Pardon me, His Excellency! You can’t pardon

Sanjay Dutt was never in news for his professional career so much, as he is for his recent conviction. Upholding the TADA court verdict, the Supreme Court sentenced him to five years imprisonment in connection with his role in the 1993 serial bomb blasts, which shook India’s conscience and India's financial capital on March 12, 1993. Death of 257 people, with more than 700 getting injured flung Mumbai into chaos. In the mean time, three AK-56 rifles, cartridges, 25 hand grenades and a 9-mm semi-automatic pistol finding their way in Dutt's house threw him behind the bars.

Dutt had been released on bail in November 2007. Recently he pleaded before the Hon’ble Supreme Court to let him off on probation on grounds of his past good conduct, but his petition was rejected. The bench of Justices P Sathasivam and B S Chauhan said, “The circumstances and nature of the offence are so serious... they don’t warrant the benefit of the provisions of the Probation of Offenders Act”. While upholding the death sentence of Y A R Memon and the life sentences of 16 (of the 18) convicts the bench further pruned its liberal stand towards Sanjay by saying- We could not have given a sentence less than what is prescribed in law*.
*Section 25 (1(A) of the Arms Act states that if a person has in his possession a prohibited weapon without a licence, he shall be awarded punishment of not less than 5 years imprisonment and not more than 10 years

Fortuitously or regrettably, no verdict of the Highest Court is ever executed in silence. Politicians have to score points, colleagues have to show emotions and people like me have to write blogs… Anyway, Mrs. Jaya Bachchan, Member of Parliament, announced that she will meet Maharashtra Governor K. Sankaranarayanan to pardon Dutt. She subsequently got support from eminent scholars like Mr. Ram Jethmalani, Mr. Majid Memon; and politicians like Mr. Amar Singh and Mrs. Jaya Prada, who were never known to be on the bangs of any mercy controversy ever. Surprising pitched in Behen Ms. Mamata Banerjee showing solidarity to Sanju baba, and also joined in Congress leader Mr. Digvijaya Singh, who went on record to say- "Sanjay Dutt is not a criminal. He is not a terrorist. The atmosphere was bad in 1993 and he reacted to it like any child would."

So pardon him..! If my boss Mr. Ramesh Gupta wouldn’t have been Digvijaya’s lawyer, I would have asked him-Had a common man played this role would he have showed same leniency as he expressed for Dutt?

And interestingly the story didn’t end there. There were more tellers to tell it… Justice (retired) Markandey Katju wrote a letter to Sankarnarayanan, appealing to pardon Dutt. Pleading on humanitarian considerations, Katju J., said the power of pardon under Article 161 of the Constitution is different from judicial power. The Governor or the President can grant pardon or reduce the sentence of the court even if a minimum punishment is prescribed. Citing extenuating circumstances, he went on to compare this case with the Nanavati case and weighed it, in his great wisdom, to be a lesser crime than that of there. Though it is not unusual to see that a sympathetic ex-judges’ heart melting down for the cloud hovering over a convict’s head, however, the political divide between the Right and Mercy supporters was extraordinary.

However, I along with Mr. Mahesh Jethmalani, Sr. Advocate, are on very basic and fundamental point, which needs to be addressed first. In the chorus for pardon, we have failed to see whether the governor has the power to pardon at all! The queue in which Jaya Bachchan, Amar Singh, and others are standing, whether it leads to right person’s House! Whether Katju J.’s letter carries right address!

When this pardonwale mounted pressure, and media started hankering about Governor’s mercy, as a poor student of Constitutional law I asked myself- why not President? In which cases President pardons? In which cases Governor (as a follow up question)? Excitingly I opened up my bare act, putting aside my watsapp. But that little book told me something strange. How can eminent jurists like Kaju J. go wrong? So many scholars can’t be ignorant! But can’t distrust my reading of law also. At least Prof. Mustafa taught me this much. I can read and tell you what the law speaks, if can’t interpret it otherwise. Fortunately I have a friend who always supports me and listens to me…even if it is going against everyone. She gives me a chance to speak up! And this blog gives me a chance to write down!!

Anyway, coming to the topic straight, will reproduce the provisions of Constitution for those who don’t have one…
Article 161: The Governor of a State shall have the power to grant pardons…the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Therefore the power of the governor is not absolute. The bold letters in the above para is self explanatory and determines the scope of governor’s power. However the subsequent article i.e. Article 162 makes it further clear. It reads:
Article 162: “…the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.”

