Vol. I, No. 2, July-September 2012

INSIDE EDITORIAL When this Newsletter is going to press, the nation mourns the horrific NEW CJI death of a young student, after she was brutally gang-raped and ACTIVITIES AT THE LAW SCHOOL assaulted in a moving bus in south Delhi recently. This tragic and eye- FORTHCOMING EVENTS opening incident calls for reflection – reflection about laws which have FACULTY UPDATES so far failed to check the frequent incidents of sexual assault on women LEGISLATIVE TRENDS not just in the national capital but also in other parts of the country and reflection about INTERNATIONAL LEGAL NEWS AND EVENTS the society in which we live in. An outraged and shocked nation demands stringent RECENT JUDICIAL DECISIONS punishments for rapists including death penalty in rarest of rare cases at least. But MY EXPERIENCE WITH LEGAL administration of capital punishment is not without problems. Delays in sentencing and AID PROGRAMME OF LAW executions, growing number of death row convicts and inconsistencies in the Supreme SCHOOL Court's own jurisprudence on death penalty call for an informed debate over the necessity of retaining death penalty in the statute books. Furthermore, death penalty shifts the focus away from the real issue to the controversies surrounding the penalty itself. Editorial Committee Social outrage leads to reform; and in the wake of Delhi gang-rape case, one can hope Editor in Chief that some far reaching criminal law reforms await us. But not just the criminal law Professor B.C.Nirmal reform-substantive and procedural but also police and judicial reforms are the need of Head and Dean Managing Editor the hour. These reforms are long overdue and should be put high on agenda. Dr. Ajendra Srivastava Yet we should not live in the illusion that stringent laws can alone bring about the change Executive Editors Dr. Rajnish Kumar Singh we are looking for. There are other ways and which are perhaps more important. Public Shri Raju Majhi monitoring, media exposure, sensitizing the people towards the rights of women and Members children are very important not only in curbing the sexual violence only but also Dr. C. P. Upadhyay empowering the women and other vulnerable sections of the society. Dr. D. K. Mishra Dr. G. P. Sahoo It gives us immense pleasure that despite many pressures, we have been able to Dr. V. K. Pathak complete this issue in time. I express my deep sense of gratitude to those whose have Dr. V. P. Singh extended their help towards publication of this issue. In particular, I owe a special debt of gratitude to my former students namely, Mr. Nitesh Kalara, Miss Pallavi Srivastava and Mr. Rupesh Kumar for significantly contributing to our efforts toward publication of this Published by Newsletter. Last but not least, I am thankful to Mr. Faizan Nasir, and Mr. Abhijit Kumar, LAW SCHOOL students of Law School for providing research support to the editorial team. Banaras Hindu University Varanasi – 221005, email: [email protected] Telefax : +91-542-2369018 http://www.bhu.ac.in/lawfaculty B. C. Nirmal Hon'ble Mr. Justice : New Justice Altamas Kabir assumed the charge of the Chief Justice of India on 29th September 2012. On the same day, Justice S.H.Kapadia demitted the office of the Chief Justice. Born on July 19, 1948 in , Justice Altamas kabir obtained his LL.B. degree from . He was made a permanent judge of the on 6 August, 1990. Justice Kabir became the acting Chief justice of the Calcutta high Court in January 2005 and was elevated as the Chief Justice of on 1March 2005. He joined the Supreme Court on 9 September 2005. He has also served as the Executive Chairman of the National Legal Services Authority. Law School, BHU offers good wishes and heartiest congratulations to Justice Altamas Kabir, CJI. ACTIVITIES AT THE LAW SCHOOL Faculty of Law on 23rd July, 2012. He to represent the Law School, BHU in 1. Induction Programme for LL.B. I deliberated on how scientific evidence, future national and international Moot Semester Students especially DNA fingerprinting could be Court competitions. A one week long Induction Programme relevant and useful in crime investigation, 5. Inauguration of Newly Built Chanakya was conducted for the newly admitted medical diagnosis, seed- stock Hostel of Law LL.B. Students from 26th July to 1st August identification, sex selection in animals, 2012. Four lecture sessions were maintaining defence records and wild life organized each day on a variety of conservation. Dean and Head Professor subjects including Law, Library B.C. Nirmal initiating the discussion Information, Computer Skills, and Soft focused on the evidentiary value of DNA Skill Development. During the profiling. He also highlighted need of the programme twenty interactive lecture legislation on creating a DNA data base. The newly constructed Chanakya Hostel sessions and two demonstration sessions 3. Lecture by Professor Nariyuki Osano was inaugurated by Dr. Lalji Singh, by the representatives of Westlaw and of Osaka Otani University, Japan Hon'ble Vice-Chancellor on 23rd July, Manupatra were conducted. Various Professor Nariyuki Osano of 2012 at 10:55 A.M. The Hostel comprises areas including Legal Education, Legal Osaka Otani University, Japan 100 two- seated rooms for the students Profession, Law in a Democratic Society, interacted with the faculty of LL.B. and LL.M. Including the Chanakya Law and Management, Sociology of Law, members and the research Hostel now the Faculty of Law has three and Stress Management were covered to scholars of Law School and boys hostels. equip the students with the knowledge delivered a lecture on “Comparison 