It is a fully contested case and sarvanan concerntarted on following….
Demolish allegations one by one…
Concentrated to prove that she left on her own….
Concentrated to prove that his parrent stayed separately and hence there can be no DV from them…
Well Done Saravanan….
It is one of the few cases in Indian where a DV case has been won by husband after evidence, cross, argument and based on merits..
The last two lines of the Judgement.
Petitioner has failed to prove Domestic Violence
239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
- Discharge in 239 happens mostly based on complaint and allegations
- Discharge in 227 happens mostly based on material
- Discharge is a good strategy if you want to delay the case due to whatever reasons.
- In criminal cases delay is always better as the memory of the complainant and witness fades with number of years.
- There are number of instances where witness died during trial and hence benefits the accused.
- Many time delay in proceedings are not good. E.g. getting acquittal in 498A may be very critical because that is a ground for getting divorce.
- Don’t file discharge just because some one else is filing or just because your lawyer has suggested.
- Study and understand the implication of filing discharge as it may be good or may not be good in your particular case.
- Even if discharge application is dismissed you can challenge it in HC under CrPC 397 (Criminal Revision Petition)
- There is a misconception that only sister’s name or mother’s name can be discharged and other’s name cannot be discharged.
- Remember in 239 discharge happens purely based on allegations and in 227 discharge happens purely on material so even A1 can be discharged if above conditions are not satisfied.
- Grounds for acquittal and discharge are different. E.g. Delay In FIR is a ground for acquittal but not for discharge.
- Discharge in simple terms is nothing but relief at an early stage without the harassment of going through trial.
For further information and reading you can refer to http://498amisuse.wordpress.com/category/resource/discharge/
Golden Rule while getting cross examined
Authored by National Family Harmony Society, Bangalore – http://498amisuse.wordpress.com/
1. Never look into the eyes of the advocate who is crossing you. Always look into the eyes of the Judge.
2. Be cool, calm and composed and don’t panic.
3. If possible get a friend to the court hall to keep company to you prior to getting crossed.
4. Never give justification for the question. E.g.
Opposite advocate: I state that you have demanded 10 lakh of dowry from your wife.
Yourself Wrong answer: Why will I demand dowry? I earn handsome salary
Yourself Right answer: This is false.
5. Think why advocate is asking a particular question. He will not ask without motive.
6. Never answer any question in hurry but for that matter doesn’t take too long to answer.
7. Best way to frustrate opposite advocate is to ask him to repeat the question. Sir can you repeat the question. I did not understand!!. This way you not only frustrate the advocate but also you will get time to think over the answer which is favourable to you.
8. If you are not sure about the answer will favourable or against you then simply say I don’t remember.
9. You have the right to refuse a particular question. I have myself done this. E.g.
Opposite advocate: My I know where do you stay?
Yourself Sir, at the last three places where I stayed they came and assaulted me. In view of that I am unable to give my current address.
10. You can do submission if you feel it can help in your favour.
11. Never lose your cool in spite of uncomfortable questions. Remember advocate is just putting a suggestion.
12. Denying everything is good but be careful. I was watching a brother of husband getting cross examined in DV case.
Opposite advocate: Are you brother of Shri XYZ?
Brother of husband : Yes
Opposite advocate: In your affidavit whatever you have mentioned did you came to know on your own or your brother told you?
Brother of husband : I came to know on my own.
Opposite advocate: In paragraph 8 you have mentioned about a incident in their HoneyMoon. How you came to know of this on your own?
Brother of husband : F u m b l i n g!!…
Opposite advocate: You have given a false affidavit. Your Honour, the behaviour of the witness may kindly be recorded.
13. Denying everything has the advantage of finishing the cross very fast. Remember in any case it is only cross which takes lot of time as it is a multiple event.
Why lawyers discourage “written argument” and prefer “oral argument”
Whenever a person thinks of who is a lawyer then the perception is “a person who can argue in the court”. General public from society do not know what is evidence, cross examination, interim application etc. All they know is lawyer is a person who argues in court. Now when we tell our advocates to file “written arguments” in the court then there ego is hurt. They think we do not have trust in them or that their job is being taken away. Also since they have taken some money from us hence they want to show to us that they are doing the work hence they discourage “written argument”. But for a litigant it is of least importance whether the ego of lawyer is hurt or not. For a litigant most important thing is relief. And for a relief litigant should do the things which will get relief for him.
Advantage of written arguments
- You can be free from worry that your lawyer will miss out any point during the argument.
- It is difficult to get senior lawyer to the courts as they are always busy in some other court and keeps giving excuses and keeps taking adjournments.
- If it is an oral argument then judge normally writes down points. He himself can miss few points but written arguments are safe.
- You can add table, graphs, citations etc to make written argument very effective which is not possible in case of oral argument.
- You can add as many citations as part of the written arguments to make it effective.
- In fact there is no particular format specified for the written argument.
- You might have 10 points to be conveyed to the judge in oral arguments. In which lawyer may convey only 7 points and judge may note down only 5 points. So you may lose the vital points which you could have conveyed to the Judge.
Example 1 of a written argument
- Objection: I submit that the petition is not maintainable as petitioner and respondent are staying separately from 2004 whereas DV Act came into effect on 26th October 2006.
- Argument: Your honour: I would like to respectively submit that the petitioner and respondent are staying separately from 2004 whereas DV Act came into effect on 26th October 2006. So, on this ground only it is liable to be dismissed. E.g if a person is found smoking in public place yesterday and a new law comes in to effect today then that person cannot be punished because he was found smoking yesterday because yesterday the law itself was not there.
