Judicial Impact Assessment Study-‘Extra case load from new laws should be studied’

New Delhi, June 18

Even as more and more laws are introduced in the country, a scientific assessment ought to be made to estimate the “extra case load” which any new Bill or legislation may add to the burden of backlog in courts. This was the primary recommendation of a report submitted on Wednesday before Union Law Minister H R Bhardwaj by the task force headed by Justice M Jagannatha Rao to study the feasibility of “Judicial Impact Assessment”, a concept widely followed in the US.

The rationale behind the assessment, the report explained, is to estimate beforehand the additional workload to be borne by the judiciary due to new laws. The Government should make the necessary budgetary provisions for adjudication of cases coming under the new laws, whether passed by the state legislatures or the Parliament, at the bill stage itself, the panel recommended.

“The Government of India must make assessments and provide necessary financial support at the bill stage for implementation of Central laws on subjects in the Union List or the Concurrent List in the courts,” suggested the task force. It, however, expressed reservations about state governments bearing the financial burden of implementing Central laws, adding the Centre should financially gear up the states.

Even as the states provide the necessary finance and infrastructure to the judiciary for implementing the new “rights or offences” created by the fresh laws, the task force recommended that the Centre must establish additional courts for implementation of Central laws.

It proposed setting up of a judicial impact office at Delhi and identical establishments in state capitals with the help of social scientists, statisticians and legal experts.

“There is no point in blaming the judiciary for case arrears; the blame must also lie with other departments that help it,” said Justice Rao, a former Supreme Court judge. He said there were 2.5 crore cases still pending in lower courts in the country despite these courts disposing of 1.5 crore cases annually.
“The backlog does not get wiped out because fresh cases almost equal the cases disposed off every year,” said Justice Rao.

Consumer Forum fines Chennai-based High Court advocate for ‘deficiency in service’

The Coimbatore District Consumer Disputes Redressal Forum (CDCRF) has imposed a fine on a Chennai-based High Court advocate, holding him responsible for deficiency in service, causing mental agony and loss to a litigant in a civil dispute.

Petition


The forum led by its President S.A. Sriramalu along with members Madhavi and K. Rathnam passed the orders while disposing of a petition by V. Karuppusamy and two others from Avinashi.

The petitioners contended that in August 1995 they had moved a petition before the Tiruppur Munsif Court seeking relief in a civil dispute wherein the petitioner alleged that Marakutty & Muthusamy (legal heirs of Pongiya Gounder and Pongiammal who sold the land to the petitioner) were causing hindrance to his agricultural activities on the land.

The Tiruppur Munsif Court had granted an injunction in favour of the petitioner.

Challenging the same, the respondents moved a civil appeal before the Tirupur Sub Court which in its orders nullified the orders of the Munsif Court.

However the sub court did not grant any relief in terms of change of ownership of the land.

Seeking endorsements and modifications to the orders of the Tirupur sub court the petitioner in this case Mr. Karuppusamy approached the advocates for moving an appeal before the Madras High Court. Under such circumstances, the petitioner sought relief and compensation from the advocates K. Subburayan of Tirupur, K. Srinivasan of Madurai and E. Ulaganathan of Chennai, for the delay that had been caused in moving the appeal.

The petitioner observed that the delay of 3,728 days was a clear case of deficiency in service causing mental agony and loss.

For the act of colluding with the opposite parties contrary to the interest of the litigant and justice, the advocates were liable to pay compensation, the petitioner said.

He said that one of the advocates had misled the petitioner by not informing him that the High Court had rejected the petition seeking exoneration of the delay.

The opposite parties in this case i.e., the three advocates in their separate counters had maintained that the delay was not because of them and held the petitioner responsible.

Case


They further added the case was not sustainable before this forum either by the facts or by the merits of the case.

The forum on completion of the hearing concluded that the petitioner had failed to prove his case against the first respondent and added that the second respondent in this case was implicated wrongly.

Finally, the forum observed that the charges against the third respondent had alone been proved by the petitioner.

Hence, the forum directed the third respondent namely advocate E. Ulaganathan to refund the service charge of Rs.46,500 (collected from the petitioner) with interest from the date of remittance by the petitioner till the date of refund by the advocate.

It ordered compensation of Rs.1 lakh again with 18 per cent interest from the date of order till the date of settlement.

The petitioner was also entitled to receive Rs.2,000 as the cost of litigation.

