Compensation for death by police firing: High Court

In a recently reported decision [Arjun Mishra v. State of Bihar, AIR 2010 NOC 869] the Patna High Court has declared that the State was accountable and liable to pay compensation for death of a citizen in police firing. The High Court was dealing with the death of a person in police firing which was ordered to scare away an unruly mob. In this context, noting the precedents on the issue, the High Court directed that payment of compensation in the circumstance was in order.


The High Court speaking on the context inter alia observed as under;

10. Thus, there cannot be any iota of doubt that the death has occurred by the police firing and the father was paid compensation by the State Government. As is evident from the report of the C.B.I., the deceased was a young man aged about 18 years. The question which emanates for consideration is whether his death is warrantable in the circumstances of the case. The report is vivid that the firing was made in the air and due to misfire, a young man got serious injuries and breathed his last.
11. The importance of a life and that too the life of a young man has to be realised. Nobel Prize winner Poetess Gabriela Mistral of Chile, while speaking about the faults committed by society as regards children, spoke thus :-

“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait, the child cannot. Right now is the time his bones are being formed, his blood is being made and his senses are being developed.” To him we cannot answer Tomorrow. His name is Today.”
12. The Apex Court in the case of M.C.Mehta v. State of Tamil Nadu, (1996) 6 SCC 756: AIR 1997 SC 699, while speaking about the obligation of the State and society towards children in the Indian ethos, quoted a stanza which reads thus :-

“I am the child. All the world waits for my coming. All the earth watches with interest to see what. I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail; Give me, I pray you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world.” (Mamie Gene Cole)
Long back, John Ruskin had expressed his view as under :

“ I hold it to indisputable, that the first duty of a State is to see that every child born therein shall be well housed, clothed, fed and educated, till it attains year of discretion.”
13. The aforesaid thoughts of great poets, jurists and thinkers have conveyed the concept of a child and the collective responsibility towards the child as a child fundamentally is the treasure of the future and has the potentiality to shine despite the antagonism of such clouds which derails the civilization. If a child dies, the possibility of a good future gets extinct. Therefore, the State, the society and the collective at large have the sacrosanct obligation to inject the kinetic dynamics to a child to make him grow, to live, to erode the clouds, ostracize the antagonism, develop empathy and usher in the laser-beam of culture and civilization in a well organized society. In the name of control of law and order situation, it cannot exceed its power by taking recourse to uncalled for and unwarranted acts to unceremoniously crush the tolerance capacity of the collective. The State cannot take advantage of the poor strata of the society who are not well equipped to fight against the City Halls. The State cannot afford to nasalize and choke the voice of the unknown because they cannot articulate their grievance adequately. The State cannot afford to bid good bye to the young children for such farewell frenzy would not only jettison the conception of accountability but also compel and constrain the nation to go for a constant mourning in the silence and stillness of shock. It is likely to cause a tremor and tribulations in a democratic body polity. The life span of a young man cannot be extinguished on the garb that there was a law and order situation and more so when there was an order only to fire in the air. The pivotal question is should the State’s conception and vision of handling a law and order situation allowing to blow the unkind wind of winter bringing a cataclysm and catastrophe to the families go unnoticed and un-remedied and the parents of a young man who lost their child remain in silence simply because they have got compensation of Rs.50,000/-. The stand in the counter affidavit is not correct on the basis of investigation by the C.B.I. that nobody has been identified. There might have been a law and order situation and a young man who was not even armed and a spectator to the incident would not have invited bullets on his body. Thus, we have no hesitation in placing reliance on the report of the CBI.
14. In this context, we may refer with profit the decision rendered in the case of Nilabati Behera V. State of Orissa (1993) 2 SCC 746 : AIR 1993 SC 1960 wherein it has been ruled thus:

“ A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”
15. In the said case, Justice A.S.Anand (as his Lordship then was) in his concurring opinion expressed the view in the following terms :-

“The public law proceedings serve a different purpose than the private law proceedings. The relief for monetary compensation, as exemplary damages, in proceedings under Article 32 by or under Article 226, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest as and preserve their rights. Therefore, when the Court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrong-doer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law.”
16. In the said case, their Lordships have clearly held that the High Court is the protector of civil liberties of the citizen and has the jurisdiction under Article 226 of the Constitution of India to grant relief to the victim or the heirs of the victim whose fundamental rights under Article 21 of the Constitution have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen notwithstanding the rights of the citizen to remedy by way of a civil suit or criminal proceedings. The interest of the public as a whole has to be taken into account to ensure that the public bodies or officials do not act unlawfully and do perform public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Their Lordships have emphasized that the legal heirs of the victim have a right to get compensation and the officials have to perform their public duties properly.
17. In the case of D.K.Basu v. State of West Bengal, (1997) 1 SCC 416: (AIR 1997 SC 610), it has been held as under:-

“ 9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens………”
18. In the said case, it was further held as under:-

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental rights to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interest shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.”
19. Again, in paragraph 54, their Lordships have ruled thus :-

“Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence(irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizens, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.”
20. Regard being had to the obtaining factual matrix and keeping in view the aforesaid pronouncement of law, we would proceed to quantify the quantum. The young man was innocent. Death came in a most unexpected manner. The State Government has paid a sum of Rs.50,000/- only. Having regard to the age of the deceased victim, the strata from which he comes, the mental pain and sufferings the parents have suffered, the silence that would remain in his house for years and the deprivation of aid and assistance, we think that the cause of justice would be best sub-served if a further sum of Rs.2,00,000/-(Rupees two lacs) only is paid to the parents of the deceased, Sarvajeet Mishra.
21. In this regard, we may fruitfully refer to para 24 of the case of Nilabati Behera (supra):

