LAWYERED SLCU Litigation Committee Newsletter

AUGUST 2011 Volume 1, Number 2

Litigation: Some Reflections Traditionally, the term “lawyer” is synonymous with litigation that is, until the emergence of

Alternative Dispute Resolution mechanism.

Admittedly, every lawyer would have experienced job satisfaction if he were able to put

across his point of view effectively and convincingly before the presiding Judge. Indeed, a

litigation lawyer is known to live law through the brief which he holds on behalf of the client

and by successfully taking it to its logical end.

Though, the application of law has found varied and diverse avenues, litigation is still the

most coveted stream of legal profession. Hence it goes without saying that if a litigation

lawyer wants to taste success then he has to hone certain skills.

It would not be an exaggeration to say that the first and foremost requisite of a good lawyer is

his ability to articulate well and a firm command on language. It is well said that “language is

the sole tool of a lawyer”. Needless to say, he must have a tongue of a parrot. However, this

in itself is not sufficient as mere grip over language sans a firmer grounding in basic law

would be just a superficial trait. Thus, a litigation lawyer can succeed if he could judiciously

combine his skills of language with that of his knowledge of law.

Having said that, however, it is still difficult to comprehend a perfect litigation lawyer unless

he is equipped with a set of material facts concerning the case in hand. In other words, every

litigation lawyer must have the capacity to separate the grain from the chaff and present only

those set of facts to courts which are relevant to the case concerned.

On the other hand, every litigation lawyer must possess a sound and plenty of common sense

in order to appreciate relevant timing of commencement as well as the conclusion of the

arguments. In other words, he should know how much to speak and when to speak in order to

further his viewpoint in the case concerned. This is necessary in order to make an attempt to

be on the same wavelength as that of his Judge. This means that every litigating lawyer must

know and read the mind of the Judge who is hearing him and be able to analyze the direction

which the application of mind by the Judge is taking. That is, every such lawyer must know

or make an honest attempt to know the interpretation being placed by the judge upon the

arguments being made by the said lawyer.

The requirement hereto before mentioned, no doubt, keeps the lawyer on the toes always.

Hence, life in a court of law as a litigating lawyer is always full of challenges, surprises,

upheavals and a mixed bag of pleasures and pains. Therefore, every litigating lawyer is bound

to face at every moment of each day in his professional life, the hitherto unexplored and

inexperienced situations and is required to politely but firmly put forth his point of view

before the Judge which may be at variance with that of the Judge himself. That is why, it is

always said that the lawyer must possess the heart of a lion. However, if necessary, he must

also not hesitate to humbly withdraw if the court points out his mistakes or shortcomings.

Hence, it can be easily inferred that the life of a litigating lawyer is always one of challenges

and opportunities. Therefore, he should be a blend of, as articulated in Sanskrit - “Vajradapi

kathorani mriduni kusumadapi”.

All said and done, however, the real satisfaction for a litigation lawyer comes only when,

apart from upholding the interests of his client, he is able to usher in or be instrumental in

ushering in justice in its true sense. Evidently, he would be in position to achieve this if he

could emulate the success stories of top notch litigation lawyers who have religiously and

assiduously followed these few requisite points in their professional lives.

Contributor: Dr. Sandeep S. Desai (Asst. Professor)

Legal Newswire CENTRAL GOVERNMENT UNVEILS

DRAFT LAND ACQUISITION BILL

Social activist Medha Patkar on 5th

August, 2011 demanded that the Centre

should repeal Land Acquisition

(Amendment) Bill and enact a

comprehensive legislation on development

planning. Earlier, the Rural development

minister Jairam Ramesh released the draft

national land acquisition and rehabilation

and resettlement bill, making the

rehabilitation and resettlement policy a

part of the land acquisition bill. Two

separate pieces of legislation were

originally planned. “Acquisition and

rehabilitation are two sides of the same

coin. Not combining the risks the neglect

of R&R. this has been the experience thus

far” Jairam Ramesh said. By making the

consent of 80% of the affected people

mandatory before their land can be

acquired, the proposed law will restrict the

government's role in the process and make

it cumbersome. The proposed legislation

also brings into effect a comprehensive

scheme for resettling affected people by

assuring them house sites, employment

with the project, apart from paying six

times the market value of farmland.