Example 2 of a written argument
- Objection: I submit that the though the complainant has left and deserted the house of the accused in 2009 but she has filed complaint of dowry harassment only in 2010.
- Argument: Your honour: I would like to respectively submit that the complainant and accused are staying separately from 2009. Even if we assume the allegations of the complainant that there was dowry harassment during the marriage, there is no explanation as why she kept quiet for full 1 year and filed FIR only in 2010 after 2 week after a case of RCR was filed by the accused to call back his wife. So it is clearly a case of afterthought.
Example 3 of a written argument
- Statement of petitioner from her affidavit: I am ready to come back to my husband’s house and lead matrimonial life.
- Argument: Your honour: I would like to respectively point out to the cross examination held and recorded on 23/04/2010 wherein the petitioner had answered in negative on being asked whether she had filed any case of RCR. On the contrary when the respondent filed a case of RCR she countered it with 498A. So it is very clear that petitioner had left the company of respondent on her own and when called back refused to join matrimonial life.
National Family Harmony Society- NFHS conducted a special session/Discussion on…
- How to get prepare for cross examination and how to cross examine opposite party
- What is the purpose of cross examination
- Can you refuse to answer a question
It was a useful session wherein 23 members participated and benefitted.
The coming Sunday NFHS has planned a session of DV Judgement analysis of Trial court to…
- Understand how the Trial courts are passing judgements in DV cases
- How to plug-in loopholes in your DV case
- Should you submit a written argument
- How to prepare a written argument
Members in and around Bangalore can participate and get benefit out of this planned session.
How to cross-examine opposite party with respect to our cases like 498A, CrPC125, DV Act, Divorce etc.
- I have neither read any book or any Google material before writing this article as most of the available material will not suit our situation.
- The important thing to cross opposite party in a cross examination is to prove her false statement in her affidavit which can enable us to file perjury case under 340 CrPC.
- Remember apart from the documentary evidence which you might be having, cross is the most important step in cases of matrimonial cases because most of the incidents happen within the four walls of the house and for which there may not be any proof or evidence. So your advocate must do the cross in such a way so as to bring out reasonable doubt in the mind of judge about the character of the wife and to disapprove her statements.
- Preparation for a cross examination is very time consuming and an involved process. Most of the advocates asks questions on-the-fly and thinks that is the correct way to cross. No…Selecting each and every question for cross is a very involved process.
- The important thing to note in a cross is to bring out her lies. Since every complaint is different hence there cannot be a general formula for questions. It has to be prepared on a case to case basis.
- You need to be very clear to what question you are expecting from the other party and then frame the question accordingly.
- Never ask straight questions.
- Your opposite party should never know why you are asking a particular question.
- Never ask the question for which she knows the facts clearly.
- Never ask the questions in the sequence of the complaint as she will be able to tell the answer like a story.
- Prepare the questions in sequence of the complaint (minimum400+) and then categorize the question in various topics like perjury, desertion, cruelty, maintenance, dowry etc. So this way questions gets shuffled. Now after first level of shuffling again shuffle the questions so that no two adjacent questions should have any similarity in any manner, sequence, event or subject.
- You must be present with your advocate during the cross to assist him for any doubt or clarifications.
- Do all the ground work your self of preparing questions.
Statement from a 498A FIR: “my parent have given 40 sovereigns of jewelry worth 40 lakh Rs to my husband during the marriage”
Your Advocate to your wife: Madam can you give the exact breakup the jewelry?
Opposite party-Wife: She is going to fumble as it is impossible to give the breakup which is going to match 40 sovereigns.
Your Advocate to your FIL: Sir, May I know what profession you are doing?
Opposite party-FIL: I have a grocery store.
Your Advocate to your FIL: Where do you buy the groceries for the shop.
Opposite party-FIL: From city market.
Your Advocate to your FIL: How often do you buy grocery?
Opposite party-FIL: I buy every week.
Your Advocate to your FIL: Good. How much do you buy grocery every week?
Opposite party-FIL: Approximately 10000/- per week..
Your Advocate to your FIL: Good. Do you have receipts for all this? Do you maintain it?
Opposite party-FIL: Yes, I file all the bills in the file and maintain it.
Your Advocate to your FIL: Sir, May I know you have the bills/receipt for the 40 lakhs jewelry you had claimed to be given to your SIL.
Opposite party-FIL: Fumbles, No I don’t have.
Your Advocate to your FIL: Sir, May I know even for 10000/- you are maintaining file but you do not have receipt for 40 lakh jewelry!!
Opposite party-FIL: No answer.
Your Advocate to your FIL: Sir, I suggest to you that you had given false complaint in the FIR that 40 lakh was given. I state that no such jewelry was given to SIL or to his family.
Opposite party-FIL: No..No We have given.
Your Advocate to your wife: Madam you had written in the complaint that you had given a gas connection to your husband as dowry?
Opposite party-Wife: Yes.
Your Advocate to your wife: Madam can you tell the court from which agency you had purchased the gas connection?
Opposite party-Wife: I don’t remember.
Your Advocate to your wife: Can you atleast tell us from which company you had purchased?
Opposite party-Wife: I don’t remember.
Your Advocate to your wife: Can you tell us who used to deliver cylinder to your house?
Opposite party-Wife: Gas agency boys.
Your Advocate to your wife: Madam can you tell us who used to receive the cylinder in your house?
Opposite party-Wife: I used to receive at house.
Your Advocate to your wife: Madam normally they give a receipt after payment? Where agency name is mentioned. Is it correct?
Opposite party-Wife: Yes.
Your Advocate to your wife: I state that your husband only has purchased the gas connection for XXX Agency and you are lying that you had purchased the gas connection and you are unable to tell the name of the agency also even though you were receiving the cylinder at house from the said agency.