Order


The above said compensation, refund with interest and cost of litigation would have to be paid within two months from the date of the order.

Failing this, the petitioner was at liberty to proceed under Sections 25 and 27 of the Consumer Protection Act, the forum said.

Evidence by child witness crucial in trials, rules SC

New Delhi, June 18
The Supreme Court has yet again held that a statement by a child witness can be treated as a crucial piece of evidence like any other given by a witness in a criminal trial and may form the basis for convicting an accused.
A Vacation Bench comprising Justices Arijit Pasayat and P P Naolekar asked the courts, including the high courts to treat such statements cautiously as minors can be influenced easily. “The evidence of a child witness cannot be rejected outright, but the evidence must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring,” it said.
While relying on their statements, it further asked the court’s to assess whether the victim’s statement is voluntary and not under the influence of others. The ruling came during the hearing of a case where the apex court decided to go by the statement of a minor rape victim who held the accused, Md Kalam, guilty of the crime.
It observed that the trial court and the Patna High Court have found the evidence provided by the child witness as “cogent, credible and had grain of truth.” It held that the HC rightly found that the evidence of the victim was free from any influence.
While the Bench upheld the conviction, it, however, felt that “five years custodial sentence with fine imposed by the trial court and maintained by the HC would meet the ends of justice.”
Earlier, the Sessions Court in Bihar had sentenced Kalam to ten years imprisonment for raping a six-year-old girl. Since the Patna High Court dismissed Kalam’s appeal, he had approached the apex court. Kalam’s advocate contended that the two subordinate courts had wrongly convicted him by relying upon the testimony of a child without further corroboration.
The state counsel submitted that the testimony of a child witness particularly in such a heinous case does not require corroboration, as long as it is credible. It was pointed out that the victim, immediately after the rape, had told her mother about the incident and, therefore, her evidence is of considerable importance.

Strict liability expanded

Storing and dealing in noxious materials could invite heavy damages.


In this industrial age, many companies are manufacturing and transporting hazardous substances to populated areas. Ordinary citizens cannot hope to understand the nature of such dangerous activities going on in their neighbourhood. The truck in front of your car in a traffic jam might even be carrying nuclear materials. Who will be liable to pay compensation if an accident occurs? Parliament had passed the Public Liabilities Insurance Act in 1991 to provide for such industrial accidents, but it is hardly noticed owing to the low amount of money prescribed as damages and a general lack of awareness of the entitlements.

The Supreme Court, in the Shriram Fertiliser Industries case (1987), had imposed the "strict liability" principle on erring industries. It ruled that "if the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overhead". The court also emphasised that there are no exceptions to the rule of strict liability. Moreover, the amount of compensation would depend upon the capacity of the enterprise and not the earning capacity of the individual victims.

This principle has so far been applicable only to private concerns. However, in a judgment last month, the Supreme Court has extended it to cover public utilities like the railways, electricity distribution companies, public corporations and local bodies "which may be social utility undertakings not working for private profit". The ruling came in a claim against the railways, Union of India vs Prabhakaran. A woman fell on a railway track and was fatally run over. Her husband demanded compensation. The railways argued that she was negligent as she tried to board a moving train. The Supreme Court rejected this contention and said that her "contributory negligence" should not be considered in such untoward incidents ? the railways has "strict liability".

The doctrine of strict liability was propounded in a 19th century English case, Rylands vs Fletcher. According to the doctrine, people who engage in particularly hazardous activities should bear the burden of the risk of damage that their activities generate. Thus, corporations that handle water, electricity, oil, noxious fumes, colliery spoil and poisonous vegetation are covered by this doctrine. Negligence of the victims is no excuse. The doctrine also operates as a loss-distribution mechanism: The person indulging in such hazardous activities (usually a corporation) being in the best position to spread the loss through insurance and higher prices of its products. However, later decisions in England diluted the principle by introducing several exceptions. The Shriram judgment categorically said that such exceptions would not be applicable in India. The present verdict further emphasises this point and expands its scope.

The Supreme Court said that there is a swing in favour of the principle of strict liability. The unfinished stories of the Bhopal holocaust, the Chernobyl nuclear disaster, the crude oil spill of 1988 and other mishaps have aroused jurists to the dangers of industrial activities. But the state of the law of torts varies in common law countries. While the US and English courts do not enforce the doctrine rigorously, French courts (like in India) have accepted the principle.