6. Inter-disciplinary Dialogue Series to th and skill required to pursue the course in between Indian and Japanese Judicial Mark the 150 Birth Anniversary of th Law effectively. Prof. RK Mishra, Prof. MP Systems” on 7 August 2012. He shared Mahamana Singh, Prof. DP Verma, Prof. RK Jha, Prof. his experiences of working in India for his a) Dialogue on “Implementation of the Harikesh Singh, Prof. RP Singh, Prof. MS research work on Panchayati Raj System Right to Education Act” Pandey were among those who delivered in Andhra Pradesh. He spoke on the A Dialogue on the topic “Implementation lectures in the programme. The aspects of judicial activism, political of the Right to Education Act: Problems programme was appreciated by experts question doctrine, pendency of cases in and Challenges” was organized on August and students alike. Dr RK Singh and the courts and the special case of Panchayat 11, 2012. Head and Dean, Prof. B.C. student advisor, Mr Raju Majhi system to compare the working of judicial Nirmal gave the welcome address and conducted this programme under the systems of India and Japan. Professor D.P. introduced the theme of Dialogue. Dr. guidance and supervision of Prof. BC Verma proposed a formal vote of thanks. V.S. Mishra, coordinator of the Nirmal, Head and Dean, Faculty of Law. 4. Intra- Faculty Moot Court Competition programme, presented the substance 2. Special Lecture by Hon'ble Vice- 2012-13 and theme of the RTE Act. The Chancellor distinguished panelists included Prof. G.P. Verma, Prof. Ali Mehdi, other senior faculty members of Law School, Prof. Kalpalata Pandey of MG Kashi Vidyapith, Prof. P.N. Pandey, former Dean, Faculty of Social Sciences, Prof. A.K. Kaul, Law School BHU organized an Intra- Department of Sociology and Dr. Sunil Faculty Moot Court Competition on Kumar Singh, Faculty of Education. Prof. September 8-9, 2012. Nearly 200 M.P. Singh discussed the relevance of the students participated in the competition. Right to Education Act in the light of Dr. Lalji Singh, the Hon'ble Vice- Dr. S.K. Gupta, Dr. M.K. Padhy, Dr. G.P. political economy. Professor David W. Chancellor of BHU delivered a special Sahoo and Dr. V.K. Pathak acted as judges. Tushaus, Visiting Professor in Faculty of lecture on “Science in Witness Box” at the Best thirty students were finally selected Law, shared with the audience the American experiences with regard to towards conservation of the biological 8. Group Level Youth Parliament right to education. Mr. Dhananjay and Mr diversity, including the access and A Group Level Youth Parliament was Ajay, from an NGO, enlightened the sharing of benefits from the use of organised in Law School, BHU under the audience on the practical aspects of the biotechnology. directions of Ministry of Parliamentary law. Prof. Harikesh Singh, former Dean, 5. Current Law Forum Affairs, New Delhi on September 29, Faculty of Education, chaired the On 25 August 2012, Professor David W. 2012. 120 students from different proceeding of the Dialogue. Tushaus, Chairperson, Department of departments/affiliated colleges including b) Dialogue on “Regulation of Media in Criminal Justice & Legal Studies, Missouri Law School participated in the event India: Legal and Policy Issues” Western State University and Fulbright coordinated by Dr. K.M Tripathi. Scholar, BHU delivered a Lecture under the auspices of the Current Law Forum, FORTHCOMING EVENTS Law School, BHU. Dwelling on the subject of 'death penalty in the USA', he · University level Youth Parliament is to be examined the merits of the issues raised organized on 13th October, 2012 as part of th in opposition and support of death celebrations of 150 Birth Anniversary of penalty. He also enlightened the Mahamana Pt. Madan Mohan Malaviya ji. The second Inter-disciplinary Dialogue gathering on some issues central to · Release of the inaugural issue of BHU Law School Newsletter by Hon'ble Vice- was held in the Law School, on capital punishment debate in the US such t h Chancellor, Dr. Lalji Singh on 13 “Regulation of Media in India: Legal and as racial bias and wrongful convictions. October,2012 Policy Issues” on August 18, 2012. The Professor B.C. Nirmal, Head and Dean · National Seminar on “Science, Technology dialogue was attended by several experts delivered the welcome address and and Law Reform” to be organized on 3-4 from different disciplines and media introduced the theme of subject. November, 2012. persons. The Chief Guest of this academic Referring to the views of Justice Bhagwati · Faculty level Quiz-Competition to be event Hon'ble Mr. Justice S.N. Shukla, on the subject and other liberal and organized on 14th Oct., 2012. Judge, Lucknow Bench of Allahabad High progressive judges, he said that capital · Inauguration of Moot Court Hall of the Law Court, said that judiciary always punishment has a certain class School, Banaras Hindu University. welcomes fair and healthy comments complexion. Finally, Dr Ajendra · Mahamana Pt. Madan Mohan Malviya from media but difficulty arises only Srivastava, the Coordinator of the National Moot Court Competition. when media delivers its verdict even Current Law Forum, proposed a formal · International Conference as part of the th before a verdict is pronounced by the vote of thanks. celebrations of 150 Birth Anniversary of court. Professor B.C. Nirmal, Dean, 6. Hindi Debate Competition Mahamana Pt. Madan Mohan Malaviya ji. · Launch of a new Journal on Environmental Faculty of Law, while welcoming the On 16 September 2012, a debate & Intellectual Property Rights Law. participants stressed the need of media competition in Hindi was organized to