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Home , Chief Justice of India, Kailash Nath Katju

NYAYA KIRAN VOLUME - II ISSUE - II APRIL - JUNE, 2008 DELHI LEGAL INDEX SERVICES AUTHORITY Page No. Patron – in – Chief Message By Smt. Renuka Chowdhury Hon’ble Mr. Justice A. P. Shah Hon’ble Minister of Women & Child Development Chief Justice, High Court of Delhi Message By Smt. Sheila Dikshit Executive Chairman Hon’ble Mr. Justice T. S. Thakur Hon’ble of Delhi Judge, High Court of Delhi Message By Shri Yudhbir Singh Dadwal Chairman, Legal Commissioner of Police, Delhi Services Committee Hon’ble Mr. Justice Manmohan Sarin ARTICLE SECTION Judge, High Court of Delhi 1. Constitutional Underpinnings of a 1 Member Secretary Concordial Society Ms. Sangita Dhingra Sehgal - Hon’ble Mr. Justice M.N. Venkatachaliah Addl. District & Sessions Judge Former Chief Justice of Address : Delhi Legal Services Authority, 2. Mediation : As a Technique for Alternative 19 Central Office, Pre-fab Building, Dispute Resolution System Patiala House Courts, - Ms. Kuljit Kaur - 110 001. Head, Department of Law Tel. No. 23384638 Guru Nanak Dev University, Amritsar Fax No. 23387267, 23383014 3. The Constitution (Seventy-Fourth) 32 Permanent Legal Services Clinic, Amendment Act, 1992; Protection and Room No. 54 to 57, Promotion of Democracy (Local Self- Shaheed Bhagat Singh Place, Government), Rule of Law & Human Rights Gole Market, New Delhi. - Dr. J.S. Singh, Sr. Lecturer Tel. No. 23341111 Faculty of Law, University of Fax No. 23342222 JUDGMENT SECTION Toll Free No. 12525 1. Case of Sampanis and Others v. Greece 63 Website : www.dlsa.nic.in (Decided on 05.06.08 by the European E-mail : [email protected] Court of Human Rights) Editorial Committee - Ms. G.M. Padma Priya Advocate, High Court of Delhi Chairman Hon’ble Mr. Justice T.S. Thakur 2. T.N. Godavaraman Thirumulpad v. 65 Judge, High Court of Delhi & Executive Union of India (UOI) and Ors. And Chairman, Delhi Legal Services Authority In Re: Vedanta Alumina Ltd. Member [Decided on 23.11.07 reported as Hon’ble Mr. Justice S.N. Dhingra (2008) 2 SCC 222] Judge, High Court of Delhi - Ms. G.M. Padma Priya Advocate, High Court of Delhi Member Hon’ble Dr. Justice S. Muralidhar POETRY SECTION Judge, High Court of Delhi 1. Baad-e-Saba 67 Editor-in-Chief - Shri Alok Agarwal, ACMM, Delhi Hon’ble Ms. Justice Hima Kohli Judge, High Court of Delhi FUNCTION REPORT 69 Editor PRESS CLIPPING SECTION 81 Ms. Sangita Dhingra Sehgal Member Secretary STATISTICAL INFORMATION SECTION 85 Delhi Legal Services Authority RENUKA CHOWDHURY Minister of State (Independent Charge) Ministry of Women & Child Development

MESSAGE

I am happy to learn that Delhi Legal Services Authority is going to publish its Newsletter “Nyaya Kiran” (April - June, 2008 Issue). The contents of the newsletter highlighting different activities of Delhi Legal Services Authority for the promotion of legal awareness among the masses will definitely ensure legal aid to all and more particularly to the weaker sections of the society.

I convey my best wishes to the team of Delhi Legal Services Authority and wish them all success.

(RENUKA CHOWDHURY) SHEILA DIKSHIT Chief Minister Govt. of NCT of Delhi

MESSAGE

It gives me immense pleasure to know that Delhi Legal Service Authority is bringing out next issue of its newsletter “Nyaya Kiran”.

I do hope that the newsletter would highlight its activities to ensure Legal Aid to the weaker sections of the society and give an exhaustive account of various programmes organised for the promotion of Legal Awareness among the masses.

My best wishes for successful publication of the newsletter.

(SHEILA DIKSHIT) YUDHBIR SINGH DADWAL Commissioner of Police Delhi

MESSAGE

It is commendable that the Delhi Legal Services Authority is coming out with its next edition of newsletter “Nyaya Kiran” shortly. The yeoman service rendered by the Authority in providing free legal aid to the weaker sections of society is already common knowledge in the National Capital Territory of Delhi. The newsletter will go a long way in informing wider sections of people about the activities of the Authority. It is hoped that more and more people will come forward to seek their help.

We in the Delhi Police are commited to extending every possible assistance to the Delhi Legal Services Authority in their efforts to serve the needy.

I wish the publication a great success.

(YUDHBIR SINGH DADWAL) Nyaya Kiran April-June, 2008

ARTICLE SECTION The 21st Dr. Kailashnath Katju Memorial Annual Lecture CONSTITUTIONAL UNDERPINNINGS OF A CONCORDIAL SOCIETY

Hon’ble Mr. Justice M.N. Venkatachaliah*

Dr. Kailashnath Katju: The Lawyer & Statesman

It is given to very few to distinguish themselves in various fields of creative endeavor and leave their indelible impress on contemporary life and times. Dr. Kailash Nath Katju is one such rare pilgrim. Born in 1887, he obtained the Degree of Doctor of Laws of the Allahabad University in 1919. Basically and essentially a lawyer Dr. Katju was a multifaceted personality whose interests and abilities traveled far beyond the law. An erudite lawyer and a skilful advocate, he commanded a huge practice at Allahabad. He was known to argue first appeals with voluminous paper books just for 15 minutes on the point he was certain about and sit down, confident of success in spite of hours of arguing by the opposite counsel. As an extraordinary gifted advocate he picked up the essentials of the case and kept the non-essentials in their proper place. It is a mark of the most distinguished talent born out of supreme self-confidence.

His forensic abilities were also utilized in the famous INA trial where he along with , and amongst others defended the INA heroes.

After the general elections under the Act, 1935 he became a Minister in the U.P. Provincial Government headed by Pandit Govind Allah Pant. It is said that on his first day as Minister the ICS Secretaries suspicious and skeptical about the abilities of the Indians and wanting to test and tease the new minister left a bundle of files on his table without any notings on them. They were to be seen and ordered by the Minister. But they did not realize that Dr. Katju was a busy and experienced Advocate for whom it was not a big task to wade through a

*Former Chief Justice of India

1 Nyaya Kiran April-June, 2008 bunch of appeal papers running to hundreds of papers overnight and successfully argue the matter the next day. Dr. Katju went through the files placed before him, made his notings and passed clear and precise orders on each of them. They were all returned the same afternoon much to the astonishment of the Officers who felt ashamed.

Such was the measure of the man who thereafter was a member of the Constituent Assembly, of Orissa and , Union Law Minister and then Union Home Minister succeeding Sardar Patel and Rajaji and thereafter Defence Minister. From 1957 to 1962 he was the Chief Minister of . In all these positions he acquitted himself creditably. Lawyer, freedom fighter, administrator, statesman Katju’s place amongst the first rankers is secure. Many hands have toiled in building the edifice of free India. Dr. K.N. Katju’s contribution to this has been substantial and significant.

There have been and still are many political personalities of high calibre and character. But then, the general run of the quality of human material in India’s public life is greatly disappointing. It is perhaps unfair to these lesser mortals to be held up to a comparison with great ones like Dr. Katju. After the death of Abraham Lincoln, a political commentator remarked “The era of giants is over. The political scene is peopled with Charlatans, quick-buck artistes and from the muddled mediocre to the dangerously deranged” to the contemporary scene in Indian public life apart from honorable exceptions, much different?

I am indeed privileged to be here today to deliver the “Dr. Kailash Nath Katju Memorial Lecture”, and share with you some thoughts on the Constitutional underpinnings of a Concordial Society and the great principle of fraternity enshrined in the preamble to the constitution.

II

Constitution: Vehicle of Nation’s Progress

The Constitution of a country is its supreme law and is regarded as the vehicle of a nation’s progress. The purpose of good government is to bring about the security, welfare and happiness of the people. Plato asks: “What do men organize themselves into society for?” and he answers: “To give the members of the society, all the members, and the best chance of realizing their best selves.” It is the very purpose of social

2 Nyaya Kiran April-June, 2008 organization. All ‘human beings incomplete in themselves seek their ordainment of fulfillment and destiny in the enriching human company and that institutions of democracy provides the richest and the most profound opportunities of that mutual enrichment’. When the Constitution makers, the leadership of Nehru, made Republicanism as one of the basic principles, it was described as the ‘biggest gamble in history’. In the fifties of the last Century western-press was greatly skeptical of India’s experiment with universal adult-franchise and of the survival of Indian democracy. But the American Time (13th August 2007) on the occasion of 60 years of Indian Independence, saluted Indian democracy though it was described as the biggest and rowdiest. Someone else had described it as ‘Robust’ though ‘Chaotic’.

The product of the vision of the makers of the constitution represents a high watermark of consensus in our history. Consensus and accommodation form a significant and integral part of Indian culture and cornerstone of our constitutional democracy.

‘Values’ said Learned Hand ‘are ultimate; they admit of no reduction below themselves’. So too are certain irreducible constitutional values which underpin the survival and success of constitutional order and a concordial society. What are these values? What are the tools for effectuating them? The basic values of the Constitution are reflected in the Preamble, The Fundamental Rights and the which along with the Charter of Fundamental Duties may be said to constitute the conscience of the Constitution.” The Preamble to the Constitution is a declaration of our faith and belief in certain fundamentals of national life, a standard from which we must not Depart and a resolve which must not be shaken.” The emotive words ‘Justice, Liberty, Equality, Fraternity’ open up a vast music of hope. They are words of passion and power and may be said to be the spiritual pillars of the constitution. These concepts along with Constitutionalism. Democracy and the Rule of Law are the bedrock on which a conflict free society rests. Peace is the fruit of Justice; Justice is the greatest interest of man on earth – it is what cements the fabric of a secure society.

III

Fraternity

Democracy may be defined as the dwelling place which man has built for the spirit of liberty. Democracy has wider moral implications

3 Nyaya Kiran April-June, 2008 than mere majoritarianism. Democratic polity must have the architecture of an inclusive society. Democracy involves hardship and unceasing responsibility of every citizen without whose participation and contribution there can be no democracy in any meaningful sense.

Pluralist societies are the result of irreversible movements of History. Pluralism is not a mere transient vestige of a historical Condition but a permanent feature of the public culture of modern democracies. India, in particular, is such a typical pluralist society – a Model of unity in the mosaic of diversities. Law is perhaps the great integrating force and respects for law and its institutions the only Assurance that can hold a pluralist nation together. The function of Law and the choice of legal policies in a pluralist society are by far the most fascinating challenges to our civilization. These challenges Appeal to the immutable values of a high social order. Man’s capacity for a human law and human justice is put to its ultimate test. The question is whether civilizations on earth have the moral maturity to accept the human person as the unit and measure of all things.

As the Supreme Court said quoting Dr. Ambedkar in the Constituent Assembly.. “….. Fraternity means a sense of common brotherhood of all Indians. In a country like ours with so many disruptive forces of regionalism, linguism and communalism, it is necessary to emphasize and re-emphasize that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis.”

It is this spirit of brotherhood that the Preamble refers to and its awareness and practice so very essential today. Art 1 of the Universal Declaration of Human Rights, 1948 says : “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Fraternity is a political and social and even more a moral objective. Fraternity is not expressly reflected in any Article of the Constitution and indeed no constitutional and legal provision can generate any brotherly feeling. The spirit of fraternity or concord is something that has to be generated by men-by their attitude and behaviour towards one another and in their social concerns. Provisions of law, however can and do help foster such feeling.

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IV

Constitutional underpinnings of Fraternity

There are constitutional underpinnings that foster a concordial society. The purpose of law in plural societies, as Lord Scarman said, is not the progressive assimilation of the minorities in the majoritarian milieu; it is not to extinguish the different groups but to devise means – political, social and legal of preventing them from falling apart. A true democracy is surely one in which the existence of the power of the many is conditional on upon for the rights of the few.

India is intended to be an indestructible union with the units having no power of secession. The constitutional document is formidable with an internal architecture of its own.

V

Dilemma of Democracy

Dr. Konrad Adenauer, the former Chancellor of West Germany, remarked that in creating man, God had hit upon a very poor compromise. If he had made man more intelligent, he would have known how to behave; if he had made man less intelligent, he would have been easier to govern. This remark neatly sums up the dilemma of democracy. ‘Brothers Karmazov’ speaks of this dilemma. Whether to give people freedom and risk revolt and rebellion or gave them opiate of entertainment, circus and fun. Democracy has enriched our lives as no other political philosophy to done; but we have taken this great miracle for granted.

No virtue is absolute. De Tocqueville made the profound observation that liberty cannot stand alone but must be paired with a companion virtue: liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and civic responsibility.

As Acharya Kripalani said in the Constituent Assembly

“What we have stated in this Preamble are not legal and political principles only. They are also great moral and spiritual principles and if I may say so, they are my mystic principles. In fact these were not first legal and constitutional principles, instead they were really spiritual and moral principles. If we look at history, we shall find that because the

5 Nyaya Kiran April-June, 2008 lawyers and politicians made their principles into legal and constitutional form, their life and vitality was lost and is being lost even today.”

“If we want to use democracy as only a legal, constitutional and formal advice, we shall fail. The whole country should understand the moral, the spiritual and the mystic implications of the word ‘democracy’.”

It is apposite to recall Dr. Ambedkar’s concluding speech in the Constituent Assembly.....

“What does social democracy mean? It means a way to life which recognizes liberty, equality and fraternity as the principles of life. These principles – liberty, equality and fraternity – are not to be treated as separate items in a trinity. They form a union, a trinity in the sense that to divorce one form the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.”

VI

Need for the spirit of National Oneness

The greatest need of the hour is to generate and sustain a sense of national identity. We have innumerable northerners and southerners, Tamilians and Bengalis, Punjabis and Marathis, but very few Indians. It is imperative that we think and act as Indians first. All differences have to be resolved within the framework of one nation and one country.

Our greatest problem today is fundamentalism which is the triumph of the letter over the spirit. Human personality can bloom fully and humanism can take deep roots and have its efflorescence only in a climate where all display an attitude of tolerance and a spirit of moderation which Learned Hand defined as “the temper which does not press a partisan advantage to its bitter end; it can understand and appreciate the other side and feels an unity between all citizens.” This is in contradistinction to the spirit of fanaticism which, according to George Santayana consists in “redoubling your effort when you have forgotten your aim.” The survival of the Rule of Law and an egalitarian society

6 Nyaya Kiran April-June, 2008 depends upon habits of consent and compromise which are attributes of a cultivated political society.

The essence of all religions is Humanism and advancement of human welfare. From the dawn of civilization India has been home to a variety of faiths and philosophies all of which have co-existed.

We have an unrivalled tradition of religious freedom and tolerance. The view was also echoed by Dr. Arnold Toynbee who felt that the harmony of all religions is the only way to our growth and the alternative to destroying ourselves. India taught the world tolerance and sheltered the persecuted and the refugees of all religions and all nations. The world has to remember and learn this lesson and practice it to ensure our survival. John Staurt Mill in his “Liberty” refers to the way the Parsees were welcomed to the Indian shore. However today parochial tendencies and narrow fanaticism based on region and language as also communal passions of religion and caste, all motivated dominated by short term politics gains are cropping up. This is a very alarming situation and can be a sure recipe for chaos and national disintegration. Sardar Patel had opined in 1948 that history had taught the hard lesson that regional and linguistic separation imperiled national solidarity and unity.

VII

Fostering Fraternity : Provisions in the Constitution

There are express provisions in the Constitution which are designed to promote fraternity. an indestructible union of States. It is a federation with a distinct unitary flavor which has been described by political scientists and constitutionalists in different ways.

Dr. Ambedkar highlighted in the Constituent Assembly the significance of the expression “Union.” “What is important is that the use of the word “Union” is deliberate. The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation. Not being the result of an agreement, no State has the right to secede from it. The Federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single emporium derived from a single source.”

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Towards this end there is only a single common citizenship (Art 5) unlike other federal Constitutions like the U.S.A which provide for dual citizenship. The question was whether there can be domicile in a State or only one domicile in the territory of India. In D.P. Joshi vs. M.B (AIR 1955 SC 334) the majority held that in India there can be ‘a domicile in a State’ for purposes other than citizenship. This was in the context of the rules for admission exempting bonafide residents from payment of capitation fee. But the pronouncement of the Supreme Court in Pradeep Jain vs. Union of India (AIR 1984 SC 1420) takes the view that there is only one domicile, viz. the domicile of the territory of India and there is no separate domicile for a State. While Seervai supports the judgment in Joshi’s case and is critical of the judgment in Pradeep Jain, Basu, however says that the heresy of regional domicile as enunciated in Joshi’s case has been rightly demolished in Pradeep Jain which, according to him, reflects the correct position in law.

Further every citizen has the right to move freely throughout the territory of India, to reside and settle in any part of the country, to own property and to carry on any trade or business or occupation. (cf Art19). There is no express provision conferring such rights in the American Constitution. But these are read into and sought to be secured by the 14th Amendment. The Universal Declaration of Human Rights also expressly recognizes and provides for such rights. Art 301 of the constitution provides for free trade, commerce and intercourse throughout the country. Moreover while the State has no religion, liberty of thought, expression, faith, belief and worship is guaranteed and is effectuated by the provisions of Arts 25-29.

All these provisions seek to remove barriers amongst people of different regions, religions, cultures and languages and to foster a spirit of fraternity which alone can ensure a conflict free society. These are all facets of the inalienable human rights which are incorporated in various historical documents like The United Nations Charter, 1945; The Universal Declaration of Human Rights, 1948; The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950; The International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, 1966; The American Convention on Human Rights, 1969, to which the States of South America are signatories.

Freedom of thought and expression and dissent which are all provided for in Art 19(1) (a) is again an important constitutional value

8 Nyaya Kiran April-June, 2008 which underpins a free and harmonious society. It helps to cultivate the virtue of tolerance. Justice Cardozo observed that the freedom of speech is the matrix, the indispensable condition of nearly every other form of freedom. It is the wellspring of civilization and without it liberty of thought would shrivel.

