Collegium system becomes history as the National Judicial Appointments Commission Bill receives the assent of the President of India

The National Judicial Appointments Commission (NJAC) Bill passed by Parliament in August this year that seeks to do away with the collegium system of appointing judges to higher judiciary has received the assent of the President. Being a Bill in the nature of a constitutional amendment, it required ratification by at least 50% of the state legislatures, which requirement was also satisfied with 16 of the 29 states ratifying the Bill. 

Rashtrapati Bhavan, New Delhi

The new law facilitates the setting up of a commission for appointment of judges, replacing the 20-year-old collegium system, which had been under severe criticism for its lack of transparency in the matter of processing of names for appointment as judges to the higher judiciary. 

With the assent of the President, all decks have been cleared for the setting up of the NJAC, which will appoint and transfer judges to the Supreme Courts and the 24 High Courts. The124th amendment to the Constitution grants Constitutional status to the NJAC and its composition which will be headed by the Chief Justice of India.

Besides the CJI, the judiciary would be represented by two senior judges of the Supreme Court. Two eminent personalities and the Law Minister will be the other members of the body. 

Though the assent of the President has been obtained the new law, that is, the National Judicial Appointments Commission Act, 2014 will not come into effect at once. Going by Section 1(2) of the Act, the National Judicial Appointments Commission Act, 2014 will now come into force on such date as the Central Government may notify in the Official Gazette. Therefore the nation may have to wait a while before the days of the collegium system, well and truly, come to an end. 

The full text of the  National Judicial Appointments Commission Bill, 2014 as passed by both the Houses of Parliament can be accessed here

Sohrabuddin Sheikh fake encounter case: CBI Special court drops charges against BJP President and former Gujarat Home Minister Amit Shah

In a major relief to Bharatiya Janata Party president Amit Shah, a special CBI court in Mumbai on Tuesday accepted his plea for discharge in the Sohrabuddin Sheikh fake encounter case thereby dropping all charges alleged by the CBI against him. 

“I am of the opinion that the inference drawn by CBI is not accepted in totality and he (Shah) cannot be charged as an accused," special CBI judge MB Gosavi said in a brief order pronounced in the court.

Amit Shah. (Picture Courtesy: The Hindu)

The case was transferred from Gujarat to Mumbai earlier this year.

In September 2013, the CBI had charge-sheeted Shah, the former home minister of Gujarat, and 18 others, including several police officers. Shah was charged with criminal conspiracy, destruction of evidence and offences under the Arms Act.

Sohrabuddin was allegedly abducted by Gujarat's anti-terrorism squad and killed in an encounter with the police on November 26, 2005, in Ahmedabad. His wife Kausar Bi was allegedly murdered three days later, and her body disposed of.

Following this, Sohrabuddin's brother, Rubabuddin, had filed a complaint that his brother was killed in a fake encounter.

The Gujarat police had claimed Sohrabuddin had links with Pakistan-based terror outfit Lashkar-e-Taiba and planned to assassinate important political leaders.

Tulsiram Prajapati was killed by the police at Chapri village in Banaskantha district of Gujarat in December 28, 2006. 

The CBI alleged that Shah, who was Gujarat's home minister at the time, was involved in both killings as the police reported to him.

Shah stepped down as home minister in 2010 after he was arrested in the case. He got bail three months later.

The defence had stated that Indian National Congress (INC) had used the CBI as a tool to implicate Shah in the case.

Senior counsel Mihir Desai, who had appeared for complainant Rubabuddin, had argued in court that Shah was in frequent touch with police officers S Rajkumar Pandyan and DG Vanzara, who are in jail in connection with the case, and that he also tried to influence the investigation into the killings.

Looking at the statements recorded in the charge sheet the minimum that can be deciphered is that Shah was either trying to destroy evidence or fabricate it, and hence the discharge plea should be rejected, said Desai. 

But Shah's lawyer had contested that call records of Shah and some police officials between November 2005 and December 2006 have been brought on record, but calls made by Shah before and after the period were not.

Even the content of the talk was not produced, Shah's lawyer had contested. 

Copy of the order pronounced by the CBI Special Court is awaited. 