However, since the way government

calculates market prices based on recorded

prices, even after the hike, the

compensation would barely reflect the

actual market prices.

Apex industrial bodies like CII and

FICCI welcomed the draft bill. "The bill is

forward looking and addresses long

pending concerns on land acquisition,"

said Chandrajit Banerjee, director general

of CII. "We are pleased to know the draft

bill does not envisage acquisition of land

by the government for private companies.

The government should provide the

enabling framework for facilitating the

process of acquisition and rehabilitation,"

said Rajiv Kumar, secretary general of

FICCI.

However, political parties reacted

cautiously. "We have to study the new

draft. But two issues need to be addressed

in the bill -- the issue of future value

escalation and farmers' share in it and the

mechanism to protect farmers from land

sharks," said Sitaram Yechury, CPM

politburo member and Rajya Sabha

member.The draft bill also proposes that

the consent of 80 per cent of the project-

affected families will be mandatory if the

government acquires land for use by

private companies for stated public

purpose or PPP projects other than that for

national highway. A new clause

introduced in the draft Land Acquisition

Bill will bring cases where the award of

land is underway or possession has not

taken place within the scope of

compensatory and acquisition norms. The

intention behind inclusion of such clause is

to make private developers, industries and

the government, who are currently

involved in the process of acquiring land,

shell out generous compensation packages

to land owners with retrospective effect.

“The new clause that we have introduced

will give the bill retrospective effect,”

Rural development minister Jairam

Ramesh said. The welfare piece of

legislation is expected to be introduced in

the Parliament soon.

Source: The Economic Times and the

Hindu

Contributor- Ann Kynadi (II Year)

FREE HEALTHCARE IN PRIVATE

HOSPITALS

Private parties have been given

concessions in allotment of land and the

payment import duty for the hospitals they

set up. The Government has done this with

a view to promote healthcare and has also

imposed conditions on such private

hospitals which mandate them to provide

free treatment to a certain number of

impoverished patients, the number being

calculated on the basis of number of

patients.

In Karnataka, hospitals were exempted

from custom duty for imports of medicine

and hospital machinery and in turn, 10%

of the in-patients and 40% of the

outpatients treated by each of those

hospitals had to earn less than Rs. 500/-

and be given free treatment in 1988.

However, import duty on machinery was

levied on 29 hospitals and they filed a

petition in the High Court of Karnataka

seeking to redeem this custom duty paid.

This month, the Court ordered these

hospitals to treat 20% of their patients free

of cost annually. The patients receiving

free treatment should be below poverty

line, for a period of 20 years. This was the

order given by the Division Bench

comprising of Justices Kehar and

Bopanna.

In Delhi, several private hospitals were

given public land at concessional rates

provided 25% of the beds were earmarked

for the economically disadvantaged. After

the receipt of these benefits, the hospitals

did not treat the poor free of cost. Pursuant

to a PIL filed by the NGO Social Jurist,

the Supreme Court criticized these

hospitals for charging exorbitantly and for

not fulfilling their obligations

To fulfill this requirement, hospitals have

to maintain stringent records of patients.

This move will give the people below

poverty line access to better healthcare.

However, the standards to be conformed to

for this purpose should not allow the

hospital to falsify its records.

Source: Indian Express, Karnataka,

Deccan Herald and Times of India.

Contributor: Mukta Batra (II Year)

ILLEGAL MINING STIRS THE

STATE OF KARNATAKA AND

CONTROVERSY FOR

YEDDYURAPPA

The state Lokayukta in its 25,288 page

report has substantially reported to have

shown that there has been a figure of Rs.

16,085 loss between 2006 and 2010. The

important question being, ex-Chief

Minister Yeddyurappa involved in this

matter. He has been indicted for taking a

figure of Rs. 30 crore for granting

kickbacks by a mining firm to his family

trust. Even the former Chief Minister,

H.D. Kumaraswamy, is hauled up for

granting mining leases to the companies.

The first report was submitted in

December 2008 which had said that the

iron ore may last 20 to 25 years going by

the rate of extraction from 2004 to 2007 in

Bellary, Hospet and Sandur regions. But

subsequently, the production inclusive of

illegal extraction went up greater times.

