Preservation of Rule of Law- Bar and the Bench

This post is in response to the ongoing lawyers strike in state of Orissa. They have been boycotting the courts including that of the High court at Cuttack since August 25^th in protest against the death of advocate Bishnu Charan Dash in the Bagalpur police firing on August 23^rd. Dash’s death had evoked protests from all sections of the bar. Surely the death of Mr. Dash should be condemned, but the larger question here is to what extent the interests of thousands of litigants can be put at stake. The third phase of the trial in the Kandhamal nun rape case was scheduled to begin on Monday after several delays. Unfortunately it couldn’t, as the lawyers were too busy on the streets up in protest. Lord Justice Stephen Sedley in his Hamlyn Lectures had remarked that the rule of law is indeed necessary but not a sufficient condition of a decent society. There is more to a decent society than the rule of law. Understanding and awareness of one’s rights need to be imbibed and that can be done only through education. He then concludes by saying that “if lawyers are to be educators, they must be trend setters inspiring public confidence.” Mr. Nariman in his autobiography Before Memory Fades writes “We demean our ourselves and our profession when we resolve to strike work, and so paralyze the working of the courts, tribunals and statutory authorities where public cases and causes demand our expertise, intercession and assistance.” We should not forget that the judiciary of our great country is the guardian of the constitution and the protector of civil liberties. In the discharge of its obligations the judiciary draws heavily from the bar. It’s a conjoint effort of the Bar and the Bench. If the Bar fails in its primary obligation to protect the interests of its clients, the Bench as a necessary consequence fails as well. We should remember what the greatest of the American trial lawyers Clarence Darrow said:

“I have never turned my back on any defendant no matter what the charge, when the cry is the loudest the defendant needs the lawyer most; when every man has turned against him the law provides that he should have a lawyer. I can honestly say I have kept the faith.”

Kanad Bagchi

Khaps want laws against homosexuality, surrogate motherhood and stern punishment for pornographic offences

The recent news article on the demands of Khaps points out the fact that the khap panchayats are not even sure of the fact what they want, first they want a ban on same gotra marriages now then on the practise of homosexuality and  now surrogate motherhood. The first question is what authority do they posses to press for such legal sanctions and for what reasons. They are behaving like some kind of  ethical and moral conditioners with no authority. On the top of it they are threatening the government with a strike on December 21. What do they think they are some kind of godly revelations who's primary duty is to protect the customs and traditions and shut all doors of liberty of the people and turn our heads to the opposite side so that we can only see the past and not the future. They think that sitting in some corner of India they can enforce what ever they want on the whole of India and without even taking into considerations what others want. Even if they demand for some kind of state amendments, their demands are on those issue are completely against modern day society. They want lok adalat status with judicial powers so that they can  kill, slaughter people whenever and wherever they want. What problem do they have with surrogate motherhood? Are they going to say it is like playing god and questioning their authority, come one god's authority was questioned when man discovered ways to produce fire by striking rocks, that was questioning god's authority, done is some century B.C. 

The punishment for an offence under section 292 of the IPC(Obscenity as an offence)  is on first conviction with imprisonment (simple or rigorous) for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent convictions, with imprisonment (simple or rigorous) for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

The punishment for an offence under section 67 of the IT Act is on first conviction with imprisonment (simple or rigorous) for a term which may extend to five years, and with fine which may extend to one lakh rupees, and in the event of a second or subsequent convictions, with imprisonment (simple or rigorous) for a term which may extend to ten years, and also with fine which may extend to two lakh rupees. Even with these kind of punishment they want 'stern' measures to be taken. Now its very difficult to gauge what stern punishment is. If they are hoping for some kind of life imprisonment or death penalty, this hope is completely out of the question. Can't these khaps think of anything which is more civilised and does not amount to killing. Really what are they panchayats or terrorist organizations ????

Sourav Dan

BSc. LLB, 3rd Year

Vedanta Vicissitude

Nehru on the eve of laying the foundation-stone for India’s first major river valley project, the Hirakud Dam in 1948, told ten thousand tribal residents of Orissa who were facing the grim prospect of displacement "If you are to suffer, you should suffer in the interest of the country”. Justification provided for the state action was agrarian reform policies. The implications of the proposed mining activity by Vedanta in the State, brought to light by the recent four members Dr. N.C. Saxena committee report, has resurrected the long forgotten wounds of tribal residents of Orissa. Historically, the relationship between tribal communities in India and forests was characterized by co-existence. These communities are also considered integral to the mutual survival and sustainability. This symbiotic relationship has corroborated into customary rights over forest produce. But these rights were not recognized and recorded by the government while consolidating state forests during the colonial period as well as in independent India. This injustice was further perpetuated by non-recognition of such rights of the tribals in the Wildlife (Protection) Act 1972 (the ‘WPA’) and the Forest Conservation Act 1980 (the ‘FCA’). Both the pieces of legislation found the environmental protection regimes and rights of tribal communities as incompatible. However, the recent 2006 legislation i.e. Recognition of Forest Right Act, 2006 (FRA) is some light at the end of the tunnel. This piece of legislation has identified and recognized the forest rights of tribal’s. The recommendations in Dr. Saxena Committee report seeking rejection of clearance to Vedanta Company has been backboned by the FRA. The finding of the committee reveals that the entire proposed mining lease area (PML) of Niyamgiri hills area allocated to Vedanta for mining falls within the category of Community Forest Resource (CFR), as defined in the Forest Rights Act (FRA), allocated to the tribal habitants in the villages inside or surrounding the four forest blocks. These villages have been vested with recognizable community and habitat rights by GoI under section 4(1) of the FRA. The mining activity of Vedanta if allowed would be clearly contrary to the aforesaid mentioned provision of FRA. As was suggested by the committee, the environmental ministry has rightly denied giving of clearance certificate to Vedanta for its proposed mining project on the same grounds. Human costs of this project is also very high, Dr. N.C. Saxena committee report also states that displacement would be one of the inevitable consequences of this project. Amidst all these legal connotations, the politicization of this issue, with the state government supporting Vedanta and a recent visit by a leader of the ruling party at power in the center, Rahul Gandhi, to the proposed site at Niyamgiri Hills to oppose the project, I can only hope that the rights of the tribal’s are not put to sacrilege.

References For Further Reading
1. Lovleen Bhullar, ‘The Indian Forest Rights Act 2006: A Critical Appraisal’, 4/1 Law, Environment and Development Journal (2008), p. 20, available at http://www.lead-journal.org/content/08020.pdf

2. Dr. N.C. Saxena, D.r. S. Parasuraman, Dr. Promode Kant, Dr. Amita Baviskar, Report of The Four Member Committee for Investigation Into The Proposal Submitted by The Orissa Mining Company for Bauxite mining in Niyamgiri, August 16 2010, at 8-9.

3. section 2(a), FRA, 2006.

4. Soumyajyoti Biswal, Cost of Development: Displacement, Orissa Economic Association Journal (2009).