regulation. Dr. D.K. Mishra, co-ordinator mark the 150th Birth Anniversary of FACULTY UPDATES of the event, presented thematic outlines Mahamana. The topic of the debate was · Professor B. C. Nirmal, Dean, Faculty of of the discussion. Professor B.N. Pandey “Bharat mein Lokpal sanstha ki sthapana Law, chaired one of the sessions of two- proposed a formal vote of thanks. ati-awashyak hai (“In the opinion of the day National Symposium on “Human c ) D i a l o g u e o n “ B i o - d i ve rs i t y House the establishment of the Rights Education: Issues and Strategies” Conservation” institution of Lokpal is a necessity”). on 8th September 2012,organized by Third Inter-disciplinary Dialogue on the Professor S K Tewari, Dr Ramkumar VBS Purvanchal University, Jaunpur, U.P. topic “Bio-diversity Conservation: From Dangi, Dr Sharad Dharsharma and Dr as part of Silver jubilee Celebrations. He Rio to Nagoya” was organized on 31st Adesh Kumar were among the Jury has also been nominated as an external August, 2012. The day-long session was members. Shri. M K Malviya was the member of the Academic Council of the attended by several dignitaries and coordinator of the event. DDU Gorakhpur University, Gorakhpur, experts on the subject including 7. English Debate Competition U.P. Professor J.S. Singh, Prof B.D. Tripathi, The Intra Law School English Debate th · Dr. R. K. Murali, Associate professor, Professor Madhoolika Aggrawal, Competition was organised on 15 Law School was invited by the Indian Professor A.S. Raghuvanshi and Professor September 2012. The topic for the judicial Academy, Bhopal to deliver three M.P. Singh. Distinguished panelists debate was “Coalition Government is a lectures on “Human Rights: Civil liberties reflected insightfully Prime aspects of hindrance to the parliamentary form of & Constitutional Democracy”, “Bail, biological diversity conservation, with government”. The competition was Arrest and Remand”, and “Victimology & respect to the scientific and legal issues. judged by a three – judge panel: Prof. R.P Human Rights: Decisional Jurisprudence” Professor Ali Mehdi, the coordinator of Pathak (Head, Dept. of Political Science, to Judicial officers of Lower, District, and the event, initiated the Dialogue and BHU), Prof. A.S Singh (Head, Dept. of th th High Court cadre on 14 to 16 produced the concept paper. In his History, BHU) and Prof. Satish Kumar Rai September 2012. welcome address Head and Dean, (Head, Dept. of Political Science, MG · Dr. Ajendra Srivastava, Associate Professor B.C. Nirmal highlighted the Kashi Vidyapith). Dr. K.M Tripathi was the professor, Law School presented a paper international legal efforts so far taken coordinator of the event. “Human Rights Education and Contemporary International law” in a Rajya Sabha (30 August 2012); The All P ro te c t i o n o f R i g ht s a n d F u l l two-day National Symposium on Human India Institute of Medical Sciences Participation) Act, 1995 :Provided that a Rights Education, organized by VBS (Amendment) Bill, 2012 (30 August child with multiple disabilities referred to Purvanchal University, Jaunpur, on 8th 2012); The North-Eastern Areas in clause (h) and a child with severe September 2012. (Reorganization) Amendment Bill, 2011 disability referred to in clause (o) of · Dr. Sibaram Tripathi, Associate (3 September 2012); The Protection of section 2 of the National Trust for Welfare Professor, Law School participated in a Women Against Sexual Harassment at of Persons with Autism, Cerebral Palsy, two- day National Symposium on Human Work Place Bill, 2010 (3 September Mental Retardation and Multiple Rights Education, organized by VBS 2012); The National Highways Authority Disabilities Act, 1999 may also have the Purvanchal University, Jaunpur, and also of India (Amendment) Bill, 2011 (3 right to opt for home-based education. presented a paper on human rights September 2012) The National Institute Section 21has been amended and in sub- education on 9th September 2012 . of Mental Health and Neuro-Sciences, section (2), a proviso has been inserted, · Dr. Bibha Tripathi, Reader, Law School Bangalore, Bill, 2012 as passed by Rajya namely: Provided that the School delivered a lecture on “Women's legal Sabha (4 September 2012). Management Committee constituted rights in AZALIA : A Symbol of Act No. 30 to Act No.33 are summarized under sub-section (1) in respect of,(a) a Womenhood”, at A TRAINING INSTITUTE below. school established and administered by FOR WOULD BE BRIDE on 24th September THE RIGHT OF CHILDREN TO FREE AND minority whether based on religion or 2012. She also received Vishist Shikshak C O M P U L S O R Y E D U C A T I O N language; and (b) all other aided schools Samman by Maitri Bhawan on the (AMENDMENT) ACT, 2012 (Act No. 30 of as defined in sub-section (ii) of clause (n) occasion of Educational Seminar on 2012) was enacted to amend the Right of of section 2,shall perform advisory “Vishva Nagrikta Bodh Srijan Shikshan ka Children to Free and Compulsory function only. Yogdan” on 9th September 2012. Education Act, the new Act amended T H E C E N T R A L E D U C AT I O N A L · Dr. R. K. Patel, Assistant Professor, Law section 1 to insert sub-section (4) INSTITUTIONS (RESERVATION IN School, published two articles on providing that the Act shall apply subject ADMISSION) AMENDMENT ACT, 2012 “Importance of Legal Education and our to the provisions of articles 29 and 30 of (Act No. 31 of 2012) was enacted to Attention” and “Ethical Duties of Doctors the Constitution. It also adds sub-section amend the Central Educational and the Law”, in Volume 3(No.3) and (5) which provides that the Act shall not Institutions (Reservation in Admission) Volume 5 (No.5) respectively of apply to Madarsas, Vedic Pathsalas and Act. It modifies section 2 and after clause Chotanagpur Law Journal. educational institutions, primarily (i), the following clauses shall be inserted, · Dr M.K. Malviya became member of imparting religious instruction. Section 2 namely: (ia) specified north-eastern the editorial board of International has been amended to include the region means the area comprising of the Research and Review Journal, published definition of "child with disability" in States of , Manipur, from Permar Technocrat, MMV. He was clause (ee). Section 3 has been modified Meghalaya, Mizoram, Nagaland, Sikkim, also selected as legal adviser of the to substitute sub-section (1) to now Tripura and the tribal areas of Assam “Drishti” a research journal published by provide (1) Every child of the age of six to referred to in the Sixth Schedule to the the Student Council, BHU. fourteen years, including a child referred Constitution;(ib) State seats, in relation to in clause (d) or clause (e) of section 2, to a Central Educational Institution, LEGISLATIVE TRENDS shall have the right to free and means such seats, if any, out of the c o m p u l s o r y e d u c a t i o n i n a annual permitted strength in each branch neighbourhood school till the of study or faculty as are earmarked to be completion of his or her elementary filled from amongst the eligible students education. In sub-section (2), the proviso of the State in which such institution is has be omitted; after sub-section (2), the situated. In section 3 of the principal Act, following sub-section has be inserted, the following provisos shall be inserted, namely: (3) A child with disability namely: "Provided that the State seats, if The Monsoon Session commenced on 8th referred to in sub-clause (A) of clause (ee) any, in a Central Educational Institution August 2012 and continued till 12th of section 2 shall, without prejudice to situated in the tribal areas referred to in September 2012. The Government had the provisions of the Persons with the Sixth Schedule to the Constitution listed 15 new Bills for introduction during Disabilities (Equal Opportunities, shall be governed by such reservation the Monsoon Session of the 15th Lok P ro te c t i o n o f R i g ht s a n d F u l l policy for the Scheduled Castes, the Sabha. Out of these only 6 Bills were Participation) Act, 1995, and a child Scheduled Tribes and the Other finally introduced. About 30 Bills were referred to in sub-clauses (B) and (C) of Backward Classes, as may be specified, by listed for consideration and passing. Only clause (ee) of section 2, have the same notification in the Official Gazette, by the 4 bills were passed by both Houses. rights to pursue free and compulsory Government of the State where such Following bills were passed by the Lok elementary education which children institution is situated. The proviso details Sabha during Monsoon Session: The with disabilities have under the the reservation scheme in certain cases. Chemical Weapons Convention provisions of Chapter V of the Persons Clause (a) of section 4 is omitted. Section (Amendment) Bill, 2012 as passed by with Disabilities (Equal Opportunities, 5 of Act has been amended, in sub- section (1), for the words "number of to the penis, vagina, anus, urethra of the domestic workers' Convention. The such seats available", the words "number child or makes the child to do so to such Convention setting out decent working of such seats available or actually filled, person or any other person. conditions for the millions of domestic whichever be less," shall be substituted THE ADMINISTRATORS-GENERAL workers worldwide was adopted at the and in sub-section (2), for the words (AMENDMENT) ACT, 2012(Act No. 33 of 100th annual session of the international "three years", the words "six years" shall 2012) Labour Conference (the General be substituted. w a s e n a c t e d t o a m e n d t h e Conference) on 16 June 2011. India is a THE PROTECTION OF CHILDREN FROM Administrators-General Act, 1963. It signatory of the Convention but has not SEXUAL OFFENCES ACT, 2012(Act No. 32 amends sections 9, 10, 29 and 36 of Act ratified it as yet. of 2012) was enacted to protect children 45 of 1963. In sections 9, 10, 29 and 36 of Maritime Labour Convention to enter from offences of sexual assault, sexual the Administrators-General Act, 1963, for into force in a year harassment and pornography and the words "two lakhs", wherever they On 20 August 2012, the Philippines provide for establishment of Special occur, the words "ten lakhs" shall be deposited its instrument of ratification of Courts for trial of such offences and for substituted. the Maritime Labour Convention (MLC, matters connected therewith or 2006) with the International Labour incidental thereto. The Act incorporates INTERNATIONAL LEGAL Organization (ILO). The Philippines is the NEWS & EVENTS th the obligation of clause (3) of article 15 of 30 State to ratify the landmark the Constitution, which empowers the Convention promising decent work for State to make special provisions for the seafarers. Now the Convention is set children. It also enacts the obligation of to enter into force in less than a year. The the Government of India to the MLC, 2006, popularly known as the Convention on the Rights of the Child, seafarers' “Bill of Rights “sets out the adopted by the General Assembly of the world's 1.2 million seafarers' right to United Nations, which has prescribed a ICC is ten years old this year decent conditions of work on a wide set of standards to be followed by all July 1, 2012 marks