Corruption in India (History, Law and Politics)

Corruption in India

India is the only living ancient civilization which will soon be the most populous country in the World. Corruption remains India’s biggest problem. In last about 72 years since India’s independence, numerous laws and authorities have been created by India to deal with the menace of corruption.

An ebook on Corruption:

Even though several Chief Ministers, Ministers, Officials etc. are serving sentences of imprisonment in different prisons, the menace of corruption has not subsided. Since 2014 the India may have improved it’s transparency rating but this does not change the ground realities of laws and enforcement authorities which are placed in a precarious flip flop course.

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Directions to prevent cow vigilante and mob lynching

Rule of Law:

Law, enacted for the benefit of the society by conferring rights on the citizens and to regulate social behaviour in many a sphere, is required to be implemented by the law enforcing agencies and the citizens are duty bound to follow the law treating it as sacred. Law has to be regarded as the foundation of a civilized society. The primary goal of law is to have an orderly society where the citizenry dreams for change and progress is realized and the individual aspiration finds space for expression of his/her potential. In such an atmosphere while every citizen is entitled to enjoy the rights and interest bestowed under the constitutional and statutory law, he is also obligated to remain obeisant to the command of law.

Duty of authorities:

There can be no shadow of doubt that the authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism, be it cow vigilantism or any other vigilantism of any perception, does not take place. When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society. Vigilantism cannot, by any stretch of imagination, be given room to take shape, for it is absolutely a perverse notion. We may note here that certain applications for intervention and written notes have been filed in this regard supporting the same on the basis that there is cattle smuggling and cruel treatment to animals. In this context, suffice it to say that it is the law enforcing agencies which have to survey, prevent and prosecute. No one has the authority to enter into the said field and harbour the feeling that he is the law and the punisher himself. A country where the rule of law prevails does not allow any such thought. It, in fact, commands for ostracisation of such thoughts with immediacy. Continue reading “Directions to prevent cow vigilante and mob lynching” →

Negotiable instruments: Dishonour of cheque trial directions by Supreme Court

Dishonour of Cheques: directions for expeditious trial of cases.

Delay in cases for dishonour of cheques:

Background for direction:
An Association 174 banks/financial institutions as its members, which functions as think tank for banks in the matters of concern for the whole banking industry, raised issue of considerable national importance owing to the reason that in the era of globalization and rapid technological developments, financial trust and commercial interest have to be restored. According to them the banking industry has been put to a considerable disadvantage due to the delay in disposing of the cases relating to Negotiable Instruments Act. The Petitioner banks being custodian of public funds find it difficult to expeditiously recover huge amount of public fund which are blocked in cases pending under Section 138 of the Negotiable Instruments Act, 1881. Petitioners submitted that, in spite of the fact, Chapter XIV has been introduced in the Negotiable Instruments Act by Section 4 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, to enhance the acceptability of cheques in settlement of liability by making the drawer liable for penalties 2014 in case of bouncing of cheques due to insufficiency of funds, the desired object of the Amendment Act has not been achieved.
Cheque, though acknowledged as a bill of exchange under the Negotiable Instruments Act and readily
accepted in lieu of payment of money and is negotiable, the fact remains that the cheque as a negotiable
instrument started losing its credibility by not being honoured on presentation.

Directions by Supreme Court about trial:

(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for
cross-examination as and when there is direction to this effect by the Court.

[Source: Indian Bank Association vs. Union of India (Supreme Court of India)]

Information Technology Act, 2000 as amended in 2008

Cyber Law in India:

Information Technology Act, 2000 is the law governing e-commerce, internet and Cyber laws in India. The only legal commentary on the subject has been thoroughly revised and updated and now it’s 2014 edition is available for sale as Kindle Edition.