Therefore Schedule 7, List II i.e. the State List determines where the governor can pardon. But the present case in hand does not find in anywhere in the list except Public order. However arms, ammunitions, terrorism is not part of Public order, as the argument developed by the Union Government while formation of NIA. On the contrary, the most fitted one is entry 5 of List I (Union List) i.e. Arms, firearms, ammunition and explosives. Therefore it is not within the power of state government. And to put it straight, it may be anyone else but not the Governor who have the power to pardon.

Obviously, I don’t enjoy the power, neither does my elected representatives. So it was to be an executive. Anyway the cumulative reading of Article 72(1)(b) and 73(1)(a) gives us an answer. Therefore, in this case the president can pardon Dutt.

Therefore the only recourse available to Dutt is to plead before the President or to file a review petition. Secondly, I will most humbly urge Katju J to stand corrected and request him not to put undue pressure on Constitutional body (President or Governor) by asking for mercy when Dutt has decided to surrender before expiry of the Supreme Court deadlines. When it is nowhere near to the mandate given to him as a chairman of Press Council of India, Self adornment of this duty and claiming right as a citizen simplicitor, doesn’t justify.

No Law* to Regulatory Regime: The Press in Transition

*Extracted from: “Congress shall make no law… abridging the freedom of speech, or of the press…”

Freedom of expression, whether on the traditional press and broadcasting media, or through the new electronic media, remains of fundamental importance to the workings of the liberal democracies; indeed, it is impossible to see how a democracy could exist without a free, pluralist media for the dissemination of information and the discussion of political and social affairs.[1] But the free press does not entail the complete absence of law and regulations. Laws are needed to balance the competing interests of the media and the public.

To a large extent, the media exercises self-restraint as there exists questions of legitimate public concern. The silence of US media about John F. Kennedy’s sexual affairs, both while he was a candidate for the Presidency and later while he occupied that office, and of the English newspaper’s silence about Churchill’s health during the Second World War is often quoted when we debate about the maturity of media. But today, the situation is very different. Revelations about the private life of celebrities and public figure, and the increasing misuse of freedom has raised question as to how much free is, free media? The citizens in many advanced liberal democracies guaranteeing Free Press has started questioning: Are the newspapers and the channels immune? Can media activism endanger reputation, privacy, or even safety of individuals? To what extent is this freedom unfettered as to endanger the dignity of those individual, whom they inform and entertain? Or putting it straight- Do freedom of press necessarily implies freedom of newspapers and electronic channels?

Freedom of Press: US experiences

“Congress shall make no law… abridging the freedom of speech, or of the press…” These sparse words of the First Amendment of the United States Constitution have created a huge literature, a complicated jurisprudence, and a plethora of case laws which marked its get-go in Schenck v. United States[2], where the U.S. Supreme Court went on to decide the constitutional validity of legislation on the basis of the Amendment. To gather the legislative intention behind the amendment, reference is seldom made to the pages of history as there is a paucity of proof but it is undisputed that the Founders affirmed to the Blackstonian position i.e. against the prior censorship of the press.[3] In Konigsberg v. State Bar of California[4], Justice Hugo Black saw the Founder’s intention embedded in the clause and goes on to declared that these words are “the First Amendment’s unequivocal command”, which “shows…all the balancing that was to be done in this field”, insisting “No law” means no law.

In the context of non-constitutional social interest viz. privacy, reputation, repose or public morality, often the debate of ‘Balancing’ vis-à-vis ‘Absolutism’ is marked. The absolutists’ claim being ‘No law’ signifies ‘impermissibility’, never allowed general theorizing. However, the judicial responses in its ad-hoc balancing often given these social interests prevailing effect over the countervailing claims to freedom of speech. The non-acceptability of Black’s view is the evidence of it and the reason being it invalidates many widely accepted restrictions on speech and restrictions that reflect the complexity of the relationship between individual liberty and the interests of the community.

