SHOULD DINAKARAN BE PROVIDED A CHANCE TO DEFEND HIMSELF

In my earlier Blog writing when the Dinakaran episode first came to light I had written that the Campaign for Judicial Accountability and the Senior Advocates of the Supreme Court should bring to the notice of the Public at large the specific allegations against Justice Dinakaran. Till today what we have herad is that Justice Dinakaran is involved in Land Grabbing case. Till the  public at large are not told the specific charges and also whether they have been investigated or not the Justice Dinakaran episode will become murkier.

What is needed that the Charges against Justice Dinakaran be brought out in public domain and Justice Dinakaran need to be provided a chance to put forward his defence. This is more important as in public he has denied all the allegations.

Till that does not happen all types of allegations and counter allegations will continue and the cause of Judicial Accountability will suffer.

In this context I am mentioning some articles which have appeared in the Media and in my view Vinay Sitapati article in The Indian Express – “Hear Him Out“ has come in at the right time. I am also attaching the article of Times of India which has reported that “Justice Dinakaran is being hounded for being a Dalit”

We have to adhere to the maxim of Audi Alteram Partam . We have to give Justice Dinakaran a chance to defend himself before reaching conclusions.The CJI and the SC Collegium  has also rightly taken the decision to put Justice Dinakaran elevation in abeyance.

Ravi Kant , Advocate , Supreme Court of India

HEAR HIM OUT – Vinay Sitapati in Indian Express

“Audi Alteram Partem”, goes the foremost rule of natural justice. Hear the other side out. Have we heard out Justice Paul Daniel Dinakaran?

This is not to defend the Karnataka High Court Chief Justice, to decry the mobilisation against him, nor to oppose his impeachment. It is to ask a question of procedure. For here’s what we know about Justice Dinakaran: (1) A district collector’s official report has found against him, (2) the law ministry has opposed his elevation, (3) 75 Rajya Sabha members have signed onto his impeachment notice, (4) the Supreme Court collegium has decided to keep his elevation “in abeyance”.

In short, we know that a full four separate institutions have already judged him in some way. Yet, where is the space for the judge to defend himself, to present his own counter-arguments? The humblest of petitioners to appear before Justice Dinakaran probably enjoyed more legal due process. Is this fair entry to (or exit from) the world’s most powerful court?

Reports suggest that after the hue and cry over his proposed elevation, the “collegium” of the 5 senior-most Supreme Court judges invited Justice Dinakaran to reply to the allegations against him. But it’s hard to know for sure, as this was a secret hearing; records are not available to the public or to the parliamentarians who have signed on to the impeachment notice. According to Section 3(4) of the Judges (Inquiry) Act, 1968, Justice Dinakaran will get a “reasonable opportunity of presenting a written statement of defence” before an Inquiry Committee during the impeachment proceedings. But this too will be secret and is unlikely to assuage the court of public opinion.

Justice Dinakaran’s best chance to defend himself is before Parliament, at the fag end of the impeachment process, just before the vote. This has proved a powerful mechanism. During the parliamentary debate over the impeachment of Supreme Court Justice V. Ramaswami in 1993, his lawyer Kapil Sibal made a blistering presentation in his defence. The vote that followed lacked the numbers to impeach the judge. But if and when Justice Dinakaran gets a similar chance, he would have already been judged many times over. He will have been tainted in the public eye for far too long to recover.

Contrast this with the United States of America. When judges are nominated by the president, they are publicly interrogated by the Senate; the often acerbic proceedings make great prime-time television viewing. Some of this is cruel, and in India will be considered in bad taste. During the senate confirmation hearings of Justice Clarence Thomas, he was questioned on his taste for pornographic films. More damaging, his former employee testified that he had sexually harassed her. But, and this is key, Justice Clarence Thomas was given the opportunity to publicly counter these allegations. And did he do so! In a now famous speech to the Senate Judiciary Committee, watched by millions on television, he said: “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves.” In the vote that followed, Justice Thomas’s appointment was narrowly confirmed. There is little evidence to suggest that the allegations against him have impaired his ability to judge effectively. Along with the pain of accusation, came the power of self-exoneration.

Indian Supreme Court nominees are given no such forum to publicly refute allegations against them. There is no executive or legislative confirmation of their appointment. India’s Supreme Court self-selects, and the collegium’s decision is shrouded in secrecy. Judges are also not encouraged to give press conferences (notwithstanding the couple of terse ones Justice Dinakaran has given in his defence). But the flip side to this opacity is that when allegations do surface, there is very little their lordships can do to publicly clear their name.

This unfairness has little to do with the particulars of Justice Dinakaran’s case. Rather, it is the byproduct of our judicial selection process. Precisely because judges don’t open up to questioning, they deny themselves the power to brush off the mud slung at them. When you refuse to enact clear-cut procedures to try judges, you have no armour from the rumours, innuendos and allegations in the court of public opinion. When you are not answerable to anyone, you find yourself unable to answer back.

vinay.sitapati@expressindia.com

http://www.indianexpress.com/news/hear-him-out/556298/0

Containing the damage – THE EDITORIAL IN HINDU

It is the right decision, but one that took a bafflingly long time to arrive at. The procrastination of the collegium of judges headed by the Chief Justice of India, K.G. Balakrishnan, in virtually withdrawing its controversial August 27 recommendation to elevate Karnataka Chief Justice P.D. Dinakaran to the Supreme Court has done incalculable harm to the image of the judiciary. The delay was accompanied by a surprising attempt to pass the buck, with Chief Justice Balakris hnan requesting the Centre to conduct an independent probe into certain allegations against Justice Dinakaran, which the Law Ministry politely — and quite correctly — turned down. With the Centre rejecting the recommendation to accommodate Justice Dinakaran in the Supreme Court, the sustained campaign against his elevation by members of the bar, and the impeachment process set in motion by Opposition MPs in the Rajya Sabha, there was considerable pressure on the collegium to withdraw its recommendation. It would have been far better if the collegium had taken a quick decision on merits rather than give the impression that it was forced to act in the face of an escalating controversy.

