J&KSJA

Monthly Newsletter published by the Jammu & Kashmir State Judicial Academy Volume- 5 Issue 4 April, 2012

Topic of the Month Chief Patron Hon’ble Mr. Justice F.M. Ibrahim Kalifulla In bail applications, generally, it has been laid down Chief Justice from the earliest times that the object of bail is to secure Judge Incharge the appearance of the accused person at his trial by Hon’ble Mr. Justice Mansoor Ahmad Mir reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be Editor Suresh Kumar Sharma considered a punishment, unless it can be required to Director SJA ensure that an accused person will stand his trial when Contents called upon. The courts owe more than verbal respect to

Topic of the Month : ...... 1 the principle that punishment begins after conviction, and

Academy News : ...... 2 that every man is deemed to be innocent until duly tried

and duly found guilty. From the earliest times, it was

appreciated that detention in custody pending completion SUBSCRIPTION RATES of trial could be a cause of great hardship. From time to Single Copy : Rs. 20.00 Annual : Rs. 240.00 time, necessity demands that some un-convicted persons (Payment only through D.D. in favour of the Jammu & Kashmir State Judicial Academy) should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the The Editor SJA Newsletter operative test. In this country, it would be quite contrary Jammu & Kashmir State Judicial Academy to the concept of personal liberty enshrined in the Janipur, Jammu-180001 Ph: Jammu: 0191-2530871 Constitution that any person should be punished in Srinagar: 0194-2472078 Fax: Jammu: 0191-2530783 respect of any matter, upon which, he has not been Srinagar: 0194-2472078 convicted or that in any circumstances, he should be Web-site: www.jkja.nic.in E-mail: [email protected] deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the Compiled, Composed & Layout Pankaj K. Gupta most extraordinary circumstances. Apart from the Deputy Registrar question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. (excerpts from judgement of Hon’ble titled Sanjay Chandra v/s CBI, Criminal Appeal no. 2178 of 2011)

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ACADEMY NEWS

J&K State Judicial Academy in active collaboration with Mediation Monitoring Committee of High Court of J&K hosted First Regional Conference of North Indian States His Excellency the lighting the Lamp on Mediation on 17th March 2012 at Police Auditorium, Gulshan Ground, Jammu. The Singh, Hon’ble Justice Mohammad Yaqoob theme of the conference was “Mediation: An Mir & Hon’ble Justice Hasnain Masoodi by effective strategy to responsive justice”. His their esteemed presence made the event Excellency the Governor of J&K state Shri N. more graceful. N. Vohra was the Chief Guest on the A galaxy of dignitaries which include inaugural ceremony, whereas Hon’ble Hon’ble Chief Justice of High Court of Justice Dalveer Bhandari, Judge-Supreme Court of India and Chairman, Mediation and Himachal Pradesh, Hon’ble Acting Chief Conciliation Project Committee (MCPC) presided over the function. Hon’ble Justice Swatanter Kumar, Judge-Supreme Court of India Member (MCPC), Hon’ble Chief Justice of J&K FM Ibrahim Kalifullah, Hon’ble Justice Mansoor Ahmad Mir, Chairman J&K High Court Mediation Monitoring Committee, Hon’ble Justice Muzzafar Hussain Attar, Member J&K High Court Mediation Monitoring Committee graced the occasion by their presence on the dais. Companion Judges of the High Court of J&K Hon’ble Justice Virender Singh, Hon’ble Justice J. P.

2 on the dais. As a welcome token, vases with bamboo shoots were presented to each of the dignitary on the dais by the district judges of the J&K Judiciary. Hon’ble Justice Mansoor Ahmad Mir, Chairman-Mediation Monitoring Committee formally welcomed the dignitaries and the distinguished guests. Speaking on the occasion Governor N N Vohra called for taking all the required measures to promote the concept of Mediation as an Alternative Dispute Justice of , Hon’ble Judges Resolution method for providing speedy from different High Courts from north zone, justice to the litigants and facilitating Hon’ble Minister for Higher Education, J&K bringing down the pendency of cases in the State, Hon’ble Minister for State for Law, various courts in the country. Justice & Parliamentary Affairs, Vice Chancellor of University of Jammu, Director General of Police, J&K added the necessary fervor to the occasion. The ceremony was also attended by many senior Civil & Police Officers, Judicial Officers from the state of J&K and other northern states, members of different Bar Associations and students of Law. The proceedings commenced with playing of the National Anthem followed by lightening of lamp by the Hon’ble Dignitaries The Governor while addressing the inaugural session of the Regional Conference of north zone states on “Mediation: An Effective Strategy to Responsive Justice”, organized by the Mediation Monitoring Committee of the Jammu and Kashmir High Court, here said, “Over a period of time the number of cases before the courts had increased due to the increase in population, education and awareness among the people about their rights, as well as several other factors.”