Constitution 16th Amendment, 1963 is effective from 06.10.1963 in point. It introduced various constitutional provisions like the ground of ‘sovereignty and integrity of India’ in the reasonable restriction clause and the duty to uphold sovereignty and integrity of India in the oath of office to be made and subscribed to various constitutional functionaries. This was pursuant to the recommendation of the Committee set up by the National Integration Council and chaired by Sir C.P. Ramaswamy Iyer in the wake of divisive and secessionist tendencies and activities in some parts of the country. It is also significant to mention that after this Constitution Amendment the DMK Party gave up its ideology of secession in the amended its party constitution. DMK leader Dr. C.N. Annadurai displayed great statesmanship when he unequivocally declared that the DMK once and for all gave up the demand for Dravidanadu and henceforth solidly and sincerely stood for the sovereignty and unity of India. By the Constitution 42nd Amendment the words ‘unity and integrity’ of the nation were introduced in the Preamble. It is necessary that all political parties and organizations incorporate in their respective constitutions and manifestos that they would uphold and foster fraternity among all people.

“Fraternity” was added in the Preamble because it was even then felt “that the need for fraternal concord and goodwill in India was never greater than now and that the particular aim of the Constitution should be emphasized by specific reference in the Preamble”. The relevance is far greater now. There is also the prime need for maintaining the unity and integrity of the country without which individual liberty and human dignity may not be of much avail. And unity can be achieved only if there is a spirit of brotherhood among various sections of the people. All these objectives are therefore inter related and inter dependent and help promote and foster one another. Economic and social inequalities rupture the fabric of even society. Public goods such as education, health-care, human-security are not the rewards of economic development. They are not social gains of economic reforms; but are indeed economic gains of social reform. Fraternity makes economic good-sense too. This is true insurance for the good health of free-market economy.

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Tolerance of the beliefs, views and practices of others is imperative for a harmonious living and a concordial society. Be it a religious procession or the screening of a film or the expression of a view point in speech or writing must all have some space in our society. Nothing can be put in straight-jacket or dictated.

“The best test of truth is the power of thought to get itself accepted in the competition of the market.” This freedom includes not only freedom for the thought we like but also freedom for the thought we hate. It is only thus can a people grow and a society be cordial and conflict free. It is said that to doubt one’s own first principles is the hall mark of a civilized man.

Intolerance, however, has not been wanting here or in other parts of the world and it takes various forms. Religious persecution has not been uncommon. There was no separation between the Church and the State. Scientists were condemned and punished by the Church for asserting that the earth goes round the sun. There were times in which Europe indulged in religious massacres e.g. The St. Bartholomew Day massacre in 1572 of Protestants, (called Huguenots) in France by the Catholics, the burning at the stake of Protestants, the massacre by the for their resistance to Rome and the burning at the stake of Jews during the Spanish Inquisition. We may also mention the days of Cromwell, and the mutual massacre of Catholics and Protestants in Germany during the thirty year war from 1618 to 1648. Reference may also be made to the strict observance of the Sabath by the Puritans in the 17th century and intolerance of anything inconsistent with such observance. The contrasting tones of tolerance is reflected, for instance, in the Firman issued Akbar notifying 12 days of the month of Badharva including 8 days of the Paryushan as the period of abstinence during which no living creature would be slaughtered. Jawaharlal Nehru in ‘Discovery of India’ says ‘Akbar’ success is astonishing for he created a sense of oneness among the diverse elements.

We must also take note of the secularization of law and politics. It must be stated that the movement of political institutions and the legal systems has been from the religious to the secular and in that course it has absorbed good things from outside. The separation of the Church from the State was achieved earlier in Europe and in the US later. In 1844 the US Supreme Court declared that Christian religion is part of the common law and in 1892 the Court said that the USA is a Christian

10 Nyaya Kiran April-June, 2008 nation. The case State vs. John T. Scope in the 1920s severed the link between Law and Christianity of Hindu personal law especially in the mid 20th century has indeed been an amazing feet of reform. Personal law of the Hindu showed the resistance of transformation from the dogmatic to the retread.

The Indian tradition of tolerance has been adverted to in various judgments. To quote Chief Justice S.R. Das in Re: the Kerala Education Bill : “……….. Throughout the ages, endless inundations of men of diverse creeds, cultures and races – Aryans and non Aryans, Dravidians, Chinese, Scythians, Huns, Pathans and Mughals have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. India’s tradition has thus been epitomized in the following noble lines:

‘None shall be turned away From the shore of this vast sea of humanity

That is India.’ Further in 1986 the Supreme Court said: “Our tradition teaches tolerance; our philosophy preaches tolerance; let us not dilute it”.

To quote Granville Austin: A Constitution, however living is inert. It does not work. It is worked – worked by human beings whose conduct it may shape whose energies it may canalize, but whose character it cannot improve and whose tasks it cannot perform.

The Supreme Court’s observations in its recent judgment in the case of Himsa Virodhak Sangh (JT 2008(3) 421): ‘ These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has “hurt the sentiments” of their community. “These are dangerous tendencies and must be curbed. We are one nation and must respect each other and should have tolerance”.

VIII

Human Rights : The New Civilization

Human Rights, Democracy, Rule of Law, Pluralism are indivisible. These are the common heritage of mankind. The issue of individual rights which was basically a question between the inhabitants of a nation

11 Nyaya Kiran April-June, 2008

State and that State is now a concern of a citizen of the world against all arbitrary authority to be dealt with in the light of international charters. So is the concept and concern of democracy and its institutions which go beyond national boundaries. “Right knows no boundaries, and justice no frontiers; the brotherhood of man is not a domestic institution.”

Accomodation is an attitude which has been described as the: “….. most notable characteristics in every field of Indian activity ….. is the constant attempt to reconcile conflicting views or actions, to discover a workable compromise, to avoid seeing the human situation in terms of all black or all white……As India’s philosopher President Sarvapalli Radhakrishnan has put it : Why look at things in terms of this or that? Why not try to have both this and that?”

Amartya Sen in his ‘Argumentative Indian’ speaks of the large tradition of heterodoxy in India. He says, heterodoxy “has a bearing not only on the development and survival of democracy in India, it has also richly contributed, I would argue, to the emergence of secularism in India, and even to the form that Indian secularism takes, which is not exactly the same as the way secularism is defined in parts of the West”. Dissent and heterodoxy” he observes “run through out the early documents, and even the ancient epic Ramayana, which contains dissenting characters’.

IX

Role of Judiciary : Foundations of Judicial Review

In a constitutional democracy wedded to and governed by the rule of law, responsibilities of the judiciary arouse great expectations. Justice Frankfurter remarked : “It is not a printed finality, but a dynamic process. Its applications to the actualities of Government is not a mechanical exercise, but a high function of statecraft.”

The constitutional adjudications have the urgent task of defining or redefining from time to time the basic constitutional concepts in a changing and disparate world. Judicial policy is directed to the management within the constitutional parameters of the apparent conflicts in society. The exercise of democratic power on the one hand and legal control of government on the other, pose seemingly irreconcilable positions.

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It is said that an unfailing index to the maturity of a democracy is the degree of its respect for the unwritten conventions. The silences of a constitution are eloquent and they are constitutional device forming part of an advanced constitutional culture.

The measure of success in achieving all this may be regarded as the measure of success of the working of the Constitution and in promoting and sustaining constitutionalism. The role of the judiciary in protecting individual rights and freedoms and promoting constitutional values is not discretionary but obligatory.

Judicial Review essentially has its foundations in common law. The earliest echoes of the power of Judicial review can be heard in the judgment of Chief Justice Coke in Dr. Bonham’s case (1610) wherein he said that the common law would control Acts of Parliament and a Court could declare an Act of Parliament void if it was against ‘common right and reason’. Edwin Corwin in his paper ‘The Higher Law Background of American Constitutional Law’ Harward Law Review, XLII (1928-29) 149 explains the great contribution of the common law tradition to the ultimate development of judicial review in America. The dictum in Bonham’s case became in Corwin’s words, “the most important single source of the notion of judicial review.” The principle is that all laws are to be tested on the touchstone of a higher law which in earlier terms was the Natural Law and the Common Law and whose role is today ordinarily filed by a constitutional document. The idea of a judicial review is anterior to the notion of a written Constitution.

In 1798 in Calder v Bull, Justice Samuel Chase drew support from the principles of higher law and judicial review to enforce extra constitutional limitations on legislative power. And then in Marbury v. Madison, Chief Justice Marshall said : It is the duty of courts when confronted with a conflict between an act (i.e., a statute) of the mere agents of the people (i.e. of the ordinary legislature) and the act of the people themselves (to wit, the Constitution), to prefer the latter.

Today in countries with a written Constitution and an entrenched Bill of Rights what obtains is Constitutional supremacy – a government of enumerated powers with the judiciary constituted as the guardian of the Constitution and the arbiter of the function of all organs as grantees under the Constitution. It is for the Court to uphold the constitutional values and enforce the constitutional limitations. To ensure constitutional

13 Nyaya Kiran April-June, 2008 governance is of when executive power is part, therefore, part of the duty and function of the judiciary. In that sense judicial activism properly understood is a duty, not an intrusion. The responsibility of accomplishing the salutary goal of translating the constitutional promise into reality in many spheres can not be outside the court’s purview as long as it does not degenerate with private benevolence and an amorphous general supervision of the executive government.

A recent, interesting and incisive discussion a Judicial Activism in the House of Lords : a Composite Constitutionalist Approach by Margit Cohn (2007) P.L.95. measures judicial activism against the backdrop of different functions of the judiciary and it is argued that activism should be traced to the institutional role of the judicial branch. Constitutionalists value judicial participation as an essential component of a full blown constitutional democracy. There is a matrix of social and political forces that influence both the making of a judicial decision and its actual impact and effect on society. As the courts are entrusted with the role of protection of essential constitutional values, activism is assessed against the value the courts are deemed to protect. When core values are endangered judicial protection of these values is an exercise of the legitimate and essential role entrusted to the judiciary.

There is the criticism that judicial activism is a slippery slope and may mean the Court’s propensity to intervene in the governing process. However Dean Eugene Rostow says:

When the judges are carrying out the function of judicial review the final responsibility of the people is appropriately guaranteed by the provisions for amendment of the constitution itself and the benign influence of time which changes the personnel of the Court. Given the possibility of Constitutional amendments there is nothing undemocratic in having responsible and independent judges act as important Constitutional mediators.”

(The Democratic Character of Judicial Review, (1952) 66, Harvard Law Review, 193).

It is inevitable that the legislatures tend primarily to reflect immediate interests. But it is important and essential that long term interests and values be given due consideration. Until the legislature do so, the judiciary seem to inherit the assignment by default; and if the assignment is judiciously performed in the manner indicated by great judges, “The Court

14 Nyaya Kiran April-June, 2008 can be regarded,” to quote Robert McCloseky, “not as an adversary, but as an auxiliary to democracy.” Or as Justice Mathew put it, paradoxical though it might appear, the judiciary is both an ally of majoritarianism and its critic and censor.

‘Far from being antithetical, judicial review is essential to the promise and performance of free government.’

Upholding constitutional principles and enforcing fundamental freedoms requires a robust activist approach. But it is important that in this exercise a judge’s personal predilections and prejudices are not erected into constitutional principles. Judicial restraint is compelled not because of the lack of power but more because of want of judicially manageable standards and relative institutional competence. The expanding horizons of judicial review call for judicial statesmanship and a fine balance between activism and legitimacy. The ‘principal source of legitimacy of the judicial process said Archbold Cox is the all important but fragile faith that courts apply to current legal problems and constitutional controversies a continuing body of law’. A judge’s decision must bear out that ‘he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result.’

The decision of a court must be a principled one, the court cannot be functioning as a naked power organ. A principled decision is one which “rests on reasons with respect to all the issue in the case, reasons that in their generality and neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind are forthcoming for overturning the value choices of the other branches of government or State, their value choices must survive.”

(vide Herbert Weschsler : Towards Neutral Principles of Constitutional Law ((1959)73 Harvard Law Review 1)

Judicial review is a potent weapon but the judge should know his own limitations and the limitations of the judicial process and that the law cannot offer relief from the ‘heartache and thousand natural shocks that flesh is heir to.”

As Chief Justice Aharon Barak said : “Protecting the constitution requires balancing the different values ….It requires balancing between

15 Nyaya Kiran April-June, 2008 the principle of majority rule and values which even the majority may not undermine; between the needs of the collective and individual rights, between the rights of one individual and those of another. A Judge must protect and maintain this delicate balance, something which requires some measure of activism and some measure of self-restraint”.

A passage from Basu’s Tagore Law Lectures appears apposite in the context

“……how powerful and, therefore, onerous is the engine of Judicial Review at the hands of Judges of superior Courts and what depth of knowledge and faith in Constitutionalism is indispensable for working that engine….it would be profitable for all of us to recollect what Blackstone, himself a Judge of the superior Court, said over 200 years ago, “Should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself and disgrace upon those who employ him. And yet the consequence of his ignorance is very trifling and small : his judgement may be examined, and his errors rectified by other courts. But how much more serious and affecting is the case of a superior judge, if without any skill in the laws he will boldly venture to decide a question upon which the welfare and subsistence may depend …….where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress.” It may be added that in the sphere of Constitutional Law uninitiated decisions are likely…..to bring ……loss of confidence in Judicial Review, may, in the Constitution itself, upon which rests the life and breath of the Nation.

X

EPILOGUE

Learned Hand says that it is difficult to answer how the spirit of moderation and tolerance and faith in the sacredness of the individual are bred and fostered. They are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature…….They must have the vigour to withstand the winds and weather of an indifferent and ruthless world; and that it is idle to seek shelter for them in a court room. Men must take that temper and that faith with them into the field,

16 Nyaya Kiran April-June, 2008 into the market place, into the factory, into the council room, into their homes, they cannot be imposed, they must be lived…..They are the fruit of the wisdom that comes of trial and a pure heart.

Equally telling are the wise words of Justice Frankfurter:

“…..The tendency of focusing on constitutionality is to make constitutionality synonymous with wisdom…..Such an attitude is a great enemy of liberalism. Particularly in legislation affecting freedom of thought and freedom of speech, much which will offend a free-spirited society is constitutional. Reliance for the most precious interests of civilization, therefore, must be found outside of them vindication in courts of law. Only a persistent positive translation of the faith of a free society into the convictions and habits and action of a community is the ultimate reliance against unabated temptations to fetter the human spirit.... such temptations will have their way, if fear and hatred are not exercised.... Without open minds there can be no open society. And if society be not open the spirit of man is mutilated and becomes enslaved. “

As Seervai says – a fair and even handed executive administration can do more to promote fraternity than any constitutional or legal provision.

Governance is the key mechanism for translation of constitutional expectation into reality. A ‘sick administration’ which suffers ‘organizational dropsy’ will be a poor vehicle for translating human rights phrase into reality. Democratic governance and human development have an intimate inter relationship. Good governance is the largest input in the fight poverty. Participatory decisions are at the heart of human development.

The idea of India comprises many facets. Indian civilization is underpinned by certain eternal and enduring verities. India must believe in herself and set a trial blazing humanism in development pattern. The single most important legacy of ancient India is the tradition of tolerance, respect for diversities, accommodation of pluralism and reverence of life. This is our lesson of humanism which should continue to be real and achieved through the medium of constitutionalism.

Einstein once said: “The world is a dangerous place not because of those who do evil but because of those who look on and do nothing.” The alternative to tolerance and peaceful co-existence is chaos and

17 Nyaya Kiran April-June, 2008 catastrophe. It is a lesson that mankind has not yet learnt but which it cannot afford to forget. There is no doubt that a race weary of its own bloodshed and divisiveness will ultimately have to grope its way to a system which offers the only chance for happy survival and that surely is the confluence of constitutionalism and humanism-to endeavor to usher in a freer and fairer world, a lasting foundation for any constitutional order.

These are issues and concerns that call for an active debate and discourse by the people at large. That would be a fitting tribute to the life and work of men like Dr. K. N. Katju.

“When in any field of human observation, two truths appear to conflict, it is wiser to assume that neither is exclusive and that their contradiction, though hard to bear, is part of the mystery of things.” (Literature and Dogma, Times Literary Supplement (London) Jan 22 1954, 51).

Thank you for Patience.



18 Nyaya Kiran April-June, 2008 MEDIATION: AS A TECHNIQUE FOR ALTERNATIVE DISPUTE RESOLUTION SYSTEM

Ms. Kuljit Kaur*

INTRODUCTION

‘A diplomat is a person who can tell you to go to hell in such a way that you actually look forward to the trip’.

Caskio Stinnett

“Like old clocks, our judicial institutions need to be oiled, wound up and set to true time”. These words of lord wolf Chief Justice of England though were said years ago are but apply completely in the present scenario when times are changing fast and the system has to be set to true time.

Over the years, more cases have accumulated in our courts than our courts can decide within reasonable time. The litigant whose case is not worth a contest has developed a mind-set that there is nothing wrong in delaying justice, either by compelling the other party to go to a court of law or by himself moving the Court and keeping the issue subjudice. The litigant is today fairly sure that justice to his opponent, even if it cannot be denied ultimately, can be delayed as long as possible, may be for years. Unfortunately, successive Governments have neglected the judiciary. The number of Courts have not increased at least upto a basic minimum requirement and everybody finds it easy to blame the judiciary for the backlog. The judiciary is no doubt accountable, but there are other players who control the purse. It has been rightly said that the judiciary has neither the purse nor the sword.

The problem of overcrowding of dockets is not peculiar to our country nor is peculiar to our times. Such problems have been and are faced by almost every country in the world. Necessity became the mother of invention in several countries. Hence Alternative Dispute Mechanisms were evolved and adopted, initially, there has been some resistance from the Bar. Judges, known for their conservatism, as usual, were also somewhat lukewarm in their approach to ADRs in the beginning.

* Head, Department of Law, Guru Nanak Dev University, Amritsar.

