Lokayukta corruption case: HC says no parallel probe, let SIT investigate

The Karnataka High Court has said that there shall be no parallel investigation in the corruption case against the Lokayukta. The high court on Wednesday said that the probe which was being conducted by the upa Lokayukta shall be stayed as the Government of Karnataka has set up a Special Investigating Team to probe into the matter.
Read more:

 

Anna- A peculiar legal situation

A peculiar legal situation has arisen out of the entire Anna Hazare incident.in the absence of a clear cut verdict by the Supreme Court on such situations, it looks like the time has come for a judgment on this issue.
Home Minister P Chidambaram who defended the actions of the Government and the police made it clear that Anna should test the waters before the court if he has issues regarding the conditions imposed.
The Government however looks like it is on a very weak footing. There are glaring loop holes in their action against Anna Hazare.
Justice Santhish Hegde who was part of the Lokpal drafting panel says that the first arbitrary action was to detain him before the protest even commenced. This will be the first point that will go against the government.
Although the government may argue that they apprehended trouble this would not be a feasible argument since action was initiated before the waters were tested. Moreover if the government apprehends trouble then it is its responsibility to ensure that adequate security is provided. Further it is the government which has notified certain areas in the capital to stage protests. When this being the case the demand by Anna to protest in such notified areas is perfectly valid in law.
The government will further come under scrutiny since it has since it had no business to restrict conditions regarding the time frame for the protest. When a protest is against the government an individual or group is well within his rights to protest as long as he or she wants until the demands are met. The Constitution of India does not give the government a right to tell an individual or group as to how and how long a protest can go on. The government can however restrict the number of vehicles that can be parked around the area of protest so that no nuisance is caused.
Legal experts feel that there ought to be a clear cut judgment on such issues. Former Advocate General of Karnataka Ashok Harnahalli feels that the Supreme Court should have acted soon on the Baba Ramdev case and if it had we would have had a precedent in place for this Anna incident. The government of India is most likely to rely on the various judgments we have on bundhs and strikes. A land mark ruling of the Kerala High Court upheld later in part by the Supreme Court of India had termed bundhs as unconstituional. The basis on this verdict was based on the fact that bundhs disrupted normal life and also hit essential services. However this verdict cannot be relied upon by the Government of India since the Anna incident does not fall under the purview of a bundh. The reasons are that Anna has not sought the closure of establishments, ordered vehicles off the road and also his protest does not hit any essential service.
The government which acted in haste may have realised, but in not being able to secure the release of Anna it has brought upon itself another illegality. While courting arrest is not approved of in law, keeping a prisoner in jail despite a release order is a bigger illegality. The government could argue that he was offered to be released, but Anna can quote that he was apprehensive of another arrest since he would have gone on protest again after his release. The Constituion and the penal laws of the land make it clear that no person shall be detained arbitrarily without solid ground being provided. Further it also mandates that any person being detained for more thab 24 hours has to be produced before the magistrate in order to continue with the detention. In this case he was remanded in judicial custody and later the order of release was issued. Despite Anna refusing to come out it was still the duty oif the police to produce him before the court and inform the same.
Any verdict by the Supreme Court will be of great relevance to future cases. While a government cannot refuse the right to protest it however can subject a protest to reasonable conditions. The court will have to decide on what the reasonable conditions are and the country today is in need of proper guidelines in such cases, legal experts point out. The court will also have to decide whether the government has taken steps more drastic than the situation or whether the situation itself was as drastic as the government claimed it to be. Further the court will also have to decide if such protests fall under the ambit of a bundh which infringes upon the rights of others.

Posted with WordPress for BlackBerry.

Why Kerala temple money can’t be used for public purpose

Golden idol of Mahavishnu at Sri Padmanabhaswamy temple. Photo courtesy: http://www.spiderkerala.net/

The Supreme Court today appointed a curator to look after the wealth at the Sri Padmanabhaswamy temple in Thiruvananthapuram, Kerala. The treasure has been estimated at Rs 90,000 crore and there is a raging debate on what is to be done with all this wealth. Should it remain in the temple or be put to good use is the question.

The law in such cases is very interesting. Going strictly by the law and the various judgments of the Supreme Court it becomes clear that no one except the diety has a right over this wealth.

A diety in any temple in India as per the law is considered to be a juristic person. A juristic or a legal person is entitled to the wealth that has been given and can also fight a legal battle in case of any problem.

In the instant case all the wealth that has been found has been given to the diety and hence the diety usurps the ownership right over it, thus making it clear that no one else can use this wealth other than the diety.

Advocate General of Karnataka, Ashok Harnahalli explains. All this wealth belongs to the diety since it has been given in the name of the idol. There is a point being made that this wealth should be used for public purpose. However as per the law this is not possible. If ornaments and other treasure has been given to the temple then it is in the name of the diety and hence only the idol has the right over it. The other question is what happens if cash has been given. Here too the money can be used only for the development of the temple and not for any other use. In case the temple administration does decide to realize all these assets into cash, then again the money can be used only for the development of the temple in which the diety is placed.

