISANCE OF ELECTRONIC PORNOGRAPHY

3. CONTRACTUAL ASPECTS OF PORNOGRAPHY

4. INTERNATIONAL LEGAL EFFORTS TO COMBAT PORNOGRAPHY

5. WHY XXX MUST NOT BE TOLERATED? : A JURISPRUDENTIAL ANALYSIS.


Source - http://www.allconferences.com/conferences/2010/20100410133356/

Saturday, May 15, 2010

Right to Information - Would it Make a Difference? | India Law, Online Legal Advice, Legal Documents, Legal News, Jobs, Events, Lawyers eVakil.com

Right to Information - Would it Make a Difference? | India Law, Online Legal Advice, Legal Documents, Legal News, Jobs, Events, Lawyers eVakil.com

Most departments of the Government have had proclaimed allegiance to the citizens right through what is popularly called "Citizens Charter". Quite many promised to take serious note of public grievances. Quite many promised to reply to citizen's queries within specified time limit. But, alas, in practically all cases it has proved only to be rhetoric. RTI has teeth to deter the complacent and the casual. Hopefully, it would prove to be the real right to information and its provisions would not be frustrated by flux of time. Will that happen? - Editor
The need for citizens right to information can be no better expressed than what the Supreme Court observed in the famous Raj Narain case:
"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."
Undoubtedly, Government departments and Government officials are repositories of lot of information that is not easily accessible to the public. They take numerous decisions on issues that affect the life of citizens and concern their vital interests. Indeed the Government officials are a privileged lot. For decades they are accustomed to work in 'secrecy' and their accountability is dismal. They function in the form of permanent bureaucracy, enjoying social status and perks envied by many. They enjoy immense security of service. Many believe that it makes many of them indifferent, casual and inefficient to quite an extent.
The Right to Information Act, 2005 (RTI, in short) derives its origin from the fundamental right of expression guaranteed to citizens under article 19 of the Constitution. The RTI has come about as a result of active persuasion by certain activist groups, including the campaign spearheaded by the Magsaysay Award winner Aruna Roy. The RTI confers a legal right to the citizens to seek information from any `public authority'. The term `information' is quite wide in scope. It means "any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form 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". Besides, the expression `right to information' provides meaningful access to the information a citizen may like to seek. "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 -
The public authority cannot ask for the locus standi of a citizen to seek information.
(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.
Importantly, the RTI emphasises upon the right of the citizen to seek information. The public authority cannot ask for the locus standi of a citizen to seek information. Section 6(2) states categorically, "An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him".
The RTI is unique in the sense that it permits any citizen to seek any information. Imagine if thousands of persons seek information from the same office. It would mean tremendous amount of work for that office. Perhaps realising this but at the same time not undermining the citizen's right to information, the RTI rightly advises the public authorities to provide as much information as possible suo motu to the public in order to reduce the pressure of work. Section 4(2) says :
"It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information."
Another novel feature of the RTI is to fasten responsibility on the officials to act in time-bound manner. Section 7(1) mandates the Central/State Public Officer to provide the information to the applicant, as expeditiously as possible, and in any case within thirty days of the receipt of the request. Even of the request has been addressed to an officer not concerned with it, he is required to transfer the application as soon as practicable but not later than five days from the date of receipt of the application, vide proviso to sub-section (2) of section 6.
Section 8 of the RTI specifies the kind of information that need not be provided to a citizen. They mainly concern the security interests of the country. As exception, for instance, the Government is under no obligation to give any citizen cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other offices. However, and importantly, the decisions of the Council of Ministers, and reasons thereof, and the material on the basis of which decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over. Another important exception is that an officer is under no obligation to provide information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. But information that cannot be denied to the Parliament or a State Legislature shall not be denied to a citizen also.
In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer who denied the request.
RTI provides for appeal against the decision of the Central Public Information Officer to a designated senior officer. What is significant is that in any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer who denied the request.
RTI prides for constitution of Central Information Commission and State Information Commissions to receive and inquire into complaints against the action and decisions of the Central/State Public Information Officers or the appellate authorities. The Commissions would also oversee the implementation of the RTI.
An innovative feature of the TRI is that it provides for imposition of penalty upon the erring officers who contravene or violate the provisions of the RTI. This further signifies the citizen's right to have access to the information and to ensure that the Officers take it seriously and not simply as yet another piece of legislation. Sub-section (1) of section 20 of the RTI is quite categorical.
Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or mala fidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees.
On the whole, the purpose of the RTI is to empower the citizen to obtain information from the public authorities as matter of legal right. Its purpose is also to enhance efficiency and transparency in their working. The RTI intends the officialdom to be accountable to the citizens of the country and puts their functioning to direct scrutiny by the citizens.
It is true though that most departments of the Government have had proclaimed allegiance to the citizens right through what is popularly called "Citizens Charter". Quite many promised to take serious note of public grievances. Quite many promised to reply to citizen's queries within specified time limit. But, alas, in practically all cases it has proved only to be rhetoric. RTI has teeth to deter the complacent and the casual. Hopefully, it would prove to be the real right to information and its provisions would not be frustrated by flux of time.
________________
The author IRS (Retd.), is former Director General (Audit & Investigation), Central Excise & Customs; and Joint Secretary (TRU), Ministry of Finance, New Delhi.