Earlier, the Supreme Court had applied the doctrine to electricity mishaps. An electric wire had snapped and fallen on the road. On a rainy night, a cyclist came in contact with it. He died on the spot. His widow demanded damages from the electricity authorities, MPSEB vs Shail Kumari, 2002. The board argued that the wire belonged to a pilferer and that it was not negligent. Rejecting this contention, the Supreme Court said: "It is no defence on the part of the board that somebody committed mischief by siphoning off energy to his private property and the electrocution was from such diverted line? Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps." The basis of the liability is the "foreseeable risk inherent in the very nature of such activity".

In a road accident case (Kaushnuma Begum vs New India Assurance Co, 2001), the insurer resisted the claim of a widow contending that it was liable to pay only when the death was caused by the negligence of the driver. The court rejected this argument. Strict liability and liability on account of negligence are different in the law of torts. If a person has done his best to avoid harm, he is not liable if the claim is based on negligence. But in strict liability cases, a person engaged in dangerous activities is held liable once the damage is done.

CIC allows peep into babus' personal assets

Bureaucrats can't seek protection under right to privacy claim'

With the Chief Information Commissioner (CIC) ruling in a landmark
order that bureaucrats do not have "right to privacy" on personal
assets, babus may now find it difficult to stash away their ill-gotten
wealth. CIC Wajahat Habibullah passed the judgement on a petition
filed by Dr Kousthubha Upadhyaya against the denial of information by
the Department of Personnel and Training (DoPT).

Dr Upadhyaya, a senior ayurveda medical officer in the Central
Government Health Services, had sought details of personal assets of
his superior (Shiva Basanth IAS, Joint Secretary) in the Health
Ministry under the Right to Information Act from DoPT on October 27,
2006. He had sought the details of three years' property transactions,
including the purchase of a posh flat in Gurgoan by the IAS officer.

But DoPT refused to provide the details, saying such information was
"confidential" and "personal" in nature. "The immovable property
returns (IPRs), like the annual confidential reports, have always been
treated as confidential ... personal in nature. It was because of this
only that there has never been any occasion where it was felt
essential for bringing these documents in public domain," DoPT stated
in its reply.

Trashing the DoPT stand , the CIC quoted a Supreme Court judgement
which said, "When there is a competition between the right to privacy
of an individual and the right to information to the citizens, the
former right has to be subordinated to the latter as it serves larger
public interest." In his judgement, the CIC upheld the arguments of Dr
Upadhyaya for equating the status of politicians with civil servants
in declaration of assets. In this context, the CIC quoted two SC
judgments: Union of India vs Association for Democratic Reforms (May
2002) and People's Union of Civil Liberties vs Union of India
(February 2003). The court was ruling on the requirement for filing
nomination papers for elections and said that a candidate must also
submit the properties held in the name of the spouse.

Dr Upadhyaya argued that when such rigorous norms have been fixed for
those wanting to contest elections, and such people are in service for
only the limited term of their office, the Government servants --
engaged in life-long service -- could not be exempt. The CIC upheld
his contention.

Quoting another SC judgement (Roshan Lal vs Kendriya Vidyalaya
Sangathan), the CIC observed that the same was applicable to all civil
servants. "The annual property returns by Government employees are in
public domain and there seems to be no reason why they should not be
freely disclosed. This should also be considered as a step to contain
corruption in Government offices since such disclosures may reveal
instances where property disproportionate to known sources of income
has been acquired," the CIC ruled.

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CIC split over making public property details

Thanks to its disorderly functioning, the Central Information Commission (CIC) has ended up creating an anomaly on whether annual property returns filed by government employees should be put in the public domain.

Four different members of CIC dealing with cases from four different departments have given conflicting rulings under the RTI Act on this sensitive question. As a result, some departments are required to disclose the property returns of their employees while other departments have been allowed to treat the same as "personal information" exempt from disclosure under Section 8(1)(j) of the RTI Act.

This provision states that barring the overriding consideration of "larger public interest," the central public information officer of any public authority is exempt from disclosing personal information which has "no relationship to any public activity or interest" or which could cause "unwarranted invasion of the privacy" of the employee. Consider the manner in which coordinate benches of CIC have pulled in different directions while interpreting this provision.