The evidence against Yeddyruappa has

been that it was found that particular

transactions took place between a

company dealing in iron ore, which

donated Rs. 10 crore to a trust managed by

family members of the CM. It has been

recommended that Criminal Prosecution

under Prevention of Corruption Act, IPC,

Forest Act, Mines Regulation Act will be

instituted.

The Lokayukta Justice Santosh

Hegde, a former Supreme Court judge,

fears that Karnatake government may not

take action on his main report, which is

943 pages, and said that his only hope is

the Supreme Court. The development in

this regard is being keenly watched as CM

Yeddyurappa resigned on 31st July.

Source: Times India, Outlook and DNA

Contributor: Shweta Nambiar (III Year)

LOKPAL BILL: A MASS STRUGGLE

AGAINST CORRUPTION

Corruption in India has reached alarming

proportions because of loopholes in the

policies that have created enormous

incentives for its proliferation, coupled

with the lack of an effective institution that

can investigate and prosecute the corrupt.

To curb the increasing racket of corruption

in India, the Lokpal bill is been proposed

in the parliament. The Lokpal Bill

provides for filing complaints of

corruption against politicians and

bureaucrats with the ombudsman.

Ombudsman is a government official, who

investigates citizen’s complaints against

the government or its functionaries. The

Administrative Reforms Commission

while recommending the constitution of

Lokpal was convinced that such an

institution was justified not only for

removing the sense of injustice from the

minds of adversely affected citizens but

also necessary to instill public confidence

in the efficiency of the administrative

machinery.

The first Jan Lokpal Bill was introduced in

1968 and passed in the 4th Lok Sabha in

1969 but could not get through in the

Rajya Sabha as before the bill could be

transmitted to the Rajya Sabha, the Lok

Sabha was dissolved. Subsequently,

Lokpal bills were introduced in 1971,

1977, 1985, 1989, 1996, 1998, 2001, 2005

and in 2008 but has never been passed. Yet

42 years after its first introduction, the

Lokpal bill is still pending in India. Each

time, after the bill has been introduced in

the house, it was referred to some

committee for improvements, a joint

committee of parliament, or a

departmental standing committee of the

Home Ministry. Meanwhile the activists of

India Against Corruption (IAC) observed

several flaws in the recent draft of the

Lokpal Bill and have prepared a draft bill

called Jan Lokpal Bill headed by Anna

Hazare. However, there are many conflicts

between the bill proposed by Anna Hazare

and the Central government.

IAC aims to have the Prime Minister and

higher judiciary to be brought within the

purview of the Lokpal. The Government

agrees to bring the Prime Minister in the

Lokpal but is against bringing the higher

judiciary under Lokpal. IAC recommends

removal of any minister barring the Prime

Minister, the Government has partially

given in on the issue. IAC wants conduct

of MPs in Parliament to be included in the

Lokpal but the Central Government is

against it. Moreover, it demands that CBI,

vigilance wing and CVC to be merged

with the Lokpal, but the Government

disagrees on this point entirely. The

activists want CAG and CEC to be

appointed by the Lokpal selection panel as

they feel otherwise this would also become

a political appointment but the

Government refuses to give its assent to

such demand. IAC wants all bureaucrats

be included, but the Government agrees to

bring only the higher bureaucracy under

Lokpal cover. IAC wants Lokpal to have

prosecution powers and power to tap

phones, but the Government disagrees on

prosecution powers and also said the

Lokpal needs to take permission from

Home Secretary on phone tapping. The

civil society wants maximum punishment

awarded should be life imprisonment, but

the Government says the maximum

imprisonment should be 10 years. IAC

wants all citizens empowered to refer

complaints for removal of Lokpal to the

Supreme Court, but the Government says

only it should have the power to refer

complaints against Lokpal to the Apex

court.

Thus even though there have been various

conflicts with regard to which version of

the bill should to be adopted. The

government has introduced its version of

the bill in the parliament in spite of

protests. This shows that the government is

not acting effectively to curb the racket of

corruption, but introducing such a bill is

merely a facade.

Source: The Outlook and the Hindu.