the 10th anniversary of range of subjects. The new labour State parties in securing the best the entry into force of the Rome Statute standard consolidates and updates more interests of the child. governing the International Criminal than 68 international labour standards to The Act defines "child" as any person Court (ICC). The Rome Statute was the maritime sector adopted over the last below the age of eighteen years. It adopted on 17 June 1998 by 120 States 80 years. provides that the words and expressions which came into force on July 2, 2002 ICJ has more than doubled its work rate used in the Act and not defined but after it was ratified by 60 States. Over the since 1990 defined in the Indian Penal Code (45 of past ten years, the ICC which is the first On 28 September 2012, the President of 1860), the Code of Criminal Procedure, permanent international criminal court the International Court of Justice (ICJ) His 1973 (2 of 1974), the Juvenile Justice formed to try “the most serious crimes of Excellency Judge Peter Tomaka while (Care and Protection of Children) Act, concern to the international community” addressing representatives of the United 2000 (56 of 2000) and the Information has become a fully functional institution. Nations Member States in New York on Technology Act, 2000 (21 of 2000) shall As of now it has 121 States Parties. the occasion of the “high level meeting have the meanings respectively assigned Situated in The Hague, The Netherlands, on the rule of law” said that in the last 22 to them in the said Codes or the Acts. the ICC handed down its first judgment in years, the ICJ has rendered more Chapter II defines sexual offences against Prosecutor v Thomas Lubango Dyilo on judgments than during the first 44 years children and penetrative sexual assault 14 March 2012 holding Lubango Dyilo, a of its existence. “The average number of and provides for punishment thereof. It psychologist turned militia leader, guilty judgments rendered each year by the provides that a person is said to commit as a co-perpetrator of the war crimes and Court between 1990 and 2012(2.72) is "penetrative sexual assault" if(a) he using girls and boys under fourteen as twice as high as that recorded for the penetrates his penis, to any extent, into soldiers in his Congolese Rebel Army period 1946-1989(1.18)”said Judge the vagina, mouth, urethra or anus of a from September 2002 through August Tomaka. child or makes the child to do so with him 2003. UN General Assembly annual meeting or any other person; or(b) he inserts, to ILO's Convention on Domestic workers from September 18-October 1, 2012 any extent, any object or a part of the to come into force in a year UN General Assembly opened its sixty- body, not being the penis, into the vagina, On 5th September 2012, Philippines seventh sessions on 18 September 2012 the urethra or anus of the child or makes formally deposited the instrument of at the UN Headquarters, New York. The the child to do so with him or any other ratification of the Convention on Decent annual general debate began on 25th person; or(c) he manipulates any part of Work for Domestic Workers (Convention September which is to conclude on the body of the child so as to cause 189) with the International Labour October 1, 2012. During the annual penetration into the vagina, urethra, Organization (the ILO) allowing the meeting of the world leaders from 193 anus or any part of body of the child or historic convention to enter into force in a Member States deliberations focused makes the child to do so with him or any year from now. Philippines is the second mainly on the following key issues: other person; or(d) he applies his mouth country after Uruguay to ratify the millennium development goals (MDGs), climate change and sustainable On 20 July 2012 the International Court resources in general and spectrum in development, food security, the role of of Justice delivered a significant verdict particular, the reach and ambit of the mediation in the peaceful settlement of regarding a Member States' obligation principle of equality enshrined in Article disputes, disarmament, and the UN under Article 6(2) of the 1984 Convention 14 in the state's dealings with private reform, including reform of the Security against Torture and Other Cruel, individuals in distributing natural Council, revitalization of the work of GA Inhuman and Degrading Treatment and resources and the maintainability of a and reaffirming the central role of the Punishment (CAT). In a dispute between Presidential Reference under Article 143 organization in global governance. Belgium and Senegal, the Court ruled pertaining to the interpretation of the High Level meeting of the General that Senegal was under an obligation to true scope of an earlier decision. The assembly on the rule of law, 24 make a preliminary enquiry into the act main Opinion was delivered by Justice DK September, 2012 of torture allegedly committed by Mr. H Jain for SH Kapadia CJ, Himself, Dipak Following opening week of the sixty- Habre (former President of the republic Misra and JJ while Justice seventh session of the General Assembly, of Chad) a non-national in his custody on gave separate and a high level meeting on the rule of law at the basis of the principle of universal concurring Opinion. national and international levels was jurisdiction enshrined in the Convention On the issue of maintainability of the convened on 24 September, 2012. It was against torture. Presidential Reference, the Court citing attended by the Member States, non- Margaret Chan gains second term as the earlier cases including Special governmental