From the Editor Desk......
At the outset I on behalf of Delhi Legal Services Authority wish the readers and patrons of Nyaya Kiran.. A Happy New Year and Colourful Holi. The new issue of Nyaya Kiran is in your hands and we have tried to incorporate all whatever has happened in this quarter from January to March, 2008 in this edition. Delhi Legal Services Authority has organized a talk on the Indian Experiments for Improving “Access to Justice” at Tis Hazari Court which was highly successful and the key-note address in the said conference was delivered by Sh. Marc Galanter a renowned Professor of Law (U.S.A) and expert on Indian Legal System. The two-day Training Programme on Protection of Women from Domestic Violence was organized by Delhi Legal Services Authority at V.K. Krishna Menon Bhavan on 2nd & 3rd February, 2008 and Booklet on Report & Recommendations on Domestic Violence was released by Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India. The interactive session of the programme was quite useful and the participants interacted quite freely with the distinguished guests and speakers and were suitably guided by the distinguished speakers. In the month of March, a function was organized in Tihar Complex on 11th of March, 2008 commemorating the International Women’s Day and a Booklet “UMEED” was released by Dr. Girija Vyas entailing details of women prisoners and the children accompanying them in the august presence of Hon’ble the Chief Justice & Patron-in-Chief , Delhi Legal Services Authority ; Hon’ble Executive Chairman, Delhi Legal Services Authority and other Hon’ble Judges from the High Court, Ms. Nafisa Ali, Film Actress & Social Activist and other Dignitaries. Spectacles donated by Venu Eye Centre headed by Dr. Tanuja Joshi were also distributed to the lady jail inmates who were in dire need of the same and a Toy Garden of which Toys were provided by the Rotary Club, New Delhi was also opened for the benefit of the Children was also opened for the benefit of the Children of jail inmates who were perforce made to live in the jail alongwith their mothers. On the last day of the month of March, a workshop was organized in Judges’ Lounge, Delhi High Court for devising ways and means to increase the disposal rate of the cases under section 138 of Negotiable Instruments Act, 1881, which were virtually choking the entire Justice Delivery Mechanism in Delhi. The said workshop was chaired by Hon’ble Mr. Justice S.B. Sinha, Judge, Supreme Court of India & Member, Arrears Committee and was also attended by Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in- Chief, Delhi Legal Services Authority; Hon’ble Mr. Justice T.S Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority and other Hon’ble Judges of High Court of Delhi, besides Judicial Officers from Delhi District Judiciary and very high ranking officers of the Financial Institutions and Banks. The participants discussed various strategies and gave different suggestions for improving upon the disposal rate of these cases and it was decided that all the participants shall give their suggestions to Delhi Legal Services Authority, which shall thereafter compile the same and after incorporating the views of Hon’ble Judges, a fresh meeting will be called where in the representatives of all concerned shall participate and thereafter suggestions and strategies shall be finally formulated. I would also like to take this opportunity to express my thanks to Sh. A.K. Sarpal, Officer on Special Duty who has since been repatriated to his parent cadre after working tirelessly for Delhi Legal Services Authority for the past one - and - a - half years. I would also like to introduce the readers and patrons to the new additions to Delhi Legal Services Authority family. Sh. V.K. Gupta has joined Delhi Legal Services Authority as Officer on Special Duty and Sh. A.K. Chaturvedi has joined as Special Officer, Delhi Legal Services Authority. Hoping continued cooperation from our esteemed readers.
SANGITA DHINGRA SEHGAL MEMBER SECRETARY DLSA NYAYA KIRAN VOLUME - II ISSUE - I JAN. – MAR., 2008
DELHI LEGAL INDEX SERVICES AUTHORITY Page No.
Patron - in - Chief Message By Hon'ble Mr. Justice S.B. Sinha, Hon’ble Dr. Justice M.K. Sharma* Judge, Supreme Court of India Chief Justice, High Court of Delhi Executive Chairman Message By Hon'ble Dr. Justice M.K. Sharma, Hon’ble Mr. Justice T. S. Thakur** Chief Justice, High Court of Delhi Judge, High Court of Delhi ARTICLE SECTION Chairman, Delhi High Court Legal Services Committee 1. ADR VISION 2025 1 Hon'ble Mr. Justice Manmohan Sarin - Hon’ble Mr. Justice Mr. Justice S.B. Judge, High Court of Delhi Sinha Judge, Supreme Court of India Member Secretary Ms. Sangita Dhingra Sehgal 2. Critical Analysis of the Protection of 23 Addl. District & Sessions Judge Women from the Domestic Violence Act. Address : - Ms. Geeta Luthra, Advocate, Delhi Legal Services Authority, LLM, M. Phil (Cambridge) Central Office, Pre-fab Building, Patiala House Courts, 3. Power of Police to Investigate 31 New Delhi-110 001. Cognizable Offences Vis-a-vis Tel. No. 23384638 Fax No. 23387267 Judicial Pronouncements - Dr. Shahabuddin, Permanent Legal Services Clinic, Metropolitan Magistrate Room No. 54 to 57, Shaheed Bhagat Singh Place, 4. Right to Livelihood of Prisoners Vis-a-vis 39 Gole Market, New Delhi. Sentencing Jurisprudence Tel. No. 23341111, - Mr. Kiran Bansal, Fax No. 23342222 Metropolitan Magistrate Toll Free No. 12525 JUDGMENT SECTION Website : www.dlsa.nic.in E-mail : [email protected] 1. Re: Illegal Detention of Machal Lalung, 58 Editorial Committee [WP (Crl.)No. 296 of 2005] with Re: News Item “38 Yrs in Jail Without Chairman Hon’ble Mr. Justice T.S. Thakur Trail” published in Hindustan Times, Judge, High Court of Delhi & Executive Dt. 06.02.06 Versus Union of India Chairman, Delhi Legal Services Authority [WP(Crl.) No. 18 of 2006] Member - Ms. G.M. Padma Priya Hon’ble Mr. Justice S.N. Dhingra Advocate, High Court of Delhi Judge, High Court of Delhi Member 2. Budayena and Others V. Russia 62 Hon’ble Dr. Justice S. Muralidhar (Application nos. 15339/02, 21166/02, Judge, High Court of Delhi 20058/02, 11673/02 and 15343/02) Editor-in-Chief - Ms. G.M. Padma Priya Hon'ble Ms. Justice Hima Kohli Advocate, High Court of Delhi Judge, High Court of Delhi Editor FUNCTION REPORT Ms. Sangita Dhingra Sehgal PHOTO GALLERY Member Secretary PRESS CLIPPING SECTION Delhi Legal Services Authority STATISTICAL INFORMATION
* At Present Judge, Supreme Court of India ** At Present Acting Chief Justice, High Court of Delhi S. B. SINHA Judge Superme Court of India
MESSAGE
It gives me immense pleasure to learn that Delhi Legal Services Authority is going to publish an Annual Issue of its official news letter "Nyaya Kiran".
The Concept 'Nyaya Kiran', as the name conveys, aims at radiating the protection and dignity of 'Justice' to all, especially to socially backward and feeble section of the society. It proliferates the concept of 'Social Economic and Political Justice' and 'Equality before law' which are the basic structure of the Constitution of India.
Poverty, illiteracy, backwardness and ignorance are those evils which make it difficult for an ordinary citizen to have the legal remedies and hence they act as the hurdle between fulfillment of the objective of Article 39-A of the Constitution of India.
I am happy to say that Delhi Legal Services Authority has geared up its activities to meet this challenge and is taking initiatives in formulating and implementing new schemes for the poor and downtrodden people.
I wish these endeavours a great success and hope that this news letter published on this occasion will be useful and informative to every common man.
[ S. B. SINHA ] DR. MUKUNDAKAM SHARMA CHIEF JUSTICE
MESSAGE
It is heartening to know that Delhi Legal Authority is shortly publishing the next issue of its quarterly magazine 'Nyaya Kiran'. Nyaya Kiran gives an insight to the activities of the Authority in the field of legal aid and awareness. The Authority is doing a creditable service by creating awareness among the needy and the poor about their legal rights including their rights to get access to justice. I have gone through the last issue of Nyaya Kiran and found the articles on 'Plea Bargaining' and 'Domestic Violence Act' very informative and useful. I am confident that the Authority is moving in the right direction in achieving its objectives. I wish all success to the publication.
[ DR. MUKUNDAKAM SHARMA ] Nyaya Kiran January-March, 2008
ARTICLE SECTION ADR VISION 2025
Hon’ble Mr. Justice S.B. Sinha, Judge, Supreme Court of India
The former President of India, Dr. A.P.J. Abdul Kalam in his recent speech envisaged India as a fully developed nation by the year 2020.
What does a developed nation need to have in place to attract Foreign Institutional Investors and sustain a high economic growth?
The answer lies in Alternate Dispute Resolution. The primary object of ADR system is avoidance of vexation, expense and delay and the promotion of the ideal of “access to justice”. With the dawn of the new age of technology and innovation, time-being money, more and more individuals, business houses and entities were convinced of the need to adopt ADR to settle disputes. The Indian Judiciary, already overburdened with countless cases filed every day, needed a respite from the crushing burden of backlog of cases which had virtually paralyzed the legal system rendering it unequal to meet the daunting challenges of the new era. Apart from the Court Fees and the fees of the Lawyers, which doubtless have skyrocketed, a whole lot of other incidental and hidden costs, in terms of time and talents, are involved in litigating in courts.
MEANING OF ALTERNATE DISPUTE RESOLUTION
According to Black’s Law Dictionary the word alternative means ‘giving an option’. Similarly the word dispute means a ‘conflict’ or ‘controversy’. In the same manner the word resolution means a ‘formal expression of an opinion’. In totality an inference may be drawn as, for resolving a justifiable controversy an option other than conventional method. ADR is a term, which refers to various procedures developed in U.S.A. Following its inspiration, several countries including Australia, Canada, Germany, Holland, Hong Kong, New Zealand, South Africa, Switzerland and the United Kingdom have been using the said system which encourages the disputants to arrive at a negotiated understanding with a minimum of outside
1 Nyaya Kiran January-March, 2008 help; its primary object being avoidance of vexation, expense and delay and promotion of the ideal of “access to justice for all”.
MECHANISMS OF ADR: ARBITRATION MEDIATION CONCILIATION/RECONCILIATION NEGOTIATION LOK ADALAT
ADVANTAGES OF ADR:
Reliable information is an indispensable tool for adjudicator. Judicial proceedings make halting progress because of reluctance of parties to part with convenient information. ADR moves this drawback in the system.
In mediation or conciliation, parties are themselves prodded to take a decision, since they themselves are decision-makers.
Formality involved is lesser than traditional judicial process and costs incurred are very low in ADR.
It can be used any time, even when the case is pending before the court of law.
The cost involved is less, the time required to be spent is less, the mechanism is efficient and the possibility of avoiding a disruption is less.
There is a huge backlog due to delays caused by innumerable reasons. ADR is seen as a method of speedy disposal of cases and therefore a very viable option.
THE EXISTING ADR MECHANISM IN INDIA:
In view of the case arrears there was a need was felt for establishing an efficient ADR system. The Government of India repealed the old Arbitration Act, 1940 and introduced new and
2 Nyaya Kiran January-March, 2008 effective arbitration system by enacting the Arbitration and Conciliation Act, 1996.
The Legal Services Authorities Act, 1987 has also been amended from time to time to update it with regard to ADR methods. The National Legal Services Authority is empowered to encourage the settlement of disputes by way of negotiations, arbitration and conciliation. Similarly several special courts, such as the family courts, now utilize ADR and even the Supreme Court has begun to refer matrimonial and other suitable matters to mediation and conciliation. Now almost all commercial contracts contain a clause for arbitration in the event of a dispute arising.
The Code of Civil Procedure, 1908 recognizes the rights of the parties to enter in to compromise and withdraw the suits on that basis.1
The amendments made to the CPC by amendment Act 46 of 1999 and Amendment Act 22 of 2002 seek to institutionalize ADR techniques in the Indian Judicial System.2
ADR MECHANISM SUFFERS
In spite of the advantage arbitration has over the regular justice delivery systems our recent experience shows that arbitration is also getting afflicted with the same ills from which the regular system suffers.
Like in litigation there are three main players in this field of arbitration, i.e., the parties to the dispute, the lawyers and the arbitrators. At an interlocutory stage the dispute is taken to regular
1 Order 23, Rule 3 enables the parties either to abandon the claim or request the court to record the compromise between the parties. Under Order 14, Rule 6, an agreement may be entered in to by the parties in writing that upon a decision on an agreed question of fact or law as stated by them, the result would follow as specified in the agreement. Order 27 Rule 5-B of C.P.C. envisages a duty on the part of a judicial officer to assist the parties to arrive at a mutual settlement. Under Order 32-A, Rule 3, it is the duty of the court to endeavor to assist the parties in arriving at the settlement in respect of the subject matter of the suit or proceeding concerning family disputes.
2 By the said amendments new Section 89 has been introduced in the CPC
3 Nyaya Kiran January-March, 2008 courts for their intervention and ultimately after the award is passed another round of litigation is initiated.
In the situation the need of the day is to explore the possibility of creating a dispute resolving machinery otherwise than the court and arbitration. Emphasis must be laid to the need of establishing a culture of amicable solution of disputes whether at a post-litigation or pre- litigation stage. But this leads us to the question whether it is really an alternate resolution system or it is additional dispute resolution system, does it supplement or supplant the present judicial system.
Importance of the subject can be gauged from the fact that India has recently entered into bilateral investment protection agreement with the United Kingdom, Germany, the Russian Federation, the Netherlands, Malaysia and Denmark. Each agreement makes provisions for settlement of disputes between an investor of one Contracting Party and the other Contracting Party in relation to an investment of the former through the following ADR procedures, negotiation, conciliation and arbitration. India is also a party to the Convention, Establishing the Multilateral Investment Guarantee Agency which provides for settlement of disputes between States, parties to the Convention and the Multilateral Investment Guarantee Agency through negotiation, conciliation and arbitration. There are a number of agreements in other sectors to which India is a party containing provision for dispute resolution through ADR procedures.
In view of this, it becomes urgent to envisage an ADR mechanism that is fool proof and is not an alternative to litigation, but is the only recourse to settlement of disputes. Thinking prospectively, if the arrears continue to alarmingly mount as in the present, there would come a time when the adversarial system would collapse. With advent of Foreign Direct Investment ands signing of bilateral contracts everyday, there are disputes regarding interpretation of such contracts. The people in India having lost faith in the adversarial system and even the ADR system becoming ineffective, we would have a time in 2025, when there would be no rule of law and India would be doomed.
4 Nyaya Kiran January-March, 2008
On the other hand, we can also foresee a developed India in 2025, where the ADR mechanism would be so effective, that there would be expeditious disposal of cases without recourse to the courts. There would be two set of lawyers, one who exclusively deal in the ADR system and the other, the traditional adversarial lawyers.
The question then arises is what ADR mechanism should have in place in the year 2025, so as to become a developed nation?
Perhaps the answer lies in looking closely at the mechanism in place in the other developed countries. In Japan, USA and England the ADR has developed a lot where the litigants take recourse to ADR in more than 75 per cent of cases.
Let us thus look at the mode of implementation of the ADR mechanism in the United Kingdom and United States, and thus, draw a comparative analysis of the existing ADR mechanism in India, and what should be done to have an effective mechanism in place.
UNITED KINGDOM
In many matters like Commercial suits, directions may be introduced with reference to relevant rules, e.g., practice directions, specimen documents and check list in the light of paragraphs 72/ A1 0 72/A-30 of the Supreme Court Practice introduced in March 1990 by Hobhouse J.
In United Kingdom alternative dispute resolution has more recently come to form an integral part of the Commercial Courts’ own procedure. By a Practice Statement issued on 10th December, 1993, Crasswell J stated that in future cases, the Commercial Court would invite the parties to consider possible additional methods of resolving their dispute, and would retain a list of bodies offering conciliation and arbitration services. This would be emphasised where the amount at stake was relatively small in relation to the likely costs of a full trial.
The role of ADR under the 1993 practice note was extended by a further Practice Notes issued on 24th January, 1995 which is concerned with the length and cost of civil litigation and sets out
5 Nyaya Kiran January-March, 2008 check list of questions to be answered and lodged with the Court not later than two months before the date of hearing. Some of the said questions are as follows:
“10. Have you or counsel discussed with our client(s) the possibility of attempting to resolve this dispute (or particular issues) by alternative dispute resolution (ADR)?
11. Might some form of ADR procedure assist to resolve or narrow the issues in this case?
12. Have you or your client(s) explored with the other parties the possibility of resolving this dispute (or particular issues) by ADR?”
It is necessary to make reforms in Court organisation and Court procedures. ADR should be employed by the Courts and legal practitioners as frequently as possible.
UNITED STATES OF AMERICA
In Texas, courts may order parties to undertake non-binding ADR procedures such as Arbitration,Mediation,Settlement Conference, Settlement Weeks, Ministerials, Summary jury trials and Early neutral evaluation.
Courts can also direct parties to refer a case to be dealt with by way of arbitration by a third party, whose finding is initially non-binding. Such practices are prevalent in United States of America, Australia and some other countries. It is known as court annexed arbitration.
Similarly court annexed mediation process may also be taken recourse to and is regarded as complementary rather than alternative to litigation.
Conciliation has been extended by courts in family matters including children’s issues which may cover also financial and property issues.
In U.S.A. Judicial settlement conferences and settlement weeks have resulted in a high success rates.
6 Nyaya Kiran January-March, 2008
Courts also appoint ‘Neutral Expert Fact Finding’ to provide evidence before the court which may then be tested in courts.
With a view to evaluate the strength and weakness of the respective cases of the parties, disputes are referred to third-party lawyer within 160 days of the commencement of litigation. The system is known as Early Neutral Evaluation.