Opposite party-Wife: Fumbles. No…No We only had purchased the gas connection.
Example3: We have given a washing machine to husband.
Your Advocate to your wife: Can you tell us the exact cost of the washing machine?
Opposite party-Wife: 15000/-
Your Advocate to your wife: Can you tell us the brand of the washing machine?
Opposite party-Wife: XXX
Your Advocate to your wife: Can you tell us the size of the washing machine?
Opposite party-Wife: XXX
Your Advocate to your wife: Can you tell us the in which shop you purchased this washing machine?
Opposite party-Wife: Fumbles…I don’t remember.
Your Advocate to your wife: Can you tell us the date on which you brought this washing machine?
Opposite party-Wife: I don’t remember.
Your Advocate to your wife: How you paid for purchasing this washing machine?
Opposite party-Wife: Cash
Your Advocate to your wife: Madam. Look at this receipt. Your husband with his savings purchased the washing machine and here is the receipt in his name. Request the judge to mark the receipt in R series.
Example4: We have born the entire expenses of the marriage.
Your Advocate to your wife: Can you tell us the exact cost/expense of the marriage?
Opposite party-Wife: 10 lakhs rs.
Your Advocate to your wife: Can you give us the break up of each expense…at least broadly
Opposite party-Wife: She will fumble.
Your Advocate to your wife: Can you tell us the salary of your father at the time of marriage.
Opposite party-Wife: 10000 per month
Your Advocate to your wife: Can you tell us your husbands salary at the time of marriage?
Opposite party-Wife: Jumps suddenly!!! 50000/- rs per month.
Your Advocate to your wife: Madam, I suggest to you that since your family were relatively poor and expressed inability to bear marriage expense and hence most the marriage expense was done by your husbands family.
Opposite party-Wife: No…No
NFHS Discussion: Strategy and facts to remember to fight DV cases
1. What is DV Act?
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 NO. 43 OF 2005 [13th September, 2005.]
Chapter 1: An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India.
2. What relief/orders wife can get under DV ACT
Wife can seek the following relief’s from the concerned court -
a) An order enjoining your abuser from threatening to commit or committing further acts of domestic violence or violence to any person in whom you may be interested;
b) An order prohibiting your abuser from harassing, annoying, telephoning, contacting or otherwise communicating with you, directly or indirectly.
c) An order removing your abuser from residence;
d) An order directing your abuser to stay away from your residence, school, place of employment, or any other specified place frequented by you and another family or household member;
e) An order prohibiting you abuser from using or possessing any firearm or any other weapon or dangerous substance as specified by the court.
f) An order granting you possession of your personal effects and other necessary articles in the shared household and an order to put you again in the possession of the shared household;
g) An order granting you custody of your child or children;
h) An order denying your abuser visitation;
i) An order specifying arrangements for visitation, including requiring supervise visitation;
j) An order for interim monetary relief, including but not limited to payment of rent for the premises of the shared household, maintenance for you and your children, medical expenses and compensation for any other mental or physical injury caused to you by the abuser;
3. NFHS did study and RTI inspection of some of the magistrate orders. Our conclusion is magistrates’ are basically finding reason’s to hold husband guilty so that they can pass maintenance. Unless the husband is held guilty no order of relief can be passed against him. In one such order NFHS has found that the reason given by magistrate is “I find husband guilty of DV based on arguments, wife has produced a medical certificate of treatment and 498A is registered against husband.” He however held that “FIL has not done any DV as a 65 years old person cannot do DV on 28 year old women”. So the important thing is to demolish all allegation of DV from her petition though it is very difficult to do so.
4. The main attraction for girls is to claim the Right to Residence (RTR) from Husband/Male partner. So make sure you do not own a house or flat in your name. Even though wife/female partner can claim RTR only against Husband/Male partner but nothing stops the wife/female partner from filing a petition under DV act and come and sit inside the house.
5. Another important point is wife/female partner can claim maintenance under the DV act. This is in addition to other maintenance ordered under CrPC 125 or HMA section 24. So in case your wife is granted maintenance under CrPC 125 or HMA section 24, then your lawyer has to forcefully argue to the court that basic need of the wife is taken care by other maintenance and hence there is no need of any additional maintenance.
6. Please note DV act cannot be filed against a female but if you are a victim of the DV act then make sure your mother files a DV case against your father-in-law/brother-in-law. This is a strategy which may not succeed but from the point of view of keeping pressure it is good.
7. Your wife/female partner can be provided with protection order from local SHO. So you should be in good relation with your local SHO else your wife/female partner can create enough trouble for you. E.g. she can simply walk to the SHO and file a complaint that you were following her or that you had threatened her in the court to withdraw cases etc.
8. Please remember that from various judgments of the various high courts, there is no clarity whether DV act is retrospective or not. Various HC’s have given contradictory judgments in this regard. Retrospective means even though DV act came into existence only in September 2006 but a husband/male partner can be booked for incidents which had occurred before DV act came into existence. But your lawyer must take this stand. The problem is even if the opposite party is able to show one incident after separation even then you can be booked.
9. Even though there is no mention of arrest in DV act but non-compliance of order by magistrate can lead to issuance of non-bailable-warrant. DV is neither purely civil nor criminal. There is a beautiful judgment in this regard from Chhattisgarh HC.
10. There was a case booked in Madya-Pradesh where even though divorce was granted in 2003 but wife restored to DV act in 2007 and that subsequently lead to non-bailable-warrant.
11. The basic difference between 498a and DV act is in 498a husband is liable for punishment but wife does not get any financial relief but in DV wife/female partner gets lots of relief but there is no punishment/arrest (unless husband violate court order). Another difference is 498a can be booked against husband or his relatives but DV can be booked only against male members of a family.