Friday, May 14, 2010

New Chief Justice of India Sworn In - The Hindu

The Hindu : Front Page : Frivolous PIL will attract huge costs: New CJI


Justice Sarosh Homi Kapadia, the seniormost judge of the Supreme Court, was sworn in as the 38th Chief Justice of India on Wednesday. President Pratibha Patil administered the oath of office to him at a brief ceremony at the Rashtrapati Bhavan. Justice Kapadia, first CJI born after Independence, will have a tenure of two years and four months till September 28, 2012.
A stickler for discipline and procedures and adherence to rules, he has endeared himself to the Bar and the Bench. On his first day as CJI, he made his intentions loud and clear. He said huge costs would be imposed on litigants filing frivolous public interest litigation (PIL) petitions.
Justice Kapadia said he would not allow oral mention by lawyers and litigants in the court at 10-30 a.m. before the commencement of proceedings. The mentioning matter would come to the Bench through the department concerned where it should be filed a day earlier for consideration the next day.
Among those who attended the swearing-in were Vice-President Hamid Ansari, the outgoing CJI, Justice K.G. Balakrishnan; the former CJIs, Justices A.S. Anand and Y.K. Sabharwal; Congress president Sonia Gandhi, Home Minister P. Chidambaram, Law Minister Veerappa Moily, Human Resource Development Minister Kapil Sibal, Supreme Court Bar Association president Ram Jethmalani, All-India Bar Association chairman Adish C. Agarwala, Attorney-General G.E. Vahanvati, the former Attorney-General K. Parasaran, other senior lawyers and family members of Justice Kapadia.
Justice Kapadia was initially appointed additional judge of the Bombay High Court in October 1991 and made permanent judge in March 1993.
For more than three years, he was special judge of the special court under the Securities Transaction Act. On August 5, 2003, he was appointed Chief Justice of the Uttarakhand High Court. On December 18, 2003, he was elevated to the Supreme Court. In the past six-and-half years, he has delivered several landmark judgments under the constitutional, taxation, regulatory and commercial laws.
Mr. Vahanvati, Solicitor-General Gopal Subramaniam and members of the Bar greeted Justice Kapadia on his assuming office as CJI. In his response, he said: “I want a pro-active Bar and not a reactive Bar.” He finished the hearing of the day's list in about 30 minutes.


Justice Balakrishnan retires

Justice K.G. Balakrishnan laid down office on Tuesday, after a tenure of three years and four months as Chief Justice of India and nearly 10 years as judge of the Supreme Court.
Justice Balakrishnan, who endeared himself to the Bar and the Bench, was a given a warm farewell at a function held in the Supreme Court.
Speaking to journalists, he said a “halfway” mechanism to deal with errant judges was not suitable for the judiciary. Such a method was often criticised, as “judges are not like ordinary government servants. If the integrity of a judge is doubtful, we cannot censure him or warn him or suspend him. It should be the end of his career. So, that is why halfway methods are not suitable for the judiciary.”
To a query whether a mechanism was needed to deal with errant judges, Justice Balakrishnan said: “The thinking process is there to deal with errant judges, and the government is in the process of bringing in the Judicial Accountability Bill, which is before the select committee of Parliament.”
Asked about the setting up of special courts for terror attack cases, he said he had written to the Prime Minister last year for creation of 600 CBI courts across the country. The matter was being looked into by the Law Ministry. The State governments must also find out how to set up the designated courts.
On honour killings, he said: “These are social issues. There are certain prohibited relationships in the Hindu Marriage Act. It is not the law that prompts one to get into a love relationship. Once we are in love, obviously they don't mind personal law. So law amended or not... these are social issues and opinions vary from people to people.”
As for the collegium system of appointment of judges, Justice Balakrishnan said the present system would continue until a better one was put in place.
He, however, said the procedure could be reviewed. “If the country needs a better system and If Parliament thinks so, there can be a better system. There is nothing wrong in reviewing it.”
Asked about the number of cases cleared during his tenure as CJI, he said the total number of cases disposed of in 2001 was 38,842, whereas in 2007 it was 61,257; in 2008, 67,459 and in 2009, 71,179. But the number of cases instituted also increased.
At the farewell function, CJI-designate Justice S.H. Kapadia said: “At administrative meetings and collegiums meetings, we express our views. On many occasions, we disagree. But at the end of the day, after the meeting was over, Justice Balakrishnan never treated those who differed with the view as opponents. This is the quality of Justice Balakrishnan.”