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The Indian civil justice system features a civil service of court administrators, an independent judiciary, a rich supply of professional legal talent and a modern procedural code. However, the system also exhibits a general failure to manage effectively the dispute resolution processes of a democratic, socially diverse and newly market-oriented society1. Specifically, inefficient court administration systems, excessive judicial passivity in an adversarial legal process, and severely limited alternatives to a protracted and discontinuous full trial frustrate several limited alternatives to a protracted and discontinuous full trial frustrate several goals of the adversarial process itself. Inefficiency in court administration denies timely access to legal dispositions. Excessive party control places those seeking legal redress in an unequal position because respondents can abuse and delay the resolution procedures with impunity. Finally, the unavailability of alternatives to litigation clogs the system. Many cases awaiting judgment are no longer contentious and long-awaited judgments are often difficult to enforce.

The typical life span of a civil litigation presents a sad picture. Records of new filings are kept by hand and documents filed in the courthouse are frequently misplaced or lost among other papers. Lawyers crowd the courtroom and wait for their cases to be called. Even when called, judicial attention is frequently deferred by innumerable adjournments: the witness is not available, the party is not present, the lawyer has not arrived, or a document is not yet available. When the case is heard, a Judge orally summarizes testimony for a court reporter. There is little likelihood that this Judge will be the same one to issue a decision because Judges are transferred more quickly than legal depositions are made.

Streamlining procedures which enable the Judge to frame the issues are rarely effectuated. Likewise, sanction power to impose costs for frivolous conduct is seldom exercised. Interim injunctive relief is routinely granted, but long delays in hearing the contentions of those enjoined persist. Commonly made interlocutory appeals fracture the case into many parts and effectively stay the trial. The absence of alternatives to litigation makes a full, discontinous trial necessary, regardless to how long a full trial may take. Once a judgment is reached, the truly hard work of enforcement and execution begins. These compounding problems engender despair among pessimists and overwhelm even dedicated optimists, while public tolerance appears to be waning. As a daunting symptom and aggravating cause of these problems, widespread and profound backlog and delay currently undermine the

20 Nyaya Kiran April-June, 2008 fundamental priorities of a law-based society. Backlog and delay in the resolution of civil disputes in India erode public trust and confidence in legal institutions, and act as significant barriers to India’s chosen path to social justice and economic development. The inability to enter final legal decisions within a reasonable time renders state action functionally immune, turns obligations to perform contractual duties into effective rights to breach with impunity and devalues remedies eventually provided. In sum, the inability to resolve disputes in a timely manner eviscerates public and private rights and obligations.2

India is not alone in such a condition; backlog and delay plague a wide variety of legal systems. Nor is this problem new. Therefore, backlog and delay have been political and economic implications for Indian society. If India fails to face and meet these challenges, it will not be able to realize fully its legal commitment to democratic and liberal economic policies. All Agree that this crisis calls for the careful adaptation of workable solutions.3

The closing years of the 20th century witnessed a significant change all over the world towards resolving the problems of disputants.Alternative dispute methods were found to be a good substitute for the conventional judicial adjudication. Most countries have accepted arbitration, conciliation and mediation as the best ADR techniques for resolution of civil disputes, particularly those relating to money suits, injunction, specific performance of contracts and suits involving commercial transactions. In the Indian context, if money suits and claims pertaining to property rights are referred to arbitration or conciliation, it would reduce the files of the various Courts by about 50 percent. The Arbitration4 and Conciliation Act, 1996 also contains provisions relating to conciliation in contractual matters arising out of legal relationship.

The globalisation of economy and competitive market policy has witnessed a tremendous increase in trade, commerce and industries as a result of which disputes relating to commercial transactions and business have increased in large proportion. The business community and the industrial entrepreneurs cannot afford to indulge in protracted litigation and therefore, prefer to get their disputes resolved through ADR rather than moving a Civil Court for justice. Disputants want expeditious disposition of their cases and innovation of ADR methods has proved a boon to the disputants in civil matters.

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TECHNIQUES OF ALTERNATIVE DISPUTE RESOLUTION SYSTEM

There are various techniques of the ‘ADR’ system. The main object of the alternative dispute resolution system is to avoid litigation and settle dispute, which has arisen, it has to be settled outside the courtroom by which they save time and cost. The various methods of ‘ADRS’ are:

1. Negotiation

Negotiation is the most obvious way of resolving disputes without the need for court intervention. Negotiation is effective if the parties are parties are prepared to cooperate with each other and can agree the issues in dispute. It is most successful where there are external constraints placed on the parties, such as costs, lack of time and resources to resolve the disputes. However, negotiation alone as a means of resolving disputes may not work if the parties have poor negotiation skills, unrealistic expectations of the outcome or where there is a power imbalance the parties as is often the case between a bank and a debtor.

2. Arbitration

Arbitration is the process by which parties by agreement refer their dispute to an impartial their person or panel, selected by the parties to give a decision on their dispute. The decision or award, although the result of a private agreement, may be recognized and enforced by legal proceedings in the national courts where enforcement is sought.

Whilst arbitration and mediation have a number of features in common such as relative informality where compared to litigation, privacy and ability to choose the mediator or arbitrator, the main feature distinguishing arbitration from the mediation is the adjucdicatory nature of the arbitration. However, some matters are non arbitrable or difficult to arbitrate and certain matters are may be subject to restriction or a complete ban. Depending on the circumstances arbitration can be expensive, particularly institutional arbitration and the procedure agreed upon by the parties may be just as lengthy as litigation.

3. Adjudication

Adjudication is the process whereby the disputants or their representatives present proofs and reasoned arguments to a third party

22 Nyaya Kiran April-June, 2008 who is to find the facts and apply an external, normative standard (law) to determine the winner and the looser. The adjudication process is competitive method. It results in the zero sum outcome (one wins at the expenses of the other). It is the formal, elaborate and expensive.

4. Expert Determination

Expert determination is the process where the parties appoint an expert to consider their issues and to make a binding decision and appraisal without necessarily having to conduct an enquiry following adjudicatory rules.

5. Private Judging

Private judging is the process where the court refers the case to a reference chosen by the parties to decide some or all of the issues, or to establish a specific fact.

MEDIATION: Its concept

“…Both were happy with the result, and both rose in public estimation… I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was no indelibly burnt into me that a large party of my time during the twenty years of my practice as a lawyer was occupied in bringing out private compromises of hundreds of cases. I lost nothing thereby –not even money; certainly not my soul.”

Mahatma Gandhi5

An evaluation of the usefulness of mediation in light of core objectives presupposes an awareness of what it is and the specific value it offers. Futhermore, an effective adaptation of mediation to a set of new conditions first counsels separate treatment of a wide variety of features clustered under the mediation rubric. Separate treatment of these processes and techniques underlines the view that many, if not all, of these features are severable from the rest. Severability allows for more creative designs and experiments to overcome problems encountered in the application of mediation to legal disputes.

Mediation can be described as a search for a consensual solution for a dispute through negotiation with the help of a third party facilitator.

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Certain values govern the approach to the exercise of mediation. Mediator is only a facilitator. He is not an adjudicator. He does not deliver judgements. He does not indulge in apportioning blame on either party. He does not look backward. The focus is not on the past events. His agenda is only to promote the prospects of a settlement by developing options. The exercise is participatory in character. Parties involve themselves in the mutual give and take which is essence of negotiation. Negotiation involves exchange of information before bargaining commences. Information improves access to justice. Bargaining is a process of exchange of demands or offers for counter demands or counter offers. The needs of both are in focus. To win at the expense of the party is exploitation and it is not the objective of mediation. The ethics of challenge which informs the adversarial proceedings in court litigation is totally eschewed in mediation. Often creative bargaining in mediation enlarges the pool and enables the parties to achieve satisfaction. The mediator may identify alternatives and move the parties in the direction of a solution when they are stalled. He is, in short, a catalyst. He does not dictate solutions. He does not even pressurize the parties to prefer conciliations to conflict. That is a value which the parties have to bring to the negotiating table. Otherwise, mediation would be a non-starter.

The development of the mediation in India holds enormous promise. In particular, the neutralizing communication skills and powerful bargaining strategies of facilitated negotiation can strengthen the system’s capacity to bring justice to the society. Despite the demonstrable value of these techniques, however, several large obstacles block the path to mediation in India.

Finally, notwithstanding these obstacles, a series of short-term incentives (judicial evaluation schemes, lawyer compensation methodologies, litigants in defense of dispute resources) further motivate resistance to mediation, thus producing a social dilemma in which critical actors view their professional or personal, short-term interests as potentially inconsistent with the system’s long-term objectives. In making critical choices on how best to navigate around these obstacles, issues, and tradeoffs, the country (through this national conference and many other similar regional and local encounters) is engaged in a set of national deliberations that seek to resolve conflicting views and positions on mediation within the Indian justice system. The debate over mediation in India, therefore, simultaneously engages legal actors at two levels:

24 Nyaya Kiran April-June, 2008 mediation of specific legal conflicts and mediation of system-wide conflicts over the shape, scope, and timing of mediation reform itself.

MEDIATION: As a Technique

I. STRUCTURE OF THE MEDIATION PROCESS

As currently practiced in much of the world, mediation exhibits several definable stages. The structure creates an efficient convention for mediation and parties to follow in multiple iterations; however, adjustments may be desirable, indeed even necessary in many cases. Mediation in India, for example, report the frequent need to conduct mediation in a series of shorter sessions. Nonetheless, it may be useful to outline the major stages of the mediation process: preparation, introduction, joint sessions; private caucusing; and the agreement phase:6

(i) Preparation

In the preparation phase, the mediator, is selected (whether by the court as part of an annexed process from a panel of eligible neutrals, or by the parties themselves in a private mediation). In the absence of statutory rules that govern the confidentiality of the mediation process or in the event of a private mediation in which the neutral is compensated, a mediation agreement must be negotiated. Provisions may include the time, place and duration of the mediation, as well as the terms of the neutral’s engagement. In some mediations, the parties prepare short statements or memoranda or supply key documents to the mediator to save time by acquainting the neutral with the case.

(ii) Introduction

In the first session, the mediator attempts to set a positive tone, relaxed atmosphere, basic structure and ground rules for the mediation. The neutral often begins with a self-introduction of mediation experience and credentials. The parties and lawyers introduce themselves. The mediator then explains the process, the limited role of the neutral, explains the restrictions of confidentially, disposes of any administrative matters and solicits questions from the parties before proceeding.

25 Nyaya Kiran April-June, 2008

(iii) Joint Sessions

The joint session focuses on input from the parties (and their attorneys) on the nature of the dispute and attempts to explore any early avenues for settlement. Parties usually tell their stories (and may be listening to one another for the first time since the conflict erupted). The lawyers may discuss how they see the case from a positional point of view. The mediator may use several communication techniques (reframing agenda setting) to confirm comprehension of the factual and legal background and the emotional postures of the parties. Unless the case can be settled in the joint session the mediator will ask the parties whether they would be willing to go into private caucuses.

(iv) Private Caucuses

In the private caucus, the mediator is often able to gain a deeper understanding of the problem. The parties are freer to discuss their views candidly, sharing information they would not convey to the other litigants, acknowledging weaknesses in their legal positions, identifying and prioritizing their interests, and exploring settlement options that would be difficult to discuss directly with the other party). Mediators may also use ATNA (alternative to a negotiated agreement) strategies to conduct a form of reality testing and to achieve a more rational perspective on the resolution of the conflict.

(v) Agreement

Assuming the parties have reached an agreement in either private or subsequent joint sessions, the mediator will transition into the agreement phase. The terms of settlement will be articulated and further clarified. The mediator will facilitate the drafting of the agreement, if necessary, as well as efforts to transfer consideration and dismiss claims simultaneously, thus minimizing the low risk of non-compliance with the consensual agreement. The mediator may also be interested in remaining informed about any necessary future exchanges as part of a settlement, e.g. transfers of custodial children from one spouse to another.

II. NEGOTIATION TECHNIQUES

Negotiation is exercise of pressure from positions of power. When there is disparity in power between the parties, negotiations are not meaningful. Not fair. Unequal negotiations can never achieve a fair

26 Nyaya Kiran April-June, 2008 settlement. That is the reason why the mediator looks upon it as one of his duties to annul the disparity before it taint the result. The mediator should be able to identify the views and values of the conflicting parties, if he is to fruitfully assist them in the negotiations. He cannot do this, if he is not to enrich the effort with his own values. A sterile approach is bond to be futile. It will rule out sensitivity on the part of the mediator. But the mediator has to caution himself against allowing his own views blocking the search for other solutions agreeable to the parties. He has to be sensitive to the preference of the parties.

Example : A 15 year old boy, studying in tenth standard in a local school, earned a few rupees by distributing a daily newspaper in the early hours of the morning. His employer acquired the agency of a weekly. He wanted the employee to distribute the weekly in the afternoon hours. The student-employee was averse to it, as it would clash with his school hours. But he badly needed the additional coins that it would bring his as he was very poor. Yet, he did not want to give up his schooling. He sought the help of the mediator as the employee threatened to discontinue his services and engage another young man who would be able to spare the requisite afternoon hours. Right to enhance the quality of life is part of right to life, a constitutional value. If the contractual obligations can be adjusted in such a way as to avoid a clash with a constitutional value, mediation should facilitate it, unlike a strictly legalistic approach. Flexibility is the strength of mediation. It is the task of the mediator to sensitize the employer to these dimensions. Such values must inform and enrich all interpersonal relationships.

The employer took an attitude before the mediator as though he was asked to do charity by adjusting his hours of work to suit the employee’s needs. “I pay and he has to deliver his services as I stipulate”, he told the mediator. In such a context, the mediator painstakingly explained to the parties how right to education is human right. It has to be honoured in the employer-employee relationship also. Here the employee helped himself to find the means to attend the school. It would suffice if the employer avoided frustrating the commendable self-reliance of the employee. In doing this, the mediator sensed the ambition of the youth as regards his future and set out to assist him in realizing it. The mediator cannot be faulted on this account. He was only bringing to bear on his efforts a value cherished by the society. The employer agrees to try to accommodate, as an experiment for a couple of months. Then, he confirmed it.7

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In mediation, the mediator cannot and should not isolate himself from any reciprocity in relationship with the disputants. It is triangular engagement, the disputants on either side and the mediator. The mediator is a fellow experience of the emotions hopes and frustrations that the participants are exposed to.

III. THE VALUE OF NEUTRALISING COMMUNICATIONS SKILLS

Beyond the negotiation techniques employed by an effective mediator, several communication techniques are useful tools of facilitation. As in negotiation strategies, none is a sure-fire way to settle a dispute; however, each one alone has the ability to bring the parties further together by neutralizing the emotionally harsh and irrationally exaggerated behaviour and perspectives of the parties and to transform the frequently self- defeating aspects of their conflict (particularly where they have an interest in preserving or enhancing a relationship) into a mutually beneficial settlement.8

1. Establishing Joint Communication

Mediations reestablish joint communication between the parties in three significant ways. First, particularly in private mediation, the parties may have to communicate about logistics for the mediation itself (e.g. timing, exchange of documents, confidentiality agreements, etc.) Second, the mediator brings the parties together and in the first joint session, they hear from one another their varied points of view (and often those of their attorneys). Third, as the mediator moves from private caucusing into the settlement or agreement phase, the parties frequently begin to speak directly to one another. Joint communication of each varied kind is obviously no guarantee to settlement; however, this one factor may be key to bringing parties together where resistance to communicating with one another further escalates the conflict. Example: A lawyer from Hyderabad relayed a story about a married couple engaged in a serious conflict. The husband had decided to donate one of his kidneys to his mother, without having consulted with his wife. The wife, who had no substantive disagreement with his decision, was offended by her husband’s failure to confer in advance of such an important decision. The couple grew estranged and could not speak to one another as a result of the conflict. A family lawyer asked them to come to his house. He placed them in a room together and then abruptly left. The couple sat silent for a long time, then began to yell at each other, and

28 Nyaya Kiran April-June, 2008 after some time began to talk (and listen). Finally, they were able to overcome their conflict. This was no mediation. The lawyer only facilitated the meeting of the couple, their joint presence, short of communication, which only came later. However, this anecdote shows that even the establishment of a meeting (nothing more) can help bring parties together to resolve their disagreements.

2. Establishing Tone

An effective mediator establishes a positive tone and environment conducive to settlement by behavior in a professional confident, purposeful, open, constructive, and socially engaging manner. By setting an example, the mediator may encourage through body language and emotional tones the kind of behavior expected in session. Again, this can have a neutralizing impact on the more negative, insecure, close- minded, destructive, and resistant behavior frequently encountered in adversaries.

3. Active Listening

Both as a necessary tool for effective facilitation and as a way of acknowledging the viewpoints of each side, active listening is an essential quality of a good mediator. It allows for a more accurate comprehension of the dispute, the ability to distinguish dispositive or helpful from irrelevant or unhelpful comments, positions from interests, less importants interests from higher priority ones. Again, active listening also signals to the parties that what they have to say is important, and that can encourage the parties to listen actively to one another as well.

4. Acknowledgment

Acknowledgment is one of the most important communication skills in effective mediation. Acknowledgment may be the most critical means to breaking the vicious cycle of human conflict. To acknowledge the views of one party or another is not express any judgment (either positive or negative) but to register that the view has been heard and understood. Acknowledgment of one party by another (without apology) often defuses a conflict by allowing the combating parties to feel that their voice has been heard.

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5. Sequencing : Agenda Setting;Deferring Redirecting

Effective mediators control the sequencing of what is discussed by setting the agenda, deferring, and redirecting. They may postpone the discussion of positions until they explore interests. They may advance those topics they believe are more likely to bring the parties together. For example, instead of focusing a separated couple on what led to their conflict, a mediator might ask the parties to give a description of their children. The ability to adjust the sequence provides the mediator with enormous flexibility to move in fruitful directions based on input from the parties. Effective mediators also choose the most appropriate moment for giving an overview of the conflict. If the parties are lost in the trees of their allegations and cross-allegations, the mediator helps them to rise above the woods to clarify what the dispute appears to be about from the neutral’s point of view.

6. Changing the Messenger

In conflict relationships, even close ones, suggestions by one party are automatically discounted by the other. The very same suggestion may come from a third party and be far more readily accepted. Mediators are bale to supply that role. They can solicit ideas from one side, and communicate those suggestions to the other, without attribution, and thus without any reactive discounting by the recipient. Changing the messenger thus can advance acceptance of the message, and confidential private caucusing allows the mediator to play this important role of a go-between.