In some of the federal states of U.S.A., legislation has been passed to provide for private judging (also known as ‘Rent a Judge’) such as Texas, California, New York, Ohio and Oregon.
High-low contract is a procedure where the parties may agree that if the finding on an issue by adjudication is decided against a party the amount of damages, etc., shall be within the parameters of the financial award.
Multi-Door Courthouse system which has been developed in U.S.A., if followed, could offer the prospect of greater access to justice and more economical and faster resolution of disputes.
Professor Frank E.A. Sander who was the author of the said system identified two important questions:
“(1) What are the significant characteristics of various alternative dispute resolution mechanisms (such as adjudication by courts, arbitration, mediation, negotiation, and various blends of these and other devices)?
(2) How can these characteristics be utilised so that, given the variety of disputes that presently arise, we can begin to develop some rational criteria for allocating various types of disputes to different dispute resolution processes?” Upon analysing various factors of the comparing systems the learned Professor recommended.
“…. A flexible and diverse panoply of dispute resolution processes, with particular types of cases being assigned to differing processes (or combinations of processes), according to some of the criteria previously mentioned. Conceivably
7 Nyaya Kiran January-March, 2008
such allocation might be accomplished for a particular class of cases at the outset by the legislature, that in effect is what was done by the Massachusetts legislature for malpractice cases. Alternatively, one might envision by the year 2000 not simply a court house but a Dispute Resolution Centre where the grievant would first be channeled through a screening clerk who would then direct him to the process (or sequence of processes) most appropriate to his type of case.”
The theory of Professor Sander has been tested in different States of United States of America such as Columbia, New Jersey, Houston and Philadelphia and a number of American cities or countries now offer multi-door programme.
The programmes enable a member of the public to contact the court in person or by telephone, with a complaint or dispute. A preliminary analysis will then be made of the case in order to be able to recommend which dispute resolution process is most suitable to resolve it. Various criteria will be applied including, for example, the kind of issues involved, what kind of compensation is likely to be awarded if successful, whether witnesses or other evidence will be needed, whether rights need to be protected and what services are available. The inquiring party is then advised about the processes that might be most appropriate to the case and is given relevant referral details, which may be to departments within the court, or may perhaps be to outside agencies.
The mediation and conciliation programmes in San Francisco and State of Ohio, have developed a floating calendar system for processing the cases.94 per cent cases are referred to mediation and conciliation of which 46 per cent are settled. If at all a case has to go for trial , the trial concludes in 14 months calculated from the date of institution of case.
INDIA-SOWING THE SEEDS FOR THE FUTURE
Looking at the success rate of the ADR mechanism in the developed countries, ideally, the ADR structure in India should now provide for the following:
8 Nyaya Kiran January-March, 2008
1. HAVE AN ADR CHECKLIST3:
Once a court decides that it would like to have an ADR Plan, what is the next step?
The ADR Plan Checklist responds to this question by providing a sequence of steps local courts can follow to adopt and implement an approved ADR Plan.
The ADR Plan Checklist can also be helpful to courts and ADR Committees in administering and evaluating existing approved ADR plans. In this instance, the chronological sequence of the tasks set forth in the ADR Plan Checklist may not be important. Rather, the court and/or the ADR Committee may be interested in focusing on improvements or modifications to various aspects of the Plan addressed in the Checklist.
For example, in the initial development of a plan, a particular court may have worked without an ADR Committee. In plan administration, the court may find it beneficial to use a committee in developing policies and procedures. In that case, the portion of the Checklist addressing committee development could be helpful.
The ADR Plan Checklist endeavors to share lessons learned by those courts with existing ADR plans, so that all courts can learn from experience around the state.
The ADR Plan Checklist also anticipates actions courts will need to take in the future, such as evaluating their ADR plan. As courts gain more experience in implementing and administering their ADR plans, the ADR Plan Checklist can be revised and expanded.
In the meantime, it is a means to assist local courts in maintaining their reputation for excellence as they add ADR processes to complement the services courts already offer.
3 The ADR Plan Checklist was developed by attorney-mediators Dale Ann Iverson and Anne Bachle Fifer based on input from ADR Clerks and court staff around the state and on their own experience in co-facilitating the work of the Kent County ADR Advisory Committee as it developed that county’s ADR plan.
9 Nyaya Kiran January-March, 2008
2. CASE REFERRAL TO COURT-ANNEXED4 ADR:
In India, the Arbitration and Conciliation Act provides for ADR only if both the parties consent. Thus, presently, there is a voluntary ADR referral in place.
The time has come to make certain cases compulsorily referred by the court to ADR by introducing the Court annexed ADR. In this mechanism, the court ADR staff can on a case to case basis, automatically refer certain type of cases for compulsory ADR. Certain cases can be exempted from such reference, as for example, Pro se cases and cases involving important rights.
Further, there should be certain participatory requirements that must be imposed in the court-annexed ADR process, such as court rules, judges in individual cases or neutrals specifying who must attend the ADR sessions. Attendance by a client or settlement authority should be preferred. There can also be sanctions imposed by the courts on the parties or their lawyers for less than good faith participation in ADR.
The contents of the ADR referral orders could consist of the following:
1. Spell out the type of ADR process and required submissions
2. Establish identity of the neutral or how the neutral is to be selected.
3. Set forth party participatory requirements
4. Provide for confidentiality of ADR process
5.Adreess neutral compensation and cost sharing issues
All court – annexed ADR should then be made binding on the parties.5
4 Here, the proceedings are conducted by an officer of the court.
5 All court-annexed ADR in US is non-binding unless all parties agree to make it
10 Nyaya Kiran January-March, 2008
3. APPOINTMENT OF NEUTRALS:
Neutrals are: Other judges Magistrate judges Retired judges Special masters ADR professionals on court’s staff Outside private parties and organizations.
There is a need to bring in neutrals in the ADR mechanism as they can observe the proceedings in the court, and recommend the kind of ADR that would suit the disputing parties .
4. SET AN ADR TIME GUIDELINE:
Apart from having an effective ADR mechanism, the other necessity is having a time line in place, which should be strictly adhered to for the expeditious resolution of the dispute. The court rules must specify timing of ADR. Timing may depend upon the chosen ADR process.
5. ONLINE DISPUTE RESOLUTION:
Due to increasing use of the Internet worldwide, the number of disputes arising from Internet commerce is on the rise. Online dispute resolution (“ODR”) can take place either entirely or partly online and concerns two types of disputes: those that arise in cyberspace and those that arise offline. As Internet usage continues to expand, it has become increasingly necessary to design efficient mechanisms for resolving Internet disputes because traditional mechanisms, such as litigation, can be time-consuming, expensive and raise jurisdictional problems. Offline disputes, on the other hand, can be addressed with traditional dispute resolution mechanisms supplemented with online technologies.
In the United States, online dispute resolution has become common. There are cyber-mediation websites. They offer services
11 Nyaya Kiran January-March, 2008 that are entirely online and focus primarily on negotiating monetary settlements. Typically, an aggrieved individual (or, in most cases, his or her insurer), initiates a claim by logging onto the service’s secure website and setting a deadline for resolution, which is typically 30 to 60 days. The service then emails the other party to let him or her know that a settlement offer has been proposed and also gives them access to the website. The party can either accept or decline to participate. If they decide to participate, he or she logs onto the website and submits a demand. Computer software automatically compares the demand with the settlement offer and emails both parties to let them know whether they are within the “range” of settlement or whether there has been any movement towards settlement.
Certain websites6 both allow three rounds of bidding. The cyber- negotiation starts off with the initiating party entering settlement offers ranked for the first, second, and third rounds and expiration dates for those rounds. Computer software then emails the other party explaining that a settlement offer has been made and requests the other party to put forth counteroffers for the first, second, and third rounds. Computer software then compares the offers and counteroffers for each round to ascertain whether the parties have reached a settlement. If the software determines that a settlement has not been reached, then their offers remain confidential and future bargaining positions are unaffected.
Still others7, allow many rounds of offers and counteroffers within a specified period of time. To ensure that the negotiations take place in good faith, parties are required to increase (or decrease) their offer (or counteroffer) by a specified percentage over their previous offer (or counteroffer). If a settlement is not reached within the specified time period, then the offers expire and the cyber- negotiation fails. The parties are, of course, free to resubmit their claim or move forward with another dispute resolution mechanism, such as arbitration or litigation.
6 Cybersettle and SettlementOnline
7 ClickNsettle
12 Nyaya Kiran January-March, 2008
Further, other websites8 use an innovative negotiation process and a powerful computer software program that enables multiple parties to participate in interest-based negotiation. The process has several phases and “uses optimization . . . to transform conflicting objectives into fair and efficient solutions.” Initially, a third party facilitator works with the parties either in person or over the Internet to help them express their interests and identify issues. The facilitator is an attorney who has completed a special 30-hour online training course. He or she helps the parties model a negotiation problem and complete a “Single Negotiation Form,” which outlines the underlying agreement and leaves blanks for unresolved issues. The facilitator then works with each party individually to elicit their own initial confidential preferences among each of the issues and possible outcomes. Once the parties’ data is entered into the website, the software uses it to develop settlement packages for the parties to consider. The facilitator continues to work with the parties to evaluate settlement packages and to refine preferences. If the parties choose the same settlement package or “solution,” the software attempts to generate improvements in order to maximize the benefits to both parties. Once a party wishes to terminate the negotiation, a final written agreement is drafted with the current solution and signed by all of the parties.
Mediation firms have established certain websites9 to facilitate the resolution of disputes. Although these websites rely primarily on online technologies such as e-mail, chat rooms, and instant messaging, they also incorporate more traditional communication methods into the negotiation process. Typically, a party contacts the service and fills out an online form that identifies the problem and possible resolutions. A mediator then reviews the form and contacts the other party to see if they will participate in the mediation. If the other party agrees to participate, they can fill out their own form or respond to the initial from through e-mail. This initial exchange of views may help the parties to understand the dispute better and possibly to reach an agreement. If the dispute remains
8. OneAccord
9 Internet Neutral, Square Trade and Web Mediate
13 Nyaya Kiran January-March, 2008 unresolved, the mediator will work with the parties to help determine issues, articulate interests, and evaluate potential solutions.
ADVANTAGES OF CYBER-MEDIATION:
As with traditional mediation, online mediation allows the mediator to adapt the process to address the particular needs of the disputants.
In addition to enhancing some of the benefits of traditional mediation, there are also advantages to resolving disputes over the Internet. The process will allow for greater flexibility, more creative solutions and quicker decisions. In particular, the benefits of cyber- mediation also include cost savings, convenience and the avoidance of complicated jurisdictional issues.
1. Cost Savings and Convenience :
As with traditional mediation, a benefit of mediation over the Internet is that it can provide substantial savings when compared with traditional litigation, which can be extremely costly. In fact, cyber-mediation may be the only feasible option for individuals who are unable to afford traveling long distances, or for those involved in e-commerce disputes for low dollar amounts.
There are also several benefits that stem from the asynchronous nature of e-mail communications. Messages are not transmitted live, but can be written and then later sent. Since e-mail and web postings can be written, posted and responded to at any time, participating in cyber-mediation is substantially more convenient. The amount of idle time that disputants experience is similarly reduced because, in contrast to traditional mediation, the mediator can devote time to one party without wasting the time of the other party, who would traditionally sit around waiting for the next mediation stage.
2. Avoidance of Complex Jurisdiction Issues:
A key advantage of resolving disputes through the use of cyber- mediation is that it avoids the issue of whether a particular court has jurisdiction over the dispute. Since disputants can bind
14 Nyaya Kiran January-March, 2008 themselves to resolution through an agreement, jurisdictional issues can be avoided altogether.
Thus, in lieu of the success of online ADR and the benefits accruing through it, in India, we must have Multi court houses, which can advise the disputant online as to which type of ADR shall be suitable to the disputants.
6. OTHER RECOMMENDATIONS:
Recommendations about the structure of the dispute resolution by 2025 may also include the following:
The citizens should be able to use the courts to initiate non- adversarial dispute resolution processes without filing a lawsuit.
All courts should routinely make available a continuum of dispute resolution tools, from mediation and other forms of assisted negotiation to arbitration and traditional litigation. Court intake staff should be familiar with all of these options, and trained to evaluate disputes and assign them to an appropriate track. In some types of cases (e.g., juvenile and domestic cases in which vital relationships need to be preserved), mediation may be a mandatory first step, but the right to a trial should be preserved and parties should not be penalized if they fail to reach agreement through mediation.
Courts should employ well-qualified mediators as deemed appropriate and make effective use of outside resources to deliver non-adversarial dispute resolution services.
Courts should make appropriate use of collaborative/ consensus-based processes in resolving mass tort cases and public policy disputes.
With the consent of crime victims, mediation should be employed before filing of charges in some lower-level criminal and delinquency cases such as neighborhood disputes, graffiti, or shoplifting. Mediation/restorative justice processes should
15 Nyaya Kiran January-March, 2008
also be considered, with the victim’s consent, after charges are filed in some nonviolent delinquency, misdemeanor and low-level felony cases involving first offenders.
The Supreme Court and High Courts should explore ways in which mediation and collaborative policy setting can expedite resolution of appellate cases and public policy disputes.
Courts using mediators in court programs must retain and supervise qualified mediators.
JUDICIAL ENDEAVOUR
Even with a view to make the Central Govt. or the state Govt. or other local bodies avoid unnecessary litigations, section 80 of the CPC contains provisions for serving notice of two months on these bodies before enforcing the claim in the courts. The reason is to avoid recourse to the courts and the claims are settled amicably.
In a large number of cases it has been noticed that litigation is mainly between the various State Governments or Central Government and a Public Sector Undertaking. The recent Supreme Court decisions have been following the trend to prevent frivolous matters from coming to court and wasting public money and time as was laid down in Oil & Natural Gas Commission v. Collector of Central Excise10 where there was a dispute between a public sector undertaking and the Government of India. In this matter the Cabinet Secretary, who was looking into the matter, was directed to handle it personally and report to the Court within four weeks, giving reasons for conducting such litigation in order to come to a speedy conclusion. In the cases that followed as in Oil & Natural Gas Commission v. Collector of Central Excise11 the Supreme Court directed the Government of India to constitute a committee consisting of representatives from Ministry of Industry, Bureau of Public Enterprises and Ministry of Law to monitor disputes between Govt. Depts. and public sector undertakings of Govt. of India and to ensure
10 1992 Supp (2) SCC 432
11 1995 Supp (4) SCC 541
16 Nyaya Kiran January-March, 2008 that no dispute comes to court or tribunal without the Committee’s prior examination and clearance as it was the obligation of every court and tribunal to demand clearance from the Committee because without clearance, the proceedings could not be proceeded with. Also Quarterly report on the functioning of the Committee had to be submitted to the Supreme Court Registry.
Further in Punjab & Sind Bank v. Allahabad Bank & Others12 the Division Bench upheld the view of the Single Judge that the Supreme Court never intended to extinguish the right to sue and that the intention was mainly to avoid litigation when the parties are government or its undertakings.
This case was followed by the Supreme Court in the recent decision of Oil and Natural Gas Corporation Ltd. Vs. City and Indust. Dev. Corpn., Maharashtra and Ors.13
To summarize it can be said that the Supreme Court is making attempts to overcome the failures of S. 80 of C.P.C. and prevent frivolous matters from coming to court which only wastes the precious time and other resources of the public. There has been a sincere attempt to provide simple, speedy, cheap, effective and substantial justice.
SECTION 89 CPC
The formal acceptance of ADR not just as an ‘alternative’ means, but as an additional method utilized by the courts has never been more apparent than it is via Section 89 of the Code of Civil Procedure w.e.f. 1.7.2002.
The purpose of bringing Section 89 in the body of the Code has been so stated in the object clause – “with view to implement the 129th report of Law Commission of India and to make conciliation scheme effective, it is proposed to make it obligatory for the court to refer the dispute after issues are framed, for settlement either by
12 2006 (3) Scale 557
13 2007(9)SCALE 299
17 Nyaya Kiran January-March, 2008 way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. Due to this clause, at the very stage of framing of issues the judge can use his discretion to find the most appropriate means of resolution of a matter before him and if necessary refer the matter to Arbitration, Conciliation, Judicial Settlement including Lok Adalats, Mediation, etc.
The draft mediation rules so framed by the Chairman, Law Commission, Justice M. Jagannadha Rao in Salem Advocate Bar Association, T.N. v. Union of India14 accepted by the Supreme Court clearly suggest that the High Courts and the District Courts are required to play a significant role. They are not only required to impart legal education to people in general but the members of the legal and judicial fraternity in particular so that the Judiciary can achieve the optimum needs and benefits of mediation.
MY ADR VISION 2025:
In a nutshell, my ADR vision of 2025 is :
Mediation will be digitalized
The client will see his lawyer through online medium only. The mediation thus would be across a paperless table.
We will have E-Courts. The mediators would advise the disputants online as to which type of ADR shall suit the disputant’s case.
Most of the courts dealing with civil cases would then be empty.
We would have a large number of officers who would do Early Neutral Evaluation(E.N.E.).
14 (2005) 6 SCC 344
18 Nyaya Kiran January-March, 2008
WHAT IS TO BE DONE
In order to have my vision of 2025, what steps should be taken in the present?
Several issues raise their head and call for consideration and resolution:
1. Need for training: Today, there is a huge backlog of cases in India. As per the available information15, 39.7 thousand cases in the Supreme Court, 39.9 lakh cases in the High Courts and 2.63 crore cases in the subordinate courts were pending as on December 31, 2006.
India aspires to become a developed country by 2020.It requires a huge foreign investment. The foreign investors would ordinarily look forward to not only for an appropriate judicial system in the country in place which would uphold the rule of law but also appropriate dispute mechanism, which would include mediation.
The adoption of ADR methods needs a change in mindset of the people who administer these techniques. From a staunch adversarial mindset, they have to adopt a more conciliatory and non interfering stance in order to bring complete justice. This transition is not easy and thus, training programmes are now being seen as essential to the successful implementation. With a view to spread the message of ADR, we have to build each step of mechanism scientifically and methodically. A detailed ADR literacy programme has to be chalked out.