organizations and civil WTO Director General Reference No1 of 1964, (1965) 1SCR 413 ( society. On this occasion, the General Dr Margaret Chan took over for a second Keshav Singh) said that while exercising Assembly adopted a “Declaration on the five year- term as the Director General of jurisdiction under Article 143(1) it can High Level Meeting on the Rule of Law at WHO on July 1, 2012. Dr Chan joined the look into the correctness of an earlier National and International Levels”. WHO in 2003 as Director of the decision if the issue raised is a larger one Ban Ki moon for strong ties between UN Department of Protection of Human than decided in the earlier decision. So and NAM Environment. Prior to joining the WHO long the decision in the 2G Case is On August 30, 2012, the opening day of she worked for 25 years in Hong Kong's untouched, the Court is within its t h e 1 6 t h t h e N o n - A l i g n e d Department of Health. jurisdiction to evaluate and clarify the Movement(NAM) Summit in Tehran, the Lise Grande is the new UN Country Team true ratio in that Case, the Court opined. UN Secretary General Ban Ki moon Leader in India Clarifying the true ratio of the CPIL& Ors v stressed the need for UN and NAM to On 17 august 2012, Lise Grande, new UN Union of India & Ors (2012) 3 SCC 1 (“2G come closer and to rise against the Resident coordinator presented her Case”) the Court pointed out that in that challenge faced by the NAM countries. credentials to Minister of State for Case the Court was not concerned with Addressing the two-day Summit, the External Affairs Ms Praneet Kaur. She has the method of 'auction' in general but Prime Minister Manmohan Singh urged worked for the UN since 1994 serving in was concerned with the validity of those the nations to unite in their fight against many countries and was involved in the methods used in distribution of spectrum terrorism. He also expressed concerns UN peacekeeping operations. within a certain period, that is, from September 2007 to March 2008. Hence, over proliferation of weapons of mass RECENT JUDICIAL DECISIONS destruction, piracy jure gentium, the 2G Case could not be read as laying deteriorating situation in Syria and food down a blanket rule that auction is the insecurity. Syria and Palestine statehood only permissible method for disposal of dominated the agenda at the NAM natural resources. Summit. Regarding 'trusteeship' and 'public trust European Court of Justice on minimum doctrine' the court was of the view that reception conditions for asylum seekers they do not prohibit the state from On 27 September 2012, the Court of allocating the natural resources but Justice of the European Union while require a high degree of judicial scrutiny. interpreting the relevant provisions of Re: Special Reference No 1 of 2012 On the right to equality aspect involved in Directive 2003/9 concerning European Auction is not the only permissible method for the matter, the Supreme Court said that Union law on asylum held that a Member distribution of natural resources the action of the state, “whether it The Supreme Court's Advisory Opinion of State in receipt of an asylum claim is relates to distribution of largesse, grant 27 September 2012 on the Presidential obliged to grant the minimum conditions of contracts or allotment of land”, has to Reference (Special Reference No 1 of for reception of asylum seekers even to be fair, reasonable, non-discriminatory 2012) is immensely important as it an asylum seeker in respect of whom it and transparent. examines some vexing issues of law decides to call upon another Member On the principal issue whether 'auction' concerning the scope of judicial review of State as the state responsible for the is a constitutional mandate in allocating policy decisions, constitutional validity of application, to take charge of him or to natural resources, the Court opined that the methods other than the 'auction' in take him back. such a question should be answered in allocating scarce natural resources, the ICJ's decision on the obligation to the negative. “…auctions are not the only applicability of the public trust doctrine prosecute or extradite permissible method for disposal of all to the case of distribution of natural natural resources across all sectors and in can be no across the board blanket enforcement of foreign awards. all circumstances”. The Court even went guidelines on media reporting of sub- Overruling earlier verdicts by the apex to the extent of suggesting that taking judice matters yet restrictions can be court in the cases of Bhatia International auction as a constitutional mandate imposed if sought by an aggrieved party v. Bulk Trading S.A. & Anr., (2002) 4 SCC would be impermissible because such an in a specific case. 105 and Venture Global Engineering v. approach may distort another The Court observed that under Indian Satyam Computer Services Ltd. & Anr. constitutional principle embodied in Constitution no right in Part III is 2008 (1) Scale 214 , a five-judge Article 39(b). absolute. There can be exceptions in the Constitution Bench observed that “we On the scope of judicial review of policy interest of administration of justice. are of the considered opinion that Part I decisions, the Court adhered to the well Apart from Section 151 of the Code of established principle of non-interference Civil Procedure, the High Courts and the of the 1996 Act (which deals with the by the judiciary in policy issues. Heavily Supreme Court have the inherent power arbitration held in India) will have no relying on the earlier jurisprudence, most to restrain the press from reporting application