3 and are therefore integral to our cultural ethos. The Governor said that to achieve the constitutional goal of justice in all arenas – social, political and economic – there is an urgent need for taking all possible steps to provide speedy redress to all those who have been waiting for years for their cases to be decided. He said that to secure these objectives, the Supreme Court has taken a number of initiatives in the past few years Governor, who was the Chief Guest on the and congratulated it for these laudable occasion, said, “There are about 4 crore endeavours. He said that one and all must cases pending before the various courts in join hands to ensure that the concept of the country to address this problem there is mediation is promoted in a big way and need for building adequate infrastructure becomes successful in all parts of the and increasing the number of magistrates country. and judges at all levels.” Referring to the various initiatives taken by the Jammu and Kashmir High Court for the promotion of Mediation, the Governor hoped that these endeavours would lead to great success. Justice Dalveer Bhandari, Judge, Supreme Court of India and Chairman, Mediation and Conciliation Project Committee (MCPC), in his Presidential Address, referred to the Conference and said

He said the concept of Mediation and other such Alternative Dispute Resolution methods can make a significant contribution to address the enormously large pendency of cases before the courts at all levels. He said that Conciliation, Mediation and similar other approaches were very much in vogue in our country in the centuries past

4 local and petty disputes are resolved through mediation. He also cited the example of California where 94% cases are solved out of court through mediation adding the number has recently gone up to 97%. Justice Swatanter Kumar, Judge, Supreme Court and Member, MCPC, in his keynote address, spoke about the aims and objects of constituting the Mediation and Conciliation Project Committee of the that it would immensely help the cause of Supreme Court. He said that Conferences on Mediation process. Spelling out the various Mediation have been organized in various reasons for the pendency of cases in the parts of the country with a view to focusing courts, he said that Mediation as an on imparting training to the Mediators and Alternative Dispute Resolution method could enlarging awareness about the significance help in reducing this pendency to a very of this procedure of dispute resolution. He large extent. Speaking extensively about the further said that it was an established fact advantages of Mediation, he added that for that conflict is inevitable but combat was its greater success we need to have a large avoidable. number of trainers and the required infrastructure. He said the lesser number of judges and lack of infrastructure was a practical problem as in our democratic system these things cannot be increased drastically and cases will keep piling up hence using Mediation, Lok Adalats, Arbitration Courts etc was the only solution to lessen the burden over the shoulders of Judiciary. He cited the example of lord Krishna trying to act as mediator among Kuarvas and He beautifully explained the real life Pandavas the failure of which lead to situations of how mediation can help resolve catastrophic situation. conflict and remove the scars that legal Referring to the role of Qazi among battle leaves with the parties adding we Muslims and other local courts which in must introduce Mediation as a curriculum for many societies are still intact he said the the law students.

5 He predicted a bright future for mediation and sought to dispel the fear among lawyers that they might lose the revenue adding mediation was supplementary to judicial process. Speaking on the occasion Hon’ble Chief Justice of J&K FM Ibrahim Kalifullah said that growth of population was directly responsible for growing litigation and with limited resources the cases get piled up. He presented some figures about the pendency after examining the merits of the case of cases in various courts of Indian and J&K adding some norms for referral judges were adding a five-fold increase in judiciary was being formulated in this regard. proposed to deal with the ever growing cases Earlier Hon’ble Justice Mansoor Ahmad in courts. Mir in his welcome address apart from He said there were evening courts, welcoming the guests dwelt on the initiatives holiday courts and added that for mediation being taken for the promotion of Mediation, even Holiday mediation courts can be which has been included in the curriculum of established as suggested by some members the State Judicial Academy. of the judicial fraternity. Justice Muzaffar Hussain Attar, Member, Seeking active involvement of Judges, High Court Mediation Monitoring Committee, Lawyers, litigants etc he said that courts presented a Vote of Thanks. should refer more cases to mediation During the technical sessions Justice centres as it has been observed as an Kurian Joseph, Justice JP Singh, Justice effective, speedy and costless justice Majesh Grover, Justice Sanjeev Koul delivery system and asked judges to invoke addressed the August gathering. The expert article 89 to put the law to maximum use mediators Dr. Sudhir Kumar Jain & Firdous