12. Another point to remember is that as per Supreme Court judgment in batra vs batra any relief to the wife cannot be granted to wife against the property of mother-in law. So it may be wise to transfer the immovable property to mother’s name but again as per Chennai HC order where husband transferred the property to wife but she captured it and HC termed it correct. So you must be very careful in this.
13. Please remember that under DV act Magistrate is having sweeping powers. So make sure not to keep much cash in the known bank accounts.
14. There is a recent Chennai high court judgment where even though the husband has transferred the property to the mothers name but high court did not like this and they passed the RTR in favor of wife. So I guess the safest way out is to sell the property and park the funds in investments which wife cannot track down.
15. The key to win DV case is demolish her evidence of violence. Normally the girls’ side will project that 498A is filed and hence violence has happened. The problem is 498A takes around 5-7 years to finish and DV runs very fast. So in the cross examination of wife all her allegations must be demolished wrt the violence.
16. Behavior in the court and how the judge observes you is very important in such cases as evidence in matrimonial cases always does not tell truth.
17. Try to give as many evidence as possible to build your cases. Even if lower court ignores your evidence then also you will have a chance in HC to argue. Remember getting a favorable order from lower court is very important as in HC mostly it is your luck.
18. Though your lawyer will discourage you from filing a lengthy affidavit but you need to make sure that her cruelty part is highlighted properly. Normally lawyers will suggest that don’t bring the cruelty as it is more relevant to the divorce case but that is not true. You need to bring every aspect of her cruelty as it will prove that you are the one who had undergone DV.
19. Attack DV in your affidavit saying the law is made on flaw and is against the principle of natural justice and against constitution of India article 15 which guarantees equality to each citizen. Though it will not help you directly but will convey the message to the judge that you might have undergone DV at the hands of your wife.
20. In your affidavit at the end you must put a paragraph mentioning how greedy women are misusing the laws made for the needy women. This will help creating awareness and help the larger cause.
21. Remember your lawyer will say just keep on denying all the allegations and finish the affidavit. That is wrong strategy. You cannot escape just by denying allegations. You need to bring out your story in proper way and convey to the magistrate that you are the one who had suffered at the hands of your cruel wife.
22. Remember your greedy wife is behind your money. She is least interested in saving the marriage or you. When she has filed a false case of DV against you means for all practical purpose marriage is dead. So you need to safeguard your finance part. There are innumerable judgments where it is ordered that educated; working women are not capable for maintenance.
23. Now the question is once your wife captures your house then how do you vacate her as she had captured just to harass you? She may not be even staying there.
24. Use 91 CrPC applications effectively to bring out true facts.
25. Use 340 CrPC applications to put them on the back foot as it deals with punishment for lying on oath.
26. Use RTI effectively to collect evidence.
27. Use TEP, DP3 etc effectively to push them to wall and to give them their own taste.
28. Talk to volunteers and attend weekly meeting regularly.
29. Never file an application in the court without reading the entire contents twice. Normally I never allow my lawyer to file application. I do all the paper work myself and enjoy it.
30. Remember there only two important things to decide DV Case. One is domestic relationship and another is domestic violence. In most of our cases domestic relationship is not disputed so only other thing to be decided is domestic violence.
31. You need to understand how the Magistrate/Session court decides the matter and how the HC/SC decides the matter.
32. Should you delay and drag the case or finish it as fast as possible.
33. Why it is dangerous
It is dangerous because it is retrospective in nature. i.e. even if any alleged domestic violence has occurred even before the implementation of this act even then this act can be used. It gives sweeping Ex-Parte relief to women even without ascertaining whether any kind of domestic violence has taken place. The wordings of the DV act are not very “happily worded” (observed by Honorable Supreme Court). So it is bound to be misused by ladies to take revenge. Magistrate can pass Ex-Parte order.
34. Use following page to get judgments related to DV:
35. Use following page to get misuse judgments related to DV:
36. Use following page to get strategy related to DV:
37. Use following page to get FAQ related to DV:
• Remember it is not about to know DV Act but rather to fight it.
• Also point of discussion will be “How to get the house captured by DIL”?
• How to reduce maintenance?
• What is relevant to decide a DV Case?
• Strategy to Cross opposite party in DV Case.
• What constitutes Evidence in a DV Case?
• How to write Chief Affidavit?
Why the marriages are breaking in India
- Expectation Mismatch
- Adjustment issues
- USA DV Law is Gender Neutral-Indian Govt has copied it without cultural understanding
- For small issues matter goes till Protection officer and eventually marriage fails.
- Earlier days seniors and well wishers were resolving the issues
- There used to be a sort of family court within family
- Now it is nuclear family and both are working
- No time for each other
- Education level/Income etc are increasing
- Lack of love affection and trust
- DV Act is breaking the family
- Mutual respect is not there
Hussein- Thanks for the wonderfull sweeets from Hussein’s Mom. It was really nice!!
- Perceptional issues
- Corrupt system
- Marriage has become a business
- Families are disintegrating
- Indians have a wrong attitude to bring in western culture
- We always try to mimic others
- We are basically slave system not a master system.