There is a need for training both lawyers, members of the legal aid committees and judicial officers in the ADR techniques. Issues regarding determining whether ADR is appropriate in a given case, the timing of an ADR process and the type of process that should be used needs much attention. Equally important is the need to create adequate awareness of the ADR techniques and system.
15 Minister of Law and Justice, H.R. Bharadwaj in a written reply in the Rajya Sabha [From Law Z, Vol. 7, No. 6, Issue 70, June, 2007]
19 Nyaya Kiran January-March, 2008
Extensive training would also be necessary to be imparted to those persons who intend to act as facilitators, mediators, conciliators. It is also necessary to have trained welfare experts, family counselors who would not only have fair knowledge in the branches of law they are required to deal with but also with psychology, sociology etc. as a fair knowledge of the said subjects have a direct impact on the job. Indisputably, the judges and judicial officers should also be imparted requisite training. We are ill- equipped for this purpose.
Similarly, the matrimonial courts and family courts are unable to effectively settle the dispute as they do not have either the requisite training or the mindset thereof.
A qualified mediator must undergo 30 to 40 hours of general mediation training which would include experience in mediation either as an observer or a co-mediator or participant in role-plays or mock practices. Within a few months, it is expected that the qualifications of a mediator shall be prescribed.
A mediator or a conciliator may have to obtain a Post Graduate Diploma before rigorous training can be imparted. Like ICADR center of Hyderabad, Bombay University or ILJ, several other institutions of reputation should open up for imparting education on ADR in Post graduation degrees. We may expect the Mediator Institute to run on a regular basis.
The judicial officers must also be trained to identify cases which would be suitable for taking recourse to a particular form of ADR. They must be able to identify cases which are capable to being resolved through the ADR mechanism and that too which one of them would be suitable for the said purpose having regard to the facts and circumstances obtaining therein.
2. There may be a new statute governing mediation.
3. There may be a separate disciplinary body for the mediators.
4. There could be a separate bar practicing ADR.
5. There could be a separate facilitation centre.
20 Nyaya Kiran January-March, 2008
6. The United Kingdom is known as the ‘Legal Twist Point’. It is home to numerous international arbitrations. Also, much arbitration is now even going to countries like Paris, Singapore, Malayasia and other South-Eastern countries. The contracts concluded between multinationals in India, which provide for an arbitration clause in the event of any dispute between the parties, are providing for the venue of arbitration in London instead of our own country. Today India is fast becoming the outsourcing hub for medical and educational services.
At this junction, it becomes vital to introspect our ADR laws and bring it at par with those of the other developed countries, to make India a tourist centre for the litigants.
CONCLUSION
The measures that I am recommending are not impossible. They are based upon the ADR structure in place in the developed countries. We can certainly borrow upon their experience which is richer to ours in time and suitably adapt the same. In the United States, mediation and conciliation were the gifts of judicial activism.16 The new order soon became popular and now a separate and sizeable mediation bar has developed, the members whereof practice exclusively mediation alone.
In India, faith of the bar in the ADR system and co-operation between the bar and the judiciary can go a long way in implementing the suggestions.
Let me conclude by quoting Justice Warren Burger, the former CJ of American Supreme Court. He had observed and I quote:
‘The harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and bridges of judges in numbers never before contemplated. The notion- that ordinary people want black robed judges, well-dressed
16 The members of the bar were initially reluctant and showed their disinclination. The congress then passed a legislation giving statutory recognition to mediation and conciliation.
21 Nyaya Kiran January-March, 2008
lawyers, fine paneled court rooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible.’
22 Nyaya Kiran January-March, 2008
“CRITICAL ANALYSIS OF THE PROTECTION OF WOMEN FROM THE DOMESTIC VIOLENCE ACT”
Ms. Geeta Luthra, Advocate LL.M., M.Phil (Cambridge)
The Domestic Violence Act is an important marker in the history of women’s movement in India. Prior to coming into force the Domestic Violence Act aggrieved women took recourse to the provisions of the Indian Penal Code which had been amended in 1988/1989 to bring within its purview cruelty to a woman particularly cruelty connected with dowry demand, a criminal non-bailable offence. Coupled with that was the interpretation placed by the Supreme Court that withholding of a woman’s stridhan and dowry articles, an offence under Section 406 of the Indian Penal Code. Sections 3 and 4 of the Dowry Prohibition Act were also the other provisions for protection of women.
In the United Kingdom, the British Crime Survey for the year 2001-2002 reported “There were an estimated 12.9 million incidents of domestic violence acts (nonsexual threats or force) against women (84 per cent) and 2.5 million against men (16 per cent) in England and Wales in the year prior to interview.”
In the United States, it is estimated that every year in the United States, approximately 3 million women are assaulted by their partner. One in four women in the U.S. will be assaulted by their partner over their lifetimes.
In 1998 in the U.S., of the approximately 1.5 million violent crimes committed between intimate partners, over 8,74,000 of the victims were women, and over 8,32,000 were men. Of the approximately 1,830 murders committed against intimate partners in 1998, 3 out of 4 of the victims were women. In 2001 according to the United States Census Bureau there were 6,91,710 non-fatal domestic
23 Nyaya Kiran January-March, 2008 violence acts committed and 1,247 fatal incidents. In homes where domestic violence occurs, children in the home are at a 300% greater risk of being abused.
6-12 per cent of women are abused in a given year.
20-30 per cent of women receiving welfare are current victims of Domestic Violence.
30-65 per cent of all homicides of women are related to Domestic Violence by their male partners.
According to Respecting Accuracy in Domestic Abuse Reporting (RADAR) report:
Women are just as likely as men to engage in partner aggression.
Men experience over one-third of DV-related injuries.
Men are far less likely to report DV incidents than women.
The myths about domestic violence are numerous.
Many of these myths are based on DV studies that use biased survey methods.
According to Southern Connecticut State University, in 95 per cent of family violence cases the victims are women beaten by male partners. In 1per cent of the cases the reverse is true. There are an estimated 28 million battered women in the U.S.
One of the most significant features of the Domestic Violence Act are the protective injunctions which are available in the United States under the Violence Against Women Act of 1994 and the Violence Against Women Act of 2005 and to women in U.K. under the Domestic Violence Crime and Victims Act of 2004. In India, before the coming into force of the Domestic Violence Act, it was only under the common law provisions as well as under the provisions of Order 39 Rules 1 & 2 CPC that the courts of law protected women. The
24 Nyaya Kiran January-March, 2008 concept of matrimonial home was built in by the Courts to provide protection to needy and battered women. There was no statutory provision to this effect. The Domestic Violence Act corrects this lacuna and protects a woman from dispossession from the matrimonial home and provides for a shared house-hold or an alternate residence. This is a major path breaking legislation. Even though under the civil law regime an injunction was a remedy available to prevent dispossession under the ordinary civil law but the new Statute gives legal recognition to a problem faced by millions of women in our country and provides for a statutory right which did not exist hereinbefore. The concept of shared house-hold and putting the woman back into her matrimonial house by way of mandatory injunction is the most significant and dynamic part of the Act.
The ideological framework of the enactment gives protection to women in their household. The protective injunction is also further armed with the report of a Protection Officer. The Protection Officers appointed in Delhi for example are counselors/psychology students/ psychiatrists/psychologists who are well suited to give a report with regard to domestic violence. In order to give immunity to a Protection Officer in his working, a Protection Officer has been deemed to be a public servant.
The Act provides for several kinds of domestic violence i.e. physical and emotional abuse which could otherwise be categorized as mental cruelity, physical abuse. In inroad has been made is the definition of economic abuse. The definition is thus far reaching and has a much large scope than the definition of maintenance given by the Courts under Section 18 of the Hindu Adoption and Maintenance Act, under Section 125 of Code of Criminal Procedure, under Section 24 and 25 of the Hindu Marriage Act.
The concept of joint matrimonial property has not been strictly brought in, which could be considered both a weakness as well as an advantage of the Act. The joint matrimonial property concept provides for division of movable and immovable assets, joint or separate as giving a cause to a woman for economic abuse. It does not take into account the fact that assets movable and immovable properties purchased even before the marriage are allowed to come
25 Nyaya Kiran January-March, 2008 within the purview of the Domestic Violence Act which is a departure from provisions of similar enactments in other countries.
The Domestic Violence Act has come into effect on 26.10.2006. Even persons who have been separated from several years prior to coming into force of the Act are seeking recourse under the Act: Firstly, on the ground that it is a continuing cause of action and secondly on the ground that the Act has a retrospective effect. Since the Act is ambivalent, several petitions are pending in the High Courts with regard to the retrospective of the Act and its applicability in cases where the parties separated for several years prior to coming into force of the Domestic Violence Act.
The Act has been unhappily worded. The remedy against breach of protection order is provided under Section 31 which reads as under:
Section 31. Penalty for breach of protection order by respondent.- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
The intention of the enactment is to term all orders pertaining to any kind of Domestic Violence Act as protection orders. But the definition under Section 2 (o) restricts the meaning of protection orders. Section 2 (o) reads as under:
26 Nyaya Kiran January-March, 2008
2. Definitions.-In this Act, unless the context otherwise requires,-
(o) “protection order” means an order made in terms of section 18;
The said definition of protection order under the Domestic Violence Act narrows it to orders obtained under Section 18. Section 18 reads as under:
Section 18:
18. Protection orders.-The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from- (a) Committing any act of domestic violence;
(b) Aiding or abetting in the commission of acts of domestic violence;
(c) Entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) Attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) Causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) Committing any other act as specified in the protection order.
27 Nyaya Kiran January-March, 2008
Thus residence orders under Section 19, monetary reliefs under Section 20, custody orders under Section 21, compensation orders under Section 22 may not be called protection orders by a strict interpretation of the Act. There is no procedure for execution or enforcement of these orders. Section 31 provides for penalty for breach of protection orders and makes the same punishable with imprisonment of one year and fine which will extend to Rs.20,000/- or both. However, there is no whisper of how execution or violation of a residence order under Section 19, monetary order under Section 20, custody order under Section 21 or compensation order under Section 22 are to be treated. This is one of the most serious lacunas of the Act. The Act does not provide any remedial measure against a person who is violating the orders of the Hon’ble Court or failing to comply with the orders made under the Domestic Violence Act 2005.
There is no provision made as to what be the procedure followed under the Act. A perusal of the Act shows that the Act does not envisage any evidence to be recorded. The Rules under the Act, however, provide that the procedure under Section 125 Cr.P.C for maintenance would be followed. Lack of a provision for conducting evidence and cross-examination cuts at the very root of the natural justice and the basic principle of common law as veracity and authenticity of an averment can only be tested in the crucible of evidence. The Act ought to have had a provision for providing evidence where it was deemed necessary by the Magistrate/Court. Surprisingly even though there is no provision under Criminal Procedure Code would be followed and specifically provide that so far as the Counsellor is concerned they shall be bound by the provisions of the Criminal Procedure Code, Indian Evidence Act or CPC and the application under Section 12 shall be dealt with and orders enforced in the same manner as laid down under Section 125 Cr.P.C. Rule –6 reads as under:
Rule-6: Applications to the Magistrate:
(1) Every application of the aggrieved person under Section 12 shall be in Form II or as nearly as possible thereto.
(2) An aggrieved person may seek the assistance of the
28 Nyaya Kiran January-March, 2008
Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate.
(3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.
(4) The affidavit to be filed under sub-section (2) of section 23 shall be filed in Form III.
(5) The applications under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973.
The entire rule is ultravires as it is contrary to the enactment. No such power has been given in the Act hence Rule-6 is ultra vires the Act. In a recent case, a Sessions Court has dismissed a petition for Domestic Violence on the ground that the complainant refused to subject herself to cross-examination as directed by the Court. In another case where contradictory pleas were taken, the Court again held that no incident of Domestic Violence has been made out.
The Domestic Violence Act has not been properly drafted as has been commented by Justice Katju (Judge of the Hon’ble Supreme Court) in Taruna Batra’s case. There are many provisions in the Act which are ambiguous. The concept of shared-home is a spectrum of the Act which has not been properly considered. Directing two sets of people having complete animosity against each other to live under the same roof sharing a bathroom, toilet, kitchen, drawing room etc. can never lead to a peaceful or happy existence. In such a situation, no one can live happily and freely.
“Shared household” – Meaning of:- The definition of “shared household” includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. It can thus be contended that where a person has lived in any property in question in the past, then that property is her shared household.
If the aforesaid interpretation/ definition is accepted, then it will mean that wherever the husband and wife lived together in the past
29 Nyaya Kiran January-March, 2008 that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grand-parents, his material parents, uncles, aunts, brother, sisters, nephews, nieces, etc. If the interpretation canvassed is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in the all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd. It is well settled that any interpretation which leads to absurdity should not be accepted.
No doubt, the definition of ‘share household’ in Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 is not only very happily worded, and appears to be the result of clumsy drafting but the Court has to give it an interpretation which is sensible and which does not lead to chaos in society.
There is also the possibility that volatile and ugly situations can emerge between the parties on the smallest pretext. There is possibility of false complaints being lodged. Assume that further the household of the husband consists of one room only then how the concept of “shared” accommodation be implemented? These situations require detailed judicial interpretation. There is also the possibility of lodging of false cases by either of the parties when they are living together in shared accommodation. There are many instances of false cases being filed under Sections 498-A/406 of IPC. In such a situation the more happy and comfortable way of living would be to grant the girl an alternative accommodation commensurate to the status of the husband with the undertaking by the husband that he will continue to pay the rent of the said accommodation as directed by the court and or provide a purchased accommodation as would be economically feasible. In such an arrangement, both the parties can live peacefully and the girl will have security of a household for her own.
30 Nyaya Kiran January-March, 2008
POWER OF POLICE TO INVESTIGATE COGNIZABLE OFFENCES VIS-A-VIS JUDICIAL PRONOUNCEMENTS
Dr. Shahabuddin, Metropolitan Magistrate, Rohini Court, Delhi.
1. At the very outset, I mention the necessity of writing on this topic. I have dealt with criminal matters as a Judicial Officer in Delhi for many years in the past. While performing my duties from time to time as Judicial Officer on criminal side, I have come across many instances where grievances were made to the effect that the police officers concerned refused to register First Information Report (in short FIR) even on receiving an information of commission of cognizable offences. It is my further personal experience that there is some confusion in the minds of majority of the people not well acquainted with the provisions of law as to whether police officers concerned have got any power to make a preliminary enquiry about the facts pertaining to commission of cognizable offences before registration of an FIR in such like cases. Due to above mentioned reasons in particular, I want to share my own experiences on this topic with the public at large. I further make it clear that I do not hereby intend to criticise any police officer or any other person in any capacity whatsoever.
2. In this regard, I first of all refer to the provisions of sections 154 to 156 of The Code of Criminal Procedure, 1973 (in short called as Cr.P.C. hereinafter) which are very much relevant for this purpose.
3. Section 154 of Cr.P.C. provides as under:- ‘’154 Information in cognizable cases – (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as
31 Nyaya Kiran January-March, 2008
aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence’’.
4. Section 155 of Cr.P.C. provides as under:- ‘’155. Information as to non-cognizable cases and investigation of such cases – (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which
32 Nyaya Kiran January-March, 2008
at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable’’.
5. Section 156 of Cr.PC provides as under:- ‘’156. Police officer’s power to investigate cognizable case – (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned’’.
6. The phrase ‘’cognizable offence’’ has been defined in Sec. 2 (c) of Cr.P.C. to the effect that cognizable offence means an offence for which and ‘’cognizable case’’ means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
7. The phrase ‘’non-cognizable offence’’ has been defined in Sec. 2 (l) of Cr.P.C. to the effect that ‘’non-cognizable offence’’ means an offence for which, and ‘’non-cognizable case’’ means a case in which, a police officer has no authority to arrest without warrant.
8. From the mandate of above mentioned provisions of law, it is crystal clear that it is the statutory duty of a police officer concerned to register an FIR forthwith if an information relating to commission of a cognizable offence, either oral or in writing, is received by such police officer. Non-registration of an FIR by such police officer amounts to dereliction of a statutory duty. Such police officer can only make an enquiry thereafter pertaining to the facts regarding commission of cognizable offences.
33 Nyaya Kiran January-March, 2008
9. Making an enquiry by a police officer prior to registration of an FIR in such like matters is neither in accordance with the provisions of law as mentioned above nor such a course is approved by judicial pronouncements delivered from time to time by Hon’ble High Courts as well as by Hon’ble Supreme Court of India.
10. The Hon’ble High Courts as well as Hon’ble Supreme Court of India have also deprecated from time to time the practice of non- registration of an FIR by a police officer concerned even after receiving an information/complaint, as the case may be, pertaining to commission of cognizable offence(s).
11. In an important judgment given in a case namely Gurjant Singh V/s State of Punjab and Another, 1998 CRI.L.J. 588 (Punjab & Haryana High Court), the Hon’ble Punjab & Haryana High Court held in para-18 of this judgment mainly to the effect that the police officer concerned is bound to act in accordance with the procedure under the statute. It was further held that it is not his sweet will to register a case or not to register a case on information relating to the commission of a cognizable offence given to him orally or in writing. It was also observed that the legislature in its wisdom has not left the poor people on the whims of a police officer who is not obliged to act in accordance with law.
12. In S.P. Sharma V/s National Capital Territory of Delhi and Others, 1998 (47) DRJ (DB), the Division Bench of Hon’ble Delhi High Court also emphasised the necessity of registration of an FIR by the police on receiving an information/complaint of commission of a cognizable offence. It was held in this case that power of police for verification before registration of an FIR was limited and that it cannot take place of regular investigation.