“24. Accordingly, we direct the respondent State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as costs to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs.1,50,000 to the petitioner would be, by making a term deposit of that amount in a scheduled bank in the petitioner’s name for a period of three years, during which she would receive only the interest payable thereon, the principle amount being payable to her on expiry of the term. The Collector of the District will take the necessary steps in this behalf and, report compliance to the Registrar (Judicial) of this Court within three months.”
22.. In view of the aforesaid, we direct that the District Magistrate, Sitamarhi shall identify the parents of the deceased and handover the amount to be made available to the parents within a period of three months from the date of receipt of a copy of this order. The amount of compensation should be deposited in a nationalised Bank and/or post office in a fixed deposit in the name of the parents of the deceased and in absence of the parents, in the name of the surviving parent for a period of five years during which they would receive the interest payable therein. The principal amount would be paid only after the expiry of the term.
23. Before parting with the case, we are reminded of a few lines from Regum Ultimo Ratio, a poem written about the death of a small child in 1939 by Stephen Spender :

“Consider : only one bullet in ten thousand kills a man. Ask : was so much expenditure justified On the death of one so young and so silly Stretched under the olive trees, Oh , world, Oh, death ?”
24. After reproducing the aforesaid sensitive lines, we say no more.

Source: LAW-IN-PERSPECTIVE

Is Naxalism Justified ?

Naxalism had started after the backdrop of the rise and fall of the Telangana Movement (1946-51). After an incident in a remote village called Naxalbari in West Bengal, tribal people retaliated and started forcefully recapturing their lands landlords had attacked the tribal who had taken the judicial order. This movement had grown with the advent of time. All India Coordination Committee of Communist Revolutionaries was converted to Communist Party of India (Marxist- Leninist) due to disagreements between the members. ‘Allegiance to the armed struggle and non-participation in the elections’ were the two cardinal principles of this Movement.

Charu Majumdar is regarded as the ‘Undisputed Naxalite Guru’. In his leadership he had written several Articles, those articles later on became the famous ‘Historic Eight Documents’, which formed the basis of Naxalism His talks and comments becomes the ‘party line’. In his words it clearly shows that this movement is against the Corrupt persons not all the officials of the State.

Answering to the question whether Naxalism is Justified or not ? There are two sides. Government says that Naxals and Maoists are the gravest threat to the India’s Internal Security. The Government also adopts various strategies in the battle against Naxalism which hiders the normal living of common masses. On the other hand there are number of Intellectuals who tries to understand the problems of Naxalism and justifies them. Few Intellectuals can be named as Balagopal , Bela Bhatia and famous novelist Arundathi Roy. It is also very interesting here by to note that the leaders who are involved in these movements are highly educated, intellectual people. Kobad Gandhi is a classic example for it. He did his schooling from Doon School where he was classmate of Congress Leader Sanjay Gandhi. After that he went to St. Xaviers College, Mumbai and later did his Accountancy from London. He is now in Tihar Jail, New Delhi.

The Truth is very different because today the Naxalism which we call is not the same and had taken a different turn in every aspect. This turn took place after the Death of Charu Majumdar when many leaders came with different mindsets and the disintegrated the movement as a result of which today Naxalism has grown and is present in every state of India. Government, police officers and the common masses says that Naxals and Maoists are same but the truth is Maoist Movement is bigger than the original Naxal Movement in terms if its reach and its strength. The Maoist have moved leaps ahead of their predecessors who were a part of Naxalite Movement from where the word ‘Naxalite’ was coined.

The Need of the Hour is to look upon the matter specially today’s situation of growing Naxal Movement and to implements methods especially in the rural area because in this Fight between Naxals on one side and the State on the other there are common masses who are being affected. One interview by a local tribe of Chhattisgarh explains the need to cure the issue. He said :
 “Earlier, we used to fear the tigers and wild animals. Now we fear the guns of the Naxalites and the police. Life is very difficult. The Naxalites think we are helping the police. The police think we are helping the Naxalites. Nowadays, we are living in fear that who will kill us first"

DYING DECLARATION

INTRODUCTION:

The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'', which means '' a man will not meet his maker with a lie in his mouth''. A dying declaration is called as '' Leterm Mortem''. The word '' Leterm Mortem'' means '' Words said before death''. Recording of dying declaration is very important task. Utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value.

Section 32 (1) of Indian Evidence Act.

A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the statement is made by a person with regard to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant irrespective of the person who made such declaration was expecting death or not . Thus, it is apt to say that admissibility of Dying declaration is explained in the section 32 (1) of Indian Evidence Act.

How a dying declaration should be?

There is no particular form of dying declaration. However, the best form of dying declaration is in the form of questions and answers. However, whenever a dying declaration is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written.

A dying declaration may be in the following forms:

1. Written form;

2. Verbal form;

3. Gestures and Signs form. In the case ''Queen vs Abdulla'', it was held that if the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.

4. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid.

5. It is preferred that it should be written in the vernacular which the patient understands and speaks.

6. A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and every thing is coming as such from the mind of the person making it.

OBJECTS;

1. The presumption is '' a person who is about to die would not lie''.

2. It is also said that '' Truth sits on the lips of a person who is about to die''.

3. The victim is exclusive eye witness and hence such evidence should not be excluded.

LAW OF LIMITATION BINDS EVERYBODY INCLUDING THE GOVT.