- In new generation all are equal
- Ego is there so clashes are there
- Girls background must be checked
- Girls parent must be checked
- Girls are more and more demanding nowadays
- Others interference is becoming more now
- Wife want to take control of the husband
- Laws are gender biased
- Husbands at the beginning of the cases are assumed guilty
- He agrees all the above points are the reasons
- Temperamental issues
- Because of above any relationship can break
- Interference by others
- Marriages were breaking earlier also
- Now they are getting recognized
- Earlier also rift clash were there
- Apart from above reasons Extra martial affair/Adultery are causing break of family
- Medical issues
- Gender biased laws like 498A
- He gave example of AlGore(Fmr USA VP) whose marriage survived for 40 years
- He gave example of Blll Clinton to make a point
- Interpersonal conflicts are more
- No one move into relation with pre-plan to break marriage
- Ego clashes
- Both are working
- Interference by external family member
- Lack of joint family
- He talked about concept “starter marriage”
- Indian marriage system is rich
- Now people are more independent
- Joint families are breaking to individual families
- Each spouse think “I am great”
- No love and affection is left
- Bonding is not there
- No feeling for others
- The sensitive layer between husband and wife is getting broken
- For a girl Father is hero
- When father is slave then she does the same to husband
- Girls cook up more story
- Lack of communication
- Girls are listening to parents
- They don’t know the consequence when filing the cases
- Awareness is not there
- More expectation are there
- Demanding nature of girls
- Both are from different back ground
- More divorces are happening
- Value system is degrading
- It is important how girls are bought up
- They are not respecting the husbands
- They try to isolate the husbands
- They listen to parent
- Girls do not discuss with husband before going to parent
- No patience
- Girls know people are there to support even if they do wrong
- They know they can easily get maintenance
- No communications
- No comments
- Agrees with others
- Agrees the reason given by Raja
- Left the meet before start. Had urgent work. We missed your comments Yodha!!
After the round robin views by each of the 20 members there was an open discussion wherein members had a healthy discussion evaluating others viewpoint and engaged each other is healthy arguments.
There was also small discussion to select next week discussion topic and members chose the following topic for the next week:
Strategy, ideas and ways to fight Domestic Violence case
Request all members to join discussion and come with preparation.
Next time I will try to video record it and upload for others benefit.
It is pleasure to have RajaGopal in our meeting as he has immense knowledge of human right violation cases out of his personal experience of fighting case in TN-SHRC-Chennai.
He gave a good insight to NFHS members by telling us about:
- What is Human Rights Violations?
- How to frame a complaint?
- What actions of police can be termed as human right violation?
- Why most of us do not succeed in such cases?
- How these complaints are different from Civil/Criminal cases?
- How proceedings are conducted in such cases?
- How the wordings of the complaint should be?
- Difference between abduction and illegal detention
- “Probability of occurrence” in such cases
It was really good presentation by RajaGopal. Thanks Raja.
() () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () ()
Mediation: Stratergies and faq’s – 22August2010 – By Raghvendra Naik
() () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () ()
What is mediation?
Mediation is a negotiation process in which a neutral third party assists the disputing parties in resolving their disputes. A Mediator uses special negotiation and communication techniques to help the parties to come to a settlement. The parties can appoint a Mediator with their mutual consent or a mediator can be appointed by the Court in a pending litigation. Mediation always leaves the decision making power with the parties. A Mediator does not decide what is fair or right, does not apportion blame, nor renders any opinion on the merits or chances of success if the case is litigated. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and limiting obstacles to communication and settlement.
Why my case is referred to Mediation?
Your case cannot be referred to mediation without both parties consent. You and the other party have to sign in front of the Judge for your case to be referred to the mediation centre.
What type of cases is referred to mediations?
Any case which is civil in nature can be referred to mediation.
Is referring the case to Mediation compulsory?
No. Unless both the party sign in front of the judge that they agree to mediation one cannot be forced.
What will happen if I do not attend mediation?
Once you agree for the mediation it is better if you attend. If on the particular day of mediation you are unable to attend mediation due to unavoidable reasons then call mediation centre and inform about it. You can also inform your advocate who in turn will inform the mediation centre and get a next date.
What is the duration of the mediation?
There is no fixed rule but in Bengaluru, normally the file referred for mediation for 60 days and normally 2-4 sittings happen.
Can a decision be forced on me by mediators?
No, no one can force a decision on you. Though there have been cases where the opposite party will threaten you with 498A and try to extract huge sum. Never succumb to such blackmail. You have the choice walk out of the mediation room if any such thing happens. Immediately report such things to the Director of the Mediation Centre with a written complaint against the opposite party and mediator.
Is the presence of lawyer must in mediation hall?
Normally only the parties concerned have to be present in the mediation centre. E.g. in a divorce proceedings only husband, wife and the mediator should be present. For assistance advocates can be present. There are instances where parents, relatives and friends are reported to be inside the mediation room. You have the right to object the presence of the persons who are not petitioner/respondent.
What preparation is to be done for mediation?
Reach the mediation centre in advance and recollect your case. Never give in to blackmail/threaten/extortion. Be cool and remember you have the option to speak to the mediator one to one.
What is the outcome of mediation?
The outcome of the mediation is normally out-of-court settlement agreed by both the parties which is signed by both the parties and then presented to the judge for his consideration. It includes all pending cases criminal and civil.
Is the outcome of mediation binding on both parties?
Normally once both the parties have signed the MOU, it is binding on them but there have been instances where one of the parties has gone back from the MOU and restarted the case. You have legal options and many judgments are available which deal with such situation.
Is mediator equal to a judge?
No, Mediator is an advocate and a member of advocate bar with experience of not less than 10 years.
Is there an enquiry done by mediator?
No, a mediator only listens to both the parties and explores the option of out of court settlement.
Do I have to present evidence to a mediator?
Will mediator record whatever I say in the mediation hall?
No, nothing is recorded in the room. Mediator only writes final report whether it failed or succeeded. He does not write anything about behavior of the parties or any such thing. A mediator is not a judge.
My wife is demanding huge amount in front of the mediator. What should I do?