CONCLUSION

Through the combination of these various strategies, techniques, and phases, mediation may offer many benefits to the system and the parties. Mediation may take both routine and very difficult cases out of the bottleneck, thus relieving pressure. Through the internalization of these techniques, mediation may prevent the underlying conflict or the need to go to court and advance compliance with the law in general. Finally, even where mediation does not result in a final settlement, and the dispute remains in trial, the joint communication established and the clarification of the nature of the dispute, if not an actual narrowing of the conflict, makes the trial proceed much more efficiently.

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For the litigants, mediation may save time, money, and aggravation, as well as preserve (even enhance) relationships or sever ones in which they are locked. Participants in mediation comparatively experience high levels of satisfaction with the process and outcomes which they alone determine. Beyond savings and satisfaction, however, parties have a better chance in general to make forward-looking, durable, win-win solutions that are consistent with their underlying and multifaceted interests.

REFERENCES

1. Similar arguments in relation to the United States adversarial system have begun to emerge. See Carrie Menkel-Meadow; The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm. And Mary L. Rev. 5 (1996), 1 Inst. Study Legal Ethics 49 (1996), passim.

2. See Robert Moog; Delays in the Indian Courts.., Why the Judges Don’t Take Control, 16 Just. Sys. J. 19, 22-30 (1992). Moog cites various structural constraints, including a three-year judicial rotation system and an imbalance of power between Judges and attorneys in favour of the attorneys, as the major impediments to case management approaches in India.

3. These goals include the attraction of foreign investment. Despite the disadvantages imposed by the backlog and delay problem, many multinational investors frequently point to the Indian legal system as a distinctive advantage in attracting foreign investment. See U.S. Businessmen Enthused by Legal System in India, Reuters, December 8, 1995 (quoting Paul Griesse, U.S. Chairman of the Indo-U.S. Joint Business Council: “A legal remedy is available to [multinational corporations] in India, a well-defined legal system to protect their investment”).

4. Part III, Sections 61 to 81 of the Arbitration and Conciliation Act, 1996.

5. Mahatma Gandhi, An Autobiography : The Story of My Experiments with Truth, 134 (6th ed.1965).

6. H.E. Chodosh N.J. Bhatt, F.Kassam, ‘Mediation in India : A Toolkit’, Feb. 2004, U.S. Educational Foundation in India, Fulbright House, New Delhi.

7. N.R.. Madheva Menon; ‘Clinical Legal Education’, Eastern Book Company, Lucknow, 1998

8. H.E. Chodosh, N.J. Bhatt, F.Kassam, ‘Mediation in India : A Toolkit’, Feb. 2004, U.S. Educational Foundation in India, Fulbright House, New Delhi. 

31 Nyaya Kiran April-June, 2008 THE CONSTITUTION (SEVENTY-FOURTH) AMENDMENT ACT, 1992: PROTECTION AND PROMOTION OF DEMOCRACY (LOCAL SELF-GOVERNMENT), RULE OF LAW AND HUMAN RIGHTS1

Dr. J. S. Singh2

1. Introduction Part IX-A of the Constitution deals with the Municipalities. It was inserted by the Constitution (Seventy-fourth) Amendment Act, 1992 popularly known as Nagarpalika Amendment Act, 1992. From the Statement of the Objects and Reasons of the amendment, it is clear that a need was being felt for long for establishing some constitutional norms in order to provide some uniformity and respectability to the system of local self-government. It is submitted that the Amendment would provide constitutional sanction to the democracy at the grass root level by inserting in the Constitution the provisions relating to urban local bodies. For the first time, the Bill was introduced in the House of the People in 1989. However, it failed to get the support of the requisite majority in the . The States had also objections over certain provisions of the Bill. Later on, the Bill was referred to the Select Committee. After certain modifications, the Bill was introduced in the House of the People, and later on, passed by the Parliament. The Act provides constitutional guarantee to basic and essential features of the self-governing democratic institutions in urban areas. It provides for regular elections, reservations of seats to Schedule Castes, Scheduled Tribes and Women. The Bill also provides devolution of finance and administrative powers. The basic objectives of the Act are to establish local self- government at grass root level and to protect and promote democracy, rule of law and human rights in the country. 2. Pious Ideals of Mahatma Gandhi to establish Ram Rajya and the Provisions of the Directive Principles of State Policy under the Constitution The aims and objectives of the Amendment is to implement the provisions of the Directive Principles of State Policy and specially Article

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40 of the Constitution. Article 40 provides that the State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The mandate of the Constitution was implemented by passing the Constitution (Seventy-fourth) Amendment Act, 1992. The Act would assist to implement the dreams of Mahatma Gandhi to establish local self-government at grass root level.

Mahatma Gandhi was influenced by Ram Rajya. Bhagwan Ram is considered the ideal of Hindu culture and civilization. He is recognized as God. He established an ideal ruling system which is called Ram Rajya. In his rule, people were happy. No one was poor, unhappy and helpless. There was principle of equality and rule of law. His ideals of Ram Rajya is described by Goswami Tulsidas in his pious work ‘Ram Charit Manas’ in very beautiful words:- ^^jke jkt cSBs =SyksdkA gjf"kr Hk, x, lc lksdkA c;: u dj dkgw lu dksbZA jke izrki fo"kerk [kksbZAA cjukJe fut fut /kje fujr csn iFk yksxA pyfga lnk ikofga lq[kfga ufg Hk; lksd u jksxAA nSfgd nSfod HkkSfrd rkikA jke jkt ufga dkgqfg O;kikAA lc uj djfga ijLij izhrhA pyfga Lo/keZ fujr Jqfr uhrhAA pkfjm pju /keZ tx ekghA iwfj jgk liusagq¡ v/k ukghaAA jke Hkxfr jr uj v: ukjhA ldy ije xfr ds vf/kdkjhAA vYie‘R;q ufga dofum ihjkA lc lqUnj lc fc:t ljhjkAA ufga nfjnz dksm nq[kh u nhukA ufga dksm vcq/k u yPNughukAA**3

Further, Article 38 of the Constitution directs the State to secure a social order for the promotion of welfare of the people. It provides that the State shall strive to promote the welfare of the people by securing and promoting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The provisions of the Article try to provide “justice, social, economic and political” to the people of India provided in the Preamble. It is submitted that the provisions of the 74th Amendment would assist to provide economic, social and political justice to the people of India. It would assist to establish Ram Rajya as assumed by Mahatma Gandhi.

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3. The Important Provisions of the Seventy-fourth Amendment Act 1992: An Evaluation

The Constitution Seventy- fourth Amendment has been added in Part IX- A of the Constitution. It consists of Articles 243-P to 243-PG, total eighteen sub-Articles. Further, Twelth Schedule (Article 243-W) has been added with it. The Amendment came into force w.e.f. 1.6.1993. It would be relevant to discuss the important provisions of the Amendment. Article 243-P deals with definitions. According to it “Committee” means a Committee constituted under Article 243-S. “District” means a district in a State. “Metropolitan area” means an area having a population of ten lakhs or more comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part. “Municipal area” means the territorial area of a Municipality as is notified by the Governor. “Municipality” means an institution of self-government constituted under Article 243-Q. “Panchayat” means a Panchayat constituted under Article 243-B. “Population” means the population as ascertained at the last preceding census of which the relevant figures have been published. The other provisions of the Amendment may be discussed under following headings:

(a) Composition and Constitution of Municipalities

Articles 243-Q - 243-S deal with constitution and composition of Municipalities and Wards Committees etc. Clause (1) provides that there shall be constituted in every State –

(a) a (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area; (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of Part IX-A;

However, a Municipality may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other

34 Nyaya Kiran April-June, 2008 factors as he may deem fit, by public notification, specify to be an industrial township.

In this Article, “a transitional area”, “a smaller urban area” or “a larger urban area” means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of Part IX-A.

Article 243-R deals with composition of Municipalities. Clause (1) states that all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area. For this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. Further under clause (2) the Legislature of a State may, by law, provide –

(a) for the representation in a Municipality of

(i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing con-stituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of Article 243-S; provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;

(b) the manner of election of the Chairperson of a Municipality.

Article 243-S deals with constitution and composition of Wards Committees, etc. It says that there shall be constituted Wards Committees, consisting of one or more wards, within the territorial area of a Municipality having a population of three lakhs or more. However, the Legislature of a State may, by law, make provision with respect to-–

35 Nyaya Kiran April-June, 2008

(a) the composition and the territorial area of a Wards Committee; (b) the manner in which the seats in a Wards Committee shall be filled.

Further, a member of a Municipality representing a ward within the territorial area of the Wards Committee shall be a member of that Committee. Where a Wards Committee consists of- -

(a) one ward, the member representing that ward in the Municipality; or (b) two or more wards, one of the members representing such wards in the Municipality elected by the members of the Wards Committee, shall be the Chairperson of that Committee.

However, the provisions of this Article shall not be deemed to prevent the Legislature of a State from making any provision for the constitution of Committees in addition to the Wards Committees.

In Saij V. State of Gujrat1 a Division Bench of the Gujrat High Court considered the nature of Article 243-Q of the Constitution. Certain area comprised in a Gram Panchayat was notified as industrial area under Gujrat Industrial Development Act, 1962. By subsequent notification such area was notified as notified area.

Speaking on behalf of the Court K. Sreedharan, C. J. held that the area covered by the Notification to be the industrial area could never be treated as a rural area. It must fall within the category of transitional area. In that view of the matter, such a notification notifying the industrial area as a notified area under Section-16 of the Gujrat Industrial Development Act, was not violative of Article 243-Q of the Constitution.

It is submitted that the learned Chief Justice made correct interpretation of the Gujrat Industrial Development Act, 1962 and held that the impugned Notification was not violative of Article 243-Q of the Constitution. Against the judgment, an appeal was filed before the Hon’ble Supreme Court where the observations of the learned Judge were accepted with approval. The appeal was filed in the name of Saij Gram Panchayat V. State of Gujrat2 where a Division Bench of the Supreme Court held that conversion of a Panchayat area into Municipal Area and its declaration by notification was not contrary to Parts IX and IX-A of Constitution brought into force by 73rd and 74th Amendments.

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It was held that the Gujarat Municipalities Act, 1962_was amended on 20-8-1993 in view of the insertion of Part IX-A in the Constitution. Section 264-A was substantially amended. It now provided that “for the purpose of this chapter notified area means an urban area or part thereof specified to be an industrial township area under the proviso to CI. (I) to Art. 243-Q of the .” Thus, as a result of this amendment in the Gujarat Municipalities Act, an industrial area under the Gujarat Industrial Development Act, which was notified under S. 16 of the Gujarat In-dustrial Development Act would become a noti-fied area under the new S. 264-A of the Gujarat Municipalities Act and would mean an industrial township area under the proviso to CI. (1) of Art. 243-Q of the Constitution of India. Therefore, no-tification dt. 7-9-1993 issued under S. 16 of the Gujarat Industrial Development Act declaring Industrial Area as notified area under S. 264-A of the Gujarat Municipalities Act and excluding the notified area from Saij Gram Panchayat under S. 9(2) of the Gujarat Panchayat Act, 1961 was not contrary to Parts IX and IX-A of Constitution brought into force by 73rd and 74th Amendments.

It was held that the Gujarat Industrial Development Act operated in a totally different sphere from Parts IX and IX-A of the Constitution as well as the Gujarat Panchayats Act, 1961 and the Gujarat Municipalities Act, 1962 - the latter being provisions dealing with local self-Government while the former being an Act for industrial development, and orderly establishment and organisation of industries in a State. The industrial areas which had been notified under S. 16 of the Gujarat Industrial Development Act on 7-9-1993 were notified as industrial areas under the Gujarat Industrial Development Act long back in the year 1972. These industrial areas had been developed by the Gujarat Industrial Development Corporation and they could hardly be looked upon as rural areas covered by Part IX of the Constitution. It was only such industrial areas which could be notified under S. 16 of the Gujarat Industrial Development Act, 1963. If by a notification issued under S. 16, these industrial areas were deemed to be notified areas under the Gujarat Municipalities Act and were equated with industrial townships under the proviso to CI. (I) of Art. 243-Q, the constitutional scheme was not violated. In fact, under Chap. 3 of the Gujarat Industrial Development Act, 1962, the Gujarat Industrial Development Corporation had been given power, inter alia, to develop land for the purpose of facilitating the location of industries and commercial centres. It had also been given the power to provide amenities and common facilities in such areas including provision of roads, lighting, water supply, drainage facilities and so on. It may do

37 Nyaya Kiran April-June, 2008 this either jointly with Government or local authorities or on an agency basis in furtherance of the purposes for which the Corporation was established. The industrial area thus had separate provision for Municipal services being provided, by the Industrial Development Corporation. Once such an area was a deemed notified area under the Gujarat Municipalities Act, 1964, it was equated with an industrial township under Part IXA of the Constitution, where municipal services might be provided by industries. There was no violation of a constitutional provision in this scheme.

It is submitted that the learned Judge made valuable observations. Part IX and Part IX-A of the Constitution are complimentary and supplementary to each other. They are not contrary to each other. The learned Judge approved the decision of the Gujrat High Court3 and held that there was no violation of the principle of natural justice in this case.

(b) Reservation of Seats (Article 243-T)

Article 243-T deals with reservation of seats. Clause (1) provides that seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality. The number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. Clause (2) states that not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes. Clause (3) lays down that not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. The officers of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in Article 334. The Legislature of a State may make provision

38 Nyaya Kiran April-June, 2008 for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens.

In case of Saraswati Devi V. Smt. Shanti Devi4 a Division Bench of the Apex Court reversed the decision of the Punjab and Haryana High Court.5 Speaking on behalf of the Court Dr. A. S. Anand, J. held that when the thrust of the Rule is that offices of the Presidents in Municipalities must go by rotation to members belonging to the specified categories, it would necessarily mean in the context of parent Article 243-T of the Constitution of India and Section 10(5) of the Act that the concerned elected members of the Municipal Committee must have got elected on the seats available to General category candidates or Scheduled Castes category candidates or Backward Classes category candidates or General women category candidates by rotation. The very concept of rotation presupposes that for the contest of Presidentship once by rotation a reservation is made for members elected from a particular category only those members can contest for Presidentship as in the instant case the post of President of Municipality was subjected to double reservation of being available only to an elected member who was a Schedule Caste woman she must have been elected on the Scheduled Castes seat from the ward reserved for such Scheduled Castes candidates. As admittedly only three wards, were reserved for members belonging to Scheduled Castes and even out of three wards, only one ward from which the appellant was elected was reserved for Schedule Castes women and as President’s post was reserved for being filled up by a member belonging to the category of Scheduled Castes women who had been elected on such a seat, the Respondent who was elected as a member not on any seat reserved for Scheduled Castes women but on a seat reserved for General category of women was obviously out of the arena of contest for the post of the Presidentship of Municipality. Appellant was the sole candidate elected on reserved for Scheduled Castes women. It could not be said that the words’ members belonging to’ as employed in Rule 70 (4) of the Election Rules would bring in all the elected members belonging to Scheduled Castes into one category to enable them to contest for the post of President.

It is submitted that the learned Judge made narrow and strict interpretation of the Haryana Municipal Election Rules, 1975and Article 243-T of the Constitution. The aims and objectives of the reservation policy is to protect and promote the interests of the weaker section of the community and it should be given wide and expansive interpretation.

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The provisions relating to reservation should not be construed narrow and strict sense. Later on, the observations of the learned Judge were overruled by the Hon’ble Supreme Court.

In case of Kasambhai F. Gandhi V. Chandubhai D. Rajput6 a three Judge Bench of the Supreme Court held that a member from reserved category could seek election for the post of President under clause (4) even though he was elected as member from an unreserved constituency. It is not necessary that he should be elected from a reserved category.

In this case the only question which arose for consideration before the Court was whether the appellant, who belongs to a backward class but had been elected to the Jambusar municipality from an unreserved seat, could stand for election for the post of President of the Municipality which was reserved for a backward class candidate or whether the candidate for that post could only be a person who was elected to the municipality from a seat which was reserved for the backward class.

The learned Judge held that Councilor of municipality who belongs to a backward class but had been elected to the municipality from an unreserved seat, could stand for election for the post of President of the Municipality which was reserved for a backward class candidate. It was not necessary that the candidate for that post could only be a person who was elected to the municipality from a seat which was reserved for the backward class. There is no indication or suggestion in Article 243- T or in the Act that in case the office of the President is required to be filled by a member who is a Scheduled Caste, Scheduled Tribe, Backward Class or a woman, then only a member who has been elected from a reserved seat can stand for election. In other words, for the purpose of election to the post of President the reservation which is contemplated by the Act is only to the effect that the person elected should belong to the category of Scheduled Caste, Scheduled Tribe, Backward Class or woman, as per the roster. Conceivably an elected member may fall within two or more categories and, in this way, may be in a position to seek re-election as envisaged by Section 33 of the Gujarat Municipal Act. If this was not so, and with the category changing every year, as per the roster, Section 33 will become redundant. The legislative intent, therefore, clearly was that one person, whether elected from reserved or general seat, but who belongs to the category out of which the President was to be elected, could seek re-election as envisaged by

40 Nyaya Kiran April-June, 2008

Section 33 of the Act. The rules framed under the Act also do not contain any provision that only members elected to the reserved seats would be eligible to stand for election of the President when, as per the roster, the office was required to be filed by a person belonging to a particular category. The learned Judge observed:

“The idea of providing reservation for the benefit of the weaker sections of the society is not only to ensure their participation in the conduct of the affairs of the municipality but it is also an effort to improve their lot. The reservation ensures that the specified minimum number of persons belonging to that category become members of the municipality. If because of their popularity a larger number of Scheduled Castes, Scheduled Tribes, Backward Classes or women get elected to the municipality then the number of reserved seats that would be welcome. When the idea is to promote the weaker sections of the society, and to improve their lot, it would be contradiction in terms if members belonging to that section are debarred from standing to the office of the President because such a candidate is popular enough to get elected from a general constituency. It is a fundamental principle of democratic election that a person who is more popular is elected, popularity being measured by the number of votes which the person gets. The language of various legal provisions do not in any way suggest, expressly or by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be barred from contesting the election of the President when that office is to be filled only by a reserved category person”.10

It is submitted that the learned Judge adopted wider and extensive approach than the approach of the Gujrat High Court. He reversed the decision of the Gujrat High Court8 and overruled the earlier decision of a Division Bench of the Apex Court in the case of Saraswati Devi V. Shanti Devi.9 He made a wide interpretation of Article 243-T of the Constitution and the Gujrat Municipalities Act, 1964. He expressed the idea to promote the weaker section of the society and to improve their lot. The approach of the leaned Judge would improve the roots of democracy, rule of law and human rights in the country.