SC: LAW OF LIMITATION BINDS EVERYBODY INCLUDING THE GOVT.

Unless the Govt. Depts. or instrumentalities have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are unde
r a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

Reference : SC. Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr., civil appeal nos. 2474-2475 of 2012 [arising out of SLP (C) nos. 7595-96 of 2011].

Adultery as a ground for Divorce under Hindu Law

Adultery can be defined, according to Black’s Law Dictionary, as the unlawful voluntary sexual intercourse of a married person with another person of opposite sex. Indian law treats adultery as an offence under Section 497 of Indian Penal Code, punishable with imprisonment which can be extended for a period of 5 years. At the outset, this provision was introduced so as to preserve the notion of a family, where a married person was not allowed to have illicit relationship once married. Under Hindu Marriage Act, adultery is one of the grounds on the basis of which a person can file a petition in order to procure decree of divorce. Very often, Courts are reluctant in awarding a decree of divorce, and put a great burden over the parties before separating them. Marriage, according to Hindus, is a sacred and impeccable bond, which if broken would lead to severe consequences. However sacred it may be, there have always existed some grounds on which marriage can be broken, and sometimes couples find themselves in a subjugating state that divorce seems to them the last resort to entreat.

Section 13 of Hindu Marriage Act, 1955 states the circumstances enabling a person to file a petition for the decree of divorce, and for our purpose clause (3) of the aforesaid section is significant which can be read as –

“has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse”

So as to avoid a plethora of divorce petitions, and to save the knot of marriage, petitioner cannot as a matter of fact get the petition decreed in his favour just because of the reason that respondent had illicit relationship with some other person in past. Instead, court would be hesitant in providing such decree if respondent had abstained from indulging in such an activity for a substantial period of time, and thereafter practicing a good moral behaviour. Continuing the tradition, the onus remains on the party which files a petition to get relief on the basis of this particular ground, and courts do not make it an easier task for the petitioner, and require them to prove it stoutly, which can persuade the judges. Accusing someone of adultery means questioning the moral character of that person, and this is the reason why burden on the petitioner becomes even higher. There can certain circumstances when a person becomes perplexed whether his spouse is engaged in the act of adultery, and mere qualm can never be allowed as a strong reason to believe that the other spouse has in fact committed adultery, and courts have always remained cautious so as not to opine any erroneous decision. In addition to this, courts, very often, remain reluctant to admit the direct evidence pointing towards the act of adultery. Highly probable circumstances proving the act of adultery are relied upon by the courts while hearing this discourse.

There are certain other evidences which can, if reliable, be admitted and accepted by the court of law while pronouncing its decision for the act of adultery. A series of act, if called upon by the courts to prove this act, forms one of the most important substantiation which if proven can lead to the decree of divorce efficacious. Denying accusation of adultery by the respondent, even if he did it, can be carried out by him because of various reasons, and can plead those reasons which can form substantial ground for refuting the divorce decree. Being faulty, a petitioner cannot ask for divorce. It is as simple as it can be, one cannot ask for a relief for which he was at fault. A person, who himself engages in the act of adultery, cannot ask for a divorce decree, which if asked would be precluded by the court promptly. Eventually, it would be the discretion and satisfaction of the court which would be the deciding component in these cases.

Criminal charges cannot be framed in a suit filed in a civil court, even if such charges proven. This is because of a minimal reason that the degree of proof in a criminal court is highly sophisticated in comparison to a civil court, which shall be proven beyond all reasonable doubts disparate to what one requires to prove in a civil court. A separate suit can be filed in the criminal court under Section 497 of Indian Penal court, which would consequently lead to the engrossment of the criminal procedure while framing charges and thereby proving it. Another important point which ought to be taken into account while dealing with such cases is the naissance of a child during the period when couple had been living apart because of some differences between them, and the period between the birth of the child and last marital intercourse should be long enough in order to prove that no child, if conceived during such period, would be a legitimate child of the petitioner. It would be unproblematic to understand that petitioner in such cases would be a man. But, it would be an obligation on the part of the husband to prove that no access was feasible at the time when child was born. The period relied upon the English Court is that of 360 days after the last martial intercourse between the couple. Once proven, such a ground would leave no room for the court to believe that adultery was in fact committed by the wife. There have been certain instances when a man had requested the court to conduct blood test in order to spot whether the child born is in fact his child. But, a court cannot compel, in such cases, a wife to undergo blood test so as to make the petitioner satisfy and this shall be proven by means of facts and circumstances. Only wholesome facts and circumstances can prove such a charge. It would not be mandatory for the petitioner to name the person with whom the respondent had committed adultery, and it would not in any way affect the decision of the court. Interestingly, courts do not rely upon the confession churned out by the respondent in front of the bench. As an alternative, court will rely on the evidences presented before it with verve. It would be quite clear to understand some of the basic principles on which a divorce decree could be granted to the petitioner if demanded.

 

Source: LegalJunction

Res Judicata

In judicial proceedings many of us come through an expression Res Judicata, which is a strange term for the common man. A legal person knows this term but for a common man it is a mind boggling concept, he does not understand what this term mean. If he tries to understand then people around him would confuse him; available definitions are laden with heavy words which pass over common man’s mind.

Res judicata or res iudicata (RJ), also known as claim preclusion, is the Latinterm for “a matter [already] judged”, and may refer to two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties, which is different between the two legal systems. In this latter usage, the term is synonymous with “preclusion“.