Source - The Hindu

Wednesday, May 12, 2010

Has The Criminal Justice System of The Country Collapsed? - Halsbury's Law Monthly

Halsbury's Law Monthly : Has The Criminal Justice System of The Country Collapsed?


Afair and effective administration of justice is the cornerstone of a free society and an essential component in public confidence in the institutions of a government. In the Indian context, fairness in administration of justice is envisaged inter alia in Article 21 of the Constitution that mandates that the trial of a citizen be in accordance with the procedure established by law. It is imperative that this procedure be accountable, transparent in its performance and capable of achieving fairness to the individual.

Many times, an analysis of the functioning of the criminal justice system tends to focus on the subordinate criminal courts. While these are no doubt crucial, they are not the only actor involved. A comprehensive analysis of the system must start from the Parliament and the State Legislatures, which through statutes create offences: there is hardly a statute that does not a have a part dealing with “offences and penalties”. Then we have the Executive-primarily the police-which has a dual responsibility: to prevent crime, and to investigate crime. Then come the lawyers, i.e. prosecution and defence counsel. Thereafter, come the trial courts, followed by the appellate courts (the High Courts and the Supreme Court of India). Finally we have prisons and prison authorities, parole boards, and so on. Each of these has an important role to play in the criminal justice administration system.
Facts
It would be worthwhile to take a look at the present day crime statistics. Between 1999-2007, on an average, about 51 lac cognisable crimes were registered each year in the States and Union Territories. One-third of these were Indian Penal Code (IPC) crimes and the rest were offences under special and local laws.

Under the Code of Criminal Procedure, as it exists today, the investigation of all criminal offences is by the police. The strength of the police force over the years (from 1995 onwards) has remained at between 12,00,000-14,00,000, the almost stagnant figures of the strength of police force and the continuing increase in the number of crimes is a disturbing trend.

The pendency of criminal cases in the subordinate courts is in the region of 1,13,16,599 cases and the effective strength of judges in subordinate courts is only 12,524. Courts are able to dispose of, on an average, only 27 percent of the pending criminal cases each year.

Around 2,50,000 undertrials are in prison. The state of prisons and lockups is a known cause for grave concern; overcrowding in prisons being the rule rather than exception. Around 70 percent of the prison population comprises undertrials: in 2006, of the 3,61,919 prisoners in jail, 2,45,244 were undertrials, and 1,16,675 were convicted persons. Around 69,00,000 people are arrested every year.

In India, not even 45 percent of people charged with serious IPC offences are ultimately convicted (42.3 percent in 2007). In other countries, like the United Kingdom, France, the United States of America and Japan, the conviction rate for similar offences is over 90 percent.

In actual practice, the problem of crime is much more serious than the official figures show. It has been estimated that one-third to one-half of all serious crimes are not reported due to a variety of reasons, including intimidation and harassment of the victims.

Of course, figures and statistics of convictions or acquittals or disposal of cases or pendency do not reflect the efficacy of the system. It is necessary to recreate the very crime, the investigation, the trial, the lawyering, the judgment and the appellate process to know what happened through the system.
Analytical models
The criminal justice system has been viewed by jurists mainly as the justice-oriented model (or the due process model) and the crime control model. In the crime control model, the criminal process is seen as a screening process in which each successive stage-investigation, arrest, post-arrest investigation, enquiry pending investigation, trial, trial or entry of plea, conviction, and punishment-involves a series of operations whose success is gauged primarily by their ability to pass the case along to a successful conclusion. Its ideal would be a crimeless society.