Contributor: Darshana and Akshata

Benegal (III Year)

NO DEFREEZING OF ACCOUNTS

A petition filed by Adarsh Housing

Society regarding defreezing of accounts

was dismissed by the Bombay High Court

in its fresh hearing on 27th July 2011.

Central Bureau of Investigation had frozen

two accounts earlier this year which

belonged to the society. One of the main

causes being the supply of capital and also

the erroneous intent behind it. The freezing

of bank accounts was held to a reasonable

measure and the court found that the

contention of the society pertaining to

‘right to counsel of one’s own choice’ was

not acceptable. Moreover, the court stated

that “the right to legal representation did

not mean right to counsel of one’s choice”.

The two accounts were in State Bank of

India, Cuff Parade and Wodehouse branch

in Mumbai town with approximate cash of

2 Crore rupees. The counsel for the society

argued that the society was being denied of

its fundamental right of legal

representation of one’s choice since the

funds were frozen by the government.

The 35 page judgment by the high court

stated that “the society has been

represented by some of the finest counsels

in the country. Had the society sought

legal aid, it would have been provided, but

no such application was made”. The court

further stated that since the accounts were

frozen for Benami transaction so under no

such condition it could take back its steps.

Source: The Hindu Business Line and

Times of India

Contributor: Deepali Sirsikar (II Year)

FILE-SHARING SITE

BLOCKING FLAGS UP INTERNET

FREEDOM

In order to prevent piracy of its recently

released film Singham, Reliance Big

Pictures has obtained a John Doe order

from the Delhi High Court. A John Doe

order is an injunction used internationally

against unidentified prospective persons

who would infringe the rights of the

affected party by releasing movies without

licence.

The Internet Service Providers

(ISPs), in turn, blocked entire domains and

the government followed later by making

file sharing sites such as Mediafire,

MegaUpload and Hotfile inaccessible.

The service providers' action

sparked protest, with hundreds of blog

posts and tweets, an online petition and a

Facebook page against the ban and

regulations on websites and downloads.

Airtel clarified a day later that the file-

sharing websites resumed functioning.

Nikhil Pahwa, editor and publisher,

Medianama, which first publicised the

issue, feels that such a measure is similar

to the one in March where Airtel and a few

other service providers had blocked access

to a few sites.

“Then, in its response to an RTI

application filed by us, the Department of

Telecom (DoT) said that it had not ordered

the service providers to block the sites in

question. This time too, the action is

without a DoT instruction, and what is

unfortunate is thatthe service providers

have blocked whole sites, while the court

order was directed only at one movie. This

is arbitrary,” Mr. Pahwa says.

The issue has cropped up at a time

when several countries, including Iran,

Turkey, New Zealand, Malaysia and even

the United States, have service providers

taking initiatives on blocking file-sharing

sites.

“Given that there are bandwidth

issues in the country and the time needed

for downloading from file-sharing sites,

people would rather buy the pirated CDs,

DVDs available for under Rs.100”, says S.

Saravanan, deputy manager, Moser Baer.

He wonders whether such bans will work

for every movie.

And the experience of

downloading movies is not good for

everyone in India. “One solution to piracy,

therefore, is to allow legitimate ways for

users to download movies”, says Shanujit

Bhujabal, director (marketing), Sony

Music.

Source: The Hindu

Contributor: Himanshu Bagaria (II

Year)

Legal Jargon ACCOMODATIVE SECULARISM

While drafting the Indian Constitution, in spite of the reluctance of the Constituent Assembly

to incorporate the word ‘secular’, the word ‘Secular’ was formally inserted in the Preamble to

the Constitution of India by the 42nd Amendment of 1976, still, a survey of the provisions of

the Indian constitution suggest that India as a state is separate from religion and would

guarantee religious freedom to the citizens of all faith, while not discriminating against any

citizen on the basis of religion. Thus, the Indian Constitution guarantees both individual and

collective freedom of religion through the Articles 25-28 enshrined in Part III of the

Constitution which deals with Fundamental rights. Article 15 and 16 also guarantees non-

discrimination on the grounds of religion.