Never give in to threat/extortion/blackmail.
My mediation is wrt the divorce case but I have 498a and DV also. What will happen to them?
When MOU is signed then you need to make sure that all the cases are settled.
My wife has agreed to give mutual consent divorce for 4 lakh rs in front of the mediator. What should I do?
Never give in to threat/extortion/blackmail.
My mediation has failed. Now what happens?
Nothing! Your file will be sent back to the judge and the case will start like normal case.
I feel the mediator has mingled with opposite party and trying to extract money.
Never give in to threat/extortion/blackmail. If you feel you are n=being cornered in the mediation centre and the mediator is unfair to you the just walk out of the hall and complain to the Director of the centre.
My wife has given a huge amount of money they claim as marriage expense. What should I do?
As told before mediation centre is not a place to appreciate evidence. It is not a court hall proceeding.
My wife is putting all false allegations on me. What should I do?
Don’t lose your cool. Deny allegations and remind the mediator that you will chose to walk out of the centre if baseless allegations are leveled against you.
Delhi Mediation Centre
Bangalore Mediation Centre
() () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () () ()
How a Legislation is made – Picked from Rajya Sabha Website
Presented to the members of NFHS on 22-August-2010 – By Suresh P
|Department responsible for initiating legislation||9.1 Every proposal for legislation in Parliament will be initiated in the department to which the subject matter of the legislation relates.|
|Pre-drafting stage||9.2 Pre-drafting stage of a legislative proposal will fall into the following four broad sub-stages:|
|Formulation of legislative proposals||(a) The department concerned will formulate the legislative proposals in consultation with all the interests and authorities concerned, essentially from administrative and financial points of view. This should include a discussion on the necessity for the proposed legislation and all matters of substance to be embodied therein but not the technical details of the drafting.|
|Consultation with the Ministry of Law and Justice||(b) The department concerned will thereafter refer the matter to the Ministry of Law and Justice for advice as to its feasibility from legal and constitutional points of view. The Ministry of Law and Justice will, at this stage, advise generally on the necessity or desirability of such legislation in the light of the existing laws and also constitutional validity of the proposals without going into details.|
|Approval of the Cabinet||(c) If it is decided to proceed with the legislation, a self-contained note will be prepared by the department concerned in consultation with the Ministry of Law and Justice (Legislative Department) and other concerned departments.|
|(d) The department concerned will also send all the relevant papers to the Ministry of Law and Justice (Legislative Department) with an Office Memorandum indicating the precise lines on which it has been decided to legislate, to enable that department to take up drafting of the requisite Bill. The Office Memorandum will contain: (i) complete details of the legislative proposals; (ii) the entire background material (placed on the file for reference); (iii) all other details relevant to the proposed Bill; and (iv) Draft Note for the Cabinet.
The administrative department will not attempt a draft of the Bill.
|Drafting stage||9.3 The Ministry of Law and Justice (Legislative Department) will then prepare a draft Bill ordinarily within thirty days from the date of receipt of the proposal after clearance from the Department of Legal Affairs, unless any clarifications are required or it is not possible to do so for contingencies such as the draftsman being busy with budget proposals etc., on the basis of the material made available by the concerned department, holding discussions with the officers of that department for getting various aspects of the Bill clarified, wherever considered necessary.|
|Format of the Bill||9.4 The format of the Bill shall be as below:(a) if the Bill contains more than 25 clauses, include in the beginning a table showing the arrangement of clauses; and(b) in the case of an amending Bill, contain relevant extracts of provisions of original Act sought to be amended.|
|Approval of the Cabinet||9.5 Once the Note for the Cabinet, as prepared in consultation with the Ministry of Law and Justice and other concerned departments, is finalised and the draft of the Bill prepared by the Ministry of Law and Justice (Legislative Department) is accepted after scrutiny by the department concerned, the department will send the Note to the Cabinet Secretariat for placing the same before the Cabinet for its consideration and approval. The Note for the Cabinet will:|
|(a) state the legislative proposals, bringing out clearly the need, scope, and object of the proposed legislation;(b) incorporate the views of other concerned departments and be also shown to them, if so required by the procedure laid down by the Cabinet Secretariat;(c) set out all the implications of the proposed legislation; and(d) include the draft of the proposed Bill as Appendix II.|
|Action to be taken after Cabinet decision||9.6 After the Cabinet approval, the department concerned will examine the decision of the Cabinet to see whether any change is necessary in the draft Bill submitted to the Cabinet. If so, all the relevant papers including the decisions of the Cabinet will be sent to the Ministry of Law and Justice (Legislative Department) to enable that department to make necessary changes in the draft Bill in consultation with the concerned department in accordance with the decisions of the Cabinet. In case, however, no modifications are necessary in the Bill after the Cabinet approval, the department concerned will prepare:|
Notes on clauses
|(a) a Statement of Objects and Reasons relating to the Bill to be signed by the Minister;(b) notes on Clauses to be appended to the Statement of Objects and Reasons in case the Bill is of a complicated nature;|
|(c) Financial Memorandum to be prepared in consultation with the Ministry of Finance, in respect of the Bills involving expenditure, inviting particular attention to clauses involving expenditure and also giving an estimate of the recurring and non-recurring expenditure involved; and|
|Memorandum regarding Delegated Legislation
PRO 8.4 LSR 70 RSR 65
|(d) a Memorandum regarding Delegated Legislation explaining the scope of the proposals and stating whether they are of a normal or exceptional character.All the above documents will also be shown to the Ministry of Law and Justice (Legislative Department) before finalisation.|
|Obtaining recommendation/ previous sanction of the President
PRO 8.21 to 8.25
|9.7.1(a) recommendation of the President for the introduction of any Bill:
(b) the previous sanction of the President for introduction of any Bill, making provision for the language to be used, for any of the purposes mentioned in Article 348(1) of the Constitution; and
(c) the recommendation of the President for the consideration of the Bill, if it involves expenditure from the Consolidated Fund of India (Article 117(3) of the Constitution.)