The value system that underlies the crime control model is based on the proposition that repression of criminal conduct is by far the most important function to be performed by the criminal process. Failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom. If the laws go unenforced, which is to say, if it is perceived that there is a high percentage of failure to apprehend, convict and punish in the criminal process, a general disregard for legal controls tends to develop. The law-abiding citizen then becomes the victim of all sorts of unjustifiable invasions of his interests. His security of person and property is sharply diminished. The claim ultimately is that the criminal process is a positive guarantor of social freedom.

In order to achieve this high purpose, the crime control code requires that primary attention be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted of crime. To ensure that these demands are met most effectively, strict legal and procedural requirements must be done away with or significantly reduced.

It is important to note that the control model operates on the premise that quantitative results are sufficient, in themselves, to prove that the criminal justice system is functioning efficiently. Essentially, the crime control model rests upon the assumption that more the criminals are convicted, ‘safer’ the society is.

The core values underlying the due process model are liberty of individuals and presumption of innocence of the accused. Since liberty and freedom are the underlying principles of any democratic society and the criminal justice system seeks to take away from accused/individuals this very same freedom, this model seeks to impose adequate and suitable checks and balances, in order to preserve the guaranteed freedom. The due process model argues that since the criminal justice system rests ultimately upon the decisions and predilections of human beings, errors will abound.

Mistakes are made by witnesses, police, judges, prosecutors, and all other participants in the criminal justice system. Perceptions can be skewed, prejudice and bias can infect the process and evidence can be manufactured or ignored. What may seem a ‘watertight’ case at first sight, slowly dissolves when exposed to scrutiny. It is this process of scrutiny which the due process model holds most precious. Errors and abuses can be remedied only by formal adversarial hearings accompanied by robust procedural safeguards.

The Malimath Committee sought to introduce a new preamble into the Criminal Procedure Code, ‘the search for truth’, assuming that a criminal trial must advance the “search for truth”. It must also at the same time satisfy the society that it is a “just and fair” trial, otherwise the principles enshrined in the Constitution stand annulled by a blind drive towards an Orwellian order.

India is composite of the due process model and the crime control model. The endeavour should be to achieve a balanced level of functioning, where the police respects human rights, adheres to law, and takes confidence-building measures, and at the same time, firmly deals with organised crime, terrorism, white collar crime, deteriorating law and order situation, etc.

There has been a consistent effort by the courts in India to make the two approaches correspond with each other, an act of maintaining equilibrium between justice and crime control. Right from the stage of arrest, courts have kept a vigil and issued detailed guidelines to deal with issues relating to arrest and investigation.

It is difficult without adequate dialogical exercise to know what has transpired in the criminal justice system. Factual data/material gathered in an objective fashion alone can tell us what has gone wrong with the system.

Present day issues with the criminal justice system

Inquisitorial and adversarial systems
There has been a great deal of debate on the relative merits of the inquisitorial system and the adversarial system of justice. It must be made clear at the outset that under Indian law, inquisitorial system would be unconstitutional. It would completely militate against the principle of separation of powers, which is a part of the Indian democracy and constitutional framework. It would be impossible for a judge to distance himself from an investigation. It is only because of that separation that there can often be an acquittal of the innocent.
Right to silence
Right to silence of the accused as an inviolable rule has been the subject matter of much controversy. The accused is a good source of information, perhaps the best source of the commissioning of the offence, but this source is not tapped for fear of infringing the right to silence guaranteed by Article 20(3). The Article does not prohibit admissions on confessions made without inducement, threat or promise. It does not bar the accused from voluntarily offering himself to be examined as a witness.

It is arguable that in at least some categories of cases, the accused must be required to tell the court what he knows. A presumption to be drawn from his failure to give evidence may not be enough; it might well conflict with the presumption of innocence, hence there should be a positive obligation imposed by law on such a person to assist the investigation, and if so required, by court to give evidence. This would not transgress but further the purposes of law. For instance, it would not be a disproportionate response to the serious problem of terrorism.
Presumption of innocence
The presumption of innocence is a fundamental principle of our criminal justice system. The system of burden of proof is in fact relevant to support the presumption of innocence. A person is presumed to be innocent, until proved to be guilty. Protection of the innocent is as much the duty of the society. The protection of the innocent is the very basis of the Constitutional Articles 20 and 21; that is why the innocent is entitled to the highest normative consideration. The moment normative standards of proof are substituted by preponderance of probabilities, there would be a violation of the basic human rights that have been embraced by our Constitution.

