Bombay HC orders Mumbai Police to prosecute Akshay Kumar and Twinkle Khanna

Sanjay Dutt is in Jail. Salman Khan is being prosecuted for culpable homicide. Shiney Ahuja has a rape case pending against him. Famous director Madhur Bhandarkar has also seen the jail. Fardeen Khan was arrested for attempting to buying narcotic drugs. Suraj Pancholi the actor who is yet to be launched is accused of abetment to suicide.

After so many big names of the bollywood being arrested, it seems that it may be the turn of Akshay Kumar to pay a visit to the jail.

The Bombay High Court has ordered the Mumbai Police to prosecute Akshay Kumar and his wife Twnikle Khanna for an act of obscenity done during the promotion of a popular clothing brand.

How cool do we all (the young guns) think of biking

The recent shooting incident by the police left the Police Authority to answer innumerable questions as to what was the need of taking a biker's (Karan Pandey)life  along with a brutal injury to his mate (Punit Sharma) while they thought of enjoying with friends while riding their bikes. Do we all get the answers we want?

The next question to my mind is why are police authorities concerned about people driving their bikes in midnight when there isn’t any kind of traffic on the roads and why do police let these people do what they want. The answer to this comes here: Delhi is a city with young boys in whom there’s a rush as to things they find attractive and things which they consider would provide them with a big man’s popularity. Do all Stuntmen want to become Craig Jones?

Under the Section 189, Motor Vehicle Act: Racing or speeding in any public place without any written consent of the state government SHALL be punishable with term of 6 months imprisonment and repeating the same offence could lead to further trouble. Basically, the roads have been full of illegality and such kind of violations and now we all rise up to this issue. Why?? Considering the fact that such illegality won’t be tolerated it’s completely up to us are we ready to borne the punishment or follow the norms that society has created for us. The newly built Buddh Circuit has been created for people to ride their vehicles in whichever way they want, leading to certain safety for people to walk on the roads and for lesser accidents on our streets.

Supreme Court verdict - NEET exam no more!

Today, the Supreme Court of India has quashed the notification of the Medical Council of India for a NEET exam (National Eligibility-cum-Entrance Test ) which was an integrated exam for all the M.B.B.S. Seats, B.D.S. Seats and Post Graduation Seats in all the colleges of India.

A common merit list would be made on whose basis, the students would be admitted in colleges. It was an All India Entrance Exam.

A full bench of the Supreme Court was sitting to hear the constitutional validity of this case. In a 2:1 majority judgment, the NEET exam was called unconstitutional and the notification of MCI was struck down. The apex court has however made it clear that this judgment will not apply to the admissions which have already taken place and it will apply to the future admissions.

The majority verdict by Chief Justice Altamas Kabir and Justice Vikramajit Sen have stated that the MCI is not having the required authority to prescribe an All India Medical Entrance Test. They have stated that this notification by the MCI was violating the Articles 19, 25, 26, 29 and 30 of the Indian Constitution.

Supreme Court of India warns all Advocates-on-Record

For filing a case in the Supreme Court of India, one has to engage an Advocate-on-record. A normal advocate cannot file a case in his name in the  Supreme Court of India unless  he is an Advocate-on-record. An advocate who is enrolled in the bar council of any state for atleast 5 years can sit in the exam to become an AOR. This AOR( Advocate-on-record) generally appoints an arguing counsel to appear before the Hon'ble Court. 

On the 14th of July 2013, the Supreme Court of India, constituting the bench of Justice B.S. Chauhan and Justice S.A. Bobde, warned all the advocates-on-record from lending their name for a filing of cases and not taking interest them. The bench heard an application filed by Mohammed Israfil for restoration of appeal which stood dismissed in default by an order on 8th March. 

In the case, the Hon'ble Bench had observed that many contents of the application seemed to be factually incorrect. So the bench wanted some explaination and clarification from the Advocate-on-record of the case who had signed the application for restoration. When the matter was taken up, it was learnt that the AOR had refused to come to the court. The Hon'ble Court was also informed that AOR Rameshwar Prasad Goyal has filed a large number of cases, but never appears before the court. Since, the Advocate-on-record had refused to come to the court, the application was dismissed along with which a show cause notice was issued to the AOR. 

In the show cause notice issued to the AOR, the Hon'ble Supreme Court of India has asked the AOR, why his license as an AOR should not be cancelled/suspended. He was given a time of three weeks to file a reply. The bench while issuing the show cause notice had said that his conduct obstructed the administration of justice and resulted multiplicity of proceedings. 

This show cause notice may be a warning for all the other AORs who are not present in the court during the case and don't take interest in the court proceedings.

Mandatory Death Penalty in Honour Killing and Police Encounter cases

[This article was published in the Madras Law Journal (Criminal) (25-06-2011) with citation (2011) 2 MLJ (CRL) at Journal Page No. 49] Way back in 1980, a 5-Judge Constitution Bench of Supreme Court held that death penalty can be awarded only in the rarest of rare cases when the alternative option is unquestionably foreclosed. ¹ In 1983, another 5-Judge Constitution Bench of the Supreme Court declared that the provision of mandatory death penalty under Section 303 of the Indian Penal Code (IPC) was unconstitutional. ² However, now in 2011, a two-Judge Bench of the Supreme Court, in two separate judgments delivered in quick succession within a week, directed that mandatory death penalty be awarded in the cases of honour killing and police encounters, respectively, by treating all such cases as “rarest of rare”. These two recent judgments are in the cases of Bhagwan Dass v. State (NCT) of Delhi, ³ and Prakash Kadam v. Ramprasad Vishwanath Gupta, ⁴ respectively, delivered by a bench of Justice Markandey Katju and Justice Gyan Sudha Misra.

