R DEVARAJAN

Out of Tihar    “Bail is the rule and jail is the exception” is the recognized rule of law. But in the case of Kanimozhi and others the time taken to grant bail was much more than expected, since the alleged offence said to have been committed by them is of enormous proportion and the loss caused thereby would be very heavy to the exchequer and injurious to the economy. Therefore the trial courts were fighting shy of granting bail to these people. However the Supreme Court has let five corporate executives out of jail in 2G

case. The Supreme Court has clearly laid down that the public sentiments against the accused can not be the basis for denying bail to the accused. In the present case the charge sheet has been filed and the statements of the witnesses are very voluminous. The court has of course directed that the accused should not try to influence the witnesses or tamper with evidence. Taking the cue from the Supreme Court, the Delhi High Court has granted bail for Kanimozhi and four others. Karunanidhi is certainly a happy man.    The unfolding of the future would be extremely interesting.

Kanimozhi

   After many attempts to avoid appearing before the special court trying the Rs.66.6 crore disproportionate assets case in Bangalore, Tamil Nadu Chief Minister Jayalalitha made it to Bangalore to answer more than 1000 questions relating to

Jayalalitha

the case. So far as the majesty of law is concerned this is a welcome development because nobody whether a politician or a businessman or a corporate executive is above the law. The Karunanidhi government routinely foisted false cases on Jayalalitha with the intention to harass her to the maximum. To her full credit Jayalalitha has taken these cases head on and has come out unscathed in almost in all the cases. The DMK hopes that the ruling in the disproportionate assets case will go against her. If serious investigations are set in motion against the DMK men for amassing illegal wealth, the skeletons that would tumble out cannot be counted.

   Ajudgement obtained by fraud on court, without disclosing material facts relevant to the communication will become a nullity. Once it was established that the order was obtained by playing fraud, it would be vitiated and it was to be treated as non est by every court, superior or inferior. Even though this is apparent on the basis of general principles of true and fair practices before the court it is significant that the Apex Court has come out with a clear decision on this important point. The time has come when judges should not strictly confine themselves only to the evidence established by the counsels for the appellant and the defendant but should travel beyond such evidence to find out the truth. The court should take a proactive role.

   The Mullaperiar dam issue is assuming alarming political, legal and emotive proportions. While the Kerala government wants to decommission the existing dam and build a new one, the Tamil Nadu government insists that the dam is quite safe and in fact its level should be raised and for this demand it has got the backing of the Apex court. The Kerala government has withdrawn from the Apex Court its request to reduce the level of the dam to 120 feet. Rumors are afloat that the builders have constructed tenements and structures in areas where water is to be stored and the Kerala politicians are batting for the builder’s lobby. The Kerala Assembly has unanimously resolved to construct a new dam.

   The DMK and all the politicians defeated in the recent elections have found an excellent issue to make political capital. The Tamil Nadu Chief Minister Jayalalitha is handling the issue extremely well but she has to contend with a congress government in Kerala and the DMK is an ally of the congress in the centre. The situation is indeed complex.

   Observing that the 1894 Act has become outdated as it does not provide for rehabilitation of persons displaced from their land, although their livelihood is affected by compulsory acquisition, the Supreme court has called for replacement of the law without delay. The land acquisition act does not adequately protect the interests of owners/persons interested in the land. For years the acquired land remains unused. The act is to be replaced with fair, reasonable and rational enactment in tune with the constitutional provisions particularly article 300A.

Justice R.V.Easwar, who had headed the Income Tax Appellate Tribunal till recently, was recently administered the oath of office at the Delhi High Court by Acting Chief Justice A.K.Sikri. Two others, Justices Pratiba Rani and Sai Paul Garg, were also sworn in as additional judges of the Delhi High Court. The Delhi Judicial Services Association has opposed the recommendation to elevate RV Easwar as a judge of the Delhi High Court against the post reserved for judicial services cadre. Taxation is a complex area in law and an eminent person like R.V.Easwar will be a great asset to the High Court. In fact the judiciary is in need of judges well versed in taxation matters.

RV Easwar

   Can any lawyer or even a judge precisely explain the correct law on any point in any legislation? The answer is definite no. Every legislation needs interpretation of the provisions by the courts for elucidating the finer points of the legislation. In this

S.H.Kapadia

process the Supreme Court and the High Courts give a bewildering variety of opinions which are many times contradictory. Thus over a period of time the legislation itself gets blurred and blunted and the intended purpose of the legislation is never achieved. When this is the position with regard to the learned lawyers and judges the plight of the common man can easily be imagined. For example nobody in the country knows what is the law on contempt of court and legislative privileges. In the United States complex and ambiguous laws have been simplified, codified and restated by the American Law Institute for the convenience of the legal community and the litigant public.

Former Supreme Court Justice Ruma Pal has come out with scathing indictments of the higher judiciary. Hypocrisy, arrogance, nepotism and plagiarism all bedevil the higher judiciary, she has alleged. She feels that the independence of judiciary and judicial system ultimately depends on the personal integrity of each judge. The criticism of the higher judiciary by no less a person than a former Supreme Court Judge should awaken the judiciary. Mahatma Gandhi always advised to turn the searchlight inward. When the executive, legislature and politicians come under the severe scrutiny of the media and the public there is no reason why should the entire working of the judiciary be not open to their scrutiny.

Ruma Pal

   The Supreme Court has directed Motor Accidents Claims Tribunals to dispose of claims with utmost urgency and award just and adequate compensation to the victims. They should adopt a pro-active approach in deciding claims and the compensation should invariably include pecuniary and non-pecuniary damages. The personal sufferings of the survivors and disabled persons are manifold. Most of the times it is not possible to measure their privations in terms of money. If an individual is permanently disabled the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term “compensation” used in section 166 of the Motor Vehicles Act would include not only the expenses incurred for immediate treatment but also the amount likely to be incurred for future medical treatment/care.

Sometimes the delay and litigation expenses make the award caused by the tribunal and even the High Court meaningless. Therefore it is imperative that the officers who preside over the tribunals adopt a pro active approach and ensure that the claims are disposed off with required urgency and compensation is awarded to the victims or their legal representatives in adequate measure.