After action as in para 9.6 is taken, the department concerned will obtain :
|PRO 8.22||Note : The recommendation mentioned in (c) above will be obtained separately in respect of each House.|
|9.7.2 For obtaining the recommendation or the previous sanction of the President, the department will submit through the Minister to the President a self contained note with a copy of the note for the Cabinet and its decision and a copy of the Bill.|
|PRO 8.23||9.7.3 The department will, thereafter, communicate the recommendation/previous sanction of the President to the Secretary General, Lok/Rajya Sabha in the form at Annex 7.|
|9.7.4 To avoid objections of a procedural or constitutional nature, the department will submit to the Minister, information in the form at Annex 8.|
|Keeping the Ministry of Parliamentary Affairs informed||9.8 To enable the Ministry of Parliamentary Affairs to draw up the legislative programme of a session, detailed particulars about the Bill(s) proposed to be introduced during a session will be sent to that Ministry in Part I of the form given in Annex I, at least a month before the commencement of the session.|
|House in which Bill is to be introduced||9.9 Bills which attract the provisions of Article 109 read with 110(1) and 117(1) of the Constitution will be introduced in the Lok Sabha. In the case of the other Bills, the House in which they are to be introduced will be decided in consultation with the Ministry of Parliamentary Affairs.|
|Printing of the Bill||9.10.1 The Ministry of Law and Justice (Legislative Department) will send the Bill as finalised, to the Government of India Press for obtaining proof copy.|
|9.10.2 The Ministry of Law and Justice (Legislative Department) will:|
|PRO8.12||(a) send simultaneously two proof copies each of English and Hindi versions of the Bill to: (i) the Secretariat of the House in which it has been decided to introduce the Bill (vide para 9.9 above); and (ii) the Ministry of Parliamentary Affairs; and(b) return the file to the department concerned.|
|9.10.3 The Lok/Rajya Sabha Secretariat gets the fair copy of the Bill printed at every stage and sends a copy of it simultaneously to the administrative department and to the Legislative Department for scrutiny for ensuring accuracy. The administrative department, after scrutiny of the Bill, returns it within a day to the Legislative Department so as to enable the Legislative Department to incorporate corrections/suggestions, if any, and send a final scrutinised copy to the Lok/Rajya Sabha Secretariat.|
|PRO 8.20||9.10.4 The Lok/Rajya Sabha Secretariat gets fair copies of the Bill printed and circulated to the members.|
|PRO 8.20||9.10.5 Departments requiring additional copies of Bills should send a requisition in form S.99 to the LS/RS Secretariat so that it reaches it before the proof copy is transmitted by that Secretariat to the press.|
|PRO 8.28||9.10.6 A similar procedure will be followed for obtaining additional copies of reports of Select Committee/Joint Committee/Standing Committee on Bills. Requisitions, therefore, should be made sufficiently in advance of the date of presentation of the report.|
|Procedure for introducing the Bill in the House||9.11.1 The concerned department will send a notice of the motion for introduction of the Bill in the form at Annex 9, to the Secretary General, Lok/Rajya Sabha.|
|9.11.2 Under the directions of the Speaker:|
|(a) seven days’ notice is normally required for introducing an official Bill in the Lok Sabha; and|
|(b) no bill shall be included for introduction in the Lok Sabha until after copies thereof have been made available to members for at least two days before the day on which the Bill is proposed to be introduced.|
|9.11.3 Where exemption is required from the direction 19A, the Minister, while giving full reasons, will request the Speaker to waive the requirement of this direction for introduction of the Bill. Where, however, the exemption is required from the direction 19B, the Minister while requesting the Speaker in this regard will also inform him that he has consulted the leaders of various parties in the Lok Sabha and that they have no objection to the exemption of the direction for introduction of the Bill. The department concerned will also forward 500 copies in English and 300 copies in Hindi of a memorandum in the form at Annex 10, including one copy in each version duly authenticated by the Minister, to the Lok Sabha Secretariat for circulation among members.|
|9.11.4 On the date specified by the Ministry of Parliamentary Affairs, the Bill is put down for introduction in the Lok/Rajya Sabha and is thereafter published in the Gazette of India by the LS/RS Secretariat.|
|Publication before introduction
|9.11.5 On a request made by the Minister, the Speaker/Chairman may permit the publication of the Bill in the gazette by the LS/RS Secretariat before its introduction. In such cases, the Bill will be put down for introduction without asking for the leave of the House. Where, however, such a Bill undergoes any change before its formal introduction, the procedure as in sub-para 9.11.1 will be followed.|
|9.11.6 The departmentally related Parliamentary Standing Committees examine such Bills as are referred to these committees by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make reports thereon. Normally, Bills other than the Appropriation Bills, Finance Bills, Bills seeking to replace Ordinances and Bills of trivial nature, are referred to the respective Standing Committees (Annex 23b) for their examination and report. The Standing Committees may present their reports on the Bills in the subsequent Parliament session and sometimes, may take even longer, to present their reports. Where, however, there is urgency in enacting the legislation, the Minister concerned, while giving the reasons therefor, under intimation to the Minister of Parliamentary Affairs, may request the Presiding Officer of the House in which the Bill was introduced not to refer the Bill to the Standing Committee so that it could be considered and passed by the Houses during the ongoing Parliament Session.|