This article examines, in detail, the legality of these two recent judgments in the light of the Constitutional and legal provisions, the aforesaid two Constitution Bench judgments of the Supreme Court, and other relevant judgments. It is made clear at the outset itself that I do not, in any way, undermine the seriousness of the offence of an honour killing or a fake police encounter; the whole purpose of this article is only to examine the legality of a mandatory death penalty in such cases instead of leaving the discretion in the matter of penalty to the courts concerned depending upon the facts and circumstances of the case, inter alia, including the mitigating circumstances.

In the aforesaid recent case of Bhagwan Dass, the Supreme Court directed as under:

“In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honour’ killings should know that the gallows await them.

Let a copy of this judgment be sent to the Registrar Generals/Registrars of all the High Courts who shall circulate the same to all Judges of the Courts. The Registrar General / Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/Additional Sessions Judges in the State / Union Territories. … …”

Likewise, in the said case of Prakash Kadam, the Supreme Court held as under:

“25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.

26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.”

Both these judgments have been taken very positively by the common man and have been widely appreciated by them. These decisions may appear to be good news for the public, but in my humble and respectful opinion, from the legal jurisprudence point of view, both the judgments are legally not sound and suffer from various legal defects.

Before getting into the details of the defects, let’s first see the general provision for death penalty provided by Indian law for the offence of murder.

What Effective Measures Should Be Implemented To Eliminate The Inordinate Delay In Disposal Of Cases Pending In The Indian Courts?

[This article was originally written for a legal essay competition and was awarded the 3rd prize]

Justice Shri V.R. Krishna Iyer once said, “Man lives in the short run, but litigation lives in the long run”, to which former President of India Dr. APJ Abdul Kalam said, “How true! I would say that it literally crawls in the long run.”

The Constitution of India gives a lot of importance to the concept of justice. The preamble states that Justice- social, economic and political shall be secured to all citizens of India. Furthermore the right to speedy and affordable justice has now been classified as a fundamental right included under Article 21. Also Article 39-A, one of the Directive Principles states “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” In spite of such importance given to the concept of justice in the mother of all laws in India, the present scenario shows a blatant disregard towards this concept and a whopping number of cases are pending at all levels of the judiciary.

According to the Court News April-June 2010, there are about 33,362 matters (excluding connected matters) pending in the Supreme Court as on 31-8-2010. The 21 High Courts have a total of 4,108,555 cases- civil and criminal- pending as on 31-3-2010. And pendency of civil and criminal cases at the end of 31-3-2010 in the District and Subordinate Courts in all States of India is a gigantic number of 27,374,908.

Another glaring instance of ‘justice delayed is justice denied’ is the recent judgment for the Bhopal Gas leak case, where more than 25 years was taken by the lowest court for its decision and the 25 years taken does not include an appeal. This was the world’s worst industrial disaster, where the accused were guilty of about 15 thousand deaths. The decision of the Chief Judicial Magistrate was pronounced in June 2010, whereas the incident took place way back in December 1984. Such is the situation in India!

There is one illusion to be cleared before we start to get into the causes for the pendency of cases. There are two main factors for such pendency, firstly that the rate of disposal of cases is slow and secondly and more importantly the rate of institution of cases is considerably high. It is very important for us to understand that pendency has been increasing not due to the rate of disposal of cases but due to the increasing rate of institution of cases. Statistics show that the rate of disposal of cases has improved drastically, but despite this, the pendency has been increasing, and the main reason of this can be attributed to the fact that number of cases being instituted every year is very high. This shows we need better infrastructure to deal with the increasing number of new cases.

Right of a Pakistan National to buy property in India

[This Article was originally published on  tilakmarg.com  in 2012]

On the 29th  of September 2012, Adnan Sami, a well-known Pakistani singer who has sung for many Bollywood movies, albums and shows in India,  approached Delhi High Court  with a writ petition. He wants clearance to buy a property in Delhi, namely a flat in the DLF Capital Greens in the city. He wants the High Court to strike down a Reserve Bank of India circular that prohibits persons of certain nationalities, including Pakistanis, from buying immovable property in India without its prior permission.

In his petition, Sami has stated that he is residing continuously in India for the past 13 years and has even sung a song for the World Cup Cricket for the Indian Team. He pleads that being a professional artist and residing in India for such a long period of time, he should be eligible to buy a house for himself. His argument is that the Foreign Exchange Management Act of 1999 recognizes the rights of “person resident in India” and it is under this category that he claims he is eligible to purchase a property in India. According to Adnan Sami, the RBI circular is discriminatory as even after long residence, it requires a foreign citizen from certain countries (such as Pakistan) to seek permission from RBI for buying a property in India. He argues that this RBI circular is discriminatory as it prohibits nationals of some countries (such as Pakistan) from buying properties in India.

Let us now examine the claim made by Adnan Sami in his petition as to whether it is legally tenable.

To read further log on to 

http://www.tilakmarg.com/2012/10/right-of-pakistan-national-to-buy.html