About the Kindle eBook on Information Technology Act, 2000:

“Facebook arrests, blocking of web sites etc. wakes up to understand what is the law behind such Government action and if it was justified. The relevant law in India is Information Technology Act, 2000. This kindle book is a legal commentary on the provisions of Information Technology Act, 2000 as enacted by the Parliament of India. This statute primarily governs the law relating to Internet, Digital Communication and other such matters. This statute covers variety of new legal rights and liabilities apart from creating various authorities for enforcement of new rights and liabilities. Certain acts have been defined as offenses which are punishable with fine or imprisonment. This book, apart from the original enacted provisions of the statute also contains legal commentary on virtually every provision to assist the the legal implications of each provision. Commentary also contains reference to existing case law on the subject without confining itself to the courts of India and incorporating judicial precedents from all over the world. Where ever direct case law is not available, an anlogous provision and case law thereon has been dealt with to thoroughly analyze the provisions of this Act. This is a 2014 edition and includes a thorough commentary on the notorious provisions introduced by Amending Act of 2008. “

Scroll below to read extracts from book or click the image to buy:

Section 66-A, is a restriction upon the right of ‘Free Speech’ or ‘Freedom of Speech & Expression’ guaranteed under Article 19(1)(a) of Constitution of India. It curtails the freedom of expression by prohibiting under coercion of penal action, certain kinds of expression. However the restrictions under this provision have to meet the test of reasonableness as specified under article 19(2) Which is as under:

‘Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercises of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign, State, public, order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.’

Since, we shall be discussing the cases from around the globe, it may be pointed out that in USA, the freedom of speech is absolute as there is no provision in the constitution similar to article 19(2). However Supreme Court of USA has evolved several tests, one of which is the test of ‘clear and present danger’ which is similar to test of reasonableness provided in article 19(2) but it is not the same. In fact Justice Douglus of USA Supreme Court was of the view that even in USA the ‘Judges sometimes try to read the word “reasonable” into the First Amendment or make the rights it grants subject to reasonable regulation.’^¹ He also took note of the fact that ‘this limitation is strictly construed; any restriction amounting to an “imposition” which will “operate harshly” on speech or the press will be held invalid.’^²

………..

More extracts:

Constitutional Validity u/a 19(1)(a) — The restrictions imposed by the s. 66-A have to be tested on the anvil of objects for which it is permissible to impose the restriction u/a. 19(2) of Constitution. These can be summed up as under:

1. Interest of Sovereignty and Integrity of India,
2. Security of State,
3. Friendly relations with foreign State,
4. Public order
5. Decency or morality,
6. Contempt of court
7. Defamation or
8. Incitement to an offence.

All the above subjects are covered by specialized laws which deal with matters ex post facto. Some of above subjects are also covered by other provisions of this Act, itself. It is yet to be seen as to under which of the above 8 objects, s.66-A, seeks to achieve. At best S. 66-A can relate to decency or cyber-stalking but it does not employ these words. It would be appropriate to deal with each clause of section 66-A separately.

Clause (a) deals with an act of ‘Intimidation’ through electronic message while former is covered by IPC. Obviously c. (a) is similar in term with the c. (a) of 127 of U.K. Communications Act, 2003 in so far as word ‘menace’ is concerned. But similarity ends there itself. Obviously this clause relate to an offence of intimidation itself and not an ‘incitement to do an offence’. It may be seen that unless a message falls within one of the 8 categories specified in article 19(2) of Constitution, it would be hit by Article 19(1)(a) of the Constitution. Act of intimidation, unless it is contrary to interest of Sovereignty and Integrity of India or Security of State or Friendly relations with foreign State or in alternative it is accompanied by disturbance of public order or incitement to commit an offence or is contrary to decency or morality or amounts to contempt of court or defamation, mere menacing nature of message is beyond the legislative competence of the Parliament and is unconstitutional, being hit by article 19(1)(a).

Clause (b) starts with the word ‘false’ and thereafter employs a series of words which have different………….

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Law of Maintenance in India

An eBook about Law of Maintenance in India.

Maintenance has a legal connotation in India which includes, Child Support, Spouse Support and Parent Support.

Introduction about the ebook:

Maintenance of dependents, is a pious duty of human beings but in certain circumstances it is also a statutory liability with a corresponding right vested in the dependent, to legally enforce this duty through court of law.

Entitlement to maintenance is a complex right in India. In certain relationships, the right and corresponding liability is rigid but in other circumstances it is dependent upon the various other factors. The matter is further made complex by various personal laws in respect of citizens belonging to different religions and also a variety of forums. This book of about 800 pages attempts to assimilate all the aspects of this branch of family law, as far as possible.