The allegations against Justice Dinakaran remain unproven as of now. Yet they are extremely serious and two reports from a district collector have lent credence to at least the ones relating to land encroachment in Tamil Nadu. His refusal to resign in the face of the ugly controversy and erosion of public confidence has called attention once again to the need for a quick, fair, and effective statutory mechanism for enquiring into judges’ conduct and suggesting appropriate action. The process of impeachment is cumbersome and uncertain, and is often overwhelmed by political considerations. No judge has ever been impeached and the uncertain nature of the process stood out in 1993, when the motion against Justice V. Ramaswami was defeated, with the Congress abstaining. In the light of the Justice Dinakaran controversy, Law Minister Veerappa Moily has suggested a Judges Standards and Accountability Bill. The in-house enquiry system put in place by the Supreme Court has proved wholly inadequate, and a more effective mechanism is needed to enquire into charges against judges. The question of removing a judge always invites another: why was he or she appointed in the first place? Proposals to set up a broad-based and independent National Judicial Commission with the power to appoint, and enquire into the charges against, judges have been made time and again. The Justice Dinakaran controversy is a warning that no further time should be lost in putting in place a more transparent appointment process and in strengthening judicial accountability.

Dinakaran will continue in his post: CJI J. Venkatesan

Collegium requests government to keep his elevation in abeyance pending probe

New Delhi: Chief Justice of India K.G. Balakrishnan on Friday made it clear that P.D. Dinakaran will continue as Chief Justice of the Karnataka High Court and that the Supreme Court collegium had requested the Union government to keep his elevation to the Supreme Court in abeyance pending enquiry.

Asked about the collegium’s decision on Thursday, Justice Balakrishnan told journalists: “There was no question of the collegium recommending elevation of Justice Dinakaran. How can we consider his elevation when the impeachment motion is pending in Parliament? There is no question of bringing him to the Supreme Court at this stage. We are requesting the government to keep the recommendation in abeyance till the enquiry.”

Asked whether he would advise Justice Dinakaran not to take up any judicial work or to go on leave, Justice Balakrishnan said: “How can I give any such advice. High Courts are not under the supervisory control of the CJI. Justice Dinakaran himself thought it fit not to sit in the court to take up judicial work in the last few days.”

To a query about the demand of Karnataka lawyers that Justice Dinakaran should be transferred, the CJI said, “now that Justice Dinakaran is not exercising any judicial work, they should feel happy.”

Asked whether the collegium would still consider his transfer to any other High Court, the CJI said: “that option is there. But for the moment we are not doing anything. He will continue.”

On the impeachment proceedings, the CJI said: “I have nothing to do with that. So far I have not received any communication from the Chairman of the Rajya Sabha in this regard.

Though there was no requirement that I [the CJI] should be consulted, out of courtesy, the CJI is consulted for nominating a Supreme Court judge and one High Court Chief Justice for the enquiry.” Asked about Justice Dinakaran denying the allegations in a television interview, he said: “Let him prove his innocence in the enquiry.”

Return of file

On the government returning the file of Chief Justice of the Allahabad High Court C.K. Prasad for elevation to the Supreme Court, the CJI said: “I was informed that the file is being returned. I have not seen it. We will have to see what is the clarification sought then we will reply.”

Asked why no woman judge was being appointed to the Supreme Court, the CJI said “there are reasons which I cannot divulge. I cannot bring down the reputation of a Chief Justice [woman] by giving the reasons. Normally we won’t do that. There are six or seven judges who are now eligible for appointment to the Supreme Court.”

Judge: can Dinakaran take administrative decisions? Staff Reporter

BANGALORE: Justice D.V. Shylendra Kumar of the Karnataka High Court, who first voluntarily declared his assets, has asked the Registrar-General to call a meeting for Saturday of all judges, including Chief Justice P.D. Dinakaran, to discuss the “propriety, justification and desirability” of the Chief Justice to take administrative decisions when he has decided not to take up judicial matters.

Justice Kumar, who is currently sitting on the Circuit Bench at Gulbarga, faxed a letter to Registrar-General (RG) R.B. Budhihal and directed him to circulate a requisition on his behalf for holding a meeting of judges at 11 a.m., at the conference hall of the High Court.

“In the wake of the news that the Chief Justice of the Karnataka High Court is not sitting on the Bench and will not be discharging judicial functions until notified otherwise, I naturally expected that the Chief Justice will gracefully proceed on leave and will henceforth desist from exercising any functions which are part of the duties and responsibilities of a Chief Justice of the High court and even if one should not proceed on leave, I expected the Chief Justice not to exercise any authority and act on the administrative side of the High Court which power and authority is a very important incidental function of the Chief Justice,” Justice Kumar said.

The Chief Justice, he said, exercised vast and important powers on the administrative side also. “If a person is under a cloud, then it is highly desirable that the Chief Justice is prevented from exercising and using his powers on the administrative side also.”

Justice Kumar said that after he read the news that the Chief Justice would not henceforth exercise any judicial function until notified otherwise, he called the Registrar-General who informed him that the Chief Justice would continue to exercise his authority on the administrative side.

Justice Kumar said all judges of the High Court should sit and discuss the matter and take a collective decision.

Justice Kumar said he had learnt that Justice Dinakaran, before whom Mr. Budhihal had placed his letter, had declined permission for the Saturday meeting. “This is not a matter over which the Chief Justice should take a decision,” Justice Kumar said.