Every case of 'physical contacts' before breach of promise to marry cannot be said as rape, says the Bombay High Court

In a significant decision, the Bombay High Court has held that every breach of promise to marry does not necessarily amount to rape. The Court also observed that pre-marital sex between couples is no longer shocking in India's big cities. 

Bombay High Court

The observations of the Court came earlier this month, during the hearing of an anticipatory bail application filed by a Nashik resident who was booked on charges of cheating and rape following a complaint filed by his former girlfriend.

The victim who claimed she was pregnant with the petitioner’s child, said despite promising to marry her, he had married another girl. The petitioner, on the other hand, claimed the relationship was consensual, and they could not marry as they belonged to different religions. The victim and the accused, both lawyers, knew each other since 1999 and had a physical relationship since 2006. The victim claimed that the accused had promised to marry her. In 2009, when he said he could not, she had tried to commit suicide. She said that they continued physical relations even after that. 

"Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive," said Justice Mridula Bhatkar, adding, "Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society."

The court said a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not. 

"Today the law acknowledges live-in relationship(s). The law also acknowledges a woman's right to have sex, a woman's right to be a mother or a woman's right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted," the judge said. 

The High Court also gave examples of what could be an offence under Section 376 of Indian Penal Code relating to rape - an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl. 

The Court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape. "A couple in love may be having sexual relationship and realize they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed," said the judge. 

The High Court said both the victim and the accused were educated. "The complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied," the judge said, while granting anticipatory bail to the accused. 

The High Court said if the victim chooses to have the baby, she could adopt legal proceedings against the accused to secure the child's rights.

There is no prohibition for a decree-holder to seek an order of arrest of the judgment-debtor from the execution Court before seeking attachment of his properties, holds the Madras High Court

The Madras High Court Bench at Madurai has held that there is no prohibition under Code of Civil Procedure (C.P.C.) for a creditor bank to seek a court order for arresting loan defaulters even before exercising the option of filing an application in the court concerned to seek attachment of their properties.

Madras High Court

Justice M. Duraiswamy passed the judgment in a civil revision petition filed by noted television personality Mr. N.S.S. Nellai Kannan challenging the order of arrest passed by the lower Court in an Execution Petition filed by his creditor-bank. 

The judgment of the Court will clea the decks for the arrest of Mr. N.S.S. Nellai Kannan and his son N.K. Arumugam for failing to repay a personal loan of Rs 5 lakhs obtained from the Tamilnad Mercantile Bank in the year 2003.

Observing that the third Additional District Sessions Court in Tirunelveli had rightly ordered the arrest of the loan defaulter and his son, the guarantor, on April 30, 2012, the Court directed the lower court to complete the execution proceedings within three months. The bank’s counsel, V. Karthikeyan, said the orator had taken the loan on December 13, 2003, and agreed to repay it in 60 equated monthly instalments of Rs 11,784, including 14.5 per cent interest per annum. His wife and son were the guarantors.

When he defaulted, the bank filed a civil suit before the District Court in Tirunelveli in December 2006 for recovering the principal and interest totalling Rs 6.52 lakh. Mr. N.S.S. Nellai Kannan contested the suit by accusing the bank of charging an exorbitant interest rate.

The District Court on July 1, 2010, decreed the suit in favour of the bank and directed the noted television personality Mr. N.S.S. Nellai Kannan to repay the amount along with 17.75 per cent interest per annum from the date of filing of the suit. It also ordered him to pay Rs 58,061 towards litigation expenses.

When Mr. Nellai Kannan did not comply with the order, the bank filed an execution petition in 2012 and sought direction to arrest him and his son and lodge them in a civil prison for recovery of the loan amount which had risen to over Rs 10.62 lakh due to non-payment for years.

The District Court in an order passed in the said execution petition ordered their arrest and production before it on June 8, 2012. 

Immediately, the father-son duo filed a civil revision petition in the High Court Bench here in 2012 and obtained an order of stay of the impugned order thereby managing to keep the arrest order in abeyance until disposal of the civil revision petition.

 

Justice Duraiswamy before whom the revision came up, found the same to be devoid of merits and accordingly dismissed it by his judgment.