Read free sample or purchase ebook from Google Play Store by clicking the picture below:

Maintenance

To read excerpts from the book, scroll down or to buy, click the image the ebook from amazon.com here:

Selected excerpts from the ebook, Law of Maintenance:

Continue reading “Law of Maintenance in India” →

Arbitration clause can not oust tenancy protection law

Arbitration clause in Rent Agreement

Facts of the Tenancy eviction case:

The appellants have inducted the respondents as tenants in respect of a shop room measuring 600 sq. feet at HA-3, Sector-3, Salt Lake City, Kolkata, and paying a monthly rent to the appellants. In respect of the tenancy, the appellants and the respondents have executed an unregistered tenancy agreement which has been notarized on 10.11.2003. On 06.03.2008, the appellants, through their Advocates, served a notice on the respondents terminating the tenancy and asking them to vacate the shop premises and the notice stated that after April, 2008 the relationship of landlord and tenant between the appellants and the respondents shall cease to exist and the respondents will be deemed to be trespassers liable to pay damages at the rate of Rs.500/- per day for wrongful occupation of the shop. The respondents, however, did not vacate the shop premises and the appellants filed Title Suit No.89 of 2008 against the respondents for eviction, arrears of rent, arrears of municipal tax, mesne profit and for permanent injunction in the Court of the Civil Judge (Senior Division), 2nd Court at Barasat, District North 24-Parganas in the State of West Bengal. In the suit, the respondents filed a petition under Section 8 of the Arbitration and Conciliation Act, 1996 (for short ‘the 1996 Act’) stating therein that the tenancy agreement contains an arbitration agreement in clause 15 and praying that all the disputes in the suit be referred to the arbitrator. By order dated 10.06.2009, the learned Civil Judge dismissed the petition under Section 8 of the 1996 Act and posted the matter to 10.07.2009 for filing of written statement by the defendants (respondents herein).

Aggrieved, the respondents filed an application (C.O. No.2440 of 2009) under Article 227 of the Constitution of India before the Calcutta High Court and contended that the tenancy agreement contains an arbitration agreement in Clause 15, which provides that any dispute regarding the contents or construction of the agreement or dispute arising out of the agreement shall be settled by Joint Arbitration of two arbitrators, one to be appointed by the landlords and the other to be appointed by the tenants and the decision of the arbitrators or umpires appointed by them shall be final and that the arbitration will be in accordance with the 1996 Act and, therefore, the learned Civil Judge rejected the petition of the respondents to refer the disputes to arbitration contrary to the mandate in Section 8 of the 1996 Act. The appellants opposed the application under Article 227 of the Constitution of India contending inter alia that the dispute between the appellants and the respondents, who are landlords and tenants respectively, can only be decided by a Civil Judge in accordance with the provisions of the West Bengal Premises Tenancy Act, 1997 (for short ‘the Tenancy Act’). By the impugned judgment dated 16.04.2010, the High Court has held that in view of the decisions of this Court in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums [(2003) 6 SCC 503], Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors. [(2007) 3 SCC 686] and Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata & Anr. [(2009) 10 SCC 103], the Court has no other alternative but to refer the disputes to the arbitrators to be appointed by the parties as per the arbitration agreement. The High Court, however, has observed in the impugned judgment that if any dispute is raised regarding arbitrability of such dispute before the arbitral tribunal, such dispute will be decided by the arbitral tribunal.

Relevant Rent/Tenancy Law:

The relevant portion of Section 6 of the Tenancy Act 1997 is quoted hereinbelow:

“6. Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, except on a suit being instituted by such landlord on one or more of the following grounds………..”
[Note the words in red.]

Supreme Court decided that arbitration clause is overridden by Tenancy Act:

It will be clear from the language of Section 6 of the Tenancy Act 1997 quoted above that ‘notwithstanding anything to the contrary contained in any contract’, no order or decree for recovery of possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, ‘except on a suit being instituted by such landlord’ on one or more grounds mentioned therein. It is, thus, clear that Section 6 of the Tenancy Act overrides a contract between the landlord and the tenant and provides that only the Civil Judge having jurisdiction can order or decree for recovery of possession only in a suit to be filed by the landlord.