DINAKARAN BEING HOUNDED FOR BEING A DALIT

TIMES OF INDIA

NEW DELHI: Dalit MPs have come out against the impeachment motion moved against Justice P D Dinakaran, chief justice of Karnataka High Court, alleging that he was being persecuted for being from the Scheduled Castes.

The parliamentary forum of SCs, which includes MPs cutting across party lines, came out strongly against the impeachment move which, incidentally, has been admitted in Rajya Sabha.

Calling it “discrimination”, the dalit MPs passed a resolution demanding that an inquiry should be instituted against all judges who have charges of corruption against them and one person should not be singled out.

SC forum chairman Radhakant Nayak told TOI that the resolution would be submitted to Prime Minister Manmohan Singh.

The move may put the Centre in a quandary over the impeachment proceedings in the upper House. It is, however, significant that Congress MPs have not signed the memorandum for impeachment submitted to Rajya Sabha Chairman Hamid Ansari by the Opposition which includes BJP, Left and SP.

P L Punia, Congress MP from UP, termed it a conspiracy against a dalit. “We will ensure that Congress opposes the impeachment move,” he said. The bureaucrat-turned-parliamentarian said Dinakaran was in the age-group that he would make it to CJI’s post if he was elevated to Supreme Court now.

Coming down on the system of impeachment, Punia pitted Dinakaran’s case against other similar proposals. He said it was strange that the impeachment proceedings against Justice Soumitra Sen of Calcutta HC did not create much flutter while the one against Dinakaran had attracted a great deal of attention.

While the Dinakaran episode has been cited by top lawyers as a case of corruption in judiciary, the rush of political comments laced with identity politics may dent the course of debate. Observers recalled that once the impeachment move started against Justice V Ramaswamy in 1990, MPs from the southern states termed it a plot against a fellow native, slowly bringing pressure on the central government which finally let him off the hook.

The Dinakaran issue resonated in Parliament on the last day of the winter session when J D Seelam and Pravin Rashtrapal, SC MPs from Congress, tried to raise it in Rajya Sabha. While they were not allowed to speak, their attempt showed a concerted bid by dalit members to underline the “caste dimension” to the controversy.

Nayak nuanced the demand from dalit MPs. He said, “The forum is not against impeachment of Dinakaran but it wants that all the judges with allegations of corruption should be inquired into. Proper inquiry and not media reports should be the basis of action.”

SAFETY MEASURES IN SCHOOLS-TRY GOVT OFFICIALS FOR CRIMINAL NEGLIGENCE

Ravi Kant , Advocate Supreme Court of India

Just a few days ago five school girls died in a stampede in a Government school in Delhi. The reason may be a matter of discussion and investigation but it is very important that the basic minimum standards for safety need to be ensured in all schools across the country.

It is the administration which has the responsibility to keep a check on such schools which don’t adhere to the basic safety measures. All private schools need to be checked and those schools should be forced to ensure such standards. It is a national shame when young helpless children die due to the negligence of the school. It is a tragedy for the family and a shame for the administration.

In the present case the exit for the school was single and constricted.
The Supreme Court in May 2009 had given orders that the chief secretary should comply with all the guidelines laid down by the national building code of India in a span of one month of the order and ensure these standards. It is a fact that governments don’t care of such orders. If those guidelines had been ensured and complied with might be those children should have been alive today.

The Supreme Court bench of Justice Dalveer Bhandari and Justice Lokeshwar Panta had said in the case related to the Kumbakonam Fire tragedy Avinash Mehrotra Vs Union of India (Writ Petition 483 of 2004)

35. In view of what has happened in Lord Krishna Middle School in District Kumbakonam and other incidents which have been enumerated in the preceding paragraphs, it has become imperative that each school must follow the bare minimum safety standards, in addition to the compliance of the National Building Code of India, 2005, in particular Part IV ¬ Fire & Life Safety and the Code of Practice of Fire Safety in Educational Institutions (IS 14435:1997) of the Bureau of Indian Standards. The said safety standards are enumerated here in below:

3.1 FIRE SAFETY MEASURES IN SCHOOLS:

i. Provision of adequate capacity and numbers of fire extinguishers of ISI marks to be provided in eye-catching spots in each block of the school.

ii. First Aid kits and necessary medicines should be readily available in the school.

iii. Provision of water tank and separate piping from the tank with hose reel to the ground floor and first floor.

iv. Fire fighting training to all teachers and students from X to XII standards.

v. Fire Task Force in every school comprising of Head of the institution, two teachers / staff members and one member from the Fire and Rescue Department should be constituted. The Fire & Rescue Department member shall monitor and make fire safety plan and conduct inspections once in every three months.

vi. Display of emergency telephone numbers and list of persons to be contacted on the notice board and other prominent places.

vii. Mock drills to be conducted regularly. Fire alarm to be provided in each floor and for rural schools separate long bell arrangement in case of emergency.

viii. All old electrical wiring and equipment shall be replaced with ISI mark equipments and routine maintenance conducted by the School Management in consultation with the Fire and Rescue Department.

ix. No High Tension lines should run inside or in close proximity to the school. Steps must be taken to shift them if they are already there.

x. The Fire and Rescue Department shall frame guidelines with “DOS and DON’Ts’ for schools and issue a fitness certificate, which shall be renewed periodically.

3.2 TRAINING OF SCHOOL TEACHERS & OTHER STAFF:

i. The teachers along with other staff shall be trained to handle safety equipment, initiate emergency evacuations and protect their students in the event of fire and other emergencies by the Fire and Rescue Department.

ii. They shall also be trained in providing emergency first-aid treatment.

iii) There shall be a School Safety Advisory Committee and an Emergency Response Plan drafted by the Committee in approval and consultation with the concerned Fire & Rescue Department.

iv) Emergency Response Drills conducted at regular intervals to train the students as well as the school staff.

v) All schools to observe Fire Safety Day on 14th of April every year with awareness programs and fire safety drills in collaboration with the Fire and Rescue Department.