The reason of overweighing a principle while interpreting is never unguided. Similarly, the Supreme Court, while interpreting the First Amendment, had looked forward to the broad purposes of its language in the light of various theories, arguments advanced in justification of the speech and press clause, and the political history and intellectual tradition. These justifications include self-government, individual self-fulfillment, and the attainment of truth. In Times Inc., v. Hill[5], discussing self-government argument observes that a representative democracy is impossible without the active participation of citizenry. Scholars like Blasi[6] believe that the function of free speech and press is to arrest the inherent tendency of government officials to abuse the power while others like Bollinger[7] take it as a safety valve for the release of energy that might be directed towards subversion or violence. The argument from self-realization regards speech as cardinal to human development in Whitney v. California[8]. Lastly as observed by the Court in Red Lion case[9], truth is most likely to emerge only when confronted by its refutation in an arena of free and open debate.

Unlike many of the Constitutions of other democracies, the U.S. Constitution fails to specify what the limits of the freedom, hence leaving the Supreme Court to its own devices when confronted with constitutional challenges to rules or regulations that infringe upon the freedom of speech or press.[10]

Transition: Protectionist Approach to Free Speech

In the case of Brandenburg v. Ohio[11], Brandenburg, a Ku Klux Klan leader was convicted under the Ohio’s criminal syndicalism statute for remarks that he had been taped making at a Klan rally where he had used racially derogatory terms. Ohio’s intermediate court of appeals and the state supreme court dismissed Brandenburg’s appeal. Justice Black and Justice Douglas claiming that the court should abandon the “clear and present danger test” decided that Ohio’s criminal syndicalism law violates freedom of speech as guaranteed by the First and Fourteenth Amendments.

However the broad protection accorded to the political speech in Brandenburg case was foreshadowed by the historic decision in New York Times Co. v. Sullivan[12]. Prior to Sullivan, public officials could sue newspapers and other critics under state libel laws for defamatory utterances and false statements of fact directed towards their official conduct. In overturning such protection, the Court announced that in the future the public officials could recover damages for a falsehood relating to their official conduct only if they could show that the utterances were made “with reckless disregard of the truth”. Thus J. Brennan gave priority to free speech with a very restrictive exception ranking speech superior to the social values of personal honour and reputation. The court pointed out that “erroneous statement is inevitable in free debate” and freedom of expression needs “breathing space” to survive and any other rule would lead to “self-censorship of the press”, deter would-be critics of official conduct, and dampen the vigor of public debate. The court while delivering this judgment cited J.S.Mill approving that even false statements contribute to public debate because then truth emerges vigorously and clearly “by its collision with truth”.[13] Sullivan case invited criticism for its elevation of speech over the countervailing values. However the criticism intensified when the court in Curtis Publishing Co. v. Butts and Associated Press v. Walker[14], Time, Inc. v. Hill[15], and Time, Inc. v. Firestone[16] extended the Sullivan privilege to cover public figures such as football coaches, celebrities and others. J. Brennan was not unmindful of the important social values[17] still in Rosenbloom v. Metromedia[18], he argued that free speech “must embrace all issues about which information is needed… to enable the members of society to cope with the exigencies of their period”.   

Reversal to Dignitarian Argument

In Gertz v. Robert Wetch, Inc.[19], the court limited a newspaper’s constitutional privilege against liability for a false statement of fact. The court shifted its emphasis to J. Stewart approach i.e. the dignitarian argument where the injury is inflicted on a private person caught up in a matter of public interest. J. Powell went on to say “there is no constitutional value in false statement or fact” as “neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust and wide-open’ debate on public issues”[20], though J. Brennan dissented.

---

[1] Barendt, Eric., et al(editors), Series Preface, Freedom of the Press, Library of Essays in Media Law, Ashgate Publishing Limited, England, 2009.

[2] 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470 (1919).

[3] Levy, Leonard W., Legacy of Suppression: Freedom of Speech and Press in Early American History, Cambridge, Mass., Belknap Press of Harvard University Press, 1960, p. 13-15 and 214-48.

[4] 366 U.S. 36, 61 (1961)

[5] 385 U.S. 374 (1967).

[6] Blasi, Vincent, The Checking Value in First Amendment Theory, American Bar Foundation Research Journal, 1977, p. 538.

[7] Bollinger, L.C., The Tolerant Society, Oxford University Press, New York, 1986

[8] 274 U.S. 357 (1927).

[9] Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969).