13. In a recent decision of Hon’ble Delhi High Court given in a case i.e Dinesh Kumar V/s State, 2006 VII AD (Delhi) 350, the Hon’ble Delhi High Court held mainly to the effect that police cannot be permitted to carry out the investigation first and then record the FIR. In this case, an FIR was registered initially U/s 309 IPC. However, subsequently, dying declaration of deceased was recorded by SDM concerned in which deceased had specifically named his
34 Nyaya Kiran January-March, 2008 maternal uncle-in-law as the person, who set him ablaze but despite that FIR was not converted into U/s 302 IPC mainly on the ground that dying declaration of the deceased recorded by the SDM was found not corroborated. On this point, it was held by Hon’ble High Court that it was not for the police to first ascertain whether the dying declaration was corroborated or not corroborated because the duty of the police was to register the FIR on the basis of prima facie incriminating material against the accused persons in such like cases. Consequently, direction was given to the police concerned to act in accordance with law.
14. I also refer to some important judgments on this point delivered by Hon’ble Supreme Court of India. In Mohindro V/s State of Punjab & Others, 2001 (3) Crimes 190 (SC), the Hon’ble Apex Court held mainly to the effect that police cannot refuse to register a case on receiving report of commission of a cognizable offence on the basis of any alleged preliminary enquiry. It was further held that holding an enquiry without registering a criminal case was not a correct step on the part of the local police.
15. In Suresh Chand Jain V/s State of Madhya Pradesh and Another, 2001 CRI.L.J, 954 (SC). it was held by the Hon’ble Apex Court in para-10 of this judgment to the effect that for the purpose of enabling the police to start investigation, it was open to the Magistrate to direct the police to register an FIR. It was further held that there is nothing illegal in doing so because registration of an FIR involves only the procedure of entering the substance of the information relating to the commission of cognizable offence in a book kept by the officer Incharge of a police station as per mandate of Sec. 154 of Cr.P.C. and that there was nothing illegal in doing so. It was further held that police officer concerned can take further steps contemplated in Chapter XII of the Code only thereafter.
16. In Mohd. Yousuf V/s Smt. Afaq Jahan and Another, 2006 (1) JCC 189 (SC), the Hon’ble Supreme Court also emphasised in para-12 of this judgment that it was the duty of officer Incharge of the police station concerned to register an FIR regarding the commission of a cognizable offence disclosed by the complaint
35 Nyaya Kiran January-March, 2008 because that police officer could take further steps as contemplated in Chapter XII of the Cr.P.C. only thereafter.
17. In yet another important case i.e Lallan Choudhary and Others V/s State of Bihar and Another, 2006 IX AD (SC) 227, the Hon’ble Apex Court held in para-8 of this judgment mainly to the effect that Section 154 Cr.P.C. casts a statutory duty upon police officer concerned to register the case, as disclosed in the complaint, and then to proceed with the investigation. It was further observed that the mandate of Sec. 154 Cr.P.C. was manifestly clear that if any information disclosing the commission of a cognizable offence was laid before an officer in charge of a police station, such police officer had no option except to register the case on the basis of such information. In para-9 of this judgment, the Hon’ble Supreme Court further held that genuineness or credibility of the information regarding commission of a cognizable offence was not a condition precedent for registration of an FIR.
18. In view of the above mentioned discussion, I am of the considered opinion that the practice on the part of some police officers refusing to register an FIR even after receiving information of commission of a cognizable offence is neither in accordance with the statutory provisions as mentioned above nor in accordance with the law laid down on this point by various Hon’ble High Courts as well as by Hon’ble Apex Court of India.
19. It is also relevant to mention here that there is a general belief in the minds of public at large and more particularly of those not well acquainted with the provisions of law that registration of an FIR without preliminary enquiry regarding the facts pertaining to commission of cognizable offence(s) entails serious consequences qua the accused and that the accused by and large face the ordeal of being arrested and being prosecuted thereafter in the court of law. In my considered opinion, this kind of fear is unfounded. Registration of an FIR does not necessarily means that the accused named therein or pertaining to the incident narrated in FIR is necessarily to be arrested or that such accused necessarily face the ordeal of facing trial in future. In coming to this conclusion, I
36 Nyaya Kiran January-March, 2008 also find support from the decision of Hon’ble Delhi High Court given in a case namely Dinesh Kumar V/s State (Supra). In para- 6 of this judgment, the Hon’ble Delhi High Court also held to the effect that it would have been a different matter if after the registration of the FIR, the investigating agency might not have been able to connect the concerned accused person(s) with the necessary evidence on which he could be prosecuted. It was further held that in that event, a closure report was to be filed by Investigating Officer (in short I/O) to be considered by the Magistrate in whose jurisdiction crime was committed.
20. It is also not necessary to arrest an accused in each and every case merely on the strength of registration of an FIR. If during the course of investigation, grounds do not exist for making such arrest, then accused need not be arrested. In an important judgment of Hon’ble Delhi High Court given in a case i.e Court on its Own Motion V/s Central Bureau of Investigation, 2004 (I) JCC 308 (Delhi High Court), the Hon’ble Delhi High Court held in para-20 of this judgment mainly to the effect that in normal and ordinary course, the police should always avoid arresting a person and sending him to jail if it is possible for the police to complete investigation without his arrest and if every kind of cooperation is provided by the accused to the I/O in completing the investigation. It was further held that it was only in the cases of utmost necessity where the investigation could not be completed without arresting the person when his arrest may be necessary, for instance, a person may be required for recovery of incriminating articles or of weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence.
21. Relying upon the judgment of Hon’ble Supreme Court of India in Joginder Kumar V/s State of Uttar Pradesh and Others, (1994) 4 SCC 260, the Hon’ble Delhi High Court also reproduced in Court on its Own Motion’s Case (Supra) in para-21 of it, the observations of Hon’ble Apex Court in Joginder Kumar’s Case (Supra) to the following effect:
‘’No arrest can be made because, it is lawful for the police officer to do so. The existence of the power to arrest is one
37 Nyaya Kiran January-March, 2008
thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock- up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter’’.
22. It is also well settled that if after registration of a case, the police officer concerned comes to the conclusion that no case is made out against the accused, such police officer is duty bound to file a cancellation report/closure report/final report, as the case may be, U/s 173 Cr.P.C before the area Magistrate concerned and same can be accepted after giving an opportunity to the complainant for filing protest petition, if any, in rebuttal of the same as per law and if the area Magistrate agrees with the conclusions arrived at by the IO after giving an opportunity of being heard to the complainant and state in such like cases. In that eventuality, the matter almost comes to an end until and unless the order of Area Magistrate concerned is set aside by Ld. Appellate/Revisional Court, as the case may be.
38 Nyaya Kiran January-March, 2008
RIGHT TO LIVELIHOOD OF PRISONERS VIS-A-VIS SENTENCING JURISPRUDENCE
Ms. Kiran Bansal, Metropolitan Magistrate, District Courts, Delhi “Society prepares the crime and the criminal commits it”
Henry Thomas Buckle17
It is a grand transformation recorded in the epics that the hunter Valmiki turned out to be a poet of eternal recognition18. If the powers, which brought about that transformation had remained inactive the world would have been poorer without the great epic “Ramayana.” History is replete with instances of bad persons transforming into men of great usefulness to humanity.
The causes, which would have influenced such swing, may be of various kinds. Forces which condemn a prisoner, brand him as incorrigible and consign him to the cell as a case of irredeemable character belong to the pessimistic society which lacks the vision to see the innate good in man and fail to perceive the chances of his reformation.
Penal institutions are nevertheless human campuses and so basic human rights can never be banished from behind the bars.19 The fundamental freedoms do not bid farewell to prisoners merely because of an allegation or a court sentence. That is why the
17 Quoted by Justice Subramanium Poti in In the matter of Prison Reforms, Enhancement of Wages of prisoners etc. AIR 1983 Ker 261 at p 264.
18 Observed by Justice K T Thomas in State of Gujarat v. Hon’ble High Court of Gujarat AIR 1998 SC 3164 at p 3172.
19 V R Krishna Iyer, The Dialectics and Dynamics of Human Rights in India, (1999) at p 313.
39 Nyaya Kiran January-March, 2008
Standard Minimum Rules Relating To Prisoners20 prepared under the auspices of the United Nations deal with prison ethos and physical and psychological milieus of prisoners. Accommodation, personal hygiene, correctional policies, decent clothing, exercise and sport, medical services, fairness in discipline and restraint in punishment are covered by the UN instrument. The UN General Assembly in its resolution21 has highlighted the key principle that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings”.
Gandhiji once said:22
As an old and experienced prisoner, however, I believe that government has to begin to reform… Humanitarians can but supplement government efforts. As it is, the humanitarian, if he attempted anything will first have to undo the mischief done in prisons where the environment hardens the criminal tendency, and in the case of innocent prisoners, they learn how to commit crimes without being detected. I hold that humanitarian effort cannot cope with the evil wrought in the jails.
In Charles Sobraj v. Supdt. Central Jail23, the Supreme Court expanded on this thought, when it said:
Every prison sentence is a conditioned deprivation of life and liberty, with civilized norms built in and unlimited trauma interdicted. In this sense, judicial policing of prison practices is implied in the sentencing power.
20 United Nations has prescribed the following standards for the treatment of prisoners: a) Body of principles for the protection of all persons under any from of detention or imprisonment. See Annexure II. b) Standard minimum rules for the treatment of prisoners. See Annexure I. c) Safeguards guaranteeing protection of the rights of those facing death penalty.
21 Resolution 45/111 of 14th December 1990.
22 Quote taken from V R Krishna Iyer, The Dialectics and Dynamics of Human Rights in India, (1999) at p 313
23 AIR 1978 SC 1514
40 Nyaya Kiran January-March, 2008
Thus, a policy for custodial justice is a condition of civilized administration, which cherishes human rights. The right to life is the foremost human right and lays procedure whereby life and liberty may be curbed vis-à-vis sentences which must be humane not harsh; reasonable not draconian. The Supreme Court in Sunil Batra (II)24 observed:
Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the constitution of dehumanization and to repudiate the world legal order, which now recognizes rights of prisoners in the International Covenants on Prisoners Rights to which our country has signed assent. In Batra (I) case,25 this court has rejected the hands-off doctrine and it has been ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our constitutional culture has now crystallized in favour of prison justice and judicial jurisdiction.
1.1 International Covenants
This ideological shift in penology has a history. Way back in 1931, before Hitler imploded in Europe, the assembly of the League of Nations stressed the aspect of readaptation of offenders ‘as a means of reclamation’. Then the long night of gas chambers came. Since Hitler’s fall the ideology of human rights within prison bars has risen high. The UN Charter has put human rights on a higher footing than ever before and has spawned new penological thinking on prisoner’s personhood and consequential rights.
The United Nations in the Standard Minimum Rules has stated:26
Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of
24 Sunil Batra v. Delhi Adminstration AIR 1980 SC 1579.
25 Sunil Batra-I v. Delhi Adminstration AIR 1978 SC 1675
26 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the prevention of crimes and the treatment of offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
41 Nyaya Kiran January-March, 2008 taking from the person the right of self determination by depriving him of his liberty. Therefore, the prison system shall not except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.27
The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.28
The UN in the Standard Minimum Rules has further suggested that the institutions should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and must seek to apply them according to the individual treatment needs of the prisoners.29
The Standard Minimum Rules for Treatment of Prisoners30 approved by the United Nations Congress on the Treatment of Offenders, held at Geneva in 1955 further laid down that ‘the basis for training must be to accord to the prisoners the respect due to their dignity as human beings and to establish in them a will to lead a good and useful life on discharge and to fit them to do so.
The International Government on Civil and Political Rights (1966) adopted unanimously the following resolution31 regarding the rights of prisoners in Article 10:- (1) All persons deprived of their liberty shall be treated with
27 Id, Rule 56.
28 Id, Rule 57. Also quoted in State of Gujarat v. Hon’ble High Court of Gujarat AIR 1998 SC 3164 at p 3182 by Justice D P Wadhwa.
29 Id, Rule 57.
30 Id, Rule 59.
31 Resolution adopted by The Assembly of the United Nations on the 6th December 1966.
42 Nyaya Kiran January-March, 2008
humanity and with respect for the inherent dignity of the human person. (2) (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. (3) The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
In the second congress held in London in 1960, one of the important resolutions was “the prisoner must be prepared as a free man in the community during the entire period of his detention”. In the Congress of 1970, while reviewing the criminal policy in the world, it was observed “prevention of crime and the social rehabilitation of criminals can benefit from general and specific measures adopted in the field of social action outside the criminal law”. In the Congress of 1975, held at Geneva, it was again reiterated, “Modern trend is to eradicate the causes of crime rather than the criminals by educative, and reformative methods”.
In the second Congress held in London in 1960, a delegate from Brazil had stated that, “It was the custom for prisoners to spend the last part of their sentence in the open agricultural institution where their families may live with them”. In the USSR the whole personality of the prisoners is prepared for their release. They could participate in lectures, conferences, discussions on various subjects, amateur theatrical broadcasts, etc., as general means of social orientation.
1.2 India
In India also in many states, open-air prisons for prisoners with
43 Nyaya Kiran January-March, 2008 agricultural background have been organized with minimum-security arrangements. In some of these, the prisoners are allowed to stay with their families.32
India respects International law and the various Articles of the Constitution, the most significant of which is Art. 21 have projected a dynamic perspective so far as prison justice is concerned. However, until Sunil Batra’s case prison precincts were thought to be out of bounds for the court. Fortunately, the position today is different. While interpreting Arts. 14, 19 and 21 vis-à-vis prisoners rights, the Supreme Court has brought into play creative humanism and, to an extent, has been inspired by rulings of the American Courts which had, by and large, struck a progressive role.33 “there is no iron curtain drawn between the constitution and the prisons of the country”.
The high tide of human rights, as applied to prison inmates, is a phenomenon of the last few years of the Supreme Court of India. A rapid survey of expansion of personal liberty; rights of accused/prisoners through judicial activism without a detailed essay may perhaps be made: 1) In D Bhuvan Mohan Patnaik v. State of Andhra Pradesh,34 it was held that convicts are not, by mere reason of conviction, denuded of all the fundamental rights, which they otherwise possess.
32 In Gurdev Singh v. State of HP AIR 1992 HP 76, the Hon’ble judges while commenting on the open-air jail said: “In this state, we are told, there are various kinds of jails, namely, Open Air Jail, …. The functioning of Open Air Jail is different from others…. We understand that the management at the Open Air Jail is more democratic, advanced, liberal and reformative as compared to other closed jails; … We may usefully refer to the establishment of Open Air Jail for the re-habilitation of hardened and habitual criminals ... The jail is spread over sufficient land looked after by the prisoners for which they are paid wages to enable them to support their families. They have been granted Bank loans for starting dairying, poultry, farming, tailoring and agricultural farming. ….The unique feature is that the prisoners stay in the farm along with their families in the residential quarters provided for this purpose. They do work daily and receive wages for that.” Thereafter the Hon’ble judges gave direction for appointing a committee to look into various matters of prison reforms like opening of more Open Air institutions with sufficient agriculture land attached to it so that prisoners hailing from rural areas with agricultural background may continue to work in the same atmosphere and rehabilitate suitably in their villages.
33 418 US 539 (1974) (US SC).
34 AIR 1974 SC 2092 at 2094.
44 Nyaya Kiran January-March, 2008
2) In Menaka Gandhi v. UOI,35 it was held that Right of personal liberty also includes rights attached to a person. 3) In Francis Coralie v. Administrator, Union Territory of India,36 it was held that Personal liberty also includes right to live with human dignity and not mere animal existence. 4) In Kharak Singh v. State of UP37 and Nandini Satpathy v. P L Dani,38 it was held that the accused has a right to privacy and any encroachment upon it without support of law is violative of Article 21 likewise, he also has a right not to be compelled to be witness against himself. 5) In M H Haskot v. State of Maharashtra,39 it was held that Right to an appeal against conviction held to be a right flowing from Art 21. 6) In Khedat Mazdoor Chetana Sangath v. State of M.P.,40 it was held that Practice of indiscriminate hand-cuffing held to be violative of Art 21. 7) In Nalabati Behera v. UOI,41 it was held that Right to claim compensation for contravention of human rights and fundamental rights held flowing from Art 21. 8) In Khatri (II) v. State of Bihar,42 it was held that Right to free legal aid for poor or for indigent accused persons who are incapable of engaging lawyer. 9) In State of Maharashtra v. Ravikanta S Patil,43 it was held that Hand-cuffing and parading of prisoner is held to be violative of Art 21.
35 AIR 1978 SC 579.
36 AIR 1981 SC 746; 1981 Cr LJ 306.
37 AIR 1963 SC1295; 1963 (2) Cr LJ 329.
38 AIR 1978 SC 1025; 1978 Cr LJ 968.
39 AIR 1978 SC 1548.
40 AIR 1995 SC 31.
41 AIR 1993 SC 1960.
42 AIR 1981 SC 928.
43 1991 AIR SCW 871.
45 Nyaya Kiran January-March, 2008
10)In Francis Coralie v. Administrator, Union Territory of India,44 it was held that Detenu’s right to consult with legal advisor and to meet his family members and friends is held to be within his rights in Arts. 14 and 21. 11) In Kadra Pahadiya v. State of Bihar,45 it was held that Right to speedy trial held flowing from Art 21. 12)In Parmanand Katara’s case,46 it was held that The injured, even if an accused, has a right to be treated by the doctor immediately without waiting for police formalities and instant medical aid is held to be the right flowing from Art 21. 13)In Kishore Singh’s case,47 it was held that Use of third degree methods by police is held to be violative of Art 21. 14)In D K Babu v. State of West Bengal,48 it was held that Any form of torture or cruel inhuman or degrading treatment of accused by police held to be violative of Art 21. 15)In Arvinder Singh Bagga v. State of UP,49 it was held that Police atrocities, illegal arrest and torture by police held to be violative of Art 21.