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(c) Duration of Municipalities etc.

Article 243-U deals with duration of Municipalities etc. Clause (1) states that every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. However, a Municipality shall be given a reasonable opportunity of being heard before its dissolution.

Clause (2) lays down that no amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). Clause (3) provides that an election to constitute a Municipality shall be completed, -

(a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution.

However, where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.

In case of State of Maharashtra V. Deep Harayan Charan13 a Division Bench of the Apex Court considered the ambit and scope of the expression “unless sooner dissolved under any law for the time being in force” under Article 243-U of the Constitution.

On behalf, of the appellant, State of Maharashtra, it was argued that once a Municipal Council was constituted, then its duration should be five years in accordance with the constitutional provisions contained in Article 243-U and, therefore, in the event the writ application was dismissed and the State Government constituted a Corporation, the Municipal Council would continue to function. It was held that under Section 341 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, when the whole of the local area comprising a municipal area ceased to be a municipal area, with effect from the date on which such local area ceases to be a municipal area, the Council constituted for such municipal area shall cease to exist or function and the Councilors of the Council shall vacate office. The learned Judge observed:

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“Article 243-U of the Constitution unequivocally indicates that every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. The expression “unless sooner dissolved under any law for the time being” would bring within its sweep the provisions of Section 341 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township, Act 1965 and therefore the moment the Corporation is constituted in accordance with law, the elected Municipal Council would cease to function and so also the Councilors, though elected will have to vacate the office”.11

The Apex Court affirmed the decision of the . The Apex Court directed the Bombay High Court to dispose of the writ petition within a period of three months. The Court expressed hope that State Election Commission on whom the burden of holding the election is cast, would discharge its obligation faithfully. It is submitted that the Hon’ble Apex Court affirmed faith in the democratic institutions and rule of law which would improve the lot of the country.

In case of the State of Maharashtra V. The Jalgaon Municipal Corporation15 a Division Bench of the Supreme Court held that in case of abolition of Municipal Council and it’s place constitution of Municipal Corporation, Article 243-U does not apply. Article 243-U deals with duration of Municipalities, etc. The word Municipality in Article 243-U means duration of Municipality of same type and its succession by same Municipality.

The Court reserved the decision of the Bombay High Court16. Delivering the judgment of the Court R. C. Lahoti, J. held that hitatus is an unavoidable event which must take place in the process of conversion of Municipal Council into a Municipal Corporation, and Article 243-U can not be relied on for challenging hitatus in conversion. The learned Judge observed:

“The use of expression ‘a municipality’ in sub-Article (3) of Article 243-U in the context and in the setting in which it is employed suggests and means the duration of the same type of municipality coming to an end and the same type of successor municipality taking over as a consequence of term of the previous municipality coming to an end. Article 243-U cannot be applied to a case where the area of one description is converted into an area of another description

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and one description of municipality is ceased by constituting another municipality of a better description. Article 243-U(3) cannot be pressed into service to base a submission on that an election to constitute a Municipal Corporation is required to be completed before the expiry of duration of a Municipal Council”.17

The learned Judge referred two English cases Russel V. Duke of Norfolk18 and Lloyd V. Mc Mahon16. He referred Article 243-Q which deals with constitution of Municipalities. He held that a mere change in the constitution of the local self government does not necessarily entail discontinuance of development projects. Successor Municipal Corporation shall take over on going projects of previous Municipal Council. The learned Judge observed:

“A mere change in the constitution of the local self-government does not necessarily entail discontinuance of development projects and there is no reason to apprehend, that they would not be continued. A change in governance is involved at every election though the administration continues with Municipal Council. At the time of an election certain development works would be pending in progress which would naturally be taken over by the successor Municipal Council. Just as any new Municipal Council would take over the ongoing projects initiated by the predecessor Municipal Council so also a Municipal Corporation newly brought into being shall takeover the continuing projects of previous Municipal Council. Every change in mode of governance needs some readjustments. Need for switching over from Municipal Council to Municipal Corporation mode of administration is occasioned by growth of population and prosperity in any particular urban area”.20

It is submitted that the learned Judge made valuable observations regarding the importance of local self-government. He made important observations that change in governance of local self-government does not entail discontinuance of development projects. However, regarding the elections of local self-government, the observations of the learned Judge may be criticized. The election of the local self-government must be held within a period of five years under Article 243-U of the Constitution. Mere change of boundaries of population and amenities of the people, the election process should not be postponed for a longer time. Since, democracy and ‘rule of law’ are basic structure of the Constitution, therefore, to postpone election for a longer time would affect aims and

44 Nyaya Kiran April-June, 2008 objectives of local self-government. It is submitted that the approach of the Bombay High Court was correct, where it was held that elections of the local self-government should be held within time under Article 243-U of the Constitution.

In a leading case Anugrah Narain Singh V. State of U.P.18 a Division Bench of the held that a Municipality or a Nagar Panchayat should function for a period of five years from the date appointed for its first meeting. It’s election should be held before the expiry of the duration. However, if the elections are not held before the expiry of the duration of municipalities due to unavoidable reasons, beyond the control of State Government, it should at any cast be held within a period of six months.

He stated that the growing tendency of the persons who are at the helm of affairs in the State and who have taken oath of office as per the forms set out in the Third Schedule, to do right to all manner of people in accordance with the Constitution and the law, to blindly follow the directions given by another authority, often lead to a situation, like the present one where a constitutional crisis my occur, which could have been avoided. The learned Judge referred the observations made in the opening part of the judgment by the Apex Court in the case of Ganpat Ladha V. Shashikant Vishnu Shinde22 and observed:

“If the quest for certainty in law is often baffled, as it is according to Judge Jerome Frank in “Law and the Modern Mind”, the reasons are mainly two: firstly, the lack of precise formulation of even statutory law so as to leave lacunae and loopholes in it giving scope to much avoidable disputation: and, secondly, the unpredictability of the judicial rendering of the law after every conceivable as well as inconceivable aspect of it has been explored and subjected to forensic debate, Even the staunchest exponents of legal realism, who are apt to treat the quest for certainty in the administration of justice in accordance with law, in an uncertain world of imperfect human beings, to be practically always futile and doomed to failure, will not deny the desirability and the beneficial effects of such certainty in law as may be possible. Unfortunately, there are not infrequent instances where what should have been clear and certain, by applying well established canons of statutory construction becomes befogged by the vagaries, if one may use a possibly strong word without disrespect, of judicial exposition divorced from these canons.”

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The learned Judge held that with a view to strengthen the institution of self-Government, the Parliament by the Constitution (Seventy Fourth Amendment) Act, 1992, which was made effective from 1.6.1993, inserted Part IX-A in the Constitution of India. It provided for the constitution, composition, duration of municipalities, constitution and composition of wards, committees etc., reservation of seats, disqualification of membership, the power, authority and responsibility of municipalities, the power to impose tax by, and the funds of, the municipalities, audit of accounts, elections and many more things. While inserting Article 243- U in the Constitution of India the paramount consideration of the Parliament was that a municipality should function in every Nagar Panchayat a smaller urban area or a larger urban area for a period of five years from the date appointed for its first meeting unless sooner dissolved under any law for the time being in force. In the event the municipality has been dissolved, sub-clause (b) of clause (3) of Article 243-U provided election to a municipality before the expiration of a period of six months from the date of its dissolution with a rider that if the remainder of the period of the dissolved municipality is less than six months, then election for constituting the municipality for the remainder period is not necessary. However, in the event the term of the municipality has expired, then election to constitute the municipality has to be completed before the expiry of its duration as per sub-clause (a) of clause (3) of Article 243-U of the Constitution of India.

The learned Judge referred the provisions of Article 243-U of the Constitution and observed:

“Every municipality unless sooner dissolved shall continue for five years from the date appointed for its first meeting and no longer. The period of five years starts from the date appointed for its first meeting and moment the period of five years comes to an end the duration of that Municipality will also come to an end. The Parliament had used the words “no longer” in clause (1) of Article 243-U of the Constitution of India to which some meaning has to be assigned. The natural meaning which can be ascribed to the said phrase is that the duration of the Municipality cannot extend even for a single second beyond the stipulated five years period from the date appointed for its first meeting. The words “no longer” has been used in the negative sense and, in view of decision of the Apex Court referred to above its is mandatory and therefore, in any event the duration cannot extend beyond the stipulated period. The plea that

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sub-clause (a) of clause (3) of Article 243-U be read as proviso to clause (1) of Article 243-U of the Constitution of India and that the term of a Municipality shall continue till the election to constitute a new Municipality has been completed is wholly misconceived and is liable to be rejected.23"

The learned Judge further observed:

“It appears that the framers of the Constitution wherever they wanted that holder of the elected office should continue till his successor takes charge, have made specific provision in this regard in the Constitution itself. Reference may be invited to clause (c) of the proviso of Article 56(1) of the Constitution of India which says that the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. Likewise, in the case of Vice President, clause (c) of the proviso to Article 67 of the Constitution of India provides that the Vice-President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. Likewise, the proviso to Article 156, which deals with the term of office of Governor provides that a Governor shall, notwithstanding the expiration of his term continue to hold office until his successor enters upon his office. The second proviso to Article 94, which deals with vacation and resignation of, and removal from, the office of Speaker and Deputy Speaker of the House of People provides that whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution. Likewise in respect of vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker of an Assembly, the second proviso to Article 179 of the Constitution of India provides that whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution. No such provision has been made in Article 243-U (1) of the Constitution of India and, therefore, necessary corollary is that the framers of the Constitution did not want that the elected Municipality should be allowed to continue to hold the office till new elected body assumes charge.”24

It is submitted that the learned Judge made wide and deep interpretation of the U.P.Munipicipalities Act, 1916, U.P.Municipal Corporation Adhiniyam, 1959 and Constitution of India. In interpreting

47 Nyaya Kiran April-June, 2008

Article 243-U of the Constitution, he took the paramount consideration of Parliament that a Municipality and a Nagar Panchayat should function for a period of five years from the date appointed for its meeting. The learned Judge relied on a number of judgments of the Apex Court, Allahabad High Court and other High Courts and concluded that if the elections were not held before the expiration of the duration of Municipalities, due to unavoidable reasons, it should be held within a period of six months. In interpreting the provisions of different acts and Constitution of India the learned Judge applied the Golden rule and Literal rule or Grammatical Rule of interpretation. He stated that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The approach of the learned Judge was to strengthen democratic principles, local self-government and rule of law in the country.

D. Disqualifications for Membership

Article 243-V deals with disqualifications for membership. Clause (1) provides that a person shall be disqualified for being chosen as, and for being, a member of a Municipality--

(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: however, no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State.

Clause (2) lays down that if any question arises as to whether a member of a Municipality has become subject ‘to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.

E. Powers and Functions of Municipalities (Articles 243-W)

Article 243-W deals with powers, authority and responsibilities of Municipalities, etc. It provides that the Legislature of a State may, by law,

48 Nyaya Kiran April-June, 2008 endow- -

(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self- government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to-- (i) the preparation of plans for economic development and social justice; (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelth Schedule; (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelth Schedule.

The 74th Amendment added Twelth Schedule (Article 243W) to the Constitution. It authorizes the Muncipalities to make law and to do work on the following subject -

1. Urban planning including town planning. 2. Regulation of land use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 10. Slum improvement and upgradation.

49 Nyaya Kiran April-June, 2008

11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds, cremations, cremation grounds and electric crematoriums. 15. Cattle pounds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street-lighting, parking lots, bus stops and public conveniences. 18. Regulation of slaughterhouses and tanneries.

In case of M. C. Mehta V. Union of India25 a Division Bench of the Supreme Court consisting of Y. K. Sabharwal and B. N. Agarwal, JJ. held that regularization of illegal industrial activity can not be done if it results in violation of the right to life enshrined in Article 21 of the Constitution. This case about unauthorized industry in Delhi in residential areas had a protracted background.

It was held that Municipalities have constitutional responsibilities of town planning under Part IX-A and especially under Article 243-W of the Constitution.

The Municipal Corporation has the responsibility in respect of matters enumerated in Twelth Schedule of the Constitution and powers in respect thereof under Article 243-W, regularization of land use, public health, sanitation, conservancy, solid waste management being some of them and Section 345, 416(1), 417(1) and 461 and Part I of Schedule XI and Schedule XII of the Delhi Municipal Corporation Act, 1957. Therefore, it did not lie in the month of the Corporation to plead helplessness in carrying out responsibilities and obligations under the Delhi Municipal Corporation Act, 1957.

It is submitted that the Apex Court has made dynamic interpretation of the Constitution. Regularization of illegal industrial activity should not be allowed, if it results in violation of the right to life enshrined in Article 21 of the Constitution. Town planning is the constitutional responsibilities of the Municipalities under Part IX-A and especially under Article 243-W

50 Nyaya Kiran April-June, 2008 of the Constitution. However, it is not satisfactory, the powers of the Municipalities should be increased for the proper development of democracy, local self government, rule of law and human rights in the country.

F. Power to impose Taxes by and Funds of the Municipalities (Article 243-X)

Article 243-X deals with power to impose taxes by, and funds of, the Municipalities. It provides that the Legislature of a State may, by law -

(a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits;

(b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits;

(c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and

(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom.

G. Finance Commission (Article 243-Y)

Article 243-Y deals with Finance Commission. It lays down that the Finance Commission shall also review the financial position of the Municipalities. It shall make recommendations to the Governor as to- -

(a) the principles which should govern--

(i) the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Municipalities at all levels of their respective shares of such proceeds;

51 Nyaya Kiran April-June, 2008

(ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Municipalities; (iii) the grants-in-aid to the Municipalities from the Consolidated Fund of the State; (b) the measures needed to improve the financial position of the Municipalities; (c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Municipalities.

Further, the Governor shall cause every recommendation made by the Commission together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature provisions of the State. Article 243-I makes provision for constitution of Finance Commission to review financial position. It provides that the Governor of a State shall, at the expiration of every fifth year, constitute a Finance Commission. The legislature of a State may, by law, provide for the composition of the Commission, the qualifications which shall be requisite for appointment as members thereof and the manner in which they shall be selected. The Commission shall determine their procedure and shall have such powers in the performance of their functions as the Legislature of the State may, by law, confer on them. Article 243-Z lays down that the legislature of a State may, by law, make with respect to the maintenance of account by the Municipalities and the auditing of such accounts.

(H) Elections to the Municipalities (Article 243-ZA and 243-ZG)

Article 243-ZA deals with elections to the Municipalities. Clause (1) provides that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243K. Accordingly, State Election Commission shall consist of a State Election Commissioner to be appointed by the Governor. The conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine. However, the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of High Court. The conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. Upon a request made by the State Election Commissioner, the Governor of a State shall make available such staff as may be necessary for the discharge of the

52 Nyaya Kiran April-June, 2008 functions conferred on the State Election Commissioner. Again, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities.

Article 243-ZG deals with bar to interference by courts in electoral matters. It provides that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-ZA shall not be called in question in any court. Further, no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

(I) Committee for District Planning (Article 243-ZD)

Article 243-ZD deals with committee for district planning. Accordingly, there shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole. Clause (2) says that the Legislature of a State may, by law, make provision with respect to--

(a) the composition of the District Planning Committees - (b) the manner in which the seats in such Committees shall be filled: however, not less than four-fifth of the total number of members of such Committee shall be elected by, and from amongst, the elected members of the Panchayat at the district level and of the Municipalities in the district in proportion to the ratio between the population of the rural areas and of the urban areas in the district; (c) the functions relating to district planning which may be assigned to such Committees; (d) the manner in which the Chairpersons of such Committees shall be chosen.

Clause (3) states that Every District Planning Committee shall, in preparing the draft development plan -

(a) have regard to- -

53 Nyaya Kiran April-June, 2008

(i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated develop-ment of infrastructure and environmental conservation; (ii) the extent and type of available resources whether financial or otherwise; (b) consult such institutions and organisations as the Governor may, by order, specify.

The Chairperson of every District Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.

(J) Committee for Metropolitan Planning (Article 243-ZE)

Article 243-ZE deals with Committee for Metropolitan planning. It provides that there shall be constituted in every Metropolitan area a Metropolitan Planning Committee to prepare a draft development plan for the Metropolitan area as a whole. The Legislature of a State may, by law, make provision with respect to--

(a) the composition of the Metropolitan Planning Committees; (b) the manner in which the seats in such Committees shall be filled: however, not less than two-thirds of the members of such Committee shall be elected by, and from amongst, the elected members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the Municipalities and of the Panchayats in that area; (c) the representation in such Committees of the Central Government and the Government of the State and of such organisations and institutions as may be deemed necessary for carrying out the functions assigned to such Committees; (d) the functions relating to planning and coordination for the Metro-politan area which may be assigned to such Committees; (e) the manner in which the Chairpersons of such Committees shall be chosen.

54 Nyaya Kiran April-June, 2008

Further, every Metropolitan Planning Committee shall, in preparing the draft development plan,

(a) have regard to- - (i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area; (ii) matters of common interest between the Municipalities and the Panchayats, including coordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental con-servation; (iii) the overall objectives and priorities set by the Government of India and the Government of the State; (iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and of the Government of the State and other available resources whether financial or otherwise; (b) consult such institutions and organisations as the Governor may, by order, specify.

The Chairperson of every Metropolitan Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.

It is submitted that in certain western countries, local bodies enjoy their existence and autonomy independent of the State or Central Governments. For example, Article 28 of the German Constitution of 1949, guarantees to the local bodies the right to regulate the affairs of the local community and puts the responsibility on the Federation to ensure the protection of that guarantee. However, in the India local bodies cannot make a claim beyond what these Amendments do or the State legislations may provide. It is submitted that in line with our devolutionary system, they would in course of time acquire a sense of autonomy and responsibility towards the local self-government.

(K) Amendment of Article 280

As a result of the establishment of the Financial Commission for Municipalities, the 74th Amendment adds a new clause (c) in clause (3)

55 Nyaya Kiran April-June, 2008 of Article 280 and existing sub-clause (c) is renumbered as sub-clause (d). The new sub-clause (c) provides that it shall be the duty of the Finance Commission to make recommendations to the President as to the measures needed to augment the consolidated fund of a State to supplement the resources of the Municipalities in the State on the basis of the recommendations made by the Finance Commission.