3.3 SCHOOL BUILDING SPECIFICATIONS:

i. The school buildings shall preferably be a `A’ Class construction with brick / stone masonry walls with RCC roofing. Where it is not possible to provide RCC roofing only non- combustible fireproof heat resistance materials should be used.

ii. The nursery and elementary schools should be housed in single storied buildings and the maximum number of floors in school buildings shall be restricted to three including the ground floor.

iii. The School building shall be free from inflammable and toxic materials, which if necessary, should be stored away from the school building.

iv. The staircases, which act as exits or escape routes, shall adhere to provisions specified in the National Building Code of India 2005 to ensure quick evacuation of children.

v. The orientation of the buildings shall be in such a way that proper air circulation and lighting is available with open space all round the building as far as possible.

vi. Existing school buildings shall be provided with additional doors in the main entrances as well as the class rooms if required. The size of the main exit and classroom doors shall be enlarged if found inadequate.

vii. School buildings have to be insured against fire and natural calamities with Group Insurance of school pupils.

viii. Kitchen and other activities involving use of fire shall be carried out in a secure and safe location away from the main school building.

ix. All schools shall have water storage tanks.

3.4 CLEARANCES & CERTIFICATES:

i. Every School shall have a mandatory fire safety inspection by the Fire and Rescue Services Department followed by issuance of a `no objection certificate’ to the School as a mandatory requirement for granting permission for establishing or continuation of a School.

i. An Inspection Team consisting of experts like a Civil Engineer, a Health Officer, a Revenue Officer, a Psychologist, a Fire Officer, a local body officer and a development officer besides the educational authorities shall carry inspection and assessment of infrastructural facilities before the commencement of each academic year. The Team shall submit its Inspection Report to the concerned district Chief Educational Officer.

iii. The building plans for schools shall be prepared only by a Government certified engineer and the PWD Executive Engineer concerned should inspect the building and award a structural stability certificate. Stability Certificates shall be issued by the State or Central Government Engineers only and shall be mandatory for granting permission for establishing or continuation of a School.

iv. In every district, one Recognition Committee headed by a retired judge shall be constituted. Officials from Revenue Department, Public Works Department, Fire Service, Electricity Board, Health and Education Department, a reputed NGO shall be members. They shall visit the schools periodically or at least the erring institutions as listed by the Chief Education Officer.

v. Conditional recognition / approval shall never by resorted to for any school.

36. In this petition, we need not take any action contrary to government policy to fulfill the Constitution’s mandate. Union and State officials have already filed wide-ranging plans to improve school safety. Along with the National Building Code, a combination of the better parts of these plans would bring the nation’s schools to an adequate level of safety. States have also expressed enthusiasm for reform and some have asked this Court expressly for direction.

37. Many States have already begun implementation. The most forward thinking States have enacted and enforced the National Building Code in their schools. Often these States have also created, empowered and funded a state-wide emergency response office. The coordinated efforts and concentration of knowledge in these administrative units make States better able to prepare for emergencies, as much as to respond once the problem has started. For example, the State of Gujarat has established such an emergency management office. Having already settled building codes and other large issues, the State can focus on other aspects of emergency management. With the assistance of outside experts, Gujarat recently created a colouring book to teach children how to respond to emergencies. On a smaller scale, but no less vital, in the Union Territory of Pondicherry, administrators replaced all thatched roofs and allocated an additional Rs.500 lakhs to build pucca classrooms. Some States have counted their schools and know which require repairs; they provided these details in their affidavits along with detailed plans for improvement. We are encouraged by the agreement shared among States that safety must improve. Our order should provide additional stimulus for the general aims of the States’ already agreed policy.

38. In the end, we should need to do little but enforce existing laws and encourage States in their own well-intentioned safety programmes. However, in the years since the fire at the Lord Krishna Middle School, some States have moved slowly and safety standards have varied in quality across States. These delays and variations have subjected millions more school children to danger from fire, earthquakes and other causes, when simple enhancements could offer much greater protection. Articles 21 and 21-A of the Constitution require that India’s school children receive education in safe schools. In order to give effect to the provisions of the Constitution, we must ensure that India’s schools adhere to basic safety standards without further delay.

39. It is the fundamental right of each and every child to receive education free from fear of security and safety. The children cannot be compelled to receive education from an unsound and unsafe building.

40. In view of what happened in Lord Krishna Middle School in District Kumbakonam where 93 children were burnt alive and several similar incidences had happened in the past, therefore, it has become imperative to direct that safety measures as prescribed by the National Building Code of India, 2005 be implemented by all government and private schools functioning in our country.

We direct that:-

(i) Before granting recognition or affiliation, the concerned State Governments and Union Territories are directed to ensure that the buildings are safe and secured from every angle and they are constructed according to the safety norms incorporated in the National Building Code of India.

(ii) All existing government and private schools shall install fire extinguishing equipments within a period of six months.

(iii) The school buildings be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely.

(iv) Evaluation of structural aspect of the school may be carried out periodically. We direct that the concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction in duty must attract immediate disciplinary action against the concerned officials.

(v) Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments.

41. The Education Secretaries of each State and Union Territories are directed to file an affidavit of compliance of this order within one month after installation of fire extinguishing equipments.