In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.

The legal concept of res judicata arose as a method of preventing injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury.

The U.S. legal systemplaces a high value on allowing a party to litigate a civil lawsuit for money damages only once. U.S. courts employ the rule of res judicata to prevent a dissatisfied party from trying to litigate the issue a second time.
Constructive Res judicata

In a recently reported decision [Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira Mahar (Dead) by LRs. & Ors., AIR 2010 SC 818], the Supreme Court has explained the doctrine of constructive res judicata as applicable in Indian law. A sub-set of the doctrine of res judicata, emanating from Section 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a subsequent proceeding where in an earlier proceeding such claim should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims which have not been raised at an appropriate juncture in judicial proceedings.

Application of res judicata in writs

This rule of law has been made applicable even to writ proceedings as well. The position, therefore, is that when once a writ petition has been moved in a high court or Supreme Court (SC), and has been rejected there on merits, then a subsequent writ cannot be moved in the same court on the same cause of action (M S M Sharma Vs Sinha, AIR 1960 SC 1186).

If the petitioner seeks to urge some new grounds which he has failed to do before in the earlier petition, the matter cannot be agitated in a subsequent petition because of ‘constructive res judicata’. In case, this rule is not applied to such proceedings, a party can go on filing one writ petition after another urging one or two new grounds each time, thus causing hardship to the opponent. What operates as ‘res judicata’ is the decision and not the reasons advanced by the court in support of its decision. (AIR 1968 SC 1370).

It, however, needs mention that ‘constructive res judicata’ applies to civil proceedings and not to habeas corpus petitions.

A subsequent petition under this writ jurisdiction can be filed on fresh grounds not pleaded earlier for the same relief (AIR 1982 S C 53). Even the Supreme Court can still entertain a petition under Article 32, whether or not new grounds are raised, in view of the importance of personal freedom. But, when a writ petition is withdrawn by the petitioner conceding the futility of the case as a ground for withdrawal and court allows it on the plea, a second petition will be barred by ‘res judicata’ (AIR 1975 Guj 183). A fresh petition is possible onlyif the court gives liberty for doing so

There is some confusion on the point whether ‘res judicata’ applies when a writ petition is dismissed without the court making a speaking order. The apex court has held in a case that this doctrine should not operate in such a case. In Hoshnak Singh Vs India, the SC has ruled clearly that ‘where a petition under Article 226 is dismissed in limine without a speaking order’, such a dismissal would not constitute a bar to a subsequent petition. A high court can only review a decision where some mistake or error apparent on the face of the record is found. But, this power of review may not be exercised on the ground that the earlier decision was erroneous on merits.

If a person goes first to a high court under Article 226 and his petition is dismissed on merits, he cannot approach the SC under Article 32 because of ‘res judicata’. He can reach the SC only by way of appeal. If, however, high court dismisses his or her writ petition not on merits, then ‘res judicata’ does not apply and petitioner can move the SC.

Thus it simply means, a matter which is already decided by the apex court cannot be enertained repeatedly.

GENERAL AWARENESS PRACTICE QUESTIONS FOR CIVIL EXAMS

1. Which of the following states has launched the Indira Bal Swasthya Yojana (IBSY) to provide free treatment to all children?
a. Gujarat
b. Rajasthan
c. Haryana
d. Karnataka
2. The current headquarters of The Energy and Resources Institute (TERI) is located in which of the following cities?
a. Mumbai
b. Bengaluru
c. Dehradun
d. New Delhi