As per the law and what has been laid by the Supreme Court of India, a diety is a juristic person. It has a legal jurisdiction and is capable of ownership of property. If anyone stakes a claim on this wealth which rightfully belongs to the diety, then it can fight a legal battle seeking its rights. However a diety is always represented by a guardian who would ideally be a member of the trust or the temple.

Take the famous Ayodhya verdict which was pronounced a year back. The legal battle was fought between two parites and one of the litigants was Ram Lalla. In any litigation concerning a temple, it is always the diety which is one of the litigants. The title deed of any temple in India is in the name of the diety and hence it becomes party to the suit.

The Supreme Court of India has clearly stated that a diety is a juristic person. It says that they are beings both real and imaginary to whom the law attributes a personality by way of fiction when there is none in fact. The Supreme Court further adds that a legal person or a juristic person is any entity other than human beings to which the law attributes a personality. The words ‘juristic person’ connote the recognition of an entity to be a person in law which otherwise it is not. In other words, it is not a natural person but an artificially created person which is to be recognised in law as such.

The Supreme Court also added that a juristic person is a holder of rights and duties and can own and dispose of property, can receive gifts, and it can sue and be sued in its name. Idols have been recognised to be juristic persons in Hindu law, which personifies the deity as a legal person. A Hindu idol is recognised by courts as a juristic entity having a judicial status, and its interests are attended to by a person who is in charge of the deity and who under law is its guardian or manager.

When this being the legal position it becomes clear that all talk of using the wealth at the Kerala temple for any other purpose other than the benefit of the temple is not a possibility. Hence if the state government wants to use this wealth for public purpose as is being sought by a few, it would need to go before the Supreme Court and challenge the existing set of laws regarding the ownership rights of a diety.

Was the Governor right?

As Karnataka plunged into a crisis yet again politically, a debate has been raging on questioning the actions of the governor of Karnataka H R Bharadwaj who had recommended president’s rule late last night.

Like in every action there are two reactions to this incident as well. We speak to former Law Minister of Karnataka, M C Nanaiah and Advocate General, Ashok Harnahalli about the actions of the governor.

M C Nanaiah, former law minister of Karnataka and JD(S) leader: First and foremost the report of the governor is a mere speculation. None of us know for sure what he has written in his letter of recommendation. Looking at the manner in which Karnataka has been governed in the past couple of years, I say that this is a fit case to invoke President’s rule in the state.

Many speak today about the order of the Supreme Court which reversed the order of the speaker disqualifying the 11 rebel BJP MLAs. However look at the Yeddyurappa government and its functioning in the past couple of months. Corruption, scandals and everyone does remember the manner in which they conducted the trust vote the last time. You must also remember the Operation Lotus that they conducted to win over some MLAs from other parties.  It becomes clear that he has had no regard for the provisions of the anti defection law and this amounts to a break down of the constitution. All this just makes one thing clear and that is Yeddyurappa does not want to govern but only wants to protect his chair.

The governor has in the past written several letters to the Chief Minister reminding him about the state of affairs. Has Yeddyurappa changed after these letters? The governor has always had a fit case to suggest imposition of President’s rule in Karnataka and the recent Supreme Court verdict has only come to his rescue.

I know a lot of people are speaking about the Bommai verdict in this context. How can this verdict apply in the instant case? The Bommai verdict does not say anything about a constitutional violation where as the current issue is centric only to that. The Bommai verdict only makes it clear that the strength of the government can be decided only on the floor of the house.

Ashok Harnahalli, advocate general of Karnataka: The Governor has no grounds to suggest imposition of President’s rule in the state. The grounds are not sufficient. In his letter to the government ofIndiahe has gone on to make a series of allegations which range from corruption to horse trading.

The issue of president’s rule comes into play only when the government has lost support or is in minority. The BJP in Karnataka is not in minority. In fact the verdict of the Supreme Court clearly states that the 11 BJP MLAs are part of the government.

The governor has adopted very flimsy grounds. If there is an issue with the numbers then he should convene a session and test the strength of the government. Here he does not even want that session to take place.

Good governance is not the job of the governor. He cannot cite mal administration and he can use the President rule option only as a last resort. In this case where is the break down? If he is speaking about the trust vote conducted a couple of months back then I feel that it is wrong. Not only in Karnataka, but MLAs fight in every assembly and that does not mean you go around dismissing the government.

The governor also goes on to cite the issue of mining and corruption. Where mining is concerned the state has imposed a ban on export and has also told the Supreme Court that it is committed to the cause of stopping illegal mining. Speaking about the corruption charges, then the matter is before the court and it is for the judiciary to decide on that and the governor cannot act suo motu on such an issue when the matter is pending before the court of law.

One must remember that propriety is completely different when compared to statuatory action and the President’s rule must be invoked only if there are proper and satisfactory grounds to do so.