to International Commercial notably, RK Garg v Union of India (1981) 4 where administration of justice so Arbitration held outside India”. It was SCC 675, Premium Granites & Anr v State demanded. The Court held that there is further observed that such awards will of TN(1994) 2SCC 691 and Balco no general law for courts to postpone only be subject to the jurisdiction of the Employees' Union v Union of India & Ors publicity, either prior to adjudication or Indian Courts when the same are sought (2002) 2 SCC 333 , the Supreme Court during adjudication as it would depend to be enforced in India in accordance with suggested that methodology pertaining on facts of each case. Open justice the provisions contained in Part II (which to disposal of natural resources falls in permits fair and accurate reports of court deals with enforcement of foreign executive domain and any interference proceedings to be published. The media awards) of the Act. by the Court is uncalled for. has a righ t t o know wha t is happening in In the Bhatia In t ernational case, the Ajendra Srivastava courts and to disseminate the Supreme Court in 2002 had held that Part Associate Professor information to the public which I of the Act, dealing with the power of a Sahara India Real Estate Corporation enhances the public confidence in the Ltd. & others v Securities and Exchange transparency of court proceedings. court to grant interim relief, could be Board of India & another However, sometimes, fair and accurate applied to arbitrations with its seat in Supreme Court examines right to report matters reporting of the trial may give rise to country other than India unless the which are sub-judice substantial risk of prejudice. In such parties specifically opted out of such an In this case decided on September 11, cases, there is no other practical means arrangement. The implication of the 6th 2012, the Security and Exchange Board of short of postponement orders that is September Judgment is that now Indian India (SEBI) reported to the Hon'ble capable of avoiding such risk of prejudice. Courts have no jurisdiction to pass Supreme Court that securities given by The Court was of the opinion that what interim orders in relation to arbitration the Sahara India Real Estate Corporation constitutes an offending publication done outside India. The Court held that Ltd. and Sahara Housing and Investment would depend on the decision of the Scheme of the Act makes it abundantly Corporation were insufficient to secure court on case to case basis. Hence, their liabilities to the OFCD holders. The clear that the territorial principle, guidelines on reporting cannot be framed accepted in the UNCITRAL Model Law, Supreme Court then directed the Sahara across the board. and SEBI that if possible, they should has been adopted by the Indian Act. This decision makes it clear that every th reach a consensus with respect to an The 6 September decision makes it clear publication of the court proceedings by acceptable security in the form of an that in keeping with the scheme of the the media is not prohibited in India. unencumbered asset. The learned international instruments such as However, the Court may impose counsel for Sahara then addressed a Geneva Convention and the New York restriction on publication of the personal letter on 7.2.2012 to the Convention as well as the UNCITRAL, the proceedings of the court in the interest of learned counsel for SEBI at Chennai regulation of conduct of arbitration and justice in specific cases. enclosing the proposal with details of challenge to an award would have to be security to secure repayment of OFCD to Dr. Dinesh Kumar Srivastava and done by the courts of the country in investors. On 10.2.2012 one of the news Dr. D.K. Misra which the arbitration is being conducted. channel flashed on television details of Associate Professors In relation to the opinion expressed in the said proposal. The television channel Bharat Aluminium Co v. Kaiser Bhatia International that unless the also named the valuer who had done the Aluminium Technical Service, Inc. application of Part I of the Act is allowed valuation of the assets proposed to be Civil Appeal No.7019 of 2005 offered as security. Part I of the Arbitration & Conciliation Act 1996 not non-convention country awards cannot It was submitted before the Court that to apply to arbitrations done outside India be enforced, the Bench in the present th disclosure to the media by SEBI was in On 6 September 2012, in a landmark case observed that “we are of the opinion breach of confidentiality. After hearing verdict, the held that merely because the Act of 1996 does the counsels for both parties on media that arbitral proceedings held outside not cover the non convention awards reporting of sub- judice matter the India will not be open to judicial scrutiny would not create a lacuna in the Act. If Supreme Court said that although there of Indian Courts which can only deal with there was no lacuna during the period in which the same law was contained in Act accordingly. In this regard the three different instruments, i.e. the Supreme Court made following My Experience with Legal Aid Programme of Law School, Arbitration Act, 1940 read with 1961 Act, important observations - Banaras Hindu University and the Arbitration (Protocol and a. That like other quasi-judicial bodies, Convention) Act, 1937, it cannot be persons from judicial background be As a Fulbright Scholar I have had an excellent construed as a lacuna when the same law also appointed as members of the experience this semester at the Faculty of Central and State Commissions–and this