The Law is an Ass

June 30, 2007

By Devil’s Advocate

The great Lord Denning had once said that the Law is an Ass. When he said so he had meant that there is too much burden on the Law. However when we look at some of the meaningless laws in our country, Lord Denning’s words could be given a different meaning altogether. Here is a strange case involving the laws of the Border Security Force which by any sense of imagination cannot be termed as meaningful. You could call it a case of redtapism or a case of oversight or maybe even sheer legal hairsplitting. A constable in the Border Security Force whose wife was killed in a militant attack was not granted ex-gratia, “Because she was not abducted” before being killed.

This is what the relevant rule (paragraph 8 of the Official Memorandum of the BSF) states: a BSF personnel cannot claim ex-gratia for his wife’s death unless she had been “abducted and then killed”.

Munirajappa, who retired from service during the course of his 8-year-old legal battle for ex-gratia, is also physically disabled.

He has no choice but to continue his legal battle after he was told that he would have been granted exgratia “if his wife had been abducted and then killed” instead of being “killed directly. ”Col Bhupinder Singh (Retd), counsel for Munirajappa, says the problem here is that the BSF does not have its own pension regulations and is dependent on the Central Civil Services Rules.

Munirajappa, a resident of Bangalore, enrolled in the BSF on July 20, 1985, and was posted at Bandipur, Jammu and Kashmir section, in February 1994. He was permitted to take wife Bharathi along and provided accommodation by the force.

On July 13, 1999, at around 2 pm, Pakistan militants raided the BSF camp where the couple was staying. The insurgents entered began firing indiscriminately and before the family realised what was happening, Munirappa’s daughter was hit by a bullet. Bharathi while trying to save her child also was hit by a bullet.

While the daughter survived, Bharathi succumbed to injuries after undergoing two rounds of surgery. Munirajappa wrote to the authorities concerned, claiming payment of ex-gratia on his wife’s account. He wrote several letters and finally on February 12, 2001 the Ministry of Home Affairs responded, rejecting his claim on the ground that the grant was applicable only to the members of the force and not their kith and kin.

Following this, he approached the Karnataka High Court where Justice N K Patil directed that the matter be considered afresh. However, the Ministry of Home Affairs rejected his claim on the ground that his wife was, “not abducted and then killed”.

Strange isn’t it. But this is the law my friends.

 


Is there any truth in the Truth Serum?

June 28, 2007

By Devil’s Advocate

Bangalore:

Former Mumbai Police Commissioner, R S Sharma was the biggest catch in the fake stamp paper racket. Infact his arrest too was amidst high drama. The Stamp Investigation Team arrested him a day after he resigned.

Now coming to the real issue. Mr. Sharma was cleared of all charges by a Mumbai court and today the man walks free after a three year stint in jail. The court while acquitting him observed that there was no evidence against him.

This brings us to the key issue. Is narco analysis really as truthful as it is claimed? The narco analysis of Telgi (kingpin), polygraph of former Mumbai cop, Dilip Nayak did make several references to Sharma’s involvement in the scam either directly or indirectly. Newspapers lapped up the news at that time and the investigating agency spoke as though they had hit the final nail in the coffin where Sharma was concerned.

With this acquittal the question is whether a narco test has any value in the eyes of law. Time and again, courts have disapproved of this investigating tool and have said in clear terms that it cannot be used as evidence. It seems as though this particular case has proved the courts right. Another thing which could be said is that the investigating agency did not do enough to use the leads they got through these narco tests.

Although the FSL at Bangalore swears that there is nothing but the truth in narco tests, this claim now seems doubtful. It seems as though a persons thoughts can be controlled during the tests and it has become a habit for criminals to throw big names while being questioned. It is not as though the FSL or the investigating agency do not know about these things.

Unfortunately, the narco tests were leaked and were used as weapons of political destruction. It is also very sad that all the effort that goes into a narco analysis test just goes down the drain as what is being noticed is that investigating agencies are really not making use of these tests. They too are using it to sensationalise the issue.

We are in an age where there is a strong demand to do away with the concept of third degree treatment in police stations. The only way to overcome this is by adopting scientific methods.