3. Nirbasan is a book written by which of the following writers?
a. Taslima Nasreen
b. Salman Rushdie
c. Begum Rokeya
d. Selina Hossain
4. Which of the following States will host an international children film festival in association with CFSI in April 2012?
a. Goa
b. Maharashtra
c. Odisha
d. New Delhi
5. Which of the following states has successfully used mobile phone technology to provide timely healthcare to pregnant women and infants?
a. Gujarat
b. Karnataka
c. Andhra Pradesh
d. Haryana
6. Vizhinjam International Seaport is located in which state?
a. Kerala
b. Andhra Pradesh
c. Tamil Nadu
d. Gujarat
7. The KK Birla Foundation has awarded the 21st Bihari Puraskar 2011 to Arjundeo Charan for his Rajasthani poetry collection:
a. Anta Ke Sanshaya
b. Ghar Tau Ek Nam Hai Bhrosai Rau
c. Jagah Jaisi Jagah
d. Utsav Ka Nirmam Samai
8. An international Congress on ‘Modern Concepts in Canine Health and Diseases of Human Concern’ was held in which of the following districts of Rajasthan from 9 to 11 February 2012?
a. Bikaner
b. Jaipur
c. Jhalawar
d. Jodhpur
9. The Union Ministry of Health & Family has launched a music video, Life Se Panga Mat Le Yaar, sung by Shaan. Shaan has been appointed India's:
a. Population control ambassador
b. AIDS control ambassador
c. Cancer control ambassador
d. Tobacco control ambassador
10. Who is the coach of the Indian women's hockey team?
a. Sandeep Somesh
b. Mir Ranjan Negi
c. CR Kumar
d. Khalid Modi
11. The National Anti Doping Appeal Panel (NADAP) is headed by:
a. DM Dharmadhikari
b. PN Bhagwati
c. KT Thomas
d. CK Mahajan
12 Who among the following is the current chairman of Prime Minister's Scientific Advisory Council?
a. CNR Rao
b. Vikash Sinha
c. R Chidambaram
d. R Narasimha
13. Russia will hand over the refurbished aircraft carrier, Admiral Gorshkov, to India before the end of 2012. Which of the following shipyards had built Admiral Gorshkov?
a. Sevmash Shipyard
b. Hotchya Shipyard
c. Samussky Ship Building
d. Zvezda Shipyard
14. The Solicitor General for India is subordinate to the Attorney General of India. Who among the following is the current Solicitor-General?
a. Gopal Subramaniam
b. Rohinton Nariman
c. GE Vahanvati
d. Harish Salve
15. In which of the following states are houses - with all facilities, including toilets, drainage, and road connectivity - being provided to displaced families under the Asare scheme?
a. Andhra Pradesh
b. Karnataka
c. Bihar
d. Odisha
16. Who among the following is the current President of the ATP Players' Council?
a. Rafael Nadal
b. Roger Federer
c. Brad Drewett
d. Ivan Ljubicic
17. The Cabinet Committee on Economic Affairs (CCEA. has given its final approval to the London-based mining group Vedanta Resources Plc's acquisition of a majority stake in Cairn India Limited for $8.48 billion. Who is the head of the CCEA?
a. Manmohan Singh
b. Kapil Sibbal
c. Pranab Mukherjee
d. Abhishek Manu Singhvi
18. Which of the following states has launched the Atal Bijli Bachat Yojna to reduce energy consumption and greenhouse gas emissions by distributing free four CFL bulbs to every household?
a. Himachal Pradesh
b. Madhya Pradesh
c. Gujarat
d. Karnataka
19. Which state has become the first to set up a special commando unit for protecting tigers from poachers and hunters?
a. Karnataka
b. Tamil Nadu
c. Madhya Pradesh
d. Chhattisgarh
20. The National Mineral Development Corporation (NMDC) is India's largest iron ore producer and exporter. Who is the current Chairman-cumManaging Director of NMDC?
a. Rana Som
b. NK Nanda
c. S Thiagarajan
d. Subimal Bose
21. The India Trade Promotion Organisation (ITPO) is the nodal agency of the Government of India for promoting external trade. Who among the following is the current C h a i r m a n - c u m - M a n a g i n g Director of ITPO?
a. Neeraj Kumar Gupta
b. Rita Menon
c. AK Khanna
d. Sunil Kumar Sharma
22. The Kiran-Mk 2 is a/an:
a. Indian Air Force (IAF) aircraft
b. Scheme for adolescent girls launched by Andhra Pradesh
c. Scheme for pregnant women launched by West Bengal
d. Satellite dedicated to Kalpana Chawla - to be launched by ISRO
23. Kobelco Cranes India Pvt Ltd (KCI), a part of Kobelco Cranes Company Limited (KCL) has commenced production at its hydraulic crane manufacturing plant in Andhra Pradesh. KCL originally belongs to which country?
a. Japan
b. Germany
c. South Korea
d. Sweden
24. The GD Birla award is given each year to scientists who have contributed towards scientific research. Who among the following has won the GD Birla Award - 2011 for his contributions to the field of biochemistry?
a. Santanu Bhattacharya
b. Tapas Kumar Kundu
c. Nilesh Kumar
d. Manindra Agrawal
25. Who among the following authors has written the book Feeding the Forgotten Poor?
a. William D Dar
b. Jagdish Bhagwati
c. Kuldip Nayyar
d. Amartya Sen
26. Who among the following authors is the current President of Maldives?
a. Mohammed Nasheed
b. Waheed Hassan
c. Ahmed Shihan
d. Abdullah Fairoosh
27. Which social activist refused to accept the Karnataka government's Basava Puruskar 2010 on grounds of “disagreement with certain state policies and inability of the government to deal with the mining scam and other scandals”?
a. Medha Patkar
b. Anna Hazare
c. Kiran Bedi
d. Aruna Roy
28. US President Barack Obama recently issued an executive order blocking the property of which of the following country's governments and its financial institutions in America?
a. North Korea
b. Iran
c. Syria
d. Cuba
29. The Indian Council of Agriculture Research (ICAR) is an autonomous organisation under the Department of Agricultural Research and Education, Ministry of Agriculture and was established on 16 July 1929. Where are the ICAR’s headquarters located?
a. Pantnagar
b. Puducherry
c. New Delhi
d. Bhopal
30. Which New Delhi-based NGO has been awarded the “Best Institution for Child Development and Welfare” honour by the Union Minister of Women & Child Development, Krishna Tirath, recently?
a. Ank
b. Uday
c. Deepalaya
d. Tamana
31. The 14th Youth National Volleyball Championships were held in which of the following cities, from 7 to 13 February 2012?
a. Hyderabad
b. New Delhi
c. Kolkata
d. Pune
32. The All India Council for Technical Education (AICTE) is responsible for proper planning and coordinated development of the technical education and management education system in India. Who is the Chairman of the AICTE?
a. SS Mantha
b. Ram Avtar Yadav
c. Rabinder Randhawa
d. H C Rai
33. Kaiga power plant is a nuclear power generating station situated at Kaiga near the river Kali. Which state is it located in?
a. Karnataka
b. Tamil Nadu
c. Maharashtra
d. Gujarat
34. Kalakkad - Mundanthurai Tiger Reserve (KMTR) is located in which of the following states?
a. Kerala
b. Andhra Pradesh
c. Tamil Nadu
d. Karnataka