42. List this petition on 07.12.2009 to ensure compliance of this order.

In light of the above orders of the Court in which almost four months have gone by the Govt of NCT of Delhi did not care to implement the orders of the court and therefore a case of criminal negligence is made out against the Education Secretary and Chief Secretary. Until and unless such senior officials are not brought to book such tragedies will continue to happen. The Govt of NCT of Delhi should not be let off by paying simple ex gratia payment but they should be held accountable for criminal negligence and the Govt should pay a heavy compensation to the parents as it is the administration which is responsible for such an accident.

RECENT CHANGES IN THE LEGAL PROCESS IN INDIA

The Code of Criminal Procedure 1973 has been  amended for reforms in the Criminal Justice System. The Bill received the presidential assent on 08.01.2009.

Many of the Provision go in to strengthen the SAARC PROTOCOL and is a welcome step by the Government of India.

One of the Key work of the National Network of Lawyers for Rights and Justice will be to get the new amendment implemented.

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2008

Definition of a Victim:

In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:—‘(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;’

Victim Can engage Advocate to support and help the Prosecution

In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:— “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”

Statement of the Victim to be done in a safe place or a place of her choice and by a women police officer

In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:—

“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.

Use of Audio Video for Statements

In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:—

‘‘Provided that statement made under this sub-section may also be recorded by audiovideo electronic means.’’.

Use of Audio Video for Confession/Statement

In section 164 of the principal Act, in sub-section (1), for the proviso, the

following provisos shall be substituted, namely:—

“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”

Investigations of Child Sex Abuse to be done in time bound

In section 173 of the principal Act,—

(a) after sub-section (1), the following sub-section shall be inserted, namely:—

“(1A) The investigation in relation to rape of a child may be completed

within three months from the date on which the information was recorded by the officer in charge of the police station.”;

b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—

“(h) whether the report of medical examination of the woman has been

attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.”.

Witness Can Be Done By Using Electronic Means

In section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—

“Provided that evidence of a witness under this sub-section may also be

recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.

In  Camera Trials and identity protection

In section 327 of the principle Act,—

(a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—

“Provided further that in camera trial shall be conducted as far as

practicable by a woman Judge or Magistrate.”;

(b) in sub-section (3), the following proviso shall be inserted, namely:—

“Provided that the ban on printing or publication of trial proceedings in

relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.

Victim Compensation

After section 357 of the principal Act, the following section shall be inserted, namely:—

“357A.

(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation,

the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

(5) On receipt of such recommendations or on the application under sub-section

(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”

Right to appeal for the Victim against the verdict of the Trial Court

In section 372 of the principal Act, the following proviso shall be inserted, namely:—

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.

The Researcher is a Practsing Advocate in The Supreme Court of India

ravikantsv@gmail.com

VICTIM COMPENSATION IN INDIA

Victims of any crime and of human rights violations (regardless of their legal status) have a right to be compensated for the losses sustained due to the crime committed on her/him. Compensation can be sought through criminal, civil or administrative procedures, and can be awarded for material (including unpaid wages and medical expenses) and non-material (such as for pain, suffering and trauma) damages). The victim of a criminal act can claim for compensation from the offender as part of a criminal case. Compensation has to be ordered by the court and is part of a guilty verdict. In criminal cases victims can directly apply for compensation and thus, it is important that prosecutors are aware of the existence of this right to request the judge to make such order. Trafficked persons, as with all victims of human rights violations have a right to a remedy. This means they have a right to access criminal, civil and/or administrative procedures for seeking financial redress – compensation for material and non-material damages resulting from the crime committed to them, unpaid wages, restitution from the offender and other forms. The Legal Professionals should lobby with their governments for such compensation which is. Once such compensations become mandatory there will be reverse pressure on the Law enforcement to break the criminal networks which

In India the National Commission for Women has proposed a Criminal Injuries Compensation Board for the payment of compensation to victims of Rape . This proposal has been done on the Directives issued by the Supreme Court of India in the case Delhi Domestic Working Women’s Forum Vs. Union of India and others writ petition (CRL) No.362/93 had directed the National Commission for Women to evolve a “scheme so as to wipe out the tears of unfortunate victims of rape’’ The Supreme Court observed that having regard to the Directive principles contained in the Article 38(1) of the Constitution, it was necessary to set up criminal Injuries compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial loss and in some cases are too traumatized to continue in employment. The Court further directed that compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries compensation board whether or not a conviction has taken place. The Board shall take into account the pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurs as a result of rape.

Salient features of the Scheme of Rehabilitation of Trafficked Victims is as follows:

(Source http://www.ncw.nic.in/schemeforrehabilation.pdf)

DISTRICT MONITORING COMMITTEE –

The State Government shall establish in every District, a Monitoring Committee, which shall be headed by the Superintendent of Police of the District. The committee shall comprise of the following other members, whom the District Collector/District Magistrate would nominate:

(i) A police officer, preferably a woman

(ii) A woman social activist or a counsellor;

(iii) A Lawyer

(v) A Medical doctor;

(vi) A representative of the Panchayati Raj Institution or Municipality

The District Monitoring committee shall perform the following functions;

(a) To arrange for psychological and medical aid and counseling to the victim.

(b) To arrange for legal aid to the victim in filing the FIR till the conclusion of the trial;

(c) To initiate suitable measures to ensure the protection of the victim and witnesses till the conclusion of the trial.

(d) Monitor and expedite the progress of the investigation.

(e) To aid and assist in opposing bails, filing appeals and making

application for protection of the victim.

(f) In cases of young victims, to see that they receive education or

professional training or training for self-employment.

(g) To assist them in securing employment.

(h) To provide the required psychiatric treatment/counseling

(i). To facilitate the victims’ rehabilitation.

(j) Initiate action so as to ensure Anonymity of the victims.

(k) Ensure that Interrogations of the victim be conducted by female police

officers. During all stages of interrogation and examination of the victim or the applicant, at least one member of the DMC is present.