1.3 Right to Life and Right to Livelihood
In Olga Tellis and others v. Bombay Municipal Corporation50 it was held that Right to life includes right to livelihood and deprivation of right to livelihood except according to just and fair procedure established by law is violative of Art. 21. The Supreme Court said:
44 AIR 1981 SC 746.
45 AIR 1982 SC 1167.
46 AIR 1989 SC 2039.
47 AIR 1981 SC 625.
48 AIR 1997 SC 610.
49 AIR 1995 SC 117.
50 AIR 1986 SC 180. This case is related to the right to livelihood of the pavement dwellers and was not in the context of right of prisoners.
46 Nyaya Kiran January-March, 2008
The right to life includes the right to livelihood. The sweep of the right of life conferred by Art.21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because; no person can live without the means of living, that is, the means of livelihood.
If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.
Arts. 39(a) and 41 of the constitution of India, 1950 require the State to secure to the citizens an adequate means of livelihood and the right to work. In view of these Articles it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Art. 21.
In Mohammed Giasuddin v. State of Andhra Pradesh,51 the Supreme Court dwelt at length on the mode of treatment of criminals in prisons, the principles of punishment and other allied matters. The following extract may be quoted:
Progressive criminologists across the world will agree that… the infliction of harsh and savage punishment is thus a relic of past
51 AIR 1977 SC 1926.
47 Nyaya Kiran January-March, 2008 and regressive time… we therefore direct the government to see that within the frame work of jail rules, the appellant is assigned work not of a monotonous mechanical degrading type, but of a mental, intellectual or like type mixed with a little manual labour. We have also made the suggestion that the appellant must be paid a reasonable fraction of remuneration by way of wages for the work done, since unpaid work is bonded labour and humiliating. We strongly feel that the humanitarian winds must blow into the prison barricades. More than this is expected in this decade, when jail reforms, from abolition of convict’s costume and conscript labour to restoration of basic companionship and atmosphere of self-respect and fraternal touch, are on the urgent agenda of the nation. Our prisons should be correctional houses, not cruel iron aching the soul.
1.4 Theories of Punishment
Analysis of various theories of punishment would reveal that there has to be an object behind punishing a criminal. Let us analyze these theories and see what object can be achieved by putting a prisoner to work and by paying remuneration for his labour.
1.4.1 Right to Livelihood of Prisoner as a Means of Reformation
Theory of reformation through punishment is grounded on the sublime philosophy that every man is born good but circumstances transform him into a criminal. The aphorism that “if every saint has a past every sinner has a future” is a tested philosophy concerning human life. One of the main and dominant purposes of the punishment, if not the sole purpose, is reforming the criminal and redirecting him into society as an honest citizen.52
V.R. Krishna Iyer, J. has taken pains to ornately fresco the reformative profile of the principles of sentencing in Mohammad Giasuddin v. State of Andhra Pradesh53. The following passage
52 In the matter of Prison Reforms, Enhancement of Wages of prisoners etc. AIR 1983 Ker 261.
53 AIR 1977 SC 1926.
48 Nyaya Kiran January-March, 2008 deserves special mention in this context:
If the psychic perspective and the spiritual insight we have tried to project is valid, the police bully and the prison drill cannot ‘minister to a mind diseased’, nor tone down the tension, release the repression, unbend the prevention, each of which shows up as debased deviance, violent vice and behavioral turpitude. It is a truism, often forgotten in the hidden vendetta in human bosoms, that barbarity breeds barbarity, and injury recoils as injury, so that if healing the mentally or morally maimed or malformed man (found guilty) is the goal, awakening the inner being, more than torturing through exterior compulsions, holds out better curative hopes.
Reformation should hence be the dominant objective of a punishment and during incarceration every effort should be made to recreate the good man out of a convicted prisoner. An assurance to him that his hard labour in prison would eventually snowball into a handsome saving for his own rehabilitation would help him to get stripped of the moroseness and desperation in his mind while toiling with the rigours of hard labour during the period of his jail life. Thus, reformation and rehabilitation of a prisoner are of great public policy and they serve a public purpose.54
1.4.2 Right to Livelihood: Rehabilitation of Prisoner
Reformative approach is now very much intertwined with rehabilitative aspect of a convicted prisoner. In the matter of Prison Reforms, Enhancement of Wages of prisoners etc55 Supreme Court said:
Reformative and rehabilitative approaches must have predominant influence in framing any prison policy. …… the provision…. enables
54 Justice K T Thomas in State of Gujarat v. Hon’ble High Court of Gujarat AIR 1998 SC 3164 was of the view that the labour by convicted prisoner was not voilative of Art 23 as it serves a public purpose. The Hon’ble justice said “that a directive from the court under the authority of law to subject a convicted person (who was sentenced to rigorous imprisonment) to compulsory manual labour gets legal protection under the exemption provided in Clause (2) of Article 23 of the Constitution because it serves a public purpose.” Also see chapter 4 in this regard.
55 AIR 1983 Ker 261
49 Nyaya Kiran January-March, 2008 any prisoner to send to his family one-third of the wages which he earns and to use for his personal needs one-third in jail. That is a provision, which shows concern for the family of the prisoner despite the fact that he is one who is to suffer a punishment. Similarly, the provision for conserving one-third of the wages earned by him to be paid to him on his release is indicative of the need for rehabilitation. The prisoner out in the street after his term should not find himself without means to look after himself. … a rehabilitative approach with the intention to bring the prisoner back to the mainstream of society is not foreign to the policy of our prison rules.
Moreover, payment of reasonable wages to a prisoner would enable him to have sufficient funds to meet the minimum personal requirements in jail. It may help the prisoner in providing his dependents, may be an old mother, an invalid father or his children who might be living as an orphaned child, with the minimum to keep them not in comfort, but out of hunger. That may go a long way to remedy an evil, which is necessarily attendant upon imprisonment. Quite often it is not merely the criminal who is punished. Of course he undergoes the sentence. But the people who depend upon him such as old parents may be unable to make a living for themselves. The wife and children of the prisoner may have no means to answer their primary needs. In these circumstances the dependants are severely punished. That would be quite unfair.
No civilized law can conceive of imposing a punishment, the impact of which is on innocent dependants. To some extent this unfairness and injustice envisaged in our present penological approach could be mitigated by making a provision for minimum sustenance for dependants which would be the case if one-third or even one-half of the reasonable wages is passed on to them. Though that by itself may not be sufficient to maintain them that will go a long way to keep them from utter starvation and misery.
The advantages of giving fair wages to a prisoner may be:56 (i) The punishment would appear to be just and fair and not as an exhibition of vindictiveness.
56 Ibid. Also quoted in Gurdev Singh v. State of HP AIR 1992 HP 76.
50 Nyaya Kiran January-March, 2008
(ii) There would be possibility of the prisoner being rehabilitated on release. (iii) The severity of the resultant punishment on the dependants of the prisoner may be softened by payment of a substantial part of the fair wages due to the prisoner to them. (iv) Any payment for payment of wages to a prisoner is recognition of his human hood, his right as an individual. That may preserve his self-respect. (v) Such a measure would take away reasons for nursing vengeance against the society. (vi) A humane approach would make it easier for the authorities to enforce discipline. (vii)The prisoner may be induced to dedicate himself to the work. (viii)More than all these, the state can absolve itself of the charge that it is exploiting the prisoners by taking free labour, a charge which in the case of a civilized government, is certainly not commendable.
By providing the prisoners with work and thus, keeping them busy and at the same time allowing them to earn wages for themselves and for their dependants will create sense of discipline and responsibility amongst them.57 It would educate the prisoners in various vocations and help them to rehabilitate themselves suitably as soon as they are out of jails.
1.4.3 Right to Livelihood of Prisoners: Retributive and Restorative Theories
An argument against recognizing right to livelihood of prisoner has been that providing of work and giving wages for the work done would give an assured type of employment to prisoners. The victim is thus, ignored and the accused is made the centre point of the whole criminal justice system. One may argue that there is more need to rehabilitate a victim than an offender, who destroyed the life
57 Gurdev Singh v. State of HP AIR 1992 HP 76.
51 Nyaya Kiran January-March, 2008 of an innocent person and we talk more about the prisoners than the victim. But it is based on a wrong understanding that rehabilitation of prisoners could not help in the rehabilitation of victim.
It is spelt out clearly in the forth-coming discussion as to how the rehabilitation of both, victim and prisoners, can go side by side. How the recognition of the right to livelihood of prisoners can be made beneficial to the victims and the society as a whole and thus, how the idea of providing work/wages to the prisoner is not antithetic to the victimology.
Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offence. Again, Reformative theory is certainly important but too much stress cannot be laid on it that basic tenets of punishments altogether vanish. In our efforts to look after and protect the human rights of the convict we cannot forget the victim or his family in case of his death or who is otherwise incapacitated to earn his livelihood because of criminal act of the convict. Subject of victimology is gaining ground while there is also concern for the rights of the prisoners and prison reforms.
A victim of crime cannot be a “forgotten man” in the criminal justice system. Ignoring the victim and not making any attempt to provide solace and restitution is a challenge to the human rights.58 It is he who has suffered the most. His family is ruined particularly in case of death and other bodily injury. This is apart from the factors like loss of reputation, humiliation, etc. An honour which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.
A glimpse at the field of victimology reveals two types of victims. First type consists of direct victims i.e. those who are alive and suffering on account of the harm inflicted by the prisoner while committing the crime. Second type comprises of indirect victims who are dependants of the direct victims of crimes who undergo sufferings due to deprivation of their breadwinner. The victim is certainly entitled to reparation, restitution and safeguards of his
58 A S Anand, Justice, “Victims of crime-The Unseen Side”, 1998 (1) SCC journal p 3-13.
52 Nyaya Kiran January-March, 2008 rights. Criminal justice would look hollow if justice is not done to the victim of the crime. Restorative and reparative theories have developed from the aforesaid thinking. Let us analyse these so called victim oriented theories in relation to employment of prisoners.
Black’s Law Dictionary defines “reparation” as “payment for an injury or damage; redress for a wrong done.” Reparation is taken to mean the making of amends by an offender to his victim, or to victims of crime generally, and may take the form of compensation, the performance of some service or the return of stolen property (restitution), these being types of reparation, which might be described as practical, or material. The term can also be used to describe more intangible outcomes, as where an offender makes an apology to a victim and provides some reassurance that the offence will not be repeated thus repairing the psychological harm suffered by the victim as a result of the crime.
In the Oxford Handbook of Criminology, it is stated about Restorative and Reparative Theories:59
These are not theories of punishment. Rather, their argument is that sentences should move away from punishment of the offender towards restitution and reparation, aimed at restoring the harm done and calculated accordingly. Restorative theories are therefore victim-centered, although in some versions they encompass the notion of reparation to the community for the effects of crime. They envisage less resort to custody with onerous community-based sanctions requiring offenders to work in order to compensate victims and also contemplating support and counselling for offenders to reintegrate them into the community. Such theories, therefore, tend to act on a behavioural premise similar to rehabilitation, but their political premise is that compensation for victims should be recognized as more important than notions of just punishment on behalf of the State.
Legal systems based on restorative rationale are rare, but the
59 Andrew Ashworth, Prof. of Oxford University Centre for Criminological Research has contributed the said instructive passage.
53 Nyaya Kiran January-March, 2008 increasing tendency to insert victim-orientated measures such as compensation orders into sentencing systems structured to impose punishment provides a fine example of Garland’s observation that ‘institutions are the scenes of particular conflicts as well as being means to a variety of ends, so it is no surprise to find that each particular institution combines a number of often incompatible objectives, and organizes the relations of often antagonistic interest groups.
In recent years the right to reparation for victims of violation of human rights is gaining ground. United Nations Commission of Human Rights has circulated Draft Basic Principles and Guidelines on the Rights to Reparation for Victims of Violation of Human Rights.
Even, in the United State of America stress has now been laid on victim impact evidence. In Payne v. Tennessee,60 the Supreme Court of the United States by majority of 6:3 upheld the admission of evidence relating to the victim’s personal characteristics and the emotional impact of crime on the victim or his family or friends during capital sentencing. This shows that victim is an important entity in a criminal trial.61
In this respect, it is pertinent to note the following observation of Justice V R Krishna Iyer:
Much about the moral fiber of a society can be learned from the way it deals with crime. It is not enough to treat criminals with as much compensation as we can, especially when this liberal spirit is carried to the excess of interfering with crime prevention as the courts have done. Its about time society showed a little moral strength by acknowledging that victims, real people, are hurt by crime and that it is to them that criminals owe their debt.62
60 III S.Ct. 2597
61 Hon’ble Justice D P Wadhwa while quoting the case Payne v. Tennessee in State of Gujarat’s case observed that he was not considering whether such an approach was correct or otherwise.
62 V R Krishna Iyer, Off the Bench, 2002 at p 195.
54 Nyaya Kiran January-March, 2008
The practice followed in most of the States in India, either by virtue of the jail rules or by convention, is that a portion of the money earned by the prisoner is sent to the dependants of the prisoner himself and the balance, after deducting the amount expended by him for his extra expenses, is preserved to be disbursed to him at the time of his release.
One area, which is totally overlooked in the above practice, is the plight of the victims. As observed above, it is a recent trend in sentencing policy to listen to the wailings of the victims63 and great stress is being laid these days on the rights of the victims or his family in case of victim’s death.
In Indian context, Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to the victims as the court is empowered to direct payment of compensation to any person for any loss or injury caused by the offence. In practice S 357 of Cr PC has not proved to be of much effectiveness.64
Many persons who are sentenced to long-term imprisonment do not pay the compensation and instead they choose to continue in jail in default thereof. It is only when fine alone is the sentence that the convicts invariably choose to remit the fine. But those are cases in which the harm inflicted on the victims would have been far less serious. Thus the restorative and reparative theories are not translated into real benefits to the victims.65
63 Supra note 2 at p 3174. Justice K T Thomas said: “It is a constructive thinking for the State to make appropriate law for diverting some portion of the income earned by the prisoner when he is in jail to be paid to deserving victims. In the absence of any law for that purpose we are prevented from issuing a direction to set apart any portion of the prisoner’s earned wages for payment to the victims because of the interdict contained in Article 300A of the Constitution.”
64 For cases on compensation to victims see Palaniappa Gounder v. State of Tamil Nadu and others 1977(2) SCC 634, Sarwan Singh and others v. State of Punjab AIR 1978 SC 1525, Hari Singh v. Sukhbir Singh and others 1988(4) SCC 55.
65 Supra note 2 at p 3187. Justice D P Wadhwa said: “sums granted to prisoners are de minimus and cannot support a rehabilitative victimology. Reference was made to Section 357 of Code of Criminal Procedure which provides for payment of compensation to victim or on his death to his family. NHRC does not seem to have collected any data as to how Section 357 of the Code is being put to use. Presently we find there is fitful practice of making compensation orders under the Section 89”.
55 Nyaya Kiran January-March, 2008
Several states in the USA have adopted the Uniforms Crime Victims Reparation Act. Certain federal statutes also provide for reparation for violation of the provisions; e.g. persons suffering losses because of violations of Commodity Futures Trading Act may seek reparation under the Act against violator; Payment made by one country to another for damages during war”.
In England, a recent enactment has been made called the Prisoners Earnings Act, 1996. It empowers the prison administration to make deduction from the earnings of the prisoner of an amount not exceeding the prescribed limit. This deduction does not include certain statutory deductions like income-tax and payments required to be made by an order of a court. The amount so deducted shall be applied for :-
(a) The making of payments (directly or indirectly) to such voluntary organizations concerned with victim support or crime prevention or both as may be prescribed;
(b) The making of payments into the Consolidated Fund with a view to contributing towards the cost of the prisoner’s upkeep;
(c) The making of payments to or in respect of such persons (if any) as may be determined by the Governor to the dependants of the prisoners in such proportions as may be so determined; and
(d) The making of payments into an investment account of a prescribed description with a view to capital and interest being held for the benefit of the prisoner on such terms as may be prescribed.
The inability of the victim to access to the law makes legal remedies ineffective. The inability of the law to reach the victim is even more tragic.66 Thus, in this respect if rules can be framed under the Prisons Act or otherwise and a Prison Fund is created
66 Amee Yajnik, “Domestic Violence and Protection of Human Rights”, AIR 1999 Journal 145 at p 146.
56 Nyaya Kiran January-March, 2008 in which a certain amount from the wages of the prisoners is credited and out of that an amount is paid to the victim or for the upkeep of his family, as the rules may provide for the purpose, the plight of the victim is also taken care of.
The convict would then henceforth know that he is also answerable to the victim of his crime. Creation of fund is necessary as any amount of compensation deducted from the wages of the prisoner and paid directly to the victim or his family may not be acceptable considering the psyche of the people in our country.
Right to livelihood is a very important right for the prisoners and society as it helps in reformation and rehabilitation of prisoner. It would also help in taking care of the victims as well as the family members of the prisoner. Hence, the importance of the right to livelihood of the prisoner cannot be denied.
57 Nyaya Kiran January-March, 2008
JUDGMENT SECTION Re: Illegal Detention of Machal Lalung [WP(Crl.) No. 296 of 2005]
With
Re: News Item “38 Yrs in Jail Without Trial” published in Hindustan times, Dt. 6.2.2006
Versus
Union of India [WP(Crl.) No. 18 of 2006]
Decided by the Hon’ble Supreme Court of India on 2.11.2007
Ms. G.M. Padma Priya Advocate, High Court of Delhi
In this case the Supreme Court took note of the plight of the several mentally ill undertrial prisoners languishing in the psychiatric hospitals for long periods, in many cases, ironically, for periods much longer than the maximum period of imprisonment they would have had to undergo, had they been convicted for the offences they were charged with. This again, is one of the numerous instances, where the judiciary has played an activist role in its attempt to provide some succor and relief to the helpless and hapless mentally ill undetrials, lodged in mental hospitals and nursing homes, in contravention of the provisions of law that exist in this regard. A news item was published in a newspaper in October 2005 that one Machal Lalung, a resident of Assam, continued to languish as an undertrial prisoner in a psychiatric hospital for a period of 38 years, after he was declared fit by the hospital in 1967. This was brought
58 Nyaya Kiran January-March, 2008 to the notice of the Supreme Court and a series of orders were passed, and Machal Lalung was directed to be released from the hospital. Reports were sought regarding the status of undertrial prisoners lodged in mental asylums, and on the basis of such reports the Hon’ble Court came to the conclusion that while there were a large number of mentally ill undertrials in mental asylums, no periodic reports are received from the hospitals as to whether these mentally ill persons were fit to face trial, and that the respective Courts also do not keep a track of such cases and there were no regular postings of such cases for long periods.