[10] Kommers, Donald P., American Constitutional Law, 3^rd edn., Rowman & Littlefield Publishers, Inc., USA, 2010, p. 739

[11] 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430 (1969)

[12] 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686 (1964)

[13] Mill, J.S., “On Liberty” in John Garvey, The First Amendment: A Reader, St. Paul, Minn.: West Publishing Co., 1992, p. 59.

[14] 388 U.S. 130 (1967)

[15] 385 U.S. 374 (1967)

[16] 424 U.S. 448 (1976)

[17] Rosenblatt v Baer, 383 U.S. 75, 86 (1965)

[18] 403 U.S. 29, 41 (1971)

[19] 418 U.S. 323 (1974)

[20] Id. 340

dhadkan of millions..

A 72-year-old man is still in fast and am in deep sleep here! …it didn’t take me, ½ a minute to jump from my bed. ..From yesterday morning, Anna Hazare sat on fast-unto-death at Jantar Mantar and in the evening, I was trying to make my friends, in front of the boys’ hostel, appreciate the implications of Jan Lokpal Bill. I easily convinced people here but politicians were not convinced there (Delhi). 

Anna Hazare on fast-unto-death
Photo Courtesy: The Hindu

The chain hunger strike, of this Anti corruption crusade, will continue till April 11 and a 'Jail Bharo' agitation will be launched on April 12, whereby people and activists will court arrest. At this time, Congress leader Satyavrat Chaturvedi appears with an argument, which was like Malinga’s ball and not that easy to avoid. “You can’t dictate us,” was his argument. It made clear that Congress has not come out from and is still with Montesquieu’ s “Separation of Power.” Yes! There is nothing wrong in it. When Supreme Court made it Basic Structure, politicians should remember it. The underlying thing, which he is trying to put forward, is very  simple- Legislature is entrusted with the power to legislate. The Jan Lokpal bill, which Hazare is pressing for enactment to tackle corruption, is not the legislative creation. They fear the fate of the Act being challenged as Unconstitutional. Moreover the asli fear is the precedent that will be set up..

Completely agreed! When representatives are elected and are given power to legislate, what the construction should be, when citizen try to become part the Drafting Committee? Government can take the advice of people but when civil society is coming up with a bill, is government bound to respect that? I completely understand the compulsions of the government but look, things are different here. The demand is not to pass the Bill, which is prepared by the civil society, as it is. The demand is to form a joint committee, which will prepare a bill. In Parliament, legislature is free to discuss, debate and pass.. None is interested to perform legislatures' duty. And about the question of precedent, what precedent they are talking about? Are the Major Acts of Maharashtra, unconstitutional? Is this government going crazy? Come on! you have good lawyers.. Give some valid reasons for non acceptance or else call media and accept it!   

No constituency or a ward is coming together here on a political call... It is the Nations’ will that is involved and the entire Nation is coming together. No compulsion, no temptation, no lust but see and count the number (of people). Voluntary! Voluntary and Voluntary! A yagna is on and Idam Sareeram rastraya swah, idam na mama (this body is for this Nation and not for self!) is mantra today. It is no less than Gandhiji’s 'National Movement' and we are witness to Ajadi ki dusri ladhai. Mahatma of 50's fought for Self Governance and Modern day Mahatma is standing to fight for Good Governance. The Trust deficit or Mistrust among people is verbalism of this agitation and it will soon become a revolution if ignored. However, we the law students will not mind, if this India v. Corruption case bring to the fore a new proposition of law.

 Arnab Goswami rightly pointed out- “if there is a Will, there will be Bill”. My friends, we are not in a Democracy, which is just elective but India is a Participatory Democracy and I will not be condemnable if I say Legislature and Executive of this country are not above Public Will. Let the Public Will be respected and let my country go by the dhadkan of millions.. 

...the Judicial Rebuff

Mr. P. J. Thomas
Photo courtesy: The India Today

ONE Big blow and Indian government fainted!! PM has to accept his responsibility and LM has to admit failure of the system.
     “½ +1” will not always do… If you call this mathematical verbalism as democratic go then Democracy is not enough. “If there is majority rule, Rule of law is ensured.” If this is the belief, then E.M. Foster has to come once again to teach this Democracy -“I do not believe in Belief”. On September 03, 2010, Singhji and Chidambaramji might have overruled the opposition leader by a majority but Hon’ble Supreme Court in Centre for PIL & Anr. v. Union of India & Anr., overruled the Overruling, saying the High Powered Committee’s (HPC) selection of Mr. P. J. Thomas as Chief Vigilance Commissioner (CVC) under Section 4(1) of the Central Vigilance Commission Act, 2003 was “non-est in law”.

“Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions." While rendering a judgment, which is strictly confined to the legality of the recommendation, the court moved On with these lines… They differentiated ‘legality’ from ‘merit’, and ended up talking about the “larger perspective”, which CVC, DoPT and HPC failed to foresee.

     When No Law is infringed, under Sec 4 of the Act, it was hard for the court to reach a conclusion with regard to Thomas's appointment. The underlying abstraction in the minds of the judges, which can be piled up, is that they were not satisfied with the existing. Something was missing and the entire 73 page judgment was narration of that ‘something’.
….Appointment can’t be based on Bio Data.
...Institution is more important than an individual.
..Eligible persons should be without blemish whatsoever.
All these are valid and justified grounds. But somehow the court reached to the abstract conception of "Institutional Integrity", which is not a reasonable basis. In page 30 of the judgment, Justice Kapadia said,

“…in the present case the recommending authority (High Powered Committee) has gone by personal integrity of the officers empanelled and not by institutional integrity.”

However Section 4 of the Act says nothing about the institutional integrity. But in p. 32 of the judgment, the court categorically stated- the institutional integrity is the primary consideration which the HPC is required to consider while making recommendation and this vital aspect has not been taken into account in the present case. But I failed to understand what institutional integrity they are talking about? Every public office ought to be an office of integrity. It may be CVC, the Election Commission, the CAG or any other office. Is this integrity not appropriate for judiciary? The court should have defined what they meant by it. Do they mean, sacred? public trust? corrupt less? concerned? or what?

Appointments are always made on personal integrity. I agree between 2000 and 2004, the notings of DoPT dated 26th June, 2000, 18th January, 2001, 20th June, 2003, 24th February, 2004, 18th October, 2004 and 2nd November, 2004 have all observed that penalty proceedings may be initiated against Thomas. But at the same time, it cannot be ignored that the CVC vide its letter dated 25th June, 2007 informed the Ministry that:

“The case has been re-examined and Commission has observed that no case is made out against S/Shri P.J. Thomas…”

     It is rightly marked that no reasons are available as to why CVC had changed its earlier stand. But a presumption can’t be made as to Absence of reason means there is something fishy. So, the court should have gone to the extent of getting an answer to this question. Well! I agree when they say, if the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate.

However the court rightly faulted the HPC for its failure to consider relevant materials. The key word in proviso to Section 4(1) is the word “recommendation”. While making the recommendation, the HPC performs a statutory duty. And the word ‘recommendation’ in the proviso stands for an "informed decision". Therefore the court is right when it looked into the matter as to whether relevant materials and vital aspects were taken into account or not. The observation that those notings were not considered in juxtaposition with the clearance of CVC granted is relevant as the decision to recommend has got to be an informed decision. If HPC, for any reason whatsoever, fails to look into the relevant materials then its decision would stand vitiated on the ground of official arbitrariness.

Secondly, an interesting point was made by the petitioner that the recommendation of the HPC has to be unanimous as the intention was to introduce bipartisanship and political neutrality. In Vineet Narain’s case the Court had observed that the Committee would decide by unanimity or consensus. It is no where stated that the Committee would decide by majority. Moreover, it was argued by Mr. Prashant Bhushan that if unanimity is ruled out then the very purpose of inducting the Leader of Opposition in the process of selection will stand defeated. But the court rejected the submission.

     The Court was right in saying- Conferment of such a power on one of the members would amount to ‘Judicial Legislation’. But I disagree when the court talked about conferment of a “veto right”, because there is provision of recording. A member is not absolved just by showing his hand or objecting, as he has to give reasons. How you found out that Mrs. Swaraj had objected? It was recorded. Ohh! The court itself in its direction also had made a point that member dissenting should give reasons. So, why ‘No’ to unanimity? Mind you, Public confidence will be enhanced.