Under the Scottish law, for instance, the concept of a fair trial is not solely a question for the accused. Lord Wheatley had said, “While the law of Scotland has always very properly regarded fairness to the accused persons as being an integral part in the administration of justice, fairness is not a unilateral consideration; fairness to the public is also a legitimate consideration.” The judge went on to say, “It is the function of the court to seek a proper balance to secure that the rights of individuals are properly preserved.”

That the crafty know how to manipulate investigation and manage evidence is another aspect which inspires a re-look at the justice model. Criminals have become so adept that they often outsmart the system. They know how to manipulate the investigation, how to manage the evidence, so that criminal cases come unstuck with the mysterious disappearance of witnesses, retraction of statements previously given and the like.
Hostile witnesses
The Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha in August, 2003 to implement measures designed to prevent the evil of witnesses turning hostile by inserting new sections, to ensure that evidence of material witnesses was to be recorded by the magistrate in certain cases, where investigation is of an offence punishable with death or imprisonment for seven years or more. Also, under consideration was summary procedure for the trial of witnesses deposing contrary to the statements recorded by the magistrates. But this provision has not been passed by the Parliament: they were omitted from the final Act, since the Select Committee decided to drop these provisions.
Witness protection
A witness in a criminal trial plays a very important role in determining the fate of the case. The problem of hostile witnesses leads us to the question, as to whether it is time to have a law like the Witness Protection Act, 1998, in South Africa, which established a central office for witness protection to function under the control of the Minister of Justice and the Constitutional Department. The International Criminal Tribunal for Rwanda has formulated rules for the protection of victims and witnesses. A similar provision exists in the creation for International Criminal Court. In fact, such a provision was introduced in POTA (since repealed). Such a provision may actually solve, to a large extent, the problem relating to witnesses turning hostile.
Conclusion
A successful criminal justice system is one which is able to function effectively as a watchdog of the people. This can be achieved by effective participation of the people. Because of the lack of awareness of the role which a citizen has to play in the fulfilment of the law, he does not step forward to become an accessory to the system. If every citizen were to take upon himself the duty to be a part of the law, help its administration in the capacity of a group or a movement, the criminal justice system would be far more effective. There is no substitute for public consciousness. This is only a counter check against misuse or abuse of power and the failure of the law in the stages of initiation as well as investigation, and in the trial of cases. It is not meant to subvert the judicial process, but it can certainly make the judicial process accountable.

No law can guarantee against dishonesty or ensure honesty. To subserve, law requires a moral motivation that calls for an exercise to be undertaken of truth/fact finding and reconciling the intrinsic anomalies and finding solutions. Given dynamism and goodwill, it is not an impossibility, but very arduous work.



AUTHOR -
Gopal Subramanium, Additional Solicitor General of India, has been practising law for twenty-eight years. A former Standing Counsel for the Union of India in the Supreme Court, he has appeared in a large number of landmark cases, among them Counsel for the Justice Varma Commission on the Rajiv Gandhi assassination, Counsel for the Justice Wadhwa Commission on the Graham Staines murder, and Counsel for the Justice Venkataswami Commission on the Tehelka tapes. He was appointed ASG in August 2005 and in the past three years has appeared for the Union Government in a string of important matters. He is also a member of the Advisory Panel on “Effectuation of Directive Principles” for the National Commission to Review the Working of the Constitution. He is an Adviser to the National Human Rights Commission, Member of the Governing Council of the Indian Law Institute, in 2007 he was also appointed a Member of the Committee for the Revision of Supreme Court Rules.

Tuesday, May 11, 2010

The corruption eruption | Schumpeter:The Economist

Schumpeter: The corruption eruption | The Economist

IT IS 15 years since Moisés Naím coined the memorable phrase “corruption eruption”. But there is no sign of the eruption dying down. Indeed, there is so much molten lava and sulphurous ash around that some of the world’s biggest companies have been covered in it. Siemens and Daimler have recently been forced to pay gargantuan fines. BHP Billiton, a giant mining company, has admitted that it may have been involved in bribery. America’s Department of Justice is investigating some 150 companies, targeting oil and drugs firms in particular.
The ethical case against corruption is too obvious to need spelling out. But many companies still believe that, in this respect at least, there is a regrettable tension between the dictates of ethics and the logic of business. Bribery is the price that you must pay to enter some of the world’s most difficult markets (the “when in Rome” argument). Bribery can also speed up the otherwise glacial pace of bureaucracy (the “efficient grease” hypothesis). And why not? The chances of being caught are small while the rewards for bending the rules can be big and immediate.