The Supreme Court took cognizance of the fact that in most cases, the nature of their ailments is not clear and that the trial courts, on their part, have not considered whether the undertrial prisoners could be released pending investigation for trial, under Section 330(1) of the Code of Criminal Procedure (CrPC).
After considering the relevant provisions of law dealing with accused persons of unsound mind, including Chapter XXV of the CrPC, particularly Sections 328, 329, 330, 331, 337 and 339, Section 30 of the Prisoners Act, 1900, which deals with convicted persons in jail, who become mentally unsound, and the relevant provisions of the Mental Health Act, 1987, the Court observed that from the reports filed by the Registries of the various High Courts, it was evident that the aforesaid provisions of law were not being implemented effectively.
Accordingly, in view of the large number of mentally ill under- trial prisoners in various psychiatric hospitals/nursing homes, the Apex Court issued some general directions to avoid such mentally ill persons languishing in hospitals for long periods, which are as under:
1. Wherever a person of unsound mind is ordered to be detained in psychiatric hospitals/nursing homes under Section 330(2) of the CrPC, the reports contemplated under Section 39 of the Prisoners Act, shall be submitted to the concerned Court/ Magistrate periodically, who shall also call for such reports if they are not received periodically. Any person who, after
59 Nyaya Kiran January-March, 2008
being sent to the psychiatric hospital/nursing home, has become of sound mind and is still liable to be kept in safe custody, shall be remanded back to the prison, and if he is no longer liable to be kept in custody, them he is to be discharged by the State government.
2. Wherever any undertrial prisoner is in jail for more than the maximum period of imprisonment prescribed for the offence for which he is charged (other than those charged for offences for which life imprisonment or death is the punishment), the Magistrate/Court shall treat the case as closed and report the matter to the medical officer in charge of the psychiatric hospital, so that the person concerned could be discharged.
3. In cases where, the undertrial prisoner (other than those charged for offences for which life imprisonment or death is the punishment), their case may be considered for release in accordance with Section 330(1) of CrPC, if they have completed five or more years as inpatients. Section 330(1) of CrPC provides that whenever a person is found to be of unsound mind and incapable of making his defence, then irrespective of whether the case in which bail may be taken or not, the Magistrate/Court may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required.
4. As regards the undertrial prisoners who have been charged with grave offences for which life imprisonment or death penalty I the punishment, such persons shall be subjected to examination periodically in accordance with Section 39(1),(3) and (4) of the Prisoners Act, and the officers concerned, i.e, the visitors, medical officer in charge of the hospital and the examining medical officer respectively, should send the reports to the Court as to whether the undertrial prisoner is fit enough to fact the trial. The Sessions Courts where the cases are pending
60 Nyaya Kiran January-March, 2008
should also seek periodic reports from such hospitals and every such case shall be given a hearing at least once in three months. The trial of such cases shall commence as soon as it is found that such mentally ill person has been found fit to face trial.
61 Nyaya Kiran January-March, 2008
BUDAYEVA AND OTHERS V. RUSSIA
(Application nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02)
(decided on 20th March, 2008 by the European Court of Human Rights)
Ms. G.M. Padma Priya Advocate, High Court of Delhi
In a case that is the first of its kind, the European Court of Human Rights in its Chamber judgment, unanimously held that the State of Russia had violated the Right to Life of the applicants, by not only its failure to protect them from mudslides which devastated their town in July 2000, but also on account of the lack of an adequate judicial enquiry into the disaster.
Facts:
The applicants, Khalimat Budayeva, Fatima Atmurzayeva, Raya Shogenova, Nina Khakhlova, Andrey Shishkin and Irina Shishkina, were Russian nationals living in the town of Tyrnauz, Russia. Mudslides have been recorded in the area every year since 1937, especially in summer.
The case concerned the applicants’ allegations that the Russian authorities failed to heed warnings about the likelihood of a large- scale mudslide devastating Tyrnauz in July 2000, to warn the local population, to implement evacuation and emergency relief policies or, after the disaster, to carry out a judicial enquiry.
On 18 July 2000, a flow of mud and debris hit the town of Tyrnauz and flooded part of the residential area. According to the applicants there was no advance warning and they just managed to escape. Fatima Atmurzayeva and her daughter, caught in the mud and debris while trying to escape, were injured and suffered severe friction burns. Once the mudslide struck, the alarm was raised through
62 Nyaya Kiran January-March, 2008 loudspeakers, but the applicants claimed that there were no rescue forces or any other emergency relief at the scene of the disaster. In the morning of 19 July 2000 the mud level fell and, as there were no barriers, police or emergency officers to stop them, certain residents, among them Khalimat Budayeva and her family, returned to their homes. They were not aware of any order to evacuate.
At 1 p.m. that day a second, more powerful, mudslide hit the town. Ms Budayeva and her eldest son managed to escape. Her younger son was rescued, but sustained serious cerebral and spinal injuries. Her husband, Vladimir Budayev, who had stayed behind to help his parents-in-law, was killed when the block of flats in which he and his family lived collapsed.
The town was subsequently hit by a succession of mudslides over a period lasting until 25th July, 2000. Eight people were officially reported dead, although the applicants alleged that a further 19 people went missing.
All the applicants claimed that their homes and possessions were destroyed and that their living conditions and health had deteriorated since the disaster. Certain applicants had suffered from depression and had had to have psychiatric and/or neurological treatment.
According to the Government, the mudslides’ exceptional force could not have been predicted or stopped. Following the first wave of mud on 18 July 2000 the authorities ordered an emergency evacuation of Tyrnauz. It was submitted that the police and local officials called at people’s homes to inform them about the mudslide and to help evacuate the elderly and disabled. In addition, police vehicles equipped with loudspeakers drove round the town, calling on residents to evacuate. Those residents who returned to their homes did so in breach of the evacuation order. All necessary measures were taken to rescue victims, to resettle residents and to bring in emergency supplies. The Prosecutor’s Office decided not to launch a criminal investigation into the disaster or into Mr Budayev’s death, which was considered accidental. On 12 August 2000, all the applicants were granted free replacement housing and an emergency allowance in the form of a lump-sum.
63 Nyaya Kiran January-March, 2008
The applicants subsequently brought civil proceedings for compensation. Their claims were rejected on the grounds that the authorities had taken all reasonable measures to mitigate the risk of a mudslide. Furthermore, the courts found that the local population had indeed been informed of the risk of possible mudslides by the media.
The applicants disagreed with those conclusions. They accused the authorities of three major shortcomings in the functioning of the system for protection against natural hazards in Tyrnauz. Firstly, they alleged that the authorities failed to maintain mud-protection engineering facilities, notably to repair a mud-retention dam which had been damaged in 1999 and to clear a mud-retention collector which was blocked by leftover debris. Secondly, they complained about the lack of a public warning which would have helped to avoid casualties, injuries and mass panic. Finally, they complained that there was no enquiry to assess the effectiveness of the authorities’ conduct before and during the mudslide.
In support of those accusations, the applicants submitted newspaper articles, including an interview with an expert who accused officials of “blatant irresponsibility”; witness statements from the applicants’ family and neighbours who were also victims of the mudslide; and, official letters and documents which proved that no funds had been allocated district budget for the repair work required after the 1999 mudslide and that, between 30 August 1999 and 7 July 2000, the authorities received a number of warnings about the imminent disaster from the Mountain Institute, a state agency responsible for monitoring weather hazards in high-altitude areas. In its warnings, the Institute recommended that the damaged mud-protection dam be repaired and that observation posts be set up to facilitate the evacuation of the population in the event of a mudslide. One of the last warnings referred to possible record losses and casualties if those measures were not carried out as a matter of urgency.
Decision of the Court
Concerning the inadequate maintenance of mud-defence infrastructure and failure to set up a warning system
64 Nyaya Kiran January-March, 2008
It was not in dispute that Tyrnauz was situated in an area prone to mudslides in the summer season and, given the defence schemes designed to protect the area, both parties could reasonably have assumed that a mudslide had been likely to occur in the summer of 2000. The Court noted that in 1999 the authorities had received a number of warnings that should have made them aware of the increasing risks of a large-scale mudslide. Indeed, they were aware that any mudslide, regardless of its scale, could have had devastating consequences because of the defence infrastructure’s state of disrepair. What needed to be done and its urgency had been made quite clear. No explanation was provided by the Russian Government as to why those recommendations had not been followed. Given the documents submitted by the applicants indicating that no funds had been allocated for recommended repair work, the Court could only conclude that the requests had not been given proper consideration by the relevant decision-making and budgetary bodies.
The Government also confirmed that residents had not received any warning until the mudslide had actually arrived in the town on 18 July 2000. Furthermore, the witness statements submitted by the applicants corroborated the claim that there had been no sign of any evacuation order on 19 July 2000. Moreover, despite persistent requests by the Mountain Institute, temporary observation posts in the mountains had not been set up, such that the authorities had no means to estimate the time, force or duration of the mudslide. They were therefore unable to give an advance warning or efficiently implement the evacuation order. It was found that the authorities had, in effect, taken no measures at all with regard to the mudslides until the day of the disaster.
The Court concluded that there had been no justification for the authorities’ failure to implement land-planning and emergency relief policies in the hazardous area of Tyrnauz concerning the foreseeable risk to the lives of its residents, including all the applicants. Moreover, it found that the serious administrative flaws which had prevented the implementation of those policies had caused the death of Vladimir Budayev and injuries to his wife, to Fatima Atmurzayeva and members of their family. The Russian authorities had therefore
65 Nyaya Kiran January-March, 2008 failed in their duty to establish a legislative and administrative framework with which to provide effective deterrence against a threat to the right to life, in violation of Article 2.
Concerning the judicial response to the disaster
Within a week of the disaster the prosecutor’s office had already decided to dispense with a criminal investigation into the circumstances of Vladimir Budayev’s death. The inquest had been limited to the immediate causes of his death and had not examined questions of safety compliance or the authorities’ responsibility. Nor had those questions been the subject of any criminal, administrative or technical enquiry. In particular, no action had ever been taken to verify the numerous allegations concerning the inadequate maintenance of the mud-defence infrastructure or the authorities’ failure to set up a warning system.
The applicants’ claims for damages had effectively been dismissed by the Russian courts for failing to demonstrate to what extent the State’s negligence had caused damage exceeding what had been inevitable in a natural disaster. That question could, however, only have been answered by a complex expert investigation and the establishment of facts to which only the authorities had access. The applicants had therefore been required to provide proof which was beyond their reach.
It was found that the domestic courts had not made full use of their powers to establish the circumstances of the accident. In particular, they had not called witnesses or sought expert opinions. The courts’ reluctance to establish the facts was not justified in view of the evidence produced by the applicants, especially as it included reports which suggested that the applicants’ concerns were shared by certain officials.
The Court therefore concluded that the question of Russia’s responsibility for the accident in Tyrnauz had never as such been investigated or examined by any judicial or administrative authority, in violation of Article 2, i.e., Right to Life.
66 Nyaya Kiran January-March, 2008
However, so far as the claimants’ claim for compensation for loss of property was concerned, the Court concluded that the housing compensation to which the applicants had been entitled had not been manifestly out of proportion to their lost accommodation. Given also the large number of victims and the scale of the emergency relief to be handled by the authorities, the upper limit of RUB 13,200 on compensation for household belongings appeared justified.
Accordingly, under Article 41 (just satisfaction), the Court awarded in respect of non-pecuniary damage 30,000 euros (EUR) to Khalimat Budayeva, EUR 15,000 to Fatima Atmurzayeva and EUR 10,000 to each of the other applicants.
67 Nyaya Kiran January-March, 2008
FUNCTION REPORT A TALK ON THE INDIAN EXPERIMENTS FOR IMPROVING “Access to Justice” Delhi Legal Services Authority organized “A Talk on the India Experiments for improving Access to Justice” held on 22nd of January, 2008 at Conference Room, Tis Hazari Courts, Delhi. The function was graced by Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority; Hon’ble Mr. Justice T.S Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority; Hon’ble Mr. Justice Manmohan Sarin, Judge, High Court of Delhi & Chairman, Delhi High Court Legal Services Committee; Hon’ble Mr. Justice Madan B. Lokur, Judge, High Court of Delhi; Hon’ble Mr. Justice G.S. Sistani, Judge, High Court of Delhi; Hon’ble Dr. Justice S. Muralidhar, Judge, High Court of Delhi; Hon’ble Mr. Justice Vipin Sanghi, Judge, High Court of Delhi; Hon’ble Ms. Justice Veena Birbal, Judge, High Court of Delhi; Sh. Satnam Singh, Ld. District & Sessions Judge and Sh. Marc Galanter a renowned Professor of Law (USA) and expert on Indian Legal System. The said talk was also attended by Ld. CMM, Sh. Sanjiv Jain; Ld. ACMMs and other Judicial Officers of all the four courts complexes. Ms. Sangita Dhingra Sehgal, Member Secretary; Sh. A.K. Sarpal, Officer on Special Duty and Sh. Sanjay Sharma, Project Officer represented Delhi Legal Services Authority. Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi and Executive Chairman, Delhi Legal Services Authority delivered the Welcome Adddress and highlighted the high disposal rate achieved by Lok Adalats in the year of 2007; Hon’ble Dr. Justice M.K. Sharma, Chief Justice High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority delivered the Keynote Address. A Talk on the Indian Experiments for Improving “Access to Justice” was delivered by Sh. Marc Galanter, Professor of Law from United States. On this occasion, the certificates were distributed by the Hon’ble Judges of High Court and distinguished guests to the Judicial Officers and the staff, who made the Ist Mega Traffic Lok Adalat (8th – 9th September, 2007) successful. The function was concluded by Hon’ble Mr. Justice Manmohan Sarin, Judge, High Court of Delhi & Chairman, Delhi High Court Legal Services Committee with His Lordship’s vote of thanks.
68 Nyaya Kiran January-March, 2008
TWO DAY TRAINING PROGRAMME ON “PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE” At V.K. Krishna Menon Bhawan, On 2nd February, 2008 & 3rd February, 2008
Delhi Legal Services Authority organized a Training Programme on “Protection of Women from Domestic Violence” on 2nd February 2008 at V.K. Krishna Menon Bhawan, Bhagwan Das Road. Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India was the Chief Guest on this occasion and His Lordship inaugurated the Training Programme. Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority; Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority; Hon’ble Mr. Justice Manmohan Sarin, Judge, High Court of Delhi & Chairman, Delhi High Court Legal Services Committee; Hon’ble Mr. Justice A.K. Sikri, Judge, High Court of Delhi; Hon’ble Ms. Justice Gita Mittal, Judge, High Court of Delhi; Hon’ble Ms. Justice Rekha Sharma, Judge, High Court of Delhi; Hon’ble Mr. Justice S.N. Dhingra, Judge, High Court of Delhi; Hon’ble Mr. Justice G.S. Sistani, Judge, High Court of Delhi; Hon’ble Ms. Justice Hima Kohli, Judge, High Court of Delhi; Hon’ble Ms. Justice Manju Goel, Judge, High Court of Delhi (Retd.), Sh. Ajit Bharihoke, Ld. Registrar General, High Court of Delhi; Sh. Satnam Singh, Ld. District & Sessions Judge, District Courts, Delhi; Sh. Prem Kumar, Advocate, Sh. G.P. Thareja, Advocate and Prof. M.Afzal Wani, and all Secretaries of Delhi Legal Services Authority graced the occasion with their esteemed presence. The said meet and Training Programme was also attended by Ms. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority; Sh. Ashwani Kr. Sarpal, Officer on Special Duty and Sh. Sanjay Sharma, Project Officer, Delhi Legal Services Authority. Various NGOs and protection officers were the ‘Target Group’ in the said Training Programme. Ms. Jayshree Raghuraman, Secretary, Deptt. of Social Welfare, Govt. of N.C.T. of Delhi and Ms. Rashmi Singh, Director (OSD Convergence) Deptt. of
69 Nyaya Kiran January-March, 2008
Social Welfare also graced the occasion. The Training Prgramme was divided into 4 Sessions i.e. Session – I, Inaugural Session; Session – II: Role of Protection Officers in the Implementation of the Protection of the Women from Domestic Violence Act, 2005; Session-III: Role of the Police Officer in the enforcement of the Protection of Women from Domestic Violence Act, 2005; Session IV: Role of the Service Providers under the Protection of Women of Domestic Violence Act, 2005. In the Inaugural Session Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi and Executive Chairman, Delhi Legal Services Authority delivered the welcome address. Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi and Patron-in-Chief, Delhi Legal Services Authority enlightened the gathering on the various facets of Domestic Violence Act. Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India released the booklet on “Report & Recommendations: Domestic Violence “ and also delivered the ketnote address in the Inaugural Session. Inaugural Session was concluded by Ms. Santiga Dhingra Sehgal with her vote of thanks. The Training Programme on “Protection of Women From Domestic Violence” also continued on 3rd February, 2008 at V.K. Krishna Menon Bhawan, Bhagwan Das Road. The Training Prgramme was divided into 3 Sessions i.e. Session – V, Role of the Magistrate in the effective implementation of the Protection of Women from Domestic Violence; Session –VI: Problems and Challenges in the Implementation of the Protection of the Women from Domestic Violence Act, 2005; Last Session- Valedictory Session. Hon’ble Mr. Justice T.S.Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority; Hon’ble Ms. Justice Gita Mittal, Judge, High Court of Delhi and Hon’ble Mr. Justice S.N. Dhingra, Judge, High Court of Delhi graced the occasion. All the sessions were interactive sessions in which the audience participated and got clarifications for their queries for the distinguished guests.