4. Democracy (Local self-government), Rule of Law and Human Rights

A. Democracy (Local self-government)

Protection and promotion of democratic principles, rule of law and human rights are the basic foundations of modern civilized society. The Constitution of India recognizes the principles of democracy, rule of law and human rights. The English scholar W. Ivor Jennings states: “The fundamental principle of democracy is that government shall be carried on for the benefit of the governed. The object of most constitutions is to set up machinery by which the wishes of the governed may determine the nature of the government.”26 The basic object of democracy is to protect and implement the wishes of the electorates. The democratic government should be carried on for the welfare of the people. In case of Smt. V. Raj Narain27 Mathew, J. held that democracy is a basic feature of the Constitution. It can not be amended or abridged by making an amendment of the Constitution. The Constitution envisages the establishment of a democratic republican form of Government based on adult suffrage. The learned Judge observed:

“Democracy proceeds on two basic assumptions: (1) popular sovereignty in the sense that the country should be governed by the representatives of the people; that all power came from them; at their pleasure and under their watchful supervision it must be held; and (2) that there should be equality among the citizens in arriving at the decisions affecting them.

Today, it is impossible to conceive of a democratic republican form of Government without equality of citizens. It is true that in the republics of Athens and Rome there were slaves who were regarded as chattels. And, even in the United States of America, there was a republic even before the Negroes were enfranchised. Our

56 Nyaya Kiran April-June, 2008

Constitution envisages the establishment of a democratic republican form of Government based on adult suffrage”28

It is submitted that the Constitution has adopted a democratic republic form of government based on adult suffrage. In the Preamble the people of India have solemnly resolved to constitute India a democratic State. It means that the Constitution rest’s on the people’s will and the institutions set up under it shall seek to give effect to democratic principles. The 74th Amendment adopts the principles of democracy and local self-government. It makes provisions for elections. Article 243-Q days down provisions for constitution of municipalities. Article 243-R provides that all the seats in a Municipality shall be filled by persons chosen by direct election. It makes provisions for the representation of persons having special knowledge or experience in Municipal administration. Article 243-T makes provisions for reservation in favour of Scheduled Castes, Scheduled Tribes and women. Article 243-U states that the term of the Municipalities shall be for a period of five years. Article 243-ZA makes provision for election to the Municipalities. It states that the conduct of all elections to the Municipalities shall be vested in the State Election Commissioner. Article 243-ZC makes provision for election petition. Article 243-W directs the Legislature of a State to confer the Municipalities such powers and authority as may be necessary to enable them to function as institutions of self-government. It is submitted that the Amendment makes elaborate provisions to strengthen democratic principles. These democratic principles would enrich the roots of local self- government in the country.

B. Rule of Law

Rule of law is an important stone of a civilized society. The English Scholar A. V. Dicey has propounded the doctrine of ‘rule of law’ in his famous work. ‘An Introduction to the Study of the Constitution.’ According to him the doctrine of ‘rule of law’ is one of the basic foundation of the English Constitution. This principle is adopted in the Constitution also. In case of Smt. Indira Gandhi V. Raj Narain29 the Supreme Court held that democracy and rule of law are basic structure of the Constitution. Mathew, J. observed:

“The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of Government in the sense of excluding arbitrary official action in any sphere. Rule of law is an expression to

57 Nyaya Kiran April-June, 2008

give reality to something which is not readily expressible. That is why Sir Ivor Jennings said that it is an unruly horse. Rule of law is based upon the liberty of the individual and has its object, the harmonizing of the opposing notions of individual liberty and public order. The notion of justice maintains the balance between the two; and justice has a variable content.”30

The learned Judge further observed:

“If rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the constituent elements of the concept. I can not conceive rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitant within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of rule of law and of democratic republicanism is provided in Article 14. May be, the other articles referred to do the same duty.”31

It is submitted that the principles of ‘rule of law’ is an essential part of the Constitution and our legal system. The 74th Amendment of the Constitution recognizes the principle of rule of law. The Article 243-Q and 243-R deal with constitution and composition of Municipalities. Article 243-S makes provision for constitution and composition of Wards Committee etc. Thus, the Act divides exercise of powers between the Municipalities and Ward Committees. It prevents the arbitrary exercise of powers by Municipalities and adopts the first principle of rule of law propounded by English Scholar A. V. Dicey. Article 243-U fixes five years duration of Municipality. After five years, fresh elections shall be held. Every citizen of the country is entitled to give vote and participate in elections. Thus, the Amendment adopts the basic principles of democracy and rule of Law. Articles 243-ZD and 243-ZE make provisions to constitute committee for district planning and committee for Metropolitan planning. Thus, there is a division of powers between committee for district planning and committee for Metropolitan planning. In other words, there is division of powers in different bodies instead of concentration of powers in a single body. Further, the principle of equality is implicit in the provisions of the Amendment. Every citizen of the country

58 Nyaya Kiran April-June, 2008 is entitled to participate in the functions and planning of Municipalities and to take benefits of it. Article 243-Z makes provision for audit of accounts of Municipalities. In other words, the principle of rule of law runs throughout the provisions of the 74th Amendment. It is submitted that the doctrine of rule of law would increase the importance of the Amendment. It would enrich the system of democracy and local self- government in the country.

C. Human Rights

A democratic society recognizes the principles of human rights. The rule of law and human rights are fundamental foundation of democracy and local self-government. The term ‘human rights’ was firstly used in the Charter of the United Nations. The elaborate provisions regarding human rights are provided in the Universal Declaration of Human Rights, 1948. The provisions of the human rights are provided in the Constitution in the name of ‘Fundamental Rights and Directive Principles of State Policy’. The Preamble, Part-III and Part-IV of the Constitution make provisions regarding human rights.

In the case of Kirloskar Brothers Limited V. Employee’s State Insurance Corporation32 a three Bench of the Supreme Court consisting of K. Ramaswami, S. Saghir Ahmad and G. B. Patnaik recognized the importance of human rights. The Court referred Article (1), (3), 25 (1) of the Universal Declaration of Human Rights, 1948, Articles 6, 7 (b) of the International Covenant on Civil and Political Rights, 1966 and certain provisions of the Constitution specially Preamble, Fundamental Rights and Directive Principles of the State Policy and observed:

“The Preamble of the Constitution of India, the Fundamental Rights and Directive Principles constituting trinity, assured to every person in a Welfare State social and economic democracy with equality of status and dignity of person. Political democracy without social and economic democracy would always remain unstable. Social democracy would become a way of life in an egalitarian social order. Economic democracy aids consolidation of social ability and smooth working of political democracy.”33

It is submitted that the provisions relating to Human Rights/ Fundamental Rights are provided in the Preamble, Part-III and Part-IV of the Constitution. The 74th Amendment of the Constitution makes provision

59 Nyaya Kiran April-June, 2008 for the promotion and protection of social justice, economic democracy and welfare State. Article 243-W of the Amendment empowers the Municipalities to make plans for economic development and social justice. It empowers the Legislature of a State to endow the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government. Article 243-X states that the Legislature of a State may by law authorize Municipalities to impose tax. Article 243-Y directs the Finance Commission to provide financial assistance to the Municipalities. Twelfth Schedule (Article 243-W) empowers the Municipalities to make law for urban planning including town planning, planning for economic and social development, public health, safeguarding the interests of weaker sections of the society, slum improvement and upgradation and urban poverty alleviation, etc.

It is submitted that the Amendment would be helpful to provide social justice to the people. It would enable the Municipalities to make plans for economic development. The financial assistance would enable Municipalities to implement schemes made for the welfare of the people. It would be helpful to protect and promote provisions of human rights provided in Preamble Part-III and Part-IV of the Constitution.

5. Conclusion

It is submitted that the Municipalities will be dependent to a great extent on the State Governments. The 74th Amendment creates some legally enforceable rights and obligations which can not be ignored beyond a limit. It imposed duties upon the States to Constitute municipalities. They have to ensure elections at regular intervals. They have to provide for their constitution as laid down in the Amendment. They are empowered for the constitution and composition of Wards Committees etc. The Legislature of a State may by law confer on them some minimum powers and functions as institutions of local self- government. It may involve them in planning and development and ensure financial resources and autonomy. It is submitted that the Amendment would enrich, protect and promote democracy (local self-government), rule of law and human rights at grass root level in the country.

References

1. The paper was presented in National Seminar on ‘Urban Local Self-Government in an Era of Globalisation’ (9-10 March, 2006) organized by the Department of Political Science, , Allahabad.

60 Nyaya Kiran April-June, 2008

2. Sr. Lecturer, Faculty of Law, University of Allahabad, Allahabad.

3. Goswami Tulsidas : ‘Sri Ram Charit Manas’, Uttar Kand at Page 806, Doha 19-21, Tikakar Hanuman Prasad Poddar, Published by Govind Bhawan Karyalaya, Gita Press, Gorakhpur, 41 Edition (Sanvat 2049).

4. AIR 1998 Gujrat 124. The case was heard by a Division Bench of the Gujrat High Court consisting of K. Sreedharan, C. J. and M. S. Shah, JJ. The decision of the Court was delivered by K. Sreedharan, J.

5. AIR 1999 SC 826. The case was heard by a Division Bench of the Supreme Court consisting of Mrs. Sujata V. Manohar and G. B. Patnaik, JJ. The Judgment of the Court was delivered by Sujata Manohar J.

6. Saij Gram Panchayat V. State of Gurrat, AIR 1988 Gujrat 124

7. AIR 1997 SC 347. The case was heard by a Division Bench consisting of Dr. A. S. Anand and S. B. Majumdar, JJ. The decision of the Court was delivered by Dr. A. S. Anand, J.

8. Smt. Shanti Devi V. Smt. Saraswati Devi (1996) Rec. Rev. Rep., 292.

9. AIR 1998 SC 815. The case was heard by a three Judge Bench of the Supreme Court consisting of J. S. Verma, C.J.I., B. N. Kirpal and M. Jagnnatha Rao, JJ. The judgment of the Court was delivered by J. S. Verma, C.J.I.

10. AIR, 1998 SC 815 at P. 820, Para 14.

11. C. A. No. 6379 of 1997, Dt. 4-8-1997 (Guj.)

12. AIR, 1997 SC 347.

13. (2002) 10 SCC 565.

14. (2002) 10 SCC 565 at P. 566.

15. AIR 2003 SC 1659.

16. (2002) 1 Mah LR 637 (Bombay).

17. AIR 2003 SC 1659 at P. 1673, Para 21.

18. (1949) 1 All ER 109.

19. (1987) AC 625.

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20. AIR 2003 SC 1659 at P. 1678.

21. [2006 (2) ADJ 90 (All) (D.B.)]. The case was heard by a Division Bench consisting of R. K. Agrawal and (Mrs.) Saroj Bala, JJ. The judgment of the Court was delivered by R. K. Agrawal, J. See also Hindalaco Industries Ltd. Sonebhadra V. State of U.P. [2006 (3) ADJ 597 (All) (D.B.)]. In Shanti G Patel v. State of Maharashtra , AIR 2006 SC 1104, a Division Bench of the Supreme Court held that the courts at most could only direct State to pass appropriate legislation in term of provisions of Article 243-W and Schedule 12, items 1, 2. The Court approved the decision of the Bombay High Court and dismissed the petition. See also Kabir Hussain Nasir Ahmed Boga v. State of Gujarat AIR 2006 Gujarat 53.

22. (2004) 6 SCC 588.

23. [2006 (2) ADJ 90 (All) (D.B.)] at p. 105- 106 Para 36.

24. [2006 (2) ADJ 90 (All) (D.B.)] at p. 106 Para 37.

25. (2004) 6 SCC 588.

26. The Law and the Constitution (London University of London Press Ltd.) First printed 1933 at P. 229.

27. AIR 1975 SC 2299.

28. AIR 1975 Sc2299 at pp. 2383-2384 Paras 334-335.

29. AIR 1975 SC 2299.

30. AIR 1975 SC 2299 at P. 2384, para 338.

31. AIR 1975 SC 2299 at P. 2385.

32. (1996) 2 SCC 682.

33. (1996) 2 SCC 682 at P. 687. See also State of Punjab V. Ram Lubhaya Bagga, AIR 1998 SC 1703, N. D. Dayal V. Union of India (2004) 9 SCC 362.



62 Nyaya Kiran April-June, 2008

JUDGMENT SECTION CASE OF SAMPANIS AND OTHERS V. GREECE

(Application no. 32526/05) Decided on 5th June, 2008 by the European Court of Human Rights

Ms. G.M. Padma Priya*

In the present case, the applicants were of Romani ethnic origin, residing in a settlement located in the “Psari” area of Aspropyrgos, Attica. Their grievance related to the fact that their children were refused enrollment by the education authorities in the local primary school during the school year 2004-2005 and instead they were placed in an annex to the local primary school, housed in prefabricated containers attended only by Roma, located five kilometres from the primary school. The judgment recognizes the issue of the education afforded to Romani children, and is thus a landmark in the field of right to education and equality.

The applicants’ claimed that their children had for some time attended classes at the local primary school. But due to the reaction of local non- Romani parents who did not want their children to attend the same school with Romani children and had staged numerous protests, including preventing their children from attending school, the Government shifted the Romani children to an annexe to the local primary school.

In this act of the State, the Court found a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, read with Article 2 (right to education) of Protocol 1, The Court held that it was necessary to take into account the “incidents of a racist character” such as the demonstrations staged by the parents of non- Romani children, that had taken place and concluded that these events had an impact on the authorities’ decision to send the Romani children to the segregated annex school.

*Advocate, High Court of Delhi

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The ECHR, in arriving at its decision relied on an earlier judgment of the Grand Chamber in the case of the D.H. and Others v. The Czech Republic wherein it was observed that in Para 205 that “[…] the Czech Republic is not alone in having encountered difficulties in providing schooling for Roma children: other European States have had similar difficulties”, which indicates that the Court recognized the issues relating to the educational rights of the Roma children as a common problem in Europe.

The Court considered the domestic legislation and the vulnerable position of Romanis in Greece which required special measures to ensure the full enjoyment of their rights, and held that the failure of the state authorities to enroll the Romani children during the school year 2004-2005 was attributed to them and very much their responsibility.

Regarding the segregated school environment, the Court emphasised the need to put in place an adequate system of assessment of children facing educational challenges which ensures the avoidance of ethnic minority children being placed in special preparatory classes based on discriminatory criteria.

Lastly, the Court reiterated principles laid down in the case of D.H and Others regarding un-informed consent, and noted that one of the applicants had explicitly stated that he had effectively to choose between sending his children to the local primary school and jeopardizing their physical integrity at the hands of “indignant” non-Romani persons and sending them to the “ghetto school”.

This judgment, in effect, reinforces the position emanating from the case of D.H. and Others that the segregation of Romani children in inferior schools and classes is illegal and that European governments must take responsibility for this.



64 Nyaya Kiran April-June, 2008 T.N. GODAVARAMAN THIRUMULPAD Vs. UNION OF INDIA (UOI) AND ORS. AND IN RE: VEDANTA ALUMINA LTD. [Decided on 23.11.2007 reported as (2008) 2 SCC 222]

Ms. G.M. Padma Priya* This case is yet another example of how active a role has the Supreme Court played in protection and preservation of the environment. It further fortifies the fact that environmental protection encompasses within its ambit, not only control of pollution, but also sustainable development and conservation of natural resources and the eco-system. Facts: M/s. Vedanta Aluminium Ltd. (M/s. VAL, for short) filed an application before the Supreme Court seeking clearance of the proposal for use of 723.343 ha of land (including 58.943 ha of reserve forest land) in Lanjigarh Tehsil of Kalahandi District, Orissa for setting up Alumina Refinery. The project consisted of setting up of a large integrated aluminium complex in Orissa by M/s. Vedanta Aluminium Ltd. All the requisite permissions had been obtained by the applicant including an environment clearance from MoEF. The question before the Court was whether M/s. VAL should be allowed to set up its Project that involved the proposal for diversion of 58.943 ha of forest land. Held: The Hon’ble Court observed at the very outset that adherence to the principle of Sustainable Development is now a constitutional requirement. The term ‘sustainable development’ means that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs. The Supreme Court reiterated its consistent view that it is the duty of the State as also that of the Courts to meet their obligations of Sustainable Development based on inter-generational equity. Pertaining to the facts of the case in hand, it

*Advocate, High Court of Delhi

65 Nyaya Kiran April-June, 2008 was observed that though mining is an important revenue generating industry, however, one cannot allow the national assets to be placed into the hands of companies without proper mechanism in place and without ascertaining the credibility of the User Agency. On the other side, the Court also took note of the life of the abject poverty that the local people in Lanjigarh Tehsil including the tribal people, were leading. The Court also noted that though there has been accelerated economic growth in India in the last few years, but the same is in no manner an ‘Inclusive Growth’. Keeping in mind the two extremes, the Court thought of balancing development vis-a-vis protection of wildlife ecology and environment in view of the principle of Sustainable Development. During the course of hearing, the Court was informed for the first time that M/s. VAL is a subsidiary of M/s. Sterlite Industries (India) Ltd. (M/s. SIIL, for short) and that M/s. SIIL shall provide jobs on permanent basis to the tribals, particularly, land-losers. It was stated that plant maintenance, power plant operations, house keeping, canteen, material handling etc. will be outsourced. The Court, however found that there was no positive statement as to the number of persons who would get jobs on permanent basis or as to the category they would be fitted in. It was also noted that the Project is funded by Vedanta Resources (a U.K.- based company, which company the Court found, had been banned from Norway for non-compliance of labour laws and for violation of human rights. Though the Court refrained from expressing any opinion on the correctness of the said Report, however, it observed that the risk of handing over an important asset into the hands of the company could not be taken unless one is satisfied about its credibility. Thus, in the circumstances of the case and the totality of the above factors, the Hon’ble Supreme Court refused to clear the Project. The Hon’ble Court also suggested various modalities in respect of rehabilitation of the project affected families and protection and regeneration of the environment of the project area and accordingly liberty was given to M/s. SIIL to move the Court if they agreed to comply with the said modalities. It thus emerges from an analysis of the present judgment that judiciary is not against such projects in principle, but its endeavor is only to seek safeguards by which to protect nature and subserve development. 