The debate on the credibility of these tests will continue for long. However it is time that investigating agencies use such tests to their advantage and convince the courts regarding its necessity. The courts too have to accept such methods. However it is unfortunate that courts too do not seem to give any kind of clarity on the use of narco analysis as an investigating tool.

I firmly believe that using this test as evidence will have nothing but a disastrous effect. The solution would be to frame guidelines while conducting such tests. Guidelines could include:

a) Consent of the accused

b) Presence of the advocate and family members of the accused during the test

c) Conduct all three tests- narco, polygraph and brain mapping to get some clarity on the issue. In 99 per cent of the cases, the three tests have not been conducted.

d) Use it only as an investigating tool.

 


Don’t forget the cause

June 27, 2007

By Devil’s Advocate

There is common joke in the courts that most advocates win cases on the basis of face law than case laws. At times it could work in favour of the advocate but on many occasions it could against him also.

We have seen another trend in the courts dealing with public interest litigations. Many a time the courts have rejected PILs while questioning the credibility of the petitioner himself. While I am not trying to suggest that there are no motivated PILs, I would also like to make clear that although some PILs are motivated or filed for personal gains, courts ought to bear in mind that the cause is above anything.

It is heartening to learn that the Supreme Court of India has taken note of this aspect and stated in clear terms that in PIL’s the cause is more important that the credibility of the litigant.

Here are some observations by the Supreme Court which dealt with a similar issue.

 

“In public interest litigation (PIL), even if the bonafides of the litigants are suspect, the courts may still examine the issue on hand after considering the seriousness of the public cause by appointing an amicus curiae.”

“In an exceptional case, where the bonafides of the petitioners are questionable, courts may take the assistance of an amicus curiae, but under no circumstances can the assistance of the doubtful petitioner be sought.”

 

“For the last few years, the inflow of PIL’s has increased manifold. Considerable judicial time is spent in dealing with such cases. A person acting bonafide alone can approach the court in public interest. Such a remedy is not open to an unscrupulous person who acts, in fact, for someone else. The liberal rule of locus standi exercised in favour of a bona fide PIL has immensely helped the cause of justice. Such litigants have drawn the attention of the court.”

 

“Courts should not allow its process to be abused by a mere busybody, a meddlesome interloper, wayfarer or officious intervener without any concern, except for private gain or private profit. PIL is a weapon to be used with great care. The judiciary has to be careful to see that behind the veil of public interest, an ugly private malice is not lurking. Public Interest should not be used for suspicious products of mischief. The process of law should not be abused for oblique considerations by masked phantoms.”

 


Legislators’ junket -Is the court justified in hearing this plea?

June 26, 2007

By Devil’s Advocate
A petition has been filed in the High Court of Karnataka seeking a stay on the foreign trip by the legislators. The petition by Mr. Krishna Bhat states that the legislators are scheduled to make a trip to China and this has to be stopped at any cost.
The question that has been raised by the petition is whether such a trip is necessary when the state is reeling under drought and whether it would be fair to spend so much of money on a pleasure trip. The legislators however term it as an educational trip and feel that this would help the state in the long run.
This is the dispute between the petitioner and the legislators. Now the real question to be asked is whether the High Court is justified in hearing this plea? The reason why this question is being asked is because the Chief Justice and five other judges recently made a similar trip to the United States. The judges said that the trip was a part of an exchange programme. Whatever may be the case, a lot of money has gone into this trip. And whose money is it anyway?
The High Court which heard the petition by Mr. Bhat has admitted it and also ordered issuance of notice to the State government among others.
The CJ along with five other judges spent 20 days in the US. Surely this money was not their own. This trip could be classified as a junket. Maybe the judges learnt a lesson or two on disposal of cases. But doesn’t it amount to double standards to hear a case of pertaining to the legislators when they themselves have sailed very recently on the same boat.
This is not the first time that such a case has come up before the High Court. When Justice N K Jain was the chief justice, Mr. Bhat had challenged a junket of the Congress legislators. The junket was stayed but the stay later vacated and the legislators were given the green signal to set foot on foreign soil.
Now just because the High Court ought not to hear the matter, it does not mean that the issue should die. Since it is in the nature of a public interest litigation, it is heard by the Chief Justice who himself was part of such a junket. Should he ask some other judge to hear the matter or should he refer it to the speaker of the house?
Ideally the matter should be referred to the speaker and when his order is challenged, it should come up before a judge who was not part of the very recent judges’ junket.