70 Nyaya Kiran January-March, 2008
INAUGURATION OF THE CENTRAL OFFICE OF DELHI LEGAL SERVICES AUTHORITY
Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority performed the puja and broke the auspicious coconut in the presence of all the dignitaries.
In his keynote address, Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority appreciated the services being rendered by the Delhi Legal Services Authority under the stewardship of Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron- in-Chief, Delhi Legal Services Authority and leadership of Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority. Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority also addressed the gathering and hoped that with the opening of new office at central location at Patiala House Courts, New Delhi, it will be easier for the public at large to avail the services offered by Delhi Legal Services Authority and take recourse to various Alternative Dispute Resolution Mechanism being propounded by the Delhi Legal Services Authority.
The Executive Chairman, Delhi Legal Services Authority, Hon’ble Mr. Justice T.S.Thakur, Judge, High Court of Delhi stated that alongwith the opening of the new office, the Daily Lok Adalat has also started functioning at the Central Office of Delhi Legal Services Authority at Patiala House Courts and this will facilitate the public at large and would be more convenient for them to avail the services of Daily Lok Adalat on daily basis and public would enjoy the benefits of the Lok Adalat on a continuous basis rather than wait indefinitely.
The occasion was concluded by vote of thanks.
71 Nyaya Kiran January-March, 2008
WOMEN’S DAY CELEBRATION
Delhi Legal Services Authority has been celebrating International Women’s Day every year with mass participation of women from all over Delhi. This year the Authority celebrated International Women’s Day in association with Delhi Commission for Women and Non-Governmental Organizations in Delhi on 7th of March, 2008 at India Gate Lawns.
Smt. Sheila Dikshit, Hon’ble Chief Minister of Delhi was the Chief Guest of the programme, which was also graced by Smt. P.M. Singh, Member Secretary, Delhi Commission For Women. The Chief Minister and other dignitaries were welcomed by Smt. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority.
On this occasion, the Authority installed two stalls to showcase and highlight the services available to the Women/other beneficiaries. Delhi Legal Services Authority also distributed around 20,000 pamphlets to various visitors and participants at the fair. Besides this legal assistance by the Counsellors was also given to the 200 participants.
The Mobile Van of the Authority with Counsellors was also available to give Legal Advice to the participants. The Docu-drama and audio and video CDs prepared by the Authority, were also being displayed on this occasion with the help of projector, for the legal awareness of the masses.
The following Pamphlets were distributed on the occasion: 1. Aims & Objectives of Delhi Legal Services Authority. 2. Criteria for Free Legal Aid.(Hindi) 3. Dowry I (Hindi) 4. Dowry II (Hindi) 5. Female Foeticide (Hindi) 6. Child Labour I (Hindi)
72 Nyaya Kiran January-March, 2008
7. Child Labour II (Hindi) 8. Sexual Harassment at Work Place I (Hindi) 9. Sexual Harassment at Work Place II (Hindi) 10. Divorce (English) 11. Rights of Working Women (Hindi) 12. Matrimonial (Hindi) 13. Domestic Violence (Hindi) 14. "WO(W)MAN” Booklet on “Marriage & Divorce"
73 Nyaya Kiran January-March, 2008
LEGAL AWARENESS PROGRAMME AT TIHAR JAIL "A SEQUEL TO INTERNATIONAL WOMEN’S DAY CELEBRATIONS"
Delhi Legal Services Authority & Delhi Prisons in association with Venu Eye Research Institute, Rotary Club of Delhi and Divya Jyoti Jagriti Sansthan organized a Sequel to International Women’s Day Celebration on 11th of March, 2008 at Women’s Jail No.6, Central Jail Tihar, Delhi.
Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority, High Court of Delhi; Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority, High Court of Delhi; Hon’ble Mr. Justice Manmohan Sarin, Judge, High Court of Delhi & Chairman, Delhi High Court Legal Services Committee; Hon’ble Ms. Justice Hima Kohli, Judge, High Court of Delhi; Hon’ble Ms. Justice Aruna Suresh, Judge, High Court of Delhi and Hon’ble Ms. Justice Veena Birbal, Judge, High Court of Delhi graced the occasion in the presence of Sh. B.K. Gupta, D.G (Prisons); Dr. Girja Vyas, Chairperson, National Commission for Women; Ms. Tanuja Joshi, Director, Venu Eye Centre; Sh. S.K. Mehra, Legal Committee, Rotary Club; Smt. Pragya Bharati, Member, Divya Jyoti (NGO) and Ms. Nafisa Ali, Film Actress & Social Activist. All the dignitaries were welcomed by Smt. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority. Thereafter, a Toy Garden for the welfare and benefit of children of jail inmates was inaugurated by Hon’ble Dr. Justice M. K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority and a large number of toys were installed there for the benefit of jail inmates’ wards. The joy on the faces of the children cannot be described in words and was to be seen to be believed.
On this occasion, Sh. B.K. Gupta, D.G (Prisons) delivered the Welcome Address and Address by Hon’ble Dr. Justice M.K. Sharma,
74 Nyaya Kiran January-March, 2008
Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority, High Court of Delhi and Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority. Vande Matram, a patriotic song was performed by Anhad Troupe of Central Jail, Tihar. Booklet “Umeed” was released on the occasion by Ms. Girja Vyas, Chairperson, National Commission for Women as prepared by Delhi Legal Services Authority highlighting the rights of women jail inmates. The Authority in association with Venu Eye Centre spearheaded by Dr. Tanuja Joshi, Director, Venu Eye Centre had also organized an Eye Check-up Camp in Jail No. 6 on 1st of March, 2008 and the Spectacles were distributed on 11th of March, 2008 by the Hon’ble Judges of High Court. Ehsaas (A Documentary Film) by Pragaya T.V was thereafter screened. A Dance performance-”Parwaz” a flight of freedom, was also shown there and the performance of jail inmates was highly appreciated and applauded by the dignitaries. Hon’ble Legal Judges of the High Court of Delhi thereafter interacted with Jail Inmates. The function concluded with a vote of thanks by Ld. Member Secretary, Ms. Sangita Dhingra Sehgal, Delhi Legal Services Authority.
75 Nyaya Kiran January-March, 2008
WORKSHOP ON 31ST OF MARCH, 2008
The Delhi Legal Services Authority organized a workshop on 31.3.2008 at Judges Lounge, High Court of Delhi, Sher Shah Road, New Delhi to devise ways and means to work out the strategies to improve upon the disposal laid of the cases under section 138 of Negotiable Instruments Act, 1881.
The Conference was chaired by Hon’ble Mr. Justice S.B. Sinha, Judge, Supreme Court of India and was also attended by Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in- Chief, Delhi Legal Services Authority; Hon’ble Mr. Justice T.S. Thakur, Jugde, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority; Professor Mohan Gopal, Director, National Judicial Academy, Bhopal, Mr. G.E. Vahanvati, Solicitor General of India as well as other High Court Judges, District & Sessions Judge, Delhi; Registrar General, Delhi High Court, Registrar (Vig.), Delhi High Court, Chief Metropolitan Magistrate, Delhi, all other ACMMs, Delhi and other Senior Officers of various Banks and financial institutions who were the main complainants and litigating parties pertaining to the cases under section 138 of the Negotiable Instruments Act.
The distinguished gathering shared their views and suggestions for the improvement of disposal of the cases under section 138 of Negotiable Instruments Act, 1881 which has almost choked the entire Justice Delivery Mechanism particularly in Delhi and it was decided that all the participants and representatives from the Banks/ Financial Institutions and Mobile Companies shall give their suggestions in writing within a week to Delhi Legal Services Authority which shall compile the same alongwith suggestions and views put forth by the Hon’ble Judges as well as the Solicitor General and Professor Mohan Gopal and thereafter another meeting will be called with a select group and representatives of the Banking Companies and financial institutions having sufficient time at their disposal to devise a pragmatic and workable plan.
The meeting concluded with high-tea.
76 PHOTO GALLERY
Glimpses from A Talk on The Indian Experiments for Improving "Access to Justice" at Conference Room, Tis Hazari Courts, held on 22nd January, 2008
Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority and Mr. Marc Galanter a renowned Professor of Law (USA) an expert on Indian Legal System were sitting on the dias on the occasion of “A Talk on the India Experiments for improving Access to Justice” held on 22nd of January, 2008 at Conference Room, Tis Hazari Courts, Delhi.
Hon’ble Mr. Justice Manmohan Sarin, Judge, High Court of Delhi & Chairman, Delhi High Court Legal Services Committee and Sh. Satnam Singh, Ld. District & Sessions Judge, Tis Hazari Courts were sitting on the dias on the occasion. Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Partron-in-Chief, Delhi Legal Services Authority delivered the keynote address to the gathering on the occasion.
Mr. Marc Galanter, Professor of Law (USA) delivered a speech on “A Talk on the India Experiments for improving Access to Justice” to the gathering on the occasion. Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority delivered the Welcome Adddress and highlighted the high disposal rate achieved by Lok Adalats in the year 2007 to the gathering on the occasion.
Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority presented a momento to Mr. Marc Galanter, Professor of Law (USA) in the august presence of Hon’ble Dr. Justice M. K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority and Hon’ble Mr. Justice Manmohan Sarin, Judge, High Court of Delhi & Chairman, Delhi High Court Legal Services Committee. Hon’ble Mr. Justice Manmohan Sarin, Judge, High Court of Delhi & Chairman, Delhi High Court Legal Services Committee; Shri Satnam Singh, Ld. District & Sessions Judge, Tis Hazari Courts and Mr. Marc Galanter, Professor of Law (USA) were sitting on the dias on the occasion.
A view of the audience on the occasion of “A Talk on the Indian Experiments for improving Access to Justice” held on 22nd of January, 2008 at Conference Room, Tis Hazari Courts, Delhi. Seen in the first row left to right Hon’ble Ms. Justice Veena Birbal, Judge, High Court of Delhi; Shri M.C. Garg, Addl. District & Sessions Judge; Shri Sunil Gaur, Addl. District & Sessions Judge and Ms. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority. Glimpses from Two Day Training Programme on "Protection of Women from Domestic Violence" at V. K. Krishna Menon Bhawan, held on 2nd & 3rd February, 2008
Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority lighting the lamp in the august presence of Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority and Hon’ble Mr. Justice T.S Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority on the occasion of Training Programme on “Protection of Women from Domestic Violence” on 2nd February 2008 at V.K. Krishna Menon Bhawan, Bhagwan Das Road.
Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority lighting the lamp in the august presence of Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority; Hon’ble Mr. Justice T.S Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority and Ms. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority on the occasion. Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi and Patron-in-Chief, Delhi Legal Services Authority enlightened the gathering on the various facets of Domestic Violence Act.
In the Inaugural Session Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi and Executive Chairman, Delhi Legal Services Authority delivered the welcome address. Glimpses from "Inauguration of The Central Office of Delhi Legal Sevices Authority", Pre-fab Building, Patiala House Courts, New Delhi, held on 18th Feburary, 2008
Rangoli with lighting Diyas is seen in the picture prepared on the occasion of Inauguration of Central Office, Delhi Legal Services Authority, Pre-fab Building, Patiala House Courts, New Delhi.
The Picture of Central Office, Delhi Legal Services Authority, Pre-fab Building, Patiala House Courts inaugurated on 18th of Feburary, 2008. Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority performed puja on the occasion in the presence of Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority and Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority.
Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority inaugurating the new office of Delhi Legal Services Authority on the occasion in the presence of Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority and Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority. Hon’ble Mr. Justice T. S. Thakur, Judge, High Cout of Delhi & Executive Chairman, Delhi Legal Services Authority breaking the auspicious coconut to herald the opening of the new office.
Hon’ble Mr. Justice Ashok Bhan, Judge, Supreme Court of India & Executive Chairman, National Legal Services Authority delivered a key-note address to the gathering on the occasion. Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority addressing the gathering on the occasion of Inauguration of Central Office of Delhi Legal Services Authority.
Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority addressing the gathering on the occasion of Inauguration of Central Office of Delhi Legal Services Authority. Glimses from Legal Awareness Programme At Tihar Jail, "A Sequel to International Women's Day Celebrations" at Women's Jail No. 6, Central Jail, Tihar, Delhi held on 11th March, 2008
Guard of Honour being presented to the Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority.
Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority, Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority; Hon’ble Ms. Justice Hima Kohli, Judge, High Court of Delhi; Hon’ble Ms. Justice Aruna Suresh, Judge, High Court of Delhi and Hon’ble Ms. Justice Veena Birbal, Judge, High Court of Delhi; Sh. B.K. Gupta, D.G (Prisons) Central Jail, Tihar; Dr. Girija Vyas, Chairperson, National Commission for Women; Ms. Tanuja Joshi, Director, Venu Eye Centre; Sh. S.K. Mehra, Legal Committee, Rotary Club; Smt. Pragya Bharati, Member, Divya Jyoti (NGO) and Ms. Nafisa Ali, Film Actress & Social Activist and Smt. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority are standing on the dias for the National Anthem. Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority inaugurating the Toy Garden for the benefit and welfare of Jail- Inmates’ wards on the occasion of Legal Awareness Programme held on 13th of Feb, 2008 at Central Jail, Tihar, New Delhi.
Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority lighting the lamp on the occasion in the presence of Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority. Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority lighting the lamp on the occasion in the presence of Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority; Smt. Girija Vyas, Chairperson, National Commission for Women and Ms. Nafisa Ali, Film Actress & Social Activist.
Smt. Girija Vyas, Chairperson, National Commission for Women lighting the lamp on the occasion in the presence of Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron- in-Chief, Delhi Legal Services Authority and Ms. Nafisa Ali, Film Actress & Social Activist. Smt. Sangita Dhingra Sehgal, Member Secretary, Delhi Legal Services Authority lighting the lamp in the presence of Smt. Pragya Bharati, Member, Divya Jyoti (NGO).
Hon’ble Dr. Justice M.K. Sharma, Chief Justice, High Court of Delhi & Patron-in-Chief, Delhi Legal Services Authority addressing the gathering on the occasion Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority addressing the gathering on the occasion
Smt. Girija Vyas, Chairperson, National Commission for Women releasing the Booklet "Umeed" on the occasion. Hon’ble Mr. Justice T.S. Thakur, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority distributing spectacles to the women jail-inmates.
Hon’ble Chief Guest and other dignitaries interacting with the children of prison inmates in the Toy Garden. Nyaya Kiran January-March, 2008
PRESS CLIPPING
93 Nyaya Kiran January-March, 2008
94 Nyaya Kiran January-March, 2008
95 Nyaya Kiran January-March, 2008
STATISTICAL SECTION
STATISTICAL INFORMATION IN RESPECT OF LEGAL AID BENEFICIARIES
Name of the State Authority- Delhi Legal Services Authority Statistical Information for the Month of January -2008
Exclusively by High Court Exclusively Taluk Grand State Legal Legal District Legal Total Authority(Gole Services Legal Services Col.1 Mkt.+PHC+Jail) Committee Services Committees (to 4) Authority (KKD.+ ROHINI) (1) (2) (3) (4) (5)
Schedule Caste 01+02=03 02 07 01+02=03 15
Schedule Tribe - - - - -
Backward Class - - - 01 01
Women 10+106=116 09 50 32+29=61 236
Children - - - - -
In Custody 17+55+127=199 05 91 50+69=119 414
Accidental - 01 - 01 02
General 03+89=92 07 22 22+05=27 148
Total 31+252+127=410 24 170 105+107=212 816
Statistical Information in Respect of Legal Literacy/Legal Awareness Camps
State Legal High Court District Taluk Legal Total Services Services Legal Services Authority Committee Services Committees Authority (KKD+ROH.)