Law, Banaras Hindu University. Dean B.C. is consolidated into one legislation, i.e. should be done after consulting the Nirmal has been very supportive of my work the Arbitration & Conciliation Act, 1996. Chief Justice of India and Chief Justices here as well as many faculty. I have especially enjoyed the opportunity to discuss legal and The Court clarified that in order to do of respective (concerned) High Courts. complete justice, the law now declared social issues with fellow faculty members b.That the CIC at the Centre or State level and students. by this Court shall apply prospectively, to shall only be a person who is or has been Working in BHU's Legal Aid Clinic has been all the arbitration agreements executed a Chief Justice of High Court or a Judge of my greatest experience. Faculty and hereafter. The judgment with its the Supreme Court of India. students have been very receptive to prospective effect is expected to come to c. That the Government should prefer a adopting new approaches in the clinic, the aid of firms which obtain arbitral person who is or has been the judge of thanks in large part to the Legal Aid Clinic Joint Director, Dr. S.K. Gupta and his awards in their favour in foreign countries the High Court for appointment as willingness to adopt new ideas. BHU has a Information Commissioners. but face hurdles as these come under group of excellent faculty and student judicial scrutiny in Indian Courts. The d. That the commission should sit in volunteers. The students are working on decision is also a welcome verdict from Benches comprising a judicial member several new projects this year. A poster and an expert member to decide any presentation and a cultural group will be the point of view of minimizing the court case under the transparency law. showcased at BHU Law School's Science, intervention in the conduct of The Court did not quash the impugned Technology and the Law Reform Conference international commercial arbitration sections of the Act but asked the in November. The posters and the cultural groups educational talents will then be taken proceedings. Harmonization of laws is government to modify the provisions so one of the most important concerns of into the community to provide legal that people from judicial background are education to laypersons. The Legal Aid Clinic UNCITRAL and to that end the present preferred for the post. It is also relevant is planning other educational programs, decision is a good initiative. The only to note that presently none of the eight while other students may perform legislative missing link in the verdict is that it leaves members of the CIC, including the Chief and administrative advocacy. the question of enforcement of awards Information Commissioner, are from My hope is that the rejuvenated passed in non-convention countries judicial background. The Judges opined Legal Aid Clinic will become a hallmark of BHU's law school in the future. Law schools unanswered on the ground that the that the interest of justice demanded having judicial members to head such like BHU hold the key to creating a more just lacuna is to be corrected by the society for all Indians, not just through the Legislature, but till that time the law bodies. direct work of the clinic; but also by It is believed that the present judgment remains uncertain. developing more socially conscious future might lead to delays in dealing with Dr. Rajnish Kumar Singh professionals. Finally, I have together with cases as the order says that the work of the Law School legal Aid Committee put Assistant Professor the commissions will now be done in together a research team of students who Namit Sharma v. Union of India benches of two members, one of whom will study the use of clinical education in the MANU/SC/0744/2012 United States and India as part of our access will be judicial member. Prior to the Information Commissions to have to justice project. When the study is present order there was no requirement judicial members also completed we will have a better picture of for the commission to work on benches On 13th September 2012, the Supreme what legal aid clinics are doing in India and of two members; one member benches the United States. Court delivered an important judgment were disposing off the cases. Therefore, David Tushaus, Professor, on the composition of Central and State unless the number of Commissioners Missouri Western State University and Information Commissions under Right to Fulbright Scholar, Law School, BHU (members) is increased, the cases heard Information Act 2005. A bench and disposed off would be drastically comprising Justice A.K. Patnaik and reduced. This might make the pendency "A judge is a law student who marks his Justice Swatanter Kumar passed this of cases in commission a problem much own examination papers". order on a PIL challenging sections 12 and like the judiciary faces today. Further, an Charles de Montesquieu 15 of the Right to Information Act 2005 important question still remains: how "I have always found that mercy bears richer enumerating the qualifications needed can a retired Supreme Court judge who than strict justice". for the appointment of members to the retires at the age of 65 be appointed to Abraham Lincoln commission. the post of CIC or an Information The Court held that only sitting or retired Commissioner when the retirement age Subscription Rates Chief Justices of the Supreme Court or for these posts is also 65? ` High Courts can head the Central and Single Copy : 40 Annual : ` 150 State Information Commissions and Dr. V.K. Pathak asked the government to amend the RTI Assistant Professor