ANSWERS

1. (a) Haryana
2. (d) New Delhi
3. (a) Taslima Nasreen
4. (c) Odisha
5. (b) Karnataka
6. (a) Kerala
7. (b) Ghar Tau Ek Nam Hai Bhrosai Rau
8. (a) Bikaner
9. (d) Tobacco control ambassador
10. (c) CR Kumar
11. (d) CK Mahajan
12. (a) CNR Rao
13. (a) Sevmash Shipyard
14. (b) Rohinton Nariman
15. (b) Karnataka
16. (b) Roger Federer
17. (a) Manmohan Singh
18. (a) Himachal Pradesh
19. (a) Karnataka
20. (b) NK Nanda
21. (b) Rita Menon
22. (a) IAF aircra
23. (a) Japan
24. (b) Tapas Kumar Kundu
25. (a) William D. Dar
26. (b) Waheed Hassan
27. (a) Medha Patkar
28. (b) Iran
29. (c) New Delhi
30. (d) Tamana
31. (c) Kolkata
32. (a) SS Mantha
33. (a) Karnataka
34. (c) Tamil Nadu

Brief notes on the concept of Legal Rights

We have mentioned earlier that a person is an entity clothed with certain rights and duties. The sources of different rights may be customary, statutory, contractual, tortuous, personal law, etc.

Some of the rights, which a person has, are interest in life, or liberty or property or extending over domestic relations and even to contractual relations. Some of these interests are not recognized or protected by law. The rights recognized or protected by law alone are enforceable. These rights have their origin in some source or the other, such as custom, statutes, personal law, of tort.

There are a number of distinguishing features of rights. Some of these are: (i) A right is always vested in a person but not in an inanimate being or animal or even a dead person. (ii) A right is generally correlative of a duty in relation to the fulfillment of a right. (iii) The right must relate to a subject matter, namely the objects, which in a given case may relate to a person or property, place or a thing. (iv)The nature of a right may be to get something done from another or to refrain him to do something.

Thus, there may be a right to get back the money lent, or to get the house built as per agreement, or to prevent a person to trespass upon your property. (v) Every right can be traced to a source which may be a contract, a custom, a natural law, etc.

By: Tapan

5 most essential Political Rights of a citizen

These are rights by virtue of which the citizens take direct or indirect part in the administration of the state. Political rights are an essential complement of civil rights. In the absence of political rights civil rights become meaningless.


Political rights provide ways and means by which citizens can check the arbitrary use of authority and encroachment upon their rights.


Political rights are enjoyed by the citizens alone and not by aliens. These are not extended to aliens because they owe allegiance to their own states. Some of the political rights may be described as follows :
1. Right to Vote:


According to this right, citizens in a state elect their representatives who are to constitute the government. Previously this right was given on the basis of some qualifications of property, education or the like. But now this right has been extended to all adults irrespective of any qualification.


The right to vote places sovereign power in the hands of the people in the ultimate sense. Citizens can make or unmake the government through the exercise of this power.
2. Right to be Elected:


This is a valuable right of a citizen in a democratic state. It implies that every citizen should have the right to seek election to legislative bodies or other representative organs.


People in a democracy have equal opportunities to be elected for any representative body. Nobody should be debarred from contesting elections to any office on account of his birth, class or creed if he is mentally and physically fit.
3. Right to Hold Public Offices:


The right to hold public offices is allied to the right to be elected. This means that all are equally eligible for appointment to all state offices, provided they are qualified by virtue of education, experience, ability and character.
4. Right to Petition:


It means that every citizen have the right to send petitions to the government or the legislature for the redress of his grievances.
5. Right to Permanent Residence:


The citizens have the right to permanent residence in the state of their birth. They cannot be deported for any crime.
6. Right to Resist:


This is a controversial right. Some believe that citizens should be given the right to resist an unjust government while others assert that government will become a plaything in the hands of the people if this right is freely exercised. According to Mahatma Gandhi, however, people should be given the right to resist a bad government.


By: Ankita

Intellectual Property Rights

Intellectual Property Rights (IPR) is the right to protect innovative ideas to make use of and sell a new product or technology. The protection is granted solely to the inventor or corporation, which files a claim on the investors' behalf, for a limited period of time. This may take the form of patents, trademarks or copyrights. IPRs are legally enforceable but with limited monopoly granted by the state to the inventor. Within the specified time frame for which granted, no one else can copy the idea or technology allowing the innovators to commercialize it and recoup any investment on research and its development. Intellectual property has two characteristics in particular which lend it to special legal protection.


The first is that it tends to have a high cost of development and the second is that it has low7 costs of reproduction. For example, it may cost say more than a few crores to bring a new drug to the market, yet after the drug is available any good chemist could through reverse engineering reproduce it at a fraction of the cost. Similarly, amongst any other product or process of which computer software or a piece of writing are the most easily copied.


The area where IPR requirements are most pronounced can be categorized as:
Agriculture - Plant varieties including Genetically Modified Organisms (GMOs)
Manufacturing
Information products


The debate for the desirability of IPRs continues in terms of welfare of the innovator who deserves right/remuneration for his efforts against the welfare of the society at large, which would benefit from the access to the innovation. The argument for IPR protection is that there would be less innovation without protection as no one would be willing to shell out large amounts of money or even innovate to develop new products/technologies/processes, if their innovation could be immediately copied by others; stronger the IPR protection, the more monitory rewards can be recouped by the innovator and thus more innovation tends to occur.