In Prafull Goradia v. Union of India, a case decided the Supreme Court of India on January

28, 2011, wherein the Petitioner contended that Haj Committee Act, 2002, is violative of

Articles 14, 15, and 27 of the Constitution. The Petitioner was aggrieved because being a

Hindu; he had to pay direct and indirect taxes, part of whose proceeds go for the purpose of

the Haj pilgrimage, which is done only by the Muslims. For the Haj, the Indian Government

inter-alia grants a subsidy in the air fare of the pilgrims.

Emphasis was laid by the petitioner to Article 27 of the Constitution which reads as under:

“Freedom as to payment of taxes for promotion of any particular religion.—No person shall

be compelled to pay any taxes, the proceeds of which are specifically appropriated in

payment of expenses for the promotion or maintenance of any particular religion or religious

denomination.”

Broadly, constitutional “secularism” stands for two propositions, (1) free exercise, and (2)

non-establishment. Article 27 arguably furthers the latter proposition, i.e., that the state

should not be seen as establishing or endorsing any religion, by forcing people to pay

religious taxes.

The Supreme Court found that Article 27 of the Constitution operates even within the context

of general taxing statutes, but it only militates against the use of a “substantial part” of the tax

paid, towards the promotion or maintenance of any particular religion or religious

denomination.

For the record, barely a paltry 0.13% of the levied taxes were used for this purpose. A small

proportion of taxes paid under a general taxing statute can accordingly be used by the State to

fund religious groups. As the Calcutta Telegraph reported, "In Parliament last year, foreign

minister S.M. Krishna had put the Haj subsidy at Rs 611 crores for 2009-10. The figure is just

0.13 per cent of the Rs 4.65 lakh crore (revised estimates) the Centre collected in taxes in the

same year." As per the court’s calculations, 25% is a substantial amount.

The court cited similar instances where the state bears religious expenses, which are

constitutional because the expenses are “small…in proportion to the entire tax collected”:

expenses incurred for the Kumbh mela, for pilgrimage to Mansarovar, and for providing

facilities to pilgrims visiting temples and Gurudwaras in Pakistan.

The petition was thus dismissed by the Court and stated that it must not be too rigid in these

matters, and must give some free play to the joints of the State machinery and since India is a

diversified country, it is absolutely essential to keep the country united to have tolerance and

equal respect for all communities and sects. Hence, a neutral view was taken by the Court

after weighing the abovementioned factors.

Source: lawandotherthing.blogspot.com and www.legallyindia.com

Contributor: Himanshu Bagaria (III Year)

PRIVACY LAWS IN INDIA: A GOLDFISH-IN-A-GLASS BOWL SYNDROME

Privacy is perhaps one of the most treasured privileges today. In a world where secrets are an

obsolete tribute to an archaic past, the right to privacy is one of the dearest and most sought

after interests that ought to be protected by the law. With the advent of social networking

sites, online portals and web based communities the internet has transformed into a treasure

trove of information. Information that has a personal bearing on a large percentage of the

world’s population who are unfortunately blissfully unaware of the fact that the most intimate

details of their lives have been transformed into mere giga bytes of data floating about in

cyber space. This information can be accessed by anyone, anywhere and at any time. The

sanctity of a private domain that used to be kept confidential by choice has given way to a

goldfish- in- a- glass bowl syndrome where everyone knows everything there is to know

about everyone else.

The recent scandal surrounding a leading British tabloid, The News of the World brought to

prominence the need for a law to protect the privacy of people. The confusion, frustration and

shock that transpired out of this scandal were perhaps the much needed stimulus for the

framing of such a law. It brought to the fore front the most unethical and irresponsible means

used to procure a front page story. So much so that it was alleged that certain reporters even

hacked into the phones of unsuspecting victims.

Not only did this scandal bring to the forefront the privacy laws in Britain, it also triggered a

reflection on the need for such laws in our country. In India however there also arises the

concept of the “public figure”. Public figures such as politicians are accountable to the

common man and thus have to realize that media scrutiny is an integral part of their job

description. But to what extent? Can important security matters that involve national interest

be compromised for the sake of tabloid popularity? An example of this was the recent

bugging of Pranab Mukherjee’s office. This was clearly a compromise of national security.