66 Nyaya Kiran April-June, 2008

POETRY SECTION ckns lck1

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Mwch gSa dqN ut+jsa vHkh] [+okchnk [kqekj4 eas] vkSj dqN cs[+okc gSa dc ls] rsjs bUrt+kj easA eljZrs ’kcs oLy5 dgha] gks pyh gS csfe;kn6] dgha vkyes fgtz gS] fQjkds bUr’kkj8 easAA

cstk u ns nLrd] can f[kM+fd;ksa ds ,sokuksa9 ij] rsjh lnk&,&bczr10 gksxh] csvlj mu uknkuksa ijA ysds gejkg py] ueZ ’kqvk,¡11 vkQ~r+kc dh] cjlk ns uwjks egd lc eqQfylksa12 ds edkuksa ijAA lw[ks ftLeksa ls fnu Hkj cgs] ilhus esa tks jgh gks deh] Vidk ns ’kcue fd vk tk,] v+QlqnkZ13 Qlyksa esa uehA mBds tc [ksrksa is tk,¡] ;s t+bQ+&iSdj14 fdlku] rks xqeku gks cgkj dk] [kq’kgky is’k vk, t+ehaAA

*vfrfjDr eq[; egkuxj naMkf/kdkjh] fnYyh

67 Nyaya Kiran April-June, 2008

lks, gSa Hkw[ks vkf[kjs ’kc15] be ij nLrs buk;r16 dj tk] uhan ls lnZ gksrs ygw eas fQj ls gjkjr dj tkA >qylsaxs tc buds cnu] yw eas] fey ds /kq,¡ esa] rks dqN jkgr feys] t+guksa ij vius nLr[+kr dj tkAA

lks, gSa iVfj;ksa ij] b/kj ns[k] QnkZ&,&eqYd17] vvkft+esa eqYd18 dks fn[kk] ;s gd+hdh&,&csinkZ&,&eqYd19A dgha ’kksfj’ks t+hLr20 eas] vlckcs vklkb’k21 reke] dgha gaxkes exZ eqlyly22] gS dksbZ [kqnk&,&eqYd?

;s fl;klrnk¡ ftUgsa] rt+yhys vkeh23 dk ,sglkl ugh] mBk bu gkfdeksa dks ftUgs vt+ers e’kDdr24 dk ikl25 ughaA txk ns vkt] lfn;ksa ls lksbZ gqbZ e[+kywd dks] ;s eqYd lcdk gS] Q+dr ljek;knkjksa dh ehjkl26 ughaAA

dgha jQ~rkjs&lgt27] dgha ekfuUns&rykrqe28 tk] fdlh dks >d>ksj] fdlh dks lgyk ds t+xkA tqYers&’kc dks ns] iSx+kes&lgjs&ukS] lksrs gqvksa dks txk] ,sglkls&oDr fnykAA /khjs&/khjs py] ,s ckns&lck-----A

1. lqcg dh gok] 2. jkr dk va/ksjk] 3. ubZ lqcg dk lans’k] 4. uhan dk u’kk] 5. feyu dh jkr dh [kq’kh] 6. vlhe] 7. rUgkbZ] vdsykiu] 8. cckZnh ds ekSds dh ryk’k] 9. egyksa] 10. fdlh dks vius fd, dh lt+k ikrs ns[k dj vQlksl t+kfgj djuk] 11. fdj.ksa] 12. xjhcksa] 13. eqj>krh gqbZ] 14. nqcyZ ’kjhj okys] 15. jkr ds vkf[kjh igj esa] 16. d`ik] 17. ns’k dk Hkfo";] 18. ns’k ds egRoiw.kZ O;fDr;ksa dks] 19. ns’k dk uXu lR;] 20. ft+Unxh dk ’kksj&xqy] 21. ,s’kks vkjke ds lk/ku] 22. fujarj ekSr dk ekgkSy] 23. vke vkneh dh viekutud fLFkfr] 24. Je dh xfjek] 25. fygkt+] 26. cikSrh] 27. /kheh xfr ls] 28. rwQku dh rjgA

68 Nyaya Kiran April-June, 2008

FUNCTION REPORT I. ALL INDIA MEET OF EXECUTIVE CHAIRPERSONS AND SECRETARIES OF STATE LEGAL SERVICES AUTHORITIES AND HIGH COURT LEGAL SERVICES COMMITTEES The All India Meet of Executive Chairpersons and Secretaries of State Legal Services Authorities and High Court Legal Services Committees, organized by the “Delhi Legal Services Authority” under the aegis of “National Legal Services Authority” was held at Vigyan Bhawan, New Delhi on 2nd, 3rd, and 4th May, 2008 to discuss the various facets of “Socio Legal Audit” which may be undertaken by the State Legal Services Authorities in the areas of “Poverty Alleviation” and other welfare schemes in the special context of rising “Crime Against Women”. The Meet was inaugurated by Hon’ble Mr.Justice K.G.Balakrishnan, Chief Justice of India and Patron-in-Chief of National Legal Services Authority, in the august presence of Hon’ble Mr.Justice Ashok Bhan, Judge and Executive Chairman, National Legal Services Authority and Hon’ble Dr. Justice Arijit Pasayat, Judge Supreme Court of India and Chairman, Supreme Court Legal Services Committee. Mr.E.M.S.Nachiappan, Member of Parliament and Chairman, Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice, also graced the occasion. The Hon’ble Chief Justice impressed upon the gathering to ensure that all the Constitutional and statutory authorities, render their services so as to ensure that the benefits of social welfare legislations and public welfare schemes reach the people for whose benefit such legislations and schemes are framed and particularly the weaker sections of the society. II. LEGAL SANCTION AND OTHER FACETS OF THE SOCIO LEGAL AUDIT The Meet examined and discussed the legal sanction behind “Socio Legal Audit” to be undertaken by State Legal Services Authorities in India. There was a broad consensus that there is legal sanction, including the sanction provided by Clause (d) of Section 4 of the Legal Services Authority Act, 1987 (hereinafter referred to as “the Act”) read with Clause

69 Nyaya Kiran April-June, 2008

(h) (k) and (l) of the said Section, providing for the functions of the National Legal Services Authority and also the provisions of Section 8 of the Act requiring the State Legal Services Authorities to act in cooperation, inter- alia, with other Governmental agencies and also to be guided by the National Legal Services Authority. The Constitutional provisions, including Article 51 (A) read with the provisions of the Act enable and empower the State Legal Services Authorities to play a pro-active role to enable the people, and in particular the weaker sections of the society, to realize their rights, benefits and privileges, as guaranteed by social welfare legislations and other enactments, as well as administrative programmes and measures incorporating welfare schemes. The Meet discussed, with reference to the judgments of the Hon’ble Supreme Court of India, the need for helping the poor and down trodden and the persons suffering from disabilities to have access to justice and particularly to achieve social-justice. There was consensus that to achieve the objective of social justice as enshrined in the preamble to the Constitution and other Constitutional provisions and the provisions of the Legal Services Authorities Act, 1987 and other enactments, the State Legal Services Authorities may adopt appropriate strategies for “Socio Legal Audit”, including enabling voluntary social organizations or other eminent personalities or, if required, in appropriate cases, itself initiate social justice litigation in the matters of special concern to the weaker sections of the society including the matters regarding consumer protection and environmental protection. III. The Meet also considered the environmental issues and expressed serious concern about the degradation in air, water and earth caused by out dated technologies and unmeaningful waste of scarce national resources and the role which could be played by Legal Services Authorities to arrest such degradation and to protect the environment. The Meet highlighted the need for public administration to take a greater initiative in reaching out to the weaker sections of the society, rather that the weaker sections chasing the Government. The Meet also discussed the need to implement more effectively the directions given by the Hon’ble Supreme Court of India for enforcement the “Right to Food”. The Meet noted with concern the differences in opinions about the appropriateness or otherwise, in applying to all cases, certain provisions of the enactments made for achieving the social-justice and discussed possible measures for reconciling such differences.

70 Nyaya Kiran April-June, 2008 THE MEET MADE THE FOLLOWING RECOMMENDATIONS: 1. To achieve the objective of social justice enshrined in the preamble to the Constitution and other Constitutional provisions and the provisions of the Legal Services Authorities Act, 1987 and other enactments, the State Legal Services Authorities may adopt appropriate strategies for “Socio Legal Audit”, including enabling voluntary social organizations or other eminent personalities to initiate or, if required in appropriate cases, itself initiate social justice litigation in the matters of special concern to the weaker sections of the society including the matters regarding consumer protection and environmental protection. 2. The State Legal Services Authorities should take urgent steps to spread awareness about the protection of environment amongst all the sections of the society, including children in Schools and students in Universities. 3. The State Legal Services Authorities may take all necessary remedial measures on the environmental front, including coordination with regulatory agencies and if required, initiation of social justice litigation for implementation of the legislations for protection of environment. 4. The Government may provide for implementation of various social welfare schemes through a Single Window Operation System with people friendly procedures and practices. 5. There is need for involvement of State Legal Services Authorities for more effective implementation of the directions given by the Hon’ble Supreme Court of India for enforcement of the “Right to Food”. 6. The State Legal Services Authorities and the Committees thereunder should sensitize all concerned to consider the nature and degree of non-implementation of any provisions of enactments made for advancement of social justice, before recommending any particular mode of dispute resolution or before invoking one or more of the available remedies – such as counselling, conciliation, civil litigation and criminal complaints. The State Legal Services Authorities may, as a part of the “Socio Legal Audit” strategies adopt such other and further measures as may be considered appropriate in the facts and circumstances of a given case, within the Constitutional set up and the scheme of Legal Services Authorities Act, 1987.

71 Nyaya Kiran April-June, 2008

7. The Delhi Legal Services Authorities is authorized to move the National Legal Services Authority for taking up the matter with the Central Government for amendment of any provisions of the Act, for providing stringent provisions for non compliance with the directives of the National Legal Services Authority and the State Legal Services Authorities, so as to make the directives of these authorities binding on the concerned Authorities and persons, in order to make the functioning of State Legal Services Authorities, District Legal Services Authorities and Taluka Legal Services Committees more effective for achieving the objectives of social-justice as enshrined in the Constitution.

Glimpses from All India Meet of Chairpersons and Secretaries of Legal Services Authorities and High Court Legal Services Committees on 2nd, 3rd & 4th May, 2008 at Vigyan Bhawan, New Delhi. INAUGURAL SESSION

Hon’ble Mr. Justice K.G. Balakrishnan, Chief Justice of India, Supreme Court of India & Patron-in-Chief, National Legal Services Authority lighting the lamp in the benign presence of Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority & Hon’ble Dr. Justice Arijit Pasayat, Judge, Supreme Court of India & Chairman, Supreme Court Legal Services Committee.

72 Hon’ble Mr. Justice K.G. Balakrishnan, Chief Justice of India, Supreme Court of India & Patron-in-Chief, National Legal Services Authority delivering inaugural address in the inaugural plenary session.

Hon’ble Dr. Justice Arijit Pasayat, Judge, Supreme Court of India & Chairman, Supreme Court Legal Services Committee delivering the concluding address in the inaugural plenary session with his speech. A view of the Plenary Hall of Vigyan Bhawan in the inaugural plenary session.

EXECUTIVE PLENARY SESSION

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority and Hon’ble Dr. Justice Arijit Pasayat, Judge, Supreme Court of India, Chairman, Supreme Court Legal Services Committee interacted with the Delegates on ‘Role and Contribution of High Court Legal Services Committee; impending coordination of State Legal Services Authorities and High Court Legal Services Committees for effective implementation of free legal aid programmes for the weaker sections. Ist Session on 3rd May, 2008 at Vigyan Bhawan, New Delhi.

(Left to Right) Hon’ble Mr. Justice Shiva Kirti Singh, Judge, & Executive Chairman, Bihar State Legal Services Authority; Hon’ble Mr. Justice M.Y. Eqbal, Judge, Jharkhand High Court & Executive Chairman, Jharkhand State Legal Services Authority; Hon’ble Mr. Justice R.V. Raveendran, Judge, Supreme Court of India and Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority on the dias during the Ist Session. 5th Session on 4th May, 2008 at Vigyan Bhawan, New Delhi.

Hon’ble Mr. Justice D.P. Wadhwa, Former Judge, High Court of Delhi delivered a keynote address on “Consumer Protection - Social Justice Litigation & Role of State Legal Services Authority”. Nyaya Kiran April-June, 2008 1ST TRAINING PROGRAMME FOR ADVOCATES HELD ON 6TH AND 7TH JUNE, 2008

Delhi Legal Services Authority organized 1st Training Programme for legal services Advocates on 6th & 7th June, 2008 at India International Centre, 40, Max Muller Marg, New Delhi.

Delhi Legal Services Authority initiated the process of selection of Advocates on its panel in accordance with the recommendations made by National Legal Services Authority in its vision document. The Training Programme was first of its kind in the country in which lectures on different subjects were delivered by distinguished speakers chosen for that purpose. Training Programme was organized to ensure quality legal services to the beneficiaries and to train and sensitize Legal Services advocates about the significant substantive and procedural law as well to ensure quality legal services to the beneficiaries under the Legal Services Authorities Act.

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority kindly inaugurated the Training Programme on Friday, the 6th June, 2008.

In the Inaugural Session, Hon’ble Mr. Justice T.S.Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority delivered the Welcome Address. In the Inaugural Address, Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority emphasized the need to inculcate the values of compassion and empathy within the Panel Advocates and significance of holding of such Training Programme so as to update the knowledge of the Legal Services Advocates.

Ms. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority delivered the Vote of Thanks.

His Excellency Dr. A.P.J. Abdul Kalam, Former delivered the ‘Motivational Reflections’ on “Work with integrity, succeed with integrity”.

Hon’ble Dr. Justice S. Muralidhar, Judge, High Court of Delhi made a Power-point Presentation on “Evolution and Growth of the Concept of Legal Aid and its relevance” .

76 Nyaya Kiran April-June, 2008

Hon’ble Mr. Justice S.N. Kapoor, Former Judge, High Court of Delhi highlighted the “Role of Legal Aid Counsel in Mediation and Conciliation Proceedings”.

Hon’ble Ms. Justice Sharda Aggarwal, Former Judge, High Court of Delhi delivered the lecture on the “Concept of Plea Barganing and Role of Legal Aid Counsel”.

Hon’ble Ms. Justice Hima Kohli, Judge, High Court of Delhi enumerated the “Professional Ethics of a Legal Aid Counsel”.

Hon’ble Mr. Justice S.K. Aggarwal, Former Judge, High Court of Delhi delivered a lecture on “Art and Law relating to Cross-examination in Criminal Cases”.

Sh. Sanjeev Jain, Chief Metropolitan , Delhi apprised the participants about the ‘Law relating to Disclosure, recovery, confession and other procedural aspects”.

Sh. Sidharth Luthra, Senior Advocate, High Court of Delhi highlighted the “Role of Legal Aid Counsel in Remand Proceedings”.

Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority delivered the concluding remarks. His Lordship motivated the Legal Services Authorities’ Advocates and emphasized that Knowledge is Power. His Lordship said that educating the Legal Services Advocates about their role and latest law is also a way to empower the poor for whose benefit Legal Services Authorities are constituted.

During the interactive sessions in all the lectures, the questions submitted by the participants were suitably answered.

The Training Programme was immensely successful and highly appreciated by all the participants.



77 Glimpses from Ist Training Programme for Advocates at India International Centre on 6th & 7th June, 2008

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority lighting the lamp in the inaugural session of the training programme.

Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority delivering the inaugural address in the inaugural session of the training programme. A view of distinguish audience in the Inaugural Session.

His Excellency Dr. A.P.J. Abdul Kalam, Former President of India delivered motivational reflection on “Work with Integrity, Succeed with Integrity”. (Left to Right) Hon’ble Mr. Justice S.N. Kapoor, Former Judge, High Court of Delhi and Hon’ble Dr. Justice S. Muralidhar, Judge, High Court of Delhi sitting on the dias in the interactive session in Lecture - I on “Evolution and Growth of the Concept of Legal Aid and its relevance.”