There is more money than water flowing here

June 25, 2007

talcauvery11.jpg

By Devil’s Advocate

There has been a serious concern raised about the manner in which “top notch” advocates bill their clients. Right from accommodation, breakfast, travel and in many a case, laundry charges are being passed on to the client.

Take for instance the Cauvery water’s dispute which unfortunately did not go the way Karnataka wanted it to. The bills produced by the team of advocates headed by senior counsel Fali S Nariman are quite shameful and raises a very important question. “Was it worth it?”

Churumuri.com had put up an interesting piece on the amount charged by the advocates for the fighting the Cauvery Water’s dispute. Published below is the article.

Between 1990-91 and 2007, the State spent a grand total of Rs 22.10 crore on the 18 lawyers who represented it at the apex court. That’s roughly Rs 1.22 crore per black coat.

Documents procured by a Dharwad citizen, Krishna Joshi, using the provisions of the Right to Information, the story shows that, on the other hand, the State spent Rs 1.34 crore on the 10 advocates-general in the same 16-year period.

Anil B. Divan took home the lion’s share of the Rs 22 crore, with Rs 9.66 crore, followed by S.S. Javali (Rs 3.77 crore) and Mohan V. Kataraki (Rs 2.75 crore). Fali S. Nariman who has represented the State from very nearly the beginning of the dispute took Rs 2.08 crore.

The most inexpensive lawyer was Ashok Mathur whose services cost the State Rs 3,000.

The highest expense incurred by the State in the 16-year saga was in 2005-06 when it filed a review petition before the Cauvery Tribunal. The lawyers’ fees in that financial year was a grand total of Rs 5.19 crore.

Kataraki visited Bangalore 193 times to discuss the case with state officials, Javali 158 times, Shambhu Prasad Singh 138 times, Divan 46 times, Syed Naqvi 26 times, Nariman 19 times, Brijesh Kalappa 18 times and Ranveer Singh 14 times.

Let us not blame the lawyers alone for this. When someone is ready to pay, why not ask? Is it not the duty of the state government to strike a balance somewhere when it comes to making payments? Mr. Nariman may be the best in the business, but is he irreplaceable? The need of the hour was dedication and a larger team of advocates from Karnataka who could understand the seriousness of the issue and fight the case with a great amount of passion.

In a legal battle one has to win and one has to lose. The question is whether such a payment was justified?

As was pointed out some of these lawyers have made numerous trips to Bangalore. At Bangalore the lawyers were put up at the Windsor Manor and all the conferences with various officials were held at the very same hotel.

So the irony here is that the Rs. 22.10 crore mentioned is just the lawyers’ fee. If one takes into account all the other expenditure involved, the expenses incurred is a shocking Rs 34 crore. This would include charges incurred for conferences at both New Delhi and Bangalore. The trips made by the officials and also the Advocate General would also form part of this madness.

Now for the real shocker. The expenditure in the Cauvery Water’s dispute has not ended. After the verdict of the tribunal, another series of conferences were held both in Delhi and Bangalore. The last conference held in Bangalore in the month of May 2007 lasted 6 days at Windsor Manor. And guess what the conclusion was at the end of the conference. “To oppose Tamil Nadu in the Supreme Court and ask for a larger share of water.” Like none of us knew that this is what was supposed to be done.

Guess it is time to ponder over this issue and law brought in to curb lawyers from charging such unimaginable amounts. Now is this possible considering the fact that 99 per cent of the judges were lawyers prior to their elevation.


When the Harasser is an Executive

June 24, 2007

By David J. Biviano, Ph.D

It happens too often. The complaint of sexual harassment is against an executive. The investigation substantiates the claim, resulting in a corrective action order for the accused. Most companies know that this problem will not be solved by simply sending the offender to a class of any length. The accused typically adopts a victim posture, marshalling all the defenses of rationalizing, minimizing, discounting, blaming and hostility towards his persecutors, including the complainant and the company officers. This executive will likely return from training having learned little about his (or her) own behavior, and still not assuming responsibility for their behavior.