In a recent case, CIC chief Wajahat Habibullah held on May 14 that the department of personnel and training (DoPT) could not claim exemption on the disclosure of property returns filed over three years by IAS officer Shiva Basanth. Since the information was "without doubt of concern to a third party," Habibullah entered a caveat saying that DoPT would have to give Basanth a hearing under Section 11 on whether his property returns could be disclosed.

Two months earlier, in a case relating to Kendriya Vidyalaya Sanghathan, CIC member O P Kejariwal ruled that the property returns of all Group A and B employees should be put in the public domain as a measure to "contain corruption in government offices." Accordingly, in Kejariwal's view, there was no need to give a hearing to the employees concerned before their property details were made public.

The liberal positions adopted by Kejariwal and Habibullah are a far cry from the order passed by their colleague, A N Tiwari, in July 2006 in a case pertaining to the Delhi Police. He held that property returns were "non-disclosable" because they were generally kept in sealed covers and would be used only when the employee faced a charge or an inquiry. "It is not held as public information but rather as a safety valve," Tiwari said.

CIC member M M Ansari was the first to disallow disclosure of property returns when he dismissed an appeal in February 2006. He upheld the decision of the department of revenue (finance ministry) refusing to disclose the property returns of income tax commissioner Virender Singh. In Ansari's view, property returns fell in the exempted category of personal information which was liable to cause "unwarranted invasion of privacy" of the employee concerned.

When coordinate benches, whether of the judiciary or of a regulatory body such as CIC, come up with conflicting interpretations of a key provision, it creates an uncertainty and gives scope for arbitrariness in the enforcement of the law.
In the event of disagreement between benches, the courts often refer the matter to be resolved by a larger bench. Following the judiciary's example, CIC would do well to dispel the confusion on the status of property returns in the RTI Act by constituting a larger bench.

CIC split over making public property details

Thanks to its disorderly functioning, the Central Information Commission (CIC) has ended up creating an anomaly on whether annual property returns filed by government employees should be put in the public domain.

Four different members of CIC dealing with cases from four different departments have given conflicting rulings under the RTI Act on this sensitive question. As a result, some departments are required to disclose the property returns of their employees while other departments have been allowed to treat the same as "personal information" exempt from disclosure under Section 8(1)(j) of the RTI Act.

This provision states that barring the overriding consideration of "larger public interest," the central public information officer of any public authority is exempt from disclosing personal information which has "no relationship to any public activity or interest" or which could cause "unwarranted invasion of the privacy" of the employee. Consider the manner in which coordinate benches of CIC have pulled in different directions while interpreting this provision.

In a recent case, CIC chief Wajahat Habibullah held on May 14 that the department of personnel and training (DoPT) could not claim exemption on the disclosure of property returns filed over three years by IAS officer Shiva Basanth. Since the information was "without doubt of concern to a third party," Habibullah entered a caveat saying that DoPT would have to give Basanth a hearing under Section 11 on whether his property returns could be disclosed.

Two months earlier, in a case relating to Kendriya Vidyalaya Sanghathan, CIC member O P Kejariwal ruled that the property returns of all Group A and B employees should be put in the public domain as a measure to "contain corruption in government offices." Accordingly, in Kejariwal's view, there was no need to give a hearing to the employees concerned before their property details were made public.

The liberal positions adopted by Kejariwal and Habibullah are a far cry from the order passed by their colleague, A N Tiwari, in July 2006 in a case pertaining to the Delhi Police. He held that property returns were "non-disclosable" because they were generally kept in sealed covers and would be used only when the employee faced a charge or an inquiry. "It is not held as public information but rather as a safety valve," Tiwari said.

CIC member M M Ansari was the first to disallow disclosure of property returns when he dismissed an appeal in February 2006. He upheld the decision of the department of revenue (finance ministry) refusing to disclose the property returns of income tax commissioner Virender Singh. In Ansari's view, property returns fell in the exempted category of personal information which was liable to cause "unwarranted invasion of privacy" of the employee concerned.

When coordinate benches, whether of the judiciary or of a regulatory body such as CIC, come up with conflicting interpretations of a key provision, it creates an uncertainty and gives scope for arbitrariness in the enforcement of the law.
In the event of disagreement between benches, the courts often refer the matter to be resolved by a larger bench. Following the judiciary's example, CIC would do well to dispel the confusion on the status of property returns in the RTI Act by constituting a larger bench.