In this case, there is an arbitration agreement in clause 15 of the tenancy agreement, which provides that any dispute regarding the contents or construction of the tenancy agreement or dispute arising out of the tenancy agreement shall be settled by arbitration in accordance with the provisions of the 1996 Act. But the words ‘notwithstanding anything in any contract’ in Section 6 of the Tenancy Act, will override the arbitration agreement in clause 15 of the tenancy agreement where a suit for recovery of possession of any premises has been filed by a landlord against the tenant. Such a suit filed by the landlord against the tenant for recovery of possession, therefore, cannot be referred under Section 8 of the 1996 Act to arbitration. In fact, sub-section (3) of Section 2 of the 1996 Act expressly provides that Part-I which relates to ‘arbitration’ where the place of arbitration is in India shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. Section 6 of the Tenancy Act is one such law which clearly bars arbitration in a dispute relating to recovery of possession of premises by the landlord from the tenant. Since the suit filed by the appellants was for eviction, it was a suit for recovery of possession and could not be referred to arbitration because of a statutory provision in Section 6 of the Tenancy Act.

The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in Section 8 of the 1996 Act. On the contrary, the relief claimed by the appellants being mainly for eviction, it could only be granted by the “Civil Judge having jurisdiction” in a suit filed by the landlord as provided in Section 6 of the Tenancy Act. The expression “Civil Judge having jurisdiction” will obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit.

[Source: Ranjit Kumar Bose v. Anannya Chowdhury]

Scandal, Defamation and injury to Reputation

Right to Good reputation is part of

Fundamental right of life and freedom of expression

A forged letter used to make defamatory complaint:

A letter dated 22.4.2011 purported to have been written by Shri M.A. Khan, M.P., suggests that various properties had been purchased by respondent no.2 as benami and the copies of the sale deeds etc. filed alongwith the said letter fortify the same. The Government of India wrote a letter to the Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in respect of alleged disproportionate assets Continue reading “Scandal, Defamation and injury to Reputation” →

Doctrine of necessity and Bias

Doctrine of necessity overrides
the principle of apprehended bias

Facts of the case:

Ms. J. Jayalalitha was elected to the Legislative Assembly of Tamil Nadu on or, the AIADMK ticket in the General Elections held in June 1991 and on being elected as the leader of the party she was sworn-in as the Chief Minister of the State. On 2.10.1992, Dr. Subramanian Swamy preferred a petition to the State Governor under Article 192 of the Constitution of India alleging that the Chief Minister had incurred a disqualification of being a member of the Legislative Assembly of the State, in that, she being a partner in the partnership firm run in the name and style of Messrs Jaya Publications had entered into a contract with the State Government and which contract was subsisting on the date of the petition, in view of sub-clause (e) of clause (1) of Article 191 of the Constitution read with Section 9A of the Representation of the People Act, 1951

The question was whether the Chief Election Commissioner against whom she had expressed her apprehension of Bias, should be recused from the proceedings or he has to act in an advisory capacity, in case of dead lock, on the basis of Doctrine of Necessity. Continue reading “Doctrine of necessity and Bias” →

Death Sentence and Mercy Petition: Balancing the Justice.

Balancing between the Death Sentence, Mercy and Speedy Justice.

Execution of death sentence by hanging: Validity.

[T]he State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. Continue reading “Death Sentence and Mercy Petition: Balancing the Justice.” →

Original Jurisdiction of Supreme Court of India under article 131 of Constitution of India.

Original Jurisdiction of Supreme Court of India

Article 131 of the Constitution of India defines the original jurisdiction of Supreme Court of India.

The Supreme Court of India has Original jurisdiction in respect of following matters:

between the Government of India and one or more States; or
between the Government of India and any State or States on one side and one or more other States on the other; or
between two or more States,

if, and in so far as, the dispute involves any question (whether of law or of fact), on which the existence or extent of a legal right depends.

Suit against Railway over a commercial dispute: Continue reading “Original Jurisdiction of Supreme Court of India under article 131 of Constitution of India.” →