The power to make these laws is derived from the constitution. “Privacy” is not a subject in

any of the three lists in Schedule VII of the Constitution of India. That is the State list, the.

union list or the concurrent list. Thus only the Indian Parliament is competent to legislate on

privacy since it can be interpreted as any other matter not enumerated in List II and List III.

Till date there is no specific enactment on Privacy.

Although privacy is not an explicitly mentioned constitutional right in India as there have

been several instances when this issue has been addressed by the judiciary. Recently there has

been an increasing unrest at the media’s willingness to intrude on the private lives of

individuals. Using examples of dubious undercover journalism, such as when veteran Bengali

superstar Suchitra Sen, was hospitalized; of charade sting operations, like that carried out on

school teacher Uma Khurana; and of irresponsible reporting, as with the Aarushi murder

case, critics argue that the media have become exploitative, publishing sensationalist stories

rather than those that can be said to be in the ‘public interest’. Biased or corrupted media,

they suggest, can often persecute individuals in the name of journalism. Whilst some call for

more robust action from the Press Council of India, or the introduction of a binding code of

conduct from the Information and Broadcasting Ministry, others are pushing for a more

robust course of action, including the introduction of the long disputed Broadcasting Bill and

an updated privacy law.

At this point begins the role of the Judiciary. Judicial activism has brought the Right to

Privacy within the realm of Fundamental Rights. The Supreme Court of India has come to the

rescue of common citizen, time and again by construing “right to privacy” as a part of the

Fundamental Right to “protection of life and personal liberty” under Article 21 of the

Constitution, which states “no person shall be deprived of his life or personal liberty except

according to procedures established by law”. This has been reflected in a few cases.

In State v. Charulata Joshi the Supreme Court held that “the constitutional right to freedom

of speech and expression conferred by Article 19(1)(a) of the Constitution which includes the

freedom of the press is not an absolute right. The press must first obtain the willingness of the

person sought to be interviewed and no court can pass any order if the person to be

interviewed expresses his unwillingness”.

In the case of People’s Union for Civil Liberties (PUCL) v. Union of India, the Supreme

Court held that the telephone tapping by Government under S. 5(2) of Telegraph Act, 1885

amounts infraction of Article 21 of the Constitution of India. Right to privacy is a part of the

right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said

right cannot be curtailed “except according to procedure established by law”.

If one follows the judgments given by the honourable Supreme Court, three distinct themes

emerge:

(1) That the individual’s right to privacy exists and any unlawful invasion of privacy would

make the ‘offender’ liable for the consequences in accordance with law.

(2) That there is constitutional recognition given to the right of privacy which protects

personal privacy against unlawful governmental invasion.

(3) That the person’s “right to be let alone” is not an absolute right and may be lawfully

restricted for the prevention of crime, disorder or protection of health or morals or protection

of rights and freedom of others.

A right is never absolute, including the right to privacy. Public authorities should deal with

the issue of privacy with the sensitive and meticulous approach that it requires. The right to

privacy is a pertinent issue that requires much debate, discussion and discourse .The role it

will play in the future cannot be more pronounced. Ultimately it is a matter of the decision of

an individual to reserve the right to live his life away from the glare of the public. It is the

choice of an individual to protect certain facets of his life and he should be given the basic

guarantee that this choice of his would be respected. Just as citizens are guaranteed a freedom

to express they should also be given the freedom to restrict expression. This freedom has its

foundations laid in the personal choice of the individual and it is the duty of the state to

protect that freedom. The dilemma is, where should the line be drawn between the public's

right to information and the privacy of a well-known person?

Contributor – Tanvi Mohan (I Year)

Faculty Advisor- Dr. Sandeep Desai

Editor – Shinjni Kharbanda

Editorial Committee- Roshil Nichani, Ashwin Bhadang, Shweta Nambiar, Darshana. S, Akshata Benegal, Deepali, Shreya Majumdar, Mukta Batra, Rajeev Rambhatla, Himanshu Bagaria, Priyanka Kumar and Ann J.

Kynadi.

Cartoon: Mahit T. Anand

Comments or Suggestions: Please send comments or suggestions to shinjni.kharbanda@law.christuniversity.in The Litigation Committee E-newsletter is published by School of Law, Christ University (Bangalore). .

Copyright 2011 School of Law, Christ University (Bangalore).