     Anyway, the bench comprising CJI S H Kapadia, Justice K S Radhakrishnan and Swatanter Kumar laid down stringent guidelines for future appointments and quash the present appointment. This "Judicial Rebuff" can be said as a resurgent judicial activism under the leadership of CJI but somewhere or other, ‘Rule by Law’ have to bob up when ‘Rule of Law’ goes missing in political technicalities.

Affidavit of Sadhwi Pragyan

It is matter of regret that Sadhwi Pragyan was beaten by a senior officer and was subject to vulgar abuse and obscene language by members of the ATS team. Moreover her chastity was questioned and she was physically and verbally traumatized to the extent that she wanted to commit suicide (as stated by her on her affidavit). It is the clear case of custodial abuse. It is clearly visible that Constitutionalism is decaying from this country and Popular Sovereignty is a myth.
When my country is talking about the right to a legal defence, even of a terrorist, it is painful to listen that she was denied access to a Lawyer, up to the 24.10.2008.
Further narco test and lie detection test were conducted without her consent, which is gross violation of principle of legality as well as fundamental and legal rights. Never the less all these investigative tests have only established her innocence in the Malegaon bomb blast that took place on 29.9.2008. But it is to be taken care of that in any situation the act of the officials must be JUST, FAIR and REASONABLE.

..not a law student but as a media person

H.M. Seervai Memorial lecture

(He got Padma Bivushan Award in the year 1983)

Organized by KIIT Law School and me, a law student inside the audi. An attempt to report as a media person. The chief Justice of Orissa High Court Justice Dr. B S Chohan was the chief guest. He emphasized on the duty of the citizen. He has also said that the Hindu jurisprudence mainly emphasize on the duty. In the case of Chandravan the court said it is fallacy to think there is only right and no duty in our constitution. At last he said that Part IV of the constitution is not empty and high sounding words but ideals.

Justice S. B. Sinha, the judge of the Supreme Court of India, was the Speaker. He said a thing can be differently interpreted. For e.g. Orissa is a rich state or Orissa is a poor state. It can be said as Orissa is a rich state of poors. He said that in the A.K.Gopalan’s case, it was said about Art. 21. The SC said it should be read with Art. 14, 19, the Preamble, Part III and IV.

According to him the legislature and the executive is not working while the judiciary is over acting. So, he raised the question of separation of powers. He said a case should be considered to its merit. At the same time he gave the example of SEZ and said India should take decision according to the doctrine, which she follow: the market doctrine, the justice doctrine or the social doctrine. So, what was the law in the 17th century is not the law now. He criticized Globalization and said the Sovereignty will be demolished and the territory will be Pepsi/Cola land.

Justice Lokur the judge in Delhi High Court conducted our class and gave us the following information. There are 30 lakhs cases pending in the High Court. Similarly the number is 50000 in the Supreme Court. Moreover the total figure in the country is about 3 crores. In1999, the Parliament said that, alternative dispute solving mechanism should be used for the resettlement of the conflict. Prior to that there was the Arbitration Act. Section 19 of the Act says about the establishment of the Lok Adalat. So, in July 2002 section 9 was added in the CPC.

According to Lokur J. mediation is the best way for the resettlement of the dispute. Mediation is the mechanism when the dispute of the both the party is solved by the neutral third party. In this process there is no judge as such unlike in the court of law. But that neutral party has to just facilitate in settling the disputes. For example in the court of law, there are two parties and there was the fight for the compensation for the infringement of the rights. But here there is the settlement. Both the party has to agree the truth and finally there was the judgement. If one of the party does not agrees to disclose the truth or gives the false statement, which the other party could not able to agree upon then the full mechanism becomes hopeless. Here the mediator has to expressly state that his is the neutral person. But there is no such provision in case of the court of law because it is implied. There is also the provision of Cocus, in which one party will go out and the other party will disclose all, which he wants to say the mediator personally such as anything related to matrimonial life or any personal or family matter. So, there are 4 steps as a whole viz. Introduction, Joint session, Private session and the Joint session for the exploration of the possibilities. There may be more than one private session as dependent upon the case. There is also the role of the the lawyer in this regard like to see the legal aspects of a case because the parties are often confused about their own case. Due to ignorance they could not able to know what has gone wrong but simply thinks something has gone wrong. Negotiation is the second job of the lawyer to look into.