However, it cannot be overlooked that the overriding needs of the welfare for all rich and poor is to have affordable access to the results of innovation that can lead to in sustainable development. It is important to note that while on one hand the financial incentive for innovation is a key justification for IPRs, on the other hand, IPR systems can severely hamper the very innovation they are intended to spur as the sharing and spread of innovative knowledge would get restricted in the hands of only a few who can invest in it.


To bring all the countries at par, the Trade Related Intellectual Property Rights (TRIPs) was formulated in January 1995, under which all member countries must bring their national IPR laws into conformity with certain provisions. However, the provisions in it generated so much controversy and debate that the final agreement states that the conditions "shall be reviewed after every four years from the date of entry into force".


The benefits of IPR protection for the innovator (and country) and lack of it for mankind and sustainable development on a whole needs to be weighted each time the issue crops up and decide accordingly.


By: R.K TRIPATHY

Review of Constitution

“The working of our Constitution over the years has exposed various weaknesses of the Indian political system and a comprehensive review of the Constitution is necessary.” Immediately after independence, the Constituent Assembly and its Drafting Committee prepared and adopted the Indian Constitution, which with some changes over the years, has been continuing.

Last about six decades of working of the Constitution has exposed certain weaknesses of the Indian political system. At times it is felt by many that a comprehensive review of the Indian Constitution must be carried out to tackle the weaknesses. One of the major weaknesses is that the multi-party system has given scope for so-called ‘horse trading’, which could not be stopped even by the constitutional amendment facilitating the enactment of the Anti-defection Act. Further, it has resulted in evolution of coalition culture, which has increased the political instability of the government.

Further, considering the present-day overlaps resulted by the legislative and judicial activism, there has to be a clear demarcation of the boundaries of jurisdiction of the Executive, the Legislature and the Judiciary. Several people feel that with a view to have strong executive at the national and State levels, the present system of Parliamentary democracy must be replaced by the Presidential form of government where the President (Head of the State) is directly elected by the people, who also becomes the functional head
of the State as well as that of the government.

In addition, the empowerment of the States with the overall aim of strengthening the Indian federation is another area on which many political thinkers are unanimous. It is believed that the Indian federal system must also be as close as possible to the US system, so that the regional aspirations of the people are met. It is also felt by many that it is high time that the protection available to the public servants under Article 310 of the Constitution is done away with, so that work culture is inculcated among the government employees.

With a view to strengthen the Constitution, most of the above amendments are necessary. But one has to keep in mind and ensure that none of the proposed amendments actually violate Supreme Court Judgments about the ‘basic structure’ of the Constitution. For effecting the change beyond the basic structure, it would perhaps require the prior approval of the Supreme Court and the process may have to be undertaken under the close scrutiny of the apex
court.

Civil Services Prelims Exam 2011 .Paper 2-General Studies part

>Directions for the following 5 items Read the following passage and answer the items that follow. Your answers to these items should be based on the passage only.


Passage
Now India’s children have a right to receive at least eight years of education, the gnawing question is whether it will remain on paper or become a reality. One hardly needs a reminder that this right is different from the others enshrined in the Constitution, that the beneficiary—a six year old child cannot demand it, nor can she or he fight a legal battle when the right is denied or violated. In all cases, it is the adult society which must act on behalf of the child. In another peculiarity, where a child’s right to education is denied, no compensation offered later can be adequate or relevant. This is so because childhood does not last. If a legal battle fought on behalf of a child is eventually won, it may be of little use to the boy or girl because the opportunity missed at school during childhood cannot serve the same purpose later in life. This may be painfully true for girls because our society permits them only a short childhood, if at all. The Right to Education (RTE) has become law at a point in India’s history when the ghastly practice of female infantic ide has resurfaced in the form of foeficide. This is “symptomatic of a deeper turmoil’ in society which is compounding the traditional obstacles to the education of girls. Tenacious prejudice against the intellectual potential of girls runs across our cultural diversity and the system of education Fias not been able to address it.

1. With reference to the passage, consider the following statements:

1. When children are denied education, adult society does not ad on behalf of them.
2. Right to Education as a law cannot be enforced in the country.
Which of the statements given above is/are correct?
(A) lorily
(B) 2 only
(C) Both I and 2
(D) Neither I nor 2

2. According to the passage, what could be the traditional obstacles to the education of girls?
I. Inability of parents to fight a legal battle when. the Right to Education is denied to their children.
2. The traditional way of thinking about girls’ role in society.
3. The prejudice against the intellectual potential of girls.
4. Improper system of educal ion.
Select the correct answer from
the codes given below
(A) land2only
(B) 2,3and4only
(C) 1,3and4only
(D) 1,2,3and4

3. On the basis of the passage, cons ider the following statements:
1. Right to Education is a legal right and not a fundamental right.
2. For realising the goal of universal education, the education system in the country must be made ideri- tical to that of developed countries.
Which of the statements given above is I are correct?
(A) 1 only
(B) 2orily
(C) Bothland2
(D) Neither 1 nor 2

4. Which one of the following statem ents conveys the key message. of the passage?
(A) India has declared that education is compulsory for its children.
(B) Adult society is not keen on implementing the Right to Education.
(C) The Right to Education, particularly of a girl child, needs to be safeguarded.
(D) The system of education should address the issue of Right to Education.

5. Which one of the following statements conveys the inference of the passage?
(A) The society has a tenacious prejudice against the intellectual potential of girls.
(B) Adults cannot be relied upon to fight on behalf of children for their Right to Education.
(C) The legal fight to get educa tion for children is often pro traded and prohibitive.
(D) There is no sufficient subs titute for education received in childhood.