(l) To arrange shelter to the victim, for such period as the circumstances warrant.

(m) And such other functions as may be deemed expedient and necessary by the committee given the peculiar facts and circumstances of each case;

PROCEDURE FOR TRANSACTION OF BUSINESS BY THE DISTRICT BOARD (CIRRB):

(a) A victim, or her legal heir or any person/voluntary organization espousing the cause of women, or DMC may apply to the District Board for financial relief and rehabilitation in accordance with the provisions of this Scheme.

(b) Where the legal heir is:—

(i) A child, the application may be made on his behalf by a parent or guardian or by any voluntary organization.

(ii) A mentally ill person within the meaning of the Mental Health Act, the Application may be made by the person with whom the victim normally resides or a duly authorized medical officer or a voluntary organization; or by a parent/guardian.

(c) An applicant shall submit the following documents, as applicable, with the application:

(i) Medical certificate, where the application is being made by or on behalf of the victim; or

(ii) The death certificate of the victim, where the application is being made by a legal heir.

(iii) Copy of FIR/Complaint.

(d) On receiving the application and after having been prima facie satisfied that a case of rape has been made out, the Board shall order an interim financial relief of Rs.20, 000/-.

(e) The Board shall as far as possible grant the interim relief within a period of three weeks from the date of receipt of the application;

(f) Before awarding the interim and other relief’s, the Board shall satisfy itself about the claim, make a preliminary assessment about the nature of the claim as well as take into account the medical report and other evidences;

(g) The Board shall take the assistance of the District Monitoring Committee before arriving at any decision

(h) The Board may take other measures for the purposes of the rehabilitation or any special needs of the victim in addition to the financial relief

(i) In case of victims who belong to schedule caste / schedule tribes, the provisions of the scheme shall be in addition to the provisions prescribed for grant of relief under the scheduled caste and the scheduled tribes (prevention of atrocities) Act 1989. However, the District Monitoring Committee while deciding the relief under this scheme shall take into account the compensation payable to the SC/ST victim under that Act.

(j) The Board shall dispose the application for relief and rehabilitation within one month from the date on which the complainant gives her evidence or within one year from the date of receipt of the application whichever is earlier; In deciding the application for financial relief, the Board shall be guided by, but not completely controlled by, the stand of the applicant in the trial.

(ja) the Board shall release balance amount of RS 1.30 Lakh and any amount unspent towards relief and rehabilitation measures to the victim subject to the fixed limit as prescribed

(k) The Board shall as far as possible, award financial and other relief’s, as per the heads specified in the scheme.

(l) Award the compensation to the victim in lump sum subject to a maximum of Rs.2, 00,000/-. While awarding the final relief, the Board shall take into account the interim and other reliefs granted.

(m) The Board shall be guided by the peculiar needs of the victim in deciding the amount of compensation to be granted in each case;

(n) The financial relief that is awarded by the Board is in addition to rehabilitation measures that the Board may suggest/ administer in each case.

(o) In cases where the victim is a minor, the amount shall be paid to her guardian or next friend after satisfying itself about the legitimacy of the person for relief and rehabilitation of the victim;

(p) The Board shall keep the Best interests of the victim in mind at all times;

(q) The Board May reject any application where it is of the considered opinion that:-

(i) The applicant failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Board to be appropriate for the purpose, of the circumstances giving rise to the injury; or

(ii) The applicant failed to co-operate with the police or other authority in attempting to bring the accused/assailant to justice; or

(iii) The applicant has failed to give all reasonable assistance to the authority or other body or person in connection with the application;

Recent Update:

The Code of Criminal Procedure 1973 as amended by  The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation.

Section 357- A

(1)   Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and require rehabilitation.

This added provision will now be an important tool in the hand of activist to push forward for victim compensation. This is strengthens the provision of Victim Protection in SAARC Protocol.

The author is practising Advocate in The Supreme Court of India

ravikantsv@gmail.com

Lawyers Challenge Arbitrary Action of UP Govt

Lawyers take Maya statues to court

New Delhi: The Mayawati government’s gigantic project to glorify her as the greatest ever dalit leader by installing her statues in prime cities of Uttar Pradesh is coming under the Supreme Court’s hammer.

Concerned at the gross wastage of public money, two lawyers on Thursday moved Supreme Court, seeking a direction to the overzealous state government to stop wasting public money in this fashion.

Petitioners Ravi Kant and Sukumar also sought a direction to CBI to probe the multi-million-rupee statues’ scam.

According to the UP government, it has spent Rs3.49 crore on Mayawati’s eight statues at five memorials coming up in Lucknow. It spent another Rs3.37 crore on seven statues of her mentor, Kanshi Ram. Another Rs52.20 crore is being spent on 60 statues of elephants — the BSP’s election symbol — at these memorials. Each elephant statue, complete with a granite pedestal, costs Rs87 lakh.

The petitioners said installing the elephant statues violates the election code that prohibits any ruling party from glorifying its election symbol at tax-payers’ money. In response to lawyer Ravi Kant’s query under RTI, the state government said the largest statues of Mayawati and Kanshi Ram were installed at Pratibimb in Bhimrao Ambedkar Samajaik Parivartan Stahl, Gomti Nagar. The two 24-ft high bronze statues cost Rs1.55 crore each.

The petitioner regretted that the state that is in dire need of funds for social emancipation, public health and education is indulging in wasteful expenditure. UP is among the five states having highest neo-natal mortality. As per the 2001 census, the state has the highest no of child labourers and maximum number of poor, with 59 million below the poverty line.