There are many advantages of this mechanism. They are as follows:

Once the matter is solved there is no appeal because it is solved taking the interests of both. So, it is the final one. But in case of the court of law, the court have to give judgment in favour of one. So, there is further appeal. And at the last the SC has to also give judgment in favour of one of the party.

Secondly, it is the speediest way of solving a case. The matter can be solved even in 2 hous and max to max it is one month. But in the court, if the rule of CPC is strictly followed, then also it is not less than 8 months.

Thirdly it is cheaper. Here you may not employ a lawyer and the run to home to court is saved.

After that the question arise how a mediator is selected?

There are two ways of selecting a mediator. The first one is the Court integrated mediation, where the mediator are already involved in the court and the judge gives him the case if he thinks that it can be saved through mediation.

The second process is by training. There is a programme of 40 hours of training. The institute summons application and the students are selected in the basis of patient, attitude of cooperation and the ability to look the same thing in different perspective. Theoretically a person not from the law background can also go for it.

Lokur J. has also given the example of the lawyering of M. Gandhi, how he solved the matter. His client got the compensation and the other party also becomes happy because he gave it in installment.

a letter 2 the CJI

Bhubaneswar
10^th September, 08

Respected the Chief Justice of India,

I am Satya Ranjan Swain, a student of 3^rd semester of B.A.LL.B (Hons.), KIIT Law School, Orissa. Sir, I was very much surprised when I got the news that the Chief Justice of India, in his August 4 letter to Prime Minister Manmohan Singh, has recommended impeachment of Justice Soumitra Sen of Calcutta High Court, who was found guilty of "misconduct" in an in-house inquiry. Now the Government is also planning to impeach him in the Parliament.

According to the Article 124 (4) of the Constitution, a Judge of a High Court can be impeached on the ground of proved misbehaviour or incapacity. But Sir, as a poor student of constitutional law, I think this impeachment of the judge is not for the misconduct of a judge. This misconduct had happened when Justice Sen was an advocate. So, he should not be impeached. I agree that if someone is guilty, he should be punished. But, in this case, “impeachment” is not the way. Simply, he can be prosecuted.

I have no ill intention in writing this. This is only my opinion. As a responsible citizen and an interested student, to know law in this point, I feel writing this.

Waiting for your valuable answer

Thanking you!

Yours faithfully,

Satya Ranjan Swain

KIIT Law School,

KIIT University, Bhubaneswar.

This letter is checked by Prof. T. Devidas, Adjunct Professor of NLSIU

a world in itself..

(21ST TO 23RD DECEMBER 2007)

The most highlighting news regarding the dist. Kalahandi is the death of the villagers. When the opposition political party claims it as the starvation death the govt. strongly denies this and says it as the death due to eating mango kernel.

The objective of this survey is to know the ground reality, what causes death. For this we the four students viz. Nidhi, Bhavana, Bidisha and myself of KNLS under the guidance of Mr. yogesh Pratap Singh, Mr. Pinaki Nadan Pattanaik and Mr. Kaish Khan had gone to the villages of Kalahandi dist.

We have conducted our survey by preparing questionnaire. We have also asked the government officials and others in this regard.

On the 21^st, we went to the villages of Kalahandi viz. Pokri Ghat and Yamuna Sagar. We asked the people about some of the general information and took their views on the functioning of the village authority. The average member of each family is five. Generally they belong to two caste viz. kandha and harijan. The level of education is very low. Maximum no. of the people does not possess land. So, they have to work at others land. The major crops which they cultivate are rice and the main source of income is agriculture. The income is nearly Rs. 800/- of a family.

The opinion of the people though different but they agrees upon many things. As per the data both of the villages have the gram panchayat. But the functioning of the gram pradhan ie. the sarpanch is not satisfactory. The govt. is providing ration and old day’s pension also in Pokari Ghat. Some of the people have got labour card, in which they get job. But unfortunately they do not get daily work. The NGOs called World Vision is working there. Some other nongovernmental organization has also built the bathrooms for them. The Natural Resource Management Plantation is doing plantation work over there. All most all agreed on the point that the people have access to the forest land. In Pokari Ghat and Yamuna Sagar, there are government schools upto 5^th standard and the Anganwadi workers teach the kids. The villages of the two villages agreed that there is no primary health centre over there and they have to go to Bhabani Patna, which is far from those villages. People are not aware about the Right to Information Act 2005.