(Left to Right) Hon’ble Mr. Justice S.N. Kapoor, Former Judge, High Court of Delhi; Hon’ble Mr. Justice R.C. Chopra, Former Judge, High Court of Delhi and Ms. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority on the dias. Nyaya Kiran April-June, 2008

PRESS CLIPPING SECTION Hindustan Times; Sunday 27th April, 2008

81 Nyaya Kiran April-June, 2008

Nav Bharat Times; Monday 28th April, 2008

Dainik Jagran; Sunday 27th April, 2008

Times of India; Monday 28th April, 2008

82 Nyaya Kiran April-June, 2008

Dainik Jagran; Monday 28th April, 2008

83 Nyaya Kiran April-June, 2008

Indian Express; Monday 19th May, 2008

Nav Bharat Times; Monday 19th May, 2008

84 Nyaya Kiran April-June, 2008

STATISTICAL INFORMATION SECTION

STATISTICAL INFORMATION IN RESPECT OF LEGAL AID BENEFICIARIES FOR THE MONTH OF APRIL - 2008

Exclusively by High Court Exclusively by Taluk Legal Grand State Legal Legal District Services Total Services Authority Services Legal Services Committees (Col.1to 4) (Gole Mkt.+PHC Committee Authority (KKD.+ROHINI) +Jail) (1) (2) (3) (4) (5)

Schedule Caste 02+02=04 05 04 01+NIL=01 14

Schedule Tribe NIL+01=01 - - 01+NIL=01 02

Backward Class NIL - - Nil NIL

Women 75+12=87 10 40 39+54= 93 230

Children NIL - - Nil NIL

In Custody 38+08+120=166 06 61 61+ 24= 85 318

Accidental NIL 03 - Nil 03

General 54+05=59 11 45 19+12= 31 146

Total 169+28+120=317 35 150 121+90=211 713

STATISTICAL INFORMATION IN RESPECT OF LEGAL LITERACY/LEGAL AWARENESS CAMPS

Legal Literacy/Legal Awareness Camp Number of Beneficiaries 8 78

85 Nyaya Kiran April-June, 2008 Referred (Col.1 to 5) Grand Total 336 332 142 06 Centers Counselling and (KKD+ ROHINI) 02+NIL=02 Nil 88 Nil Services Committees District Legal Legal Service Conciliation High Court Exclusively Exclusively by Taluk Committee COUNSELLING & CONCILIATION FOR THE MONTH OF APRIL - 2008 APRIL FOR THE MONTH OF COUNSELLING & CONCILIATION court court court court court court 01+NIL 04 05 15 NIL STATISTICAL INFORMATION IN RESPECT OF CASES SETTLED THROUGH INFORMATION STATISTICAL (1) (2) (3) (4) (5) (6) Services Authority Authority State Legal Legal Services Pre Referred Pre Referred Pre Referred Pre Referred Pre Referred Pre Exclusively by =42 =33 =01 14+28 NIL09+24 13 332 27 NIL 05+15=20 Nil 234 Nil litigation the by litigation the by litigation the by litigation the by litigation the by litigation the by (Gole Market+PHC) Number of cases received Number of cases settled

86 Nyaya Kiran April-June, 2008 17 192 = 01 - 2009 20 09 rand Total (Col.1to 4) rand Total - 4020 4020 -1414 -4747 57 - 57 192 20174 - 20174 204 + Daily lok adalat = + Mahila Conciliation = 04 + Mega Traffic Lok Adalat = 60 32 + Bank recovery = 16 2129 2129 +985= +985= (KKD.+ROHINI) 10280 10280 5293= 5293= 4987+ - 4987+ 14 Mega Traffic Lok 1242 1242 - 1144 1144 Post Total Pre- Post Total Pre- Post Total Authority Pre– 4325 1267 5592 10280 2165 12445 20423 4110 24533 Exclusively by District Legal Taluk G - - 4325 - 4325 High Court Legal - --- 14 (1) (2) (3) (4) (5) Exclusively by State Legal Services Authority Services Committee Legal Services Services Committees Bank recovery 16 recovery Bank 4591 (16+16) Adalat + Rent Control matt. +Rent Control matters 01 +Daily Lok Adalat 17 + Mega Traffic Lok Adalat 68 Pre- Post Total Pre- Post Total 5569 - 5569 litigation litigation litigation litigation litigation litigation litigation litigation litigation litigation STATISTICAL INFORMATION IN RESPECT OF LOK ADALAT FOR THE MONTH OF APRIL – 2008 APRIL FOR THE MONTH OF ADALAT IN RESPECT OF LOK INFORMATION STATISTICAL LSA Act + No. of sittingAdalatsLok of of19 u/s held 18 - NIA 138 u/s & comp. Crl. ACRUnder comp. Crl. mechanism = 02 - 29 CRL. COMP. A. L. Traffic Mega Mahila Concil. 025733+24= - COMP CRL. 104 = NIA 138 u/s & comp. Crl. Mahila Concil. 02 Under ACR mechanism = 02 Lok Adalat Mega Traffic Bank Recovery 192 - 192 ------CASES UNDER & u/s 138 N.I. Act Rent Control -CRL. COMP. 20 57 20 - - 57 ------0 - - - - cases Crl. Comp. cases - 649Mahila Conciliation 649 -matters Daily Lok Adalat (for - -09 cases settled) -CIVIL CASES - 09 -ACR Mechanism -TOTAL - 08+01 - -of disposed 09 - - 5818 - - 678 - - 6496 - - - - - 07 - 07 - - - - 18 07 - 18 07 - - - 29 - 29 March 23 sitting &settled)= (not

87 Nyaya Kiran April-June, 2008 317 RS.- 94,40,106 NIA:- PAID:- COMPENSATION Settlement amt. Realized in Traffic L.A.= Rs. 15,18,600/- CASES:- SETTLED NIL Insurance Total Service in (KKD.+ROHINI) 3,70,955=Rs. 7,25,655/- Rs. 12,53,000/- +24,700=64,700/- PAID:- COMPENSATION & U/S 138 CRL. COMP. Exclusively by DistrictLegal Taluk (Col.1to 4) Grand Total 4325 1267 5592 10280 2165 12445 20423 4110 24533 Settlement amt. Realized in 3,74,700+3,76,500=7,51,200/- FINE REALISED: COMPENSATION PAID:- COMPENSATION D.V.B. dispensary light or water or sanitation hospital or - 45 91 204 LEGAL SERVICES AUTHORITIES ACT High Court Legal --- telephone service Postal, telegraph Supply of power, Public Conservancy (1) (2) (3) (4) (5) Service or Authority Authority Legal ServicesCommittee Services Legal ServicesCommittees Services ------5818 678 6496 Exclusively by State 08 litigation litigation litigation litigation litigation litigation litigation litigation litigation litigation COMPENSATION PAID:- COMPENSATION RS. 3,82,800/-Settlement amt. Realized inTraffic L.A.= Rs. 4,65,635/- Traffic L.A.= Rs. 3,27,310/- Settlement amt. Realized Rs. 1,09,000/- in Traffic L.A.= Rs. 3,54,700+ CRL. COMP. & U/S 138 NIA:- CRL. COMP. FINE REALISED: Rs. 32,700/- RS. 1,19,000/- BANK RECOVERY CASES:-RECOVERY BANK RS. 94,40,106/- - & U/S 138 NIA:- CRL. COMP. & U/S 138 NIA:- CRL. COMP. RECOVERY BANK FINE REALISED RS. 11,600/-40,000 RS. REALISED:- FINE STATISTICAL INFORMATION IN RESPECT OF LOK ADALATS FOR THE MONTH OF APRIL - 2008 APRIL FOR THE MONTH OF ADALATS IN RESPECT OF LOK INFORMATION STATISTICAL STATSTICAL INFORMATION REGARDING PERMANENT LOK ADALAT ESTABLISHED UNDER SECTION 22B OF THE ESTABLISHED ADALAT REGARDING PERMANENT LOK INFORMATION STATSTICAL Number of sittings Permanent Lok Adalats for Public Utility Services 40 40 Transport No. of cases settledNo. of sitting Permanent Lok Adalat (DDA)Cases - 48 Total - 317 - - - 317 Total no. of cases Total Settled (including No. of MACT Pre- Post Total Pre- Post Total Pre– Post Total Pre- Post Total Pre- Post Total 19 of LSA Act = 68 cases settled MACT) Awarded amount No. of LokAdalats held u/s + M.A.C.T NIL Lok adalat other than (MACT) 68

88 Nyaya Kiran April-June, 2008

STATISTICAL INFORMATION IN RESPECT OF LEGAL AID BENEFICIARIES FOR THE MONTH OF MAY - 2008

Exclusively by High Court Exclusively by Taluk Legal Grand State Legal Legal District Services Total Authority Services Legal Services Committees (Col.1to 4) (Gole Mkt.+PHC Committee Authority (KKD.+ROHINI) +Jail) (1) (2) (3) (4) (5)

Schedule Caste 09 +01= 10 03 09 Nil 22

Schedule Tribe Nil +01= 01 - - Nil 01

Backward Class Nil 01 - Nil 01

Women 110 +25= 135 11 46 25+67= 92 284

Children Nil - - Nil Nil

In Custody 44 +07+115= 166 01 109 36 + 20= 56 332

Accidental Nil 01 01 Nil 02

General 95 +09= 104 19 32 29 + 06= 35 190

Total 258+43+115=416 36 197 90 + 93=183 832

STATISTICAL INFORMATION IN RESPECT OF LEGAL LITERACY/LEGAL AWARENESS CAMPS

Legal Literacy/Legal Awareness Camp Number of Beneficiaries 9 101

89 Nyaya Kiran April-June, 2008 285 156 174 122 (Col.1 to 5) Grand Total Centers Conciliation Counselling and Rohini KKD Legal Service Committees Services (4) Authority District Legal CONCILIATION FOR THE MONT OF MAY - 2008 FOR THE MONT OF MAY CONCILIATION High Court Exclusively Exclusively by Taluk Committee court court court court court court court (1) (2) (3) (5) (6) State Legal Legal Services Pre Referred Pre Referred Pre Referred Pre Referred Pre Referred Pre Referred Pre Referred =57 =48 Exclusively by litigation the by litigation the by litigation the by litigation the by litigation the by litigation the by litigation the by 14+43 NIL12+36 55 NIL 155 52 43 121 NIL 21 04 NIL 01 Nil 02 01 Nil Nil 124 Nil Nil 53 Nil Services Authority (Gole Market+PHC) STATISTICAL INFORMATION IN RESPECT OF CASES SETTLED THROUGH COUNSELLING & INFORMATION STATISTICAL Number of cases received Number of cases settled

90 Nyaya Kiran April-June, 2008 03 223 = 03 = 22 - 20 20 rand Total (Col.1to 4) rand Total - 4696 4696 -1818 -3535 223 22938 - 22938 224 01 + Daily lok adalat = 22 10575 2484 +1328= (KKD.+ROHINI) 92 = cases Civil + 10575 5000+ - 5575= 02 Adalat (16+16)57 = Adalat Lok Traffic Mega + 1268 1268 - 1156 2484 Post Total Pre- Post Total Pre- Post Total Authority Pre– Exclusively by District Legal Taluk G - - 5668 - 5668 High Court Legal - 13 Civil Cases (1) (2) (3) (4) (5) Exclusively by State Legal Services Authority Services Committee Legal Services Services Committees Mega Traffic Lok Adalat 80 52 Civil Cases (KKD) Pre- Post Total Pre- Post Total 6695 - 6695 litigation litigation litigation litigation litigation litigation litigation litigation litigation litigation STATISTICAL INFORMATION IN RESPECT OF LOK ADALAT FOR THE MONTH OF MAY – 2008 FOR THE MONTH OF MAY ADALAT IN RESPECT OF LOK INFORMATION STATISTICAL Mega Traffic Lok Adalat Bank Recovery 223 - 223 ------cases Crl. Comp. cases& u/s 138 N.I. Act - 944Mahila Conciliation 944Daily Lok Adalat -CIVIL CASES - -TOTAL 07 - 20 - 07 - 6918 20 - 971 - - - - 7889 ------5668 - - 1290 22 - 6958 22 - 10575 11 - 2508 - 11 13083 13 23161 - 13 4769 - 27930 held u/s 19 ofLSA Act +Daily Lok Adalat 17 + 14 A. L. Traffic Mega Mega Traffic Lok 32 + Mahila Conciliation No. of sittingAdalatsLok of 23 - NIA 138 u/s & comp. Crl. + Bank recovery 22 - 35 CRL. COMP. 01 Concil. Mahila 5933+24= - COMP CRL. 02(Roh.) Concil. Mahila 117 = NIA 138 u/s & comp. Crl. + Bank recovery

91 Nyaya Kiran April-June, 2008 285 RS.- 63,23,399 NIA:- PAID:- COMPENSATION Settlement amt. Realized in Traffic L.A.= Rs. 13,92,695/- CASES:- SETTLED 05 Insurance Total AID:- Service in (KKD.+ROHINI) +33,250=82,950/- & U/S 138 CRL. COMP. Exclusively by DistrictLegal Taluk (Col.1to 4) Grand Total Settlement amt. Realized in 2,84,500+4,87,900=7,72,400/- FINE REALISED: D.V.B. dispensary light or water or sanitation hospital or - 52 92 225 LEGAL SERVICES AUTHORITIES ACT High Court Legal 01 telephone service Postal, telegraph Supply of power, Public Conservancy (1) (2) (3) (4) (5) Service or Authority Authority Legal ServicesCommittee Services Legal ServicesCommittees Services -1010------1010 6918 981 7899 - - - 5668 1290 6958 10575 2508 13083 23161 4779 27940 Exclusively by State 08 litigation litigation litigation litigation litigation litigation litigation litigation litigation litigation CRL. COMP. & U/S 138 NIA:-CRL. COMP. FINE REALISED: Rs. 52,200/- PAID:- COMPENSATION RS. 2,92,300/- P COMPENSATION COMPENSATION PAID:- COMPENSATION Traffic L.A.= Rs. 4,03,095/- 3,59,580=Rs. 6,52,875/- Rs. 13,16,200/- RS. 2,51,500/-Settlement amt. Realized in Traffic L.A.= Rs. 3,36,725/- Settlement amt. Realized in Traffic L.A.= Rs. 2,93,295+ Rs. 1,55,800/- RS. 63,23,399/- FINE REALISED RS. 20,650/- REALISED:- 49,700 BANK RECOVERY CASES:-RECOVERY BANK - & U/S 138 NIA:- & U/S 138 NIA:- CRL. COMP. CRL. COMP. RECOVERY BANK STATISTICAL INFORMATION IN RESPECT OF LOK ADALATS FOR THE MONTH OF MAY - 2008 FOR THE MONTH OF MAY ADALATS IN RESPECT OF LOK INFORMATION STATISTICAL STATSTICAL INFORMATION REGARDING PERMANENT LOK ADALAT ESTABLISHED UNDER SECTION 22B OF THE ESTABLISHED ADALAT REGARDING PERMANENT LOK INFORMATION STATSTICAL Number of sittings Permanent Lok Adalats for Public Utility Services No. of cases settledNo. of sitting Permanent Lok Adalat (DDA)Cases - 51 Total - 280 - - - 280 43 Transport Total no. of cases Total Settled (including 19 of LSA ActNo. of MACT = 81 cases settled Pre-MACT) PostAwarded amount Total Pre- Post Total Pre– Post Total Pre- Post Total Pre- Post Total No. of LokAdalats held u/s + M.A.C.T Lok adalat other than (MACT) 80

92 Nyaya Kiran April-June, 2008

STATISTICAL INFORMATION IN RESPECT OF LEGAL AID BENEFICIARIES FOR THE MONTH OF JUNE - 2008

Exclusively by High Court Exclusively by Taluk Legal Grand State Legal Legal District Services Total Authority Services Legal Services Committees (Col.1to 4) (Gole Mkt.+PHC Committee Authority (KKD.+ROHINI) +Jail) (1) (2) (3) (4) (5)

Schedule Caste 04+01=05 02 09 Nil 16

Schedule Tribe Nil - - Nil Nil

Backward Class Nil+01=01 02 - Nil 03

Women 80+20=100 02 17 22+37=59 178

Children Nil - - Nil Nil

In Custody 52+02+51= 105 01 60 81+23=104 270

Accidental Nil - - Nil Nil

General 52+04=56 - - 14+02=16 72

Total 188+28+51=267 07 86 117+62=179 539

STATISTICAL INFORMATION IN RESPECT OF LEGAL LITERACY/LEGAL AWARENESS CAMPS

Legal Literacy/Legal Awareness Camp Number of Beneficiaries 8 78

93 Nyaya Kiran April-June, 2008 111 03 286 02 (Col.1 to 5) Grand Total Centers Conciliation Counselling and Rohini KKD Legal Service Committees Services (4) Authority District Legal CONCILIATION FOR THE MONTH OF JUNE, 2008 CONCILIATION High Court Exclusively Exclusively by Taluk Committee court court court court court court court NIL+02 05 01 08 NIL 04 NIL Nil 72 72 Nil NIL +02 12 NIL 11 NIL 09 NIL 03 188 188 Nil (1) (2) (3) (5) (6) State Legal Legal Services Pre Referred Pre Referred Pre Referred Pre Referred Pre Referred Pre Referred Pre Referred =63 = 02 =22 =02 Exclusively by litigation the by litigation the by litigation the by litigation the by litigation the by litigation the by litigation the by 37+26 06+16 Services Authority (Gole Market+PHC) STATISTICAL INFORMATION IN RESPECT OF CASES SETTLED THROUGH COUNSELLING & INFORMATION STATISTICAL Number of cases received Number of cases settled

94 Nyaya Kiran April-June, 2008 03 87 87 rand Total (Col.1to 4) rand Total -1818 -2727 29 + Daily lok adalat = 21 + Civil cases = Mechanism + Bank recovery = 04 19 - 19 (KKD.+ROHINI) Post Total Pre- Post Total Pre- Post Total Authority Pre– Exclusively by District Legal Taluk G High Court Legal 21 (1) (2) (3) (4) (5) Exclusively by State Legal Services Authority Services Committee Legal Services Services Committees Pre- Post Total Pre- Post Total 26 +Daily Lok Adalat litigation litigation litigation litigation litigation litigation litigation litigation litigation litigation STATISTICAL INFORMATION IN RESPECT OF LOK ADALAT FOR THE MONTH OF JUNE – 2008 ADALAT IN RESPECT OF LOK INFORMATION STATISTICAL held u/s 19 of19 u/s held LSA Act + Bank recovery 04 No. of sittingAdalatsLok of ACRunder comp. Crl. Mechanism 01 NIL03 Cases Civil NIL01 = ACR under comp. Crl. Bank Recovery - 87 87 ------TOTAL 19 105 124 - - - - 27 27 - - - 19 132 151 cases Crl. Comp. cases 19Mechanism Daily Lok Adalat -CIVIL CASES - 19 - 18 - - 18 ------27 - 27 ------Offence under ACR

95 Nyaya Kiran April-June, 2008 280 BANK RECOVERY CASES:- Rs. 25,27,205/- urance Total SETTLED 05 Service in Ins (KKD.+ROHINI) Exclusively by DistrictLegal Taluk (Col.1to 4) Grand Total D.V.B. dispensary light or water or sanitation hospital or NIL 03 NIL 29 LEGAL SERVICES AUTHORITIES ACT High Court Legal NIL telephone service Postal, telegraph Supply of power, Public Conservancy (1) (2) (3) (4) (5) Service or Authority Authority Legal ServicesCommittee Services Legal ServicesCommittees Services ------19 105 124 - - - - 27 27 - - - 19 132 151 08 Exclusively by State litigation litigation litigation litigation litigation litigation litigation litigation litigation litigation BANK RECOVERY CASES:- RS. 25,27,205/- STATISTICAL INFORMATION IN RESPECT OF LOK ADALATS FOR THE MONTH OF JUNE - 2008 ADALATS IN RESPECT OF LOK INFORMATION STATISTICAL Settlement amount in - Settlement amount in STATSTICAL INFORMATION REGARDING PERMANENT LOK ADALAT ESTABLISHED UNDER SECTION 22B OF THE ESTABLISHED ADALAT REGARDING PERMANENT LOK INFORMATION STATSTICAL Number of sittings Permanent Lok Adalats for Public Utility Services No. of cases settledNo. of sitting Permanent Lok Adalat (DDA)Cases - 43 Total - 275 - - - 275 35 Transport Settled (including MACT) Awarded amount Total no. of cases Total 19 of LSA Act = 26 cases settled No. of MACT Pre- Post Total Pre- Post Total Pre– Post Total Pre- Post Total Pre- Post Total No. of LokAdalats held u/s + M.A.C.T Lok adalat other than (MACT) 26

96