When in Rome, behave like a Swede

But do you really have to behave like a Roman to thrive in Rome? Philip Nichols, of the Wharton School, points out that plenty of Western firms have prospered in emerging markets without getting their hands dirty, including Reebok, Google and Novo Nordisk. IKEA has gone to great lengths to fight corruption in Russia, including threatening to halt its expansion in the country, firing managers who pay bribes and buying generators to get around grasping officials holding up grid connections. What is more, Mr Nichols argues, it is misguided to dismiss entire countries as corrupt. Even the greasiest-palmed places are in fact ambivalent about corruption: they invariably have laws against it and frequently produce politicians who campaign against it. Multinationals should help bolster the rules of the game rather than pandering to the most unscrupulous players.
And is “grease” really all that efficient? In a paper published by the World Bank, Daniel Kaufmann and Shang-Jin Wei subjected the “efficient grease” hypothesis to careful scrutiny. They found that companies that pay bribes actually end up spending more time negotiating with bureaucrats. The prospect of a pay-off gives officials an incentive to haggle over regulations. The paper also found that borrowing is more expensive for corrupt companies, probably because of the regulatory flux.
The hidden costs of corruption are almost always much higher than companies imagine. Corruption inevitably begets ever more corruption: bribe-takers keep returning to the trough and bribe-givers open themselves up to blackmail. Corruption also exacts a high psychological cost on those who engage in it. Mr Nichols says that corrupt business people habitually compare their habit to having an affair: no sooner have you given in to temptation than you are trapped in a world of secrecy and guilt. On the other hand, the benefits of rectitude can be striking. Texaco, an oil giant now subsumed by Chevron, had such an incorruptible reputation that African border guards were said to wave its jeeps through without engaging in the ritual shakedown.
Moreover, the likelihood of being caught is dramatically higher than it was a few years ago. The internet has handed much more power to whistle-blowers. NGOs keep a constant watch on big firms. Every year Transparency International publishes its Corruption Perceptions Index, its Bribe Payers Index and its Global Corruption Barometer.
The likelihood of prosecution is also growing. The Obama administration has revamped a piece of post-Watergate legislation—the Foreign Corrupt Practices Act (FCPA)—and is using it to pursue corporate malefactors the world over. The Department of Justice is pursuing far more cases than it ever has before: 150 today compared with just eight in 2001. And it is subjecting miscreants to much rougher treatment. Recent legislation has made senior managers personally liable for corruption on their watch. They risk a spell in prison as well as huge fines. The vagueness of the legislation means that the authorities may prosecute for lavish entertainment as well as more blatant bribes.
America is no longer a lone ranger. Thirty-eight countries have now signed up to the OECD’s 1997 anti-corruption convention, leading to a spate of cross-border prosecutions. In February Britain’s BAE Systems, a giant arms company, was fined $400m as a result of a joint British and American investigation. Since then a more ferocious Bribery Act has come into force in Britain. On April 1st Daimler was fined $185m as a result of a joint American and German investigation which examined the firm’s behaviour in 22 countries.
Companies caught between these two mighty forces—the corruption and anti-corruption eruptions—need to start taking the problem seriously. A Transparency International study of 500 prominent firms revealed that the average company only scored 17 out of a possible 50 points on “anti-corruption practices” (Belgium was by far the worst performing European country). Companies need to develop explicit codes of conduct on corruption, train their staff to handle demands for pay-offs and back them up when they refuse them. Clubbing together and campaigning for reform can also help. Businesses played a leading role in Poland’s Clean Hands movement, for example, and a group of upright Panamanian firms have formed an anti-corruption group.
This may all sound a bit airy-fairy given that so many companies are struggling just to survive the recession. But there is nothing airy-fairy about the $1.6 billion in fines that Siemens has paid to the American and German governments. And there is nothing airy-fairy about a spell in prison. The phrase “doing well by doing good” is one of the most irritating parts of the CSR mantra. But when it comes to corruption, it might just fit the bill.