Total Legal - - - - - Literacy/Legal Awareness Camps
Number of - - - - - Persons Benefited
96 Nyaya Kiran January-March, 2008 court by the Referred (6) (Col.1 to 4) Grand Total Pre 342 30 161 07 litigation court by the Referred (5) Pre litigation Counselling and Conciliation Centers - 178 - court by the (4) 09 Pre litigation Referred Exclusively by TalLegal uk Committees (KKD+ ROHINI) Service 01+02=03 - 91 - court by the Referred 01 01 (3) Services Authority Exclusively Pre District Legal litigation for the Month of January, 2008 for the Month of January, court by the Referred (2) Committee High Court Pre Legal Services litigation -162940 -030624 court by the Referred (1) Services State Legal Pre Exclusively by Market+PHC) =99 =34 Authority(Gole litigation 31+68 28+06 state Authority:- Delhi Legal Services Authority, Patiala House, New Delhi Statistical Information Patiala House, New Delhi Statistical Authority, Authority:- Delhi Legal Services state settled of cases of cases Number Numbe r received Statistical information in respect of cases settled through counselling & conciliation Name the
97 Nyaya Kiran January-March, 2008 = 84 Crl. comp. & u/s 138 NIA Bank recovery37 - (Col. 1to 4) COMP 14 - aluk Legal ServicesTotal Grand Bank Recv.08 - 47 + litigation litigation litigation litigation (KKD. + ROHINI) Committees Authority Recv 15 - Legal Services Exclusively by District T Services Committee High Court Legal STATISTICAL INFORMATION FOR THE MONTH OF JANUARY - 2008 FOR THE MONTH OF JANUARY INFORMATION STATISTICAL NAME OF THE STATE AUTHORITY - DELHI LEGAL SERVICES AUTHORITY SERVICES - DELHI LEGAL AUTHORITY NAME OF THE STATE Bank recovery + 3715 = 22 = 22------Prelitigation litigation Post Total litigationlitigation Pre-2222-- Post13 litigation Total litigation - Pre Post 13 Total - Pre Post - Total Pre - Post - Total - - - - - 13 - 13 Services Authority (1)Crl. comp. & u/s 138 - (2) CRL. COMP.-Bank CRL. (3) (4) (5) State Legal Exclusively by u/s 19 of Adalats heldAdalats + NIA LSA Act 10 47 = CriminalCompoundable cases & u/s 138 N.I. Act -MahinlaTotal 506 - 506 484 - - 528 - - 1012 ------520 - - 520 - 05 - 525 05 880 525 - 880 - - - 880 1906 - 880 1906 484 - 1933 - 2417 05 05 (No. of cases 471settled) Bank Recovery cases - 471 ------471 - 471 No. of Lok
98 Nyaya Kiran January-March, 2008 U/S 138 NIA:- RS. 02,18,67,795/-. CRL. & COMP. Rs. 05,78,100/- (Col. 1to 4) Rs.66,400/- aluk Legal ServicesTotal Grand (KKD. + ROHINI) CRL. COMP. & U/S 138 CRL. COMP. PAID:-COMPENSATION RS. 01,92,100/- PAID:- COMPENSATION BANK RECOVERY CASES:- BANK RECOVERY CASES:- Committees RS.23,000/- NIA:- FINE REALISED:- FINE REALISED: AID:- Services Authority BANK RECOVERY CASES:- & U/SRS. NilCRL. COMP. RS. Nil Exclusively by District T RS.12,200/- COMPENSATION P COMPENSATION Services Committee legal High Court Legal 138 138 NIA:-FINE REALISED NAME OF THE STATE AUTHORITY-DELHI LEGAL SERVICES AUTHORITY SERVICES LEGAL AUTHORITY-DELHI NAME OF THE STATE CRL. COMP. & U/S CRL. COMP. CASES:- RS. 02,18,67,795/- Services Authority --2222 (1) ------Lok adalat other than -litigation litigation-2222-- (2) litigation litigation 15 litigation litigation (3) litigation litigation 22 litigation litigation (4) 85 (5) State Legal Exclusively by PAID:- RS. 03,54,500/-PAID:- RS..31,500/- NIA:-FINE REALISED: Rs.31,200/- COMPENSATION amount No. of Lok Adalats heldu/s 19 ofM.A.C.T=01 (MACT)=47 LSA Act 48 = No. of MACT 01 + 47 cases settled Pre Post no. ofTotal cases Settled 484(including Total PreMACT) 528Awarded Post 1012 BANK RECOVERY - Total Pre Post - Total Pre - - Post - Total Pre 525 Post 525 - Total 880 880 484 1933 2417 STATISTICAL INFORMATION IN RESPECT OF LOK ADALATS FOR THE MONTH OF JANUARY - 2008 FOR THE MONTH OF JANUARY ADALATS IN RESPECT OF LOK INFORMATION STATISTICAL
99 Nyaya Kiran January-March, 2008 259 Insurance Total Service in dispensary SETTLED 02 hospital or sanitation Public Conservancy water D.V.B. Supply of power, telephone light or Postal, telegraph service or Service or SECTION 22B OF THE LEGAL SERVICES AUTHORITIES ACT AUTHORITIES SERVICES SECTION 22B OF THE LEGAL STATSTICAL INFORMATION REGARDING PERMANENT LOK ADALAT ESTABLISHED UNDER ESTABLISHED ADALAT REGARDING PERMANENT LOK INFORMATION STATSTICAL No. of casessettled No. of sitting 09 -Adalat (D.D.A.) Cases Permanent Lok 49 Total - 257 - - - 257 Number of sittings of Permanent Lok Adalats for public utility Services 40 Number of sittings Permanent Lok 40 Transport
100 Nyaya Kiran January-March, 2008
STATISTICAL INFORMATION IN RESPECT OF LEGAL AID BENEFICIARIES
Name of the State Authority- Delhi Legal Services Authority Statistical Information for the Month of February - 2008
Exclusively by High Court Exclusively Taluk Grand State Legal Legal District Legal Total Authority(Gole Services Legal Services Col.1 Mkt.+PHC+Jail) Committee Services Committees (to 4) Authority (KKD.+ ROHINI) (1) (2) (3) (4) (5)
Schedule Caste 03+01=04 03 12 - 19
Schedule Tribe - - - - Nil
Backwa rd Class - 01 - - 01
Women 97+12=109 11 55 25+32=57 232
Children - - - - Nil
In Custody 46+12+117=175 03 107 136+51=187 472
Accidental - 01 01 - 02
General 59+02=61 17 48 21+20=41 167
Total 205+27+117=349 36 223 182+103=285 893
Statistical Information in Respect of Legal Literacy/Legal Awareness Camps
State Legal High Court District Taluk Legal Total Services Services Legal Services Authority Committee Services Committees Authority (KKD+ROH.)
Total Legal - - - - - Literacy/Legal Awareness Camps
Number of - - - - - Persons Benefited
101 Nyaya Kiran January-March, 2008 court by the Referred (Col.1 to 4) Grand Total Pre (6) 107 18 283 28 litigation court by the Referred (5) Pre 34 Nil 99 Nil litigation Counselling and Conciliation Centers court Nil by the (4) Pre litigation Referred 03+17=20 Exclusively by Taluk LegalCommittees (KKD+ ROHINI) Service Nil+02=02 Nil court by the Referred Nil Nil (3) Services Authority Exclusively Pre District Legal litigation court by the Referred for the Month of January, 2008 for the Month of January, (2) Committee High Court Pre Legal Services litigation court by the (1) Market+PHC) Legal Services Authority(Gole Pre litigation Referred Exclusively by State 58+27=85 02 2704+24=28 Nil 26 11 52 18 32 settled of cases of cases Number Number received state Authority:- Delhi Legal Services Authority, Patiala House, New Delhi Statistical Information Patiala House, New Delhi Statistical Authority, Authority:- Delhi Legal Services state Statistical information in respect of cases settled through counselling & conciliation Name the
102 Nyaya Kiran January-March, 2008 = 174 = (Col. 1to 4) 68 Crl. comp. & u/s 138 NIA aluk Legal ServicesTotal Grand (KKD. + ROHINI) Committees Authority 4468 = Bank recovery - 38 Bank Recv - Nii Bank Recv. - Nil 136 + CRL. COMP.- 44CRL. COMP.- CRL. COMP - Legal Services Exclusively by District T Services Committee High Court Legal 1025 1025 - - - - 1570 1570 - 2630 2630 - 5225 5225 STATISTICAL INFORMATION FOR THE MONTH OF FEBURARY - 2008 FOR THE MONTH OF FEBURARY INFORMATION STATISTICAL NAME OF THE STATE AUTHORITY - DELHI LEGAL SERVICES AUTHORITY SERVICES - DELHI LEGAL AUTHORITY NAME OF THE STATE Bank recovery + 38 = Prelitigation litigation Post Total litigation Pre litigation Post litigation Total litigation Pre Post litigation litigation Total Pre litigation Post litigation Total Pre Post Total State Legal Services Authority (1)Crl. comp. & u/s 138 - (2) (3) (4) (5) Exclusively by Adalats heldAdalats u/s 19 of + NIA LSA Act 24 62 = (No. of cases 461settled) Bank Recovery cases -CriminalCompoundable cases & u/s 461138 N.I. Act - -MahinlaConciliation Matrimonial - -Total 04 - - - 465 - - 1025 04 - - - 1490 ------15 - 1585 461 15 - 1585 - - - - 461 2639 09 - 2639 09 465 - - 5249 04 24 5714 - 24 04 No. of Lok
103 Nyaya Kiran January-March, 2008 U/S 138 NIA:- ,18,90,482/-. CRL. 13,80,800/- (Col. 1to 4) COMP. & COMP. 01,02,650/- Rs.01,75,350/- aluk Legal ServicesTotal Grand (KKD. + ROHINI) Committees BANK RECOVERY CASES:- BANK RECOVERY CASES:- CRL. COMP. & U/S 138 CRL. COMP. NIA:- FINE REALISED:- FINE REALISED: COMPENSATION PAID:-COMPENSATION RS. 06,95,800/- PAID:- COMPENSATION Rs. Authority 01,52,000/- 28,200/- Exclusively by DistrictLegal Services T BANK RECOVERY CASES:- & U/SRS. Nil CRL. COMP. RS. Nil RS. 01 COMPENSATION PAID:-COMPENSATION RS. Services Committee High Court Legal 138 138 NIA:-FINE REALISED 01,18,90,482/- COMPENSATION 1025 1490 - - - - 1570 1585 - 2639 2639 465 5249 5714 NAME OF THE STATE AUTHORITY-DELHI LEGAL SERVICES AUTHORITY SERVICES LEGAL AUTHORITY-DELHI NAME OF THE STATE State Legal CASES:- RS. Exclusively by Services Authority (1)Lok adalat other than -litigation ---- litigation------(2) litigation litigation 44 litigation litigation (3) litigation litigation 68 litigation litigation (4) 174 (5) CRL. COMP. & U/S CRL. COMP. NIA:-FINE REALISED: RS. Rs.44,500/- Rs.44,500/- PAID:- RS. 05,33,000/-PAID:- RS.. amount No. of Lok Adalats heldu/s 19 ofM.A.C.T=Nil (MACT)=62 LSA Act 62 = Nil No. of MACT + 62 cases settled Pre Post no. ofTotal cases Settled 465 (including Total PreMACT) Awarded Post BANK RECOVERY Total Pre Post Total Pre - Post Total Pre Post Total STATISTICAL INFORMATION IN RESPECT OF LOK ADALATS FOR THE MONTH OF JANUARY - 2008 FOR THE MONTH OF JANUARY ADALATS IN RESPECT OF LOK INFORMATION STATISTICAL
104 Nyaya Kiran January-March, 2008 258 Insurance Total Service in dispensary SETTLED 03 hospital or sanitation Public Conservancy water D.V.B. Supply of power, telephone light or Postal, telegraph service or Service or SECTION 22B OF THE LEGAL SERVICES AUTHORITIES ACT AUTHORITIES SERVICES SECTION 22B OF THE LEGAL Number of sittings of Permanent Lok Adalats for public utility Services 38 Number of sittings Permanent Lok 38 Transport No. of casessettled No. of sitting 06 -Adalat (D.D.A.) Cases Permanent Lok 44 Total - 255 - - - 255 STATSTICAL INFORMATION REGARDING PERMANENT LOK ADALAT ESTABLISHED UNDER ESTABLISHED ADALAT REGARDING PERMANENT LOK INFORMATION STATSTICAL
105 Nyaya Kiran January-March, 2008
STATISTICAL INFORMATION IN RESPECT OF LEGAL AID BENEFICIARIES
Name of the State Authority- Delhi Legal Services Authority Statistical Information for the Month of March, 2008
Exclusively by High Court Exclusively Taluk Grand State Legal Legal District Legal Total Authority(Gole Services Legal Services Col.1 Mkt.+PHC+Jail) Committee Services Committees (to 4) Authority (KKD.+ ROHINI) (1) (2) (3) (4) (5)
Schedule Caste 11+02=13 - 14 - 27
Schedule Tribe - - - - Nil
Backward Class - - - - Nil
Women 74+11=85 10 49 28+39=67 211
Children - - - - Nil
In Custody 75+09+57=141 05 77 53+30=83 306
Accidental - 01 01 - 02
General 86+02=88 10 49 17+15=32 179
Total 246+24+57=327 26 190 98+84=182 725
Statistical Information in Respect of Legal Literacy/Legal Awareness Camps
State Legal High Court District Taluk Legal Total Services Services Legal Services Authority Committee Services Committees Authority (KKD+ROH.)
Total Legal - - - - - Literacy/Legal Awareness Camps
Number of - - - - - Persons Benefited
106 Nyaya Kiran January-March, 2008 court by the Referred (6) (Col.1 to 4) Grand Total Pre 904 225 446 16 litigation court Nil by the Referred (5) Pre 186 106 Nil litigation Counselling and Conciliation Centers court by the 01+Nil =01 01+Nil =01 (4) 02+03 =05 03+10 =13 Pre litigation Referred Exclusively by TalLegal uk Committees (KKD+ ROHINI) Service court by the Referred (3) Services Authority Exclusively Pre District Legal 54 26 litigation for the Month of March, 2008 court by the Referred (2) Committee High Court Pre 281 15 Nil Legal Services 586 223 Nil litigation court Nil =01 by the Referred 01+Nil (1) Services State Legal Pre Exclusively by Market+PHC) =65 =28 Authority(Gole litigation 41+24 05+23 settled of cases of cases Number Numbe r received state Authority:- Delhi Legal Services Authority, Patiala House, New Delhi Statistical Information Patiala House, New Delhi Statistical Authority, Authority:- Delhi Legal Services state Statistical information in respect of cases settled through counselling & conciliation Name the
107 Nyaya Kiran January-March, 2008 974 4974 122 + Bank recovery=27 Mahila Conciliation= 01=152 (Col. 1to 4) Crl. comp. & u/s 138 NIA 1423+ 2786 - 4 1363 =2786 aluk Legal ServicesTotal Grand (KKD. + ROHINI) Committees Authority Exclusively by DistrictLegal Services T Mahila Concil + 0168 39+29= = CRL. COMP.- 35CRL. COMP.- - COMP CRL. 17-R =194 077-Y - 194 ------194 - 194 High Court Legal Services Committee STATISTICAL INFORMATION FOR THE MONTH OF MARCH - 2008 INFORMATION STATISTICAL Prelitigation litigation Post Total litigation Pre litigation Post litigation Total litigation Pre Post litigation litigation Total Pre litigation Post litigation Total Pre Post Total Rent Cont. Matter + 02LSA Act 48 = = 36 + Rent Control matt.=02+ Exclusively by State Legal Bank recovery + 27 Services Authority (1)Crl. comp. & u/s 138 NIA- 19 - (2) (3) (4) (5) (No. of cases 417settled) Bank Recovery cases -Criminal 417 - - 732 - 732MahinlaConciliation - -Rent Contral -Matters - - -MatrimonialTotal - - - 40 - - - - - 40 417 - - - 772 1456 - 1456 - 1189 - - - - 265 - Nil - - - - - 417 265 - Nil - - 06 - 1462 - 06 417 1462 - Nil - - - 2786 - - - 2786 682 - - - 5020 - - 5702 - 06 40 - 06 40 - - u/s 19 of Compoundable cases & u/s 138 N.I. Act NDELBSES (Rajdhani) - (Yamuna)& - - - - - 71 1 - 71 ------71 - 71 Adalats held No. of Lok
108 Nyaya Kiran January-March, 2008 /-. CRL. U/S 138 NIA:- 1,015,95,997 15,07,800/- 1,46,600/- FINE REALISED: COMP. & COMP. COMPENSATION PAID:- COMPENSATION Rs. BANK RECOVERY CASES:- RS. (Col. 1to 4) OF MARCH - 2008 aluk Legal ServicesTotal Grand COMPENSATION PAID:-COMPENSATION Rs. Rs.62,700+28,000 (KKD. + ROHINI) =9,11,500/- Committees AID: = 90,700/- Authority & U/S 138 & U/S 138 CRL. COMP. DALATS FOR THE MONTH DALATS Rs. 1,57,400/- COMPENSATION P COMPENSATION NIA: FINE REALISED NIA: FINE REALISED Legal Services Exclusively by District T Rs. 2,31,20,236/- BSES CASES:-(RAJDHANI) Rs. 40,80,970/- Rs. 22,600/- NDPL CASES:- Rs. 49,36,000/- Services Committee AMOUNT RECOVERED CRL. COMP. High Court Legal 1,05,95,997/- COMPENSATION 4,38,900/- (YAMUNA) Rs. 4,90,500+4,21,000 NAME OF THE STATE AUTHORITY-DELHI LEGAL SERVICES AUTHORITY SERVICES LEGAL AUTHORITY-DELHI NAME OF THE STATE Rs.33,300/- Rs.33,300/- NIA:-FINE REALISED: CRL. COMP. & U/S 138 CRL. COMP. MACT AWARDED AMT. AWARDED MACT PAID:- RS. PAID:- Rs. 1,41,23,000/- CASES:- RS. State Legal Services Authority --5959 (1) ------Lok adalat other than -litigation litigation-5959-- (2) litigation litigation 36 litigation litigation (3) litigation litigation 68 litigation litigation (4) 155 (5) Exclusively by STATISTICAL INFORMATION IN RESPECT OF LOK A IN RESPECT OF LOK INFORMATION STATISTICAL amount No. of Lok Adalats heldu/s 19 of (MACT)=48 + M.A.C.T= LSA Act 51 = 03 No. of MACTcases settled Pre Post no. ofTotal cases Settled 417(including Total PreMACT) 831Awarded Post 1248 BANK RECOVERY 265 Total Pre Nil Post 265 Total Pre Nil Post 1462 1462 Total Nil Pre Post 2786 Total 2786 682 5079 5761
109 Nyaya Kiran January-March, 2008 317 Insurance Total Service in dispensary SETTLED 02 hospital or sanitation Public Conservancy water D.V.B. Supply of power, telephone light or Postal, telegraph service or Service or SECTION 22B OF THE LEGAL SERVICES AUTHORITIES ACT AUTHORITIES SERVICES SECTION 22B OF THE LEGAL No. of casessettled No. of sitting 07 -Adalat (D.D.A.) Cases Permanent Lok 42 Total - 315 - - - 315 Number of sittings of Permanent Lok Adalats for public utility Services 35 Number of sittings Permanent Lok 35 Transport STATSTICAL INFORMATION REGARDING PERMANENT LOK ADALAT ESTABLISHED UNDER ESTABLISHED ADALAT REGARDING PERMANENT LOK INFORMATION STATSTICAL
110