The Proliferation and Brand Dilution of National Law Universities

The National Law University (NLU) experiment started in 1987 with an aim to add new vigour to legal education, which in 70s and 80s seemed to have resigned itself to institutional mediocrity. Except for few institutions in presidency towns, the legal education was in a downward spiral. The stage was set for something new and Prof. Menon (though some say he was inspired by Prof. Bakshi) decided to experiment with the novel idea of a 5 year law education right after secondary school. This model was completely different from the then contemporary legal education models followed in the common law countries. In US students could enter law school only after completion of an undergraduate degree, while in UK students could enter legal studies directly after school and the period of study was 3 years followed by a one or two year period of 'apprenticeship' to apply for Bar (through BPTC formerly known as BVC and pupilage) or law firms (via LPC).
The 5 year integrated law school model strived hard on its own for a number of years before the stakeholders deemed it to be successful but once this verdict was reached there was no holding back. First off the blocks were NALSAR, NLIU and NUJS. After that the flood gates were open. Within a decade the number of NLUs jumped from one to fifteen.

If we look at the comparative growth of other institutions of national importance like IITs or IIMs, we find that these institutions had a long gestation period with slow growth before they moved into the expansion phase. However for law schools the growth has been exponential (as borne out by the graph above).

Many reasons can be attributed to this explosive growth of National Law Universities across India, one of the main cause is the little or no initial investment to be made by the state yet the enviable tag of a state with National Law University. Most of the new NLUs run from make shift buildings which have little or no infrastructure to run a corporation schools much less a NLU. Secondly all the NLUs are based on self financed model, which secures a steady flow of capital in form of fees, thus all it needs from state is a legislative Act and voila there is a new National Law University. If one looks at the newest law schools like NUSRL and NLS&JAA they hardly have any of their own infrastructures. The trend seems to have reached such alarming proportion that new law schools start off without faculty yet invite applications from students for admission. CLAT though path breaking in reducing cost and anxiety among law school aspirants, unwittingly end up providing students for these new institutions. If these institutions fail in long term then it would do immense harm to the law school brand and reputation. Thus it is in the interest of the collective NLU brand that older more established NLUs provide active mentorship to the fledgling institutions. It would also be opportune at this moment to look at the recruitment statistics of NLUs. Arguably AMSS, AZB, Khaitan & Co., Luthra & Luthra and Trilegal are the biggest five domestic recruiters. If we look at the collective recruitment pattern in 2011 of these Big Five we would find that they tend to favour old NLUs over the rest of the law schools.

The recruitment graph shows a classic case of inverse triangle, where few law schools have disproportionately large share of the top end of the job market. If we believe that private sector is the best judge of quality then the trend is extremely worrisome as it tends to point out that there are serious faultlines somewhere in the system and a diminishing brand value of NLUs outside the few top institutions. The situation is quite similar for the new IITs where the graduating batches are offered a 'pittance' compared to 'more established' IITs. Though recruitment stats alone should not constitute the measuring rod for quality of any institution or its students, however it seems that the time has come to reinvent the NLU brand. The only way forward for NLUs to revive itself is to have strong inter NLU exchanges of both faculty as well as students, strong and active mentor groups for new NLUs and an unambiguous moratorium on opening of new NLUs unless there is an existing infrastructure in terms of library, academic buildings and faculty. To end on a happy note NLUD seems to be have discovered the proper path on how best to open a new NLU - with a world class infrastructure, a 'charismatic' VC and an able faculty.

Centre for Civil Society- ìpolicy certificate in public policy for young leaders

ìpolicy
certificate in public policy for young leaders
new Delhi, 26-29 april 2012

Centre for Civil Society, in partnership with Atlas Network, presents ìpolicy for Young Leaders , a four-day, residential course in public policy and liberal philosophy for law students, researchers, and faculty. The course focuses on issues in the areas of education, livelihood for the poor, and good governance.  During the course participants share and explore ideas about voluntary and policy-based solutions to current social problems.

The ìpolicy experience encourages experiential learning, making for an exciting, engaging and entertaining course. Formats vary between interactive lectures, working groups, field visits and cooperative games.

Don’t miss out on this fantastic opportunity to learn, engage, network and develop skills in critical thinking and public policy; all in a relaxed and enjoyable environment where the priority is you.

Who is eligible?

The programme is targeted towards law students, researchers, and faculty under 35 interested in law and policy issues. The course has been designed to make each session participatory; therefore, available seats for the course have been limited to 40 people. Individuals who entered the Jeevika Law Competition will be given priority in the application process.

Please Note:

·         Selected candidates will be required to participate for the entire duration of the course at the end of which a Certificate in Public Policy will be awarded.

·         The course fee is Rs. 2000, which includes all meals and a four-night stay at the venue. The 20 top individuals who participated in the Jeevika Law Competition will be given a scholarship voucher that covers the entire course fee.

·         Limited reimbursement of actual expenses (up to Rs. 3000) is available for outstation candidates.  Reimbursement will only be awarded with travel proof such as boarding pass, train ticket, etc.

·         The deadline for submission of the Application Form is April 18, 2012.

For any queries, contact Sadaf Hussain: 99531 33868 or 011-2653 7456 ext: 25
  
CCS was ranked in top 50 Think Tanks worldwide in 2011 by a study conducted by University of Pennsylvania

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