6 Karachiwala also addressed the participants and cleared their various doubts. Justice Kurian Josheph, Chief Justice of Himachal Pradesh stressed on the need to change the mindset of superior courts terming it a major roadblock in the proper implementation of Mediation system in judicial process adding unless this mind set changes the concept of mediation will not achieve the desired goals.

Court Mediation Monitoring Committee and a Docu–Drama on Mediation titled ‘Raahein Aur Bhi Hein’, on this occasion.

NEWS & VIEWS

Frivolous PIL dismissed, lawyer fined Rs. 1 lakh He asked the judges to travel from head to heart adding judges must not decide The Supreme Court on Thursday had everything but examine whether the case to forcibly evict a lawyer from the court room before them is a case or a problem and if after he refused to stop arguing despite the there is a problem then refer it for mediation court slapping a fine of Rs. 1 lakh for filing a adding its not an extracurricular activity but “frivolous” PIL against governor a judicial duty. Kamla Beniwal. A bench of justice HL Dattu He said that judges were the servants of and justice AK Dave summoned the security the people and it was their duty to serve guards after advocate Ashoke Pande them without being conscious of the cases continued to argue even as the court asked getting reported or not adding by deciding him to stop. The guards were called in an cases merely for the sake of reporting they hour after Pande argued his PIL, demanding would be doing a disservice to their setting up of a Constitution bench to hear his profession. matter. Earlier, The Governor released the Annual The time given to Pande was more Report of the Jammu and Kashmir High than what is normally given in matters that

7 are mentioned before the court as urgent However, in view of the peculiar facts and cases. Court's persistent reminder to Pande circumstances of the case and a situation, did not yield any effect and the advocate which has arisen, which is beyond the continued with his repetitive arguments. control of the petitioner and such exigencies Fed up with his behavior, the bench cannot be in all situations be covered by the dismissed his petition and imposed the cost, rules/instructions," held the bench headed saying the plea is “misconceived” and by Augustine George Masih. “misleading” causing “wastage of court's The directions came on a petition filed precious time.” Pande, however, continued by Amit Kumar Panchal of Ambala who to make his submissions even after the informed the court that he met with a road bench dictated the order. But, on realising accident on March 6 wherein he fractured the his mistake, he sought an apology with wrist of his right hand, which has been folded hands. plastered. Pande had approached the apex court In its reply, the Haryana Public Service challenging Gujarat high court order Commission had informed the court that the dismissing his PIL for recall of the governor rules did not permit the services of a scribe in and slapping a penalty of Rs. 25,000 on him such a situation as scribe is only provided to for frivolous litigation. a physically handicapped (blind or low - HT vision) person. The commission had objected to a person, whose services had been sought as a scribe, on the ground that he was related to the petitioner. The commission said some Ahead of exam, Court's helping hand to other person, who is unrelated to him, may candidate write the exam, in case the request is Lending a hand to a candidate who permitted. fractured his right wrist just before the On this, the court ordered that the preliminary examination of the Haryana Civil petitioner would make available a student, Services (executive branch) and other allied who is unrelated to him and fulfills the services 2011, scheduled for Sunday, the mandate of a scribe, as prescribed for Punjab and Haryana high court permitted handicapped candidates. him to avail the services of a scribe to write The court permitted the petitioner to the exam. affix his left hand thumb impression, as he " I t i s c o r r e c t t h a t t h e will be unable to sign the attendance sheet. rules/instructions do not permit a scribe for a - HT/ March 25, 2012 person, who is not physically handicapped.

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