This scenario is born out by the clients I have worked with who, months after the order, still insist they have been unfairly accused. They protest that their reputations and professional standing have been affected, and all because of a misunderstanding, or worse, a hyper-sensitive complainant. This is a description of a repeat offender – it will happen again. The company remains at risk, as do future targets of unreformed behavior.

One company put restrictions on the offending manager, disallowing him to hire or supervise female employees, pending evidence of rehabilitation. This is also problematic, placing the company at risk for gender discrimination in hiring in that department. This is an untenable situation, and if unresolved, requires the termination of the offender.

This executive is most often a valuable asset to the company in every other way – a long time employee, an expert in the field, possessing expertise that will hard to replace. What is the company to do?

Several companies have asked for a different approach to these highly placed liability risks. They request a one-to-one intensive intervention, with an assessment and report as to the likelihood to re-offend. I have found this approach to be wise and effective.

The elements that are critical to assuring rehabilitation are: listening to the offender until they are assured they have been heard; developing empathy in the offender for the experience of the complainant; tutorial in sexual harassment law, policy and procedure, including the responsibilities of managers and supervisors.

The critical element is the success of the empathy exercise. If the offender is able to transition from focusing on his/her own feelings and the impact of the case on themselves, to an authentic appreciation for the impact on the target, then they make a breakthrough to a new view of their behavior. The walk through the law and policies and procedures now takes on a whole new potential, where they can reflect on the ways in which their conduct was in fact a violation.

The assessment of rehabilitation and likelihood of re-offending is based on an essay assignment regarding “lessons learned.” The executive is given a week to reflect and prepare this assignment. My experience is that this document is radically different from the posture expressed in the initial session, which was full of defensiveness and self-justification. There is now an expression of accountability for the behavior and its impact on the target and on the liability of the company. Follow-up coaching sessions are advised to assure the “lessons learned” take hold. It is unlikely that this person would ever be able to engage in similar behavior again. They typically have also gained some balance, moving from feeling like they are walking on eggshells, to distinguishing between friendly, social interactions and inappropriate behavior. Of course, it is also critical that the company has attended to the rehabilitation of the complainant, at whatever cost. This would be a just and fair resolution.

Courtesy: http://www.hr-guide.com/data/07201.htm

The author could be contacted at:
Workforce Diversity Services
1400 Hubbell Pl., Suite 812
Seattle, WA 98101
206-930-9981
http://www.workforcediversity.us
djbiviano@workforcediversity.us


Does Justice Reddy need a language policy?

June 22, 2007

Ram Mohan Reddy

Oral observations are in and written orders almost out. This unfortunately is not a trend that we could feel happy about. Sometimes a strong observation does the trick but on several occasions it only ends up ruining the case in toto.

Mandamus226 had recently posted an article discussing the manner in which some of the judges spoke in open court. However let us be specific and talk about Justice Ram Mohan Reddy who has this habit of shooting his hat every time he hears a case.

Here are some observations. You decide for yourself whether such comments are necessary or not. Let me tell you something. The best judges are the one’s who spoke less and wrote more. For example Mr. Justice M N Venkatachalaiah.

NGEF liquidation proceedings before Justice Ram Mohan Reddy: The site on which NGEF is situated was put on auction. Counsel for the highest bidder stood up to argue his case. Justice Reddy remarked- “you are nothing but a land shark. Sit down.”

NGEF liquidation proceedings before Justice Ram Mohan Reddy: State Bank of Mysore which is due close to Rs 80 crore from the government is also a party in this litigation. The argument by SBM is that if the land is auctioned, then Rs 80 crore should be returned by the government from the money it gets from the auction. When the counsel for SMB stood up to make his submission, Justice Reddy shot back, “you are an ordinary money lender. Sit down.”

 Matter relating to election to local bodies: Justice Reddy sought to know why the reservation list was not drawn out. The government advocate tried justifying the delay. Justice Reddy then shouted back, “it is a Tughlak durbar over there in your government.”

Diamond district matter: Justice Reddy sought to know why some of the officials had not been punished. As usual the government advocate tried explaining. To this Justice Reddy remarked, “ the officers are bandicoots.”

Think about it.