Of its 97,122 villages, only 56,977 have power. “In this scenario, construction of statues and memorials is a complete misuse of funds,” the PIL says.

http://www.dnaindia.com/india/report_lawyers-take-maya-statues-to-court_1266341

PIL challenges UP govt’s love for statues of Maya and elephant

19 Jun 2009, 0328 hrs IST, TNN

NEW DELHI: A public interest petition in the Supreme Court has questioned the Uttar Pradesh government’s decision to misuse public funds to erect statues of chief minister Mayawati and instal replicas of elephants, which is the symbol of the ruling BSP, at prominent places in the state.

The PIL filed by two advocates Ravi Kant and Sukumar accused the Mayawati regime of being obsessed with self-glorification at the cost of the exchequer and termed this as a misuse of state funds for no public cause.

Seeking an inquiry into the manner in which the funds have been utilised to erect her statues and the replicas of elephant at important places and parks all over the state costing the exchequer hundreds of crores of rupees, the petitioners said any policy of the state that involved spending tax-payers’ money for such a wasteful purpose should not be allowed to be continued.

“Petitioner challenges the policy of the state government to construct large number of statues of chief minister Mayawati and spending of hundreds of crores of rupees for self-glorification of Mayawati,” the PIL said.

“It also challenges installation of 60 replicas of elephants at a cost of Rs 52.5 crore, which is the election symbol of the ruling Bahujan Samaj Party,” it said.

http://timesofindia.indiatimes.com/India/PIL-challenges-UP-govts-love-for-statues-of-Maya-and-elephant-/articleshow/4672898.cms

ARBITRARY ACTIONS OF THE STATE ARE IN CONFLICT WITH ARTICLE 14 (Right to Equality) OF THE CONSTITUTION OF INDIA

It is now too well-settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua lion to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case.

An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness.

Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you’. This is what men in power must remember, always.Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703, at p.7 18-19, indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:”In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (Dicey–”Law of the Constitution”-Tenth Edn., Introduction cx).In Shrilekha Vidyarthi Vs Union of India

“Law has reached its finest moments”, stated Douglas, J. in United States v. Wunderlick, (*), “when it has freed man from the unlimited discretion of some ruler … Where discretion is absolute, man has always suffered”. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilker (*), “means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful.” After Jaisinghani’s case (supra), long strides have been taken in several well-known decisions of this Court expanding the scope of judicial review in such matters. It has been emphasized time and again that arbitrariness is anathema to State action in every sphere and wherever the vice percolates, this Court would not be impeded by technicalities to trace it and strike it down. This is the surest way to ensure the majesty of rule of law guaranteed by the Constitution of India.

Every discretionary power vested in the executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law. In United States V Wunderlich (1951) 342 US 98 Law has reached its first finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered .At times it has been his property that has been invaded, at times his privacy; at times his liberty of movement; at times his freedom of thought; at times his life. Absolute discretion is a ruthless master It is more destructive of freedom than any of mans other invention. John Wilkes (1770) 4 Burr 2528 . Discretion means sound discretion guided by law it must be governed by rule not humor; it must not be arbitrary, vague or fanciful. In a state of governed by the rule of Law, discretion must be confined within clearly defined limits. A decision taken without any principle or rule is the antithesis of a decision of a decision taken in accordance with the rule of Law.In a State governed by the rule of law , discretion can never be absolute. Its exercise has always to be in conformity with rules; in contradistinction to being whimsical and should not stand smack of an attitude of “ so let it be written, so let it be done”. It is important to emphasize that the absence of arbitrary powers is the first essential of the Rule of Law upon which our whole constitutional system is based. In a system governed by the rule of law, discretion when conferred by upon executive authorities, must be confined within clearly defined limits. Aeltemesh Rein, Advocate, Supreme Court Of India Vs Union Of India And Others  (AIR 1988 SC 1768)

Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.   State Policy : The sweep of Article 14 covers all state action .Non arbitrariness and fairness are the two immobile and unalterable cornerstone of a legal behaviour baseline. Every action even a change of policy in any relam of state activity has to be informed fair and non arbitrary. In E. P. ROYAPPA Vs.STATE OF TAMIL NADU & ANR.

An authority, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution.    In Neelima Misra Vs Harinder Kaur Paintal And Others (AIR 1990 SC 1402)

The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be exercised for the public good. Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. In KASTURI LAL LAKSHMI REDDY Vs. STATE OF JAMMU AND KASHMIR & ANOTHER

In legislations enacted for general benefit and common good the responsibility is far graver. It demands purposeful approach. The exercise of discretion should be objective. Test of reasonableness is more strict. The public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bona fide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose for which it was authorised to be exercised. Dishonesty is discharge of duty vitiates the action without anything more. An action is bad even without proof of motive of dishonesty, if the authority is found to have acted contrary to reason. In MAHESH CHANDRA Vs. REGIONAL MANAGER, U.P. FINANCIAL CORPORATION AND ORS ( AIR 1993 SC 935)

It is now well-settled as a result of the decisions of this Court in E. P. Rayappa v. State of Tamil Nadu,  and ….. the decisions of this Court in E. P. Rayappa v. State of Tamil Nadu (supra) therefore, and Maneka Gandhi v. Union of India, (1978) S.C. 248, that Art. 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory: It must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality.The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Art. 14 and it must characterize every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory. In Ramana Dayaram Shetty Vs International Airport Authority Of India And Others (1979 AIR(SC) 1628 ) .

The expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. In M/S SHARMA TRANSPORT REP.BY SHRI D.P.SHARMA Vs. GOVERNMENT OF A.P. & ORS.(AIR 2002 SC 322 )

A case of confirment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. In AP Aggarwal vs Govt of NCT of Delhi (AIR 2000 SC 3689)

Any state action executive , legislative  or judicial is void if it contravenes Art 14. In Budhan v State of Bihar (AIR 1995 SC 191)

A statute may expressly make a discrimination between persons or things or may confer power on an authority who would be in a position to do so. Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately. In State Of Andhra Pradesh And Another Vs  Nalla Raja Reddy And Others (AIR 1967 1458 )

The absence of arbitrary power is the first postulate of rule of law upon which out whole Constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.  In Som Raj vs State of Haryana ( AIR 1990 SC 1176 )

The Author is a practicing Advocate in the Supreme Court of India

ravikantsv@gmail.com

New face of terror – Inducing our own people against us

The Serial Blast in Delhi on September13, 2008 and then the subsequent shoot out in Batala House has become very controversial Issues for Delhi Police. Media Reports are afloat about the very truthfulness of the encounter. Frustrated Lawyers like Shanti Bhushan and Prashant Bhushan have raised fingers on the incident. While International Activist who have made no contribution to India like Arundhati Roy have lined up at Tis Hazari to make a hero out of misguided youth.

The fact that Inspector Moolchand Sharma was killed in the encounter has certainly silenced many critics but still the rumour on the encounter continues.

These people who are coming out in favour of the misguided youth who had indulged in Hard core criminal activity which killed more than 200 plus people, injured thousands and put the fear of bombs on the psyche of billion Indians are themselves of perverted mind who have no contribution for the nation.

So the question comes – What should the Police do to combat such act of terror. The terrorist are armed and out there to kill. They have no emotions. For them killing is celebration. So how do you tackle people of such mentality? If the Police do not do anything it is made the beating boy by the press and our political class .If they carry out any action it is said that they are indulging in false encounter. So what should the Police do? Will frustrated activist like Prashant Bhushan, Arundhati Roy and some politicians come forward to tackle terror? If there own had died in terror they would have never made such statements.

The police have a tough task cut out. They have to arrest and prosecute the perpetrators of these heinous crimes. If the encounter is false then who killed Mool Chand Sharma. What about the constable who was injured. What about the information’s on the lap top which will be court evidence? What about the corroborating evidence. What about the many circumstantial evidences. What about the various recoveries on the statements of the people arrested. What about the travel documents of the arrested persons. How where these youth in touch with terrorists? How did they go to Bangalore to bring the bombs? And how could the police engineer so many people together from Azamgarh. The people who are making tall claims of false encounter need to answer these questions. It is good that the NHRC will be conducting a enquiry.

Our Criminal Justice system is time tested. An accused who is not proved guilty is merely an accused and not a criminal. These frustrated activists should let the Justice system decide rather to give out populists statements. Of course the youth who have been accused are youth but they are matured adults also. They should have understood what they are doing. Even our Juvenile Justice Act which goes all out for the welfare of the Children does have reformatory provisions for delinquent children.

The Indian Penal Code on Children who commit crime states that:

Section 82. Act of a child under seven years of age

Nothing is an offence which is done by a child under seven years of age.

Section 83. Act of a child above seven and under twelve of immature understanding

Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

When we examine these provisions it is amply clear that the law stresses a lot on maturity or understanding.

In the present case these youth were all mature and had reasoning as most of them were educated. Also they were adults and not juvenile. Therefore they should fight there case as per the law and get themselves acquitted if they are innocent. People like Prashant Bhushan should defend these youth and let the law take its own course. If innocent they will certainly be acquitted.

I pray to God that the youth turn out to be innocent. It really pains to see such young people falling to the nefarious designs of the Terrorists. It pains to see the broken homes of these young people. Also if they are innocent at least we will not have to fight our own blood and brothers. I say this because I am not a muslim , I say this because I am not a Hindu beating secularists but I say this because I am an Indian and I will always be pained to see my brothers in the present condition.

Questions raised by frustrated activist lower the morale of the Police rank and file. No one will be ready to sacrifice their life when they know that questions will be raised. What do these frustrated activists like the police to do in combating terrorism? Call them and tell them to give a clearance before any operation is done.

Professor Mushirul Hasan has reacted in a breach of discipline. He was not pained by the campaign against his university but he wanted to appease certain sections of the Society and some politicians who run there business on secularism. Let the Vice Chancellor of Jamia Millia Islamia give a list of students who have been provided legal aid in the last ten years to students who have been booked for crime. Not a single might have been supported, so why to day they are trying to offer legal aid.

In India right to representation in court and legal aid is mandatory and if any one is not able to hire a lawyer he can approach the court for it.

Concern:

The immediate concern for all nation loving people is the dangerous trends which have been reported. How young educated students are being roped into this. How the terrorists are recruiting are youth and training them to kill our own citizen. If we are made to fight against our own people we will never win the war against terror. This is a matter for grave concern for our people. Remember a state will never be at peace it is fighting against its own people. We need to reach out to all and stop this dangerous trend. This is a new weapon to weaken our country by spoiling our youth. Our Politicians need to think over these issues. All parties should ponder over this and refrain from giving any remarks. We have to become united to fight to terror.

Senior Leaders like LK Advani of BJP should not indulge in rhetoric’s but think over how they are going to fight our own brothers and sons.

The terrorists earlier used to be rest assured that one blasts will trigger a riot .We Indians have understood there designs and today bombs and terror acts will never trigger a riot. So they have designed new ideas and put our own brothers and children against us.

I dare to warn these politicians that today however strong law you make you will never win the war on terror. The war against terror in India today will be won only when we think why our brothers sons and children are so susceptible to the design of the terrorists. Why instead of fighting the intruder we are forced to fight our own blood. That is the real question and that is the key to fight terror. When we will be united no one can dare to touch us.

My hats of Jamia Students who took out a Peace March. They demonstrated there resentment against the bad image being portrayed about there university. The Peace march had student of all Religions and was unanimous against terror. This Peace march might have really sent jitters to the terrorists.