|9.11.7 In case of Bills referred to Standing Committees for examination, the department concerned may examine the report of the committee when it is presented to the Houses or to the Presiding Officers. Where the department decides, with the approval of its Minister, to affect change(s) in the provisions of the Bill as introduced in the House, on the basis of recommendations of the committee, it may obtain the approval of the Cabinet to the amendments proposed to be made in the Bill. After Cabinet approval, notice of motion of amendments to be moved by the Minister in the House should be finalised in consultation with the Ministry of Law and Justice (Legislative Department). The notice of motion of amendments so finalised along with the notice for consideration and passing of the Bill, duly signed by the Minister, should then be sent to the Secretary-General of the concerned House under intimation to the Ministry of Parliamentary Affairs and the Ministry of Law and Justice (Legislative Department).|
|Motions after introduction
|9.12 After the Bill is introduced, the Minister may send to the Secretary-General, Lok/Rajya Sabha, notice in the appropriate form at Annex 11, 12,13, 14 of his intention to move:(a) that it be taken into consideration and passed; or(b) that it be referred to a Select Committee of the House; or(c) that it be referred to a Joint Committee of both Houses with the concurrence of the other House [except in the case of Bills referred to in para 9.7.1 (a)(ii)]; or(d) that it be circulated for eliciting public opinion.|
|Withdrawal of a Bill
|9.13 If it becomes necessary at any stage to withdraw a Bill, the Ministry of Law and Justice and the Ministry of Parliamentary Affairs will be consulted and approval of the Cabinet will be obtained. Where, however, for want of time, it is not possible to obtain prior approval of the Cabinet, the Minister incharge will take a decision in consultation with the Prime Minister. As soon as possible thereafter, a note in the usual form will be submitted for ex post facto approval of the Cabinet. The form of notice of withdrawal will depend on the stage at which the Bill is, and whether it has been passed by one House and pending before the other House. The forms at Annex 15 and 16, as may be appropriate, will be used for the purpose. A statement giving reasons for the withdrawal will also be sent to the LS/RS Secretariat at least five days before the date on which the motion for withdrawal is to be made. The number of copies to be sent for circulation will be 650 in English and 350 in Hindi for the Lok Sabha. For the Rajya Sabha they will be as in para 4.1.|
|Composition of the Select/Joint Committee||9.14.1 The strength of the Select/Joint Committee as also the date by which it will submit its report will be indicated by the concerned department and the names of the members to be appointed on the committee will be suggested by the Ministry of Parliamentary Affairs. These details will be incorporated in the body of the motion in the form at Annex 12 or 13. On this motion being passed by one House a concurrence motion in the form at Annex 17 will be moved by the Minister in the other House, if the bill is proposed to be referred to a Joint Committee.|
|9.14.2 After the committee is constituted, its chairman is nominated by the Speaker/Chairman. All matters connected with the meetings of the Select/Joint Committee are looked after by the LS/RS Secretariat. A Minister, even though he is not a member of a committee, may address the committee with the permission of the Chairman.|
|Amendments to Bills before Select/ Joint Committee
|9.14.3 All notices of government amendments to the Bills referred to Select/Joint Committee will be drafted by the Ministry of Law and Justice (Legislative Department). Notices of such amendments will be given by a Minister who is a member of the committee, in the form at Annex 18 to the LS/RS Secretariat, at least a day before the day of sitting at which the amendments are to be moved.|
|Procedure when a Bill is to be circulated for public opinion
|9.15 When a Bill is to be circulated for eliciting public opinion, necessary action is taken by the LS/RS Secretariat, which also addresses the State governments.|
|Procedure after presentation of the report of Select/Joint Committee
|9.16 After presentation of the report of the Select/Joint committee to the House, the Minister in charge may give notice of his intention to move that the Bill as reported by the Select/Joint Committee a) be taken into consideration and be passed; or(b) be recommitted to the same committee or another committee; or(c) be recirculated for obtaining further public opinion.|
|9.17 When the motion that:(a) the Bill be taken into consideration; or(b) the Bill as reported by the Select/Joint Committee be taken into consideration is carried, the Bill will be taken up for clause-by-clause consideration. Members can, at that stage, move amendments to the Bill.|
|Amendments||9.18.1 Copies of amendments given notice of by members are sent by the LS/RS Secretariat to the department concerned. When they are received, the branch officer will put them up with briefs for use of the Minister for determining the Government’s attitude to them.|
|9.18.2 Government amendments will also be moved at this stage. These amendments, for which the form at Annex 19 will be used, will be drafted by the Ministry of Law and Justice (Legislative Department).|
|9.18.3 Amendments falling within Articles 117(1) and 274 of the Constitution are subject to the same restrictions in regard to the recommendation or the previous sanction of the President as Bills falling within those articles (vide para 9.7.1) except when the amendments falling within Article 117(1) involve reduction or abolition of any tax.|
|Cabinet Sectt. O.M.No.11/1/4/72-CF dt.1-11-72||9.18.4 Time permitting, proposals to amend the provisions of a Bill will be submitted to the Cabinet for approval. Where, however, for want of time, this is not possible, the Minister in charge will take a decision in consultation with the Prime Minister. As soon as possible thereafter, a note in the usual form will be submitted for ex post facto approval of the Cabinet.|
|Scrutiny by Ministry of Law & Justice
|9.19 After a Bill is passed by a House:(a) a copy of the Bill, as passed is sent by the LS/RS Secretariat to the Ministry of Law and Justice (Legislative Department) for scrutiny with a view to correcting patent errors and for making such other changes as are consequential to the amendments accepted by the House; and(b) such changes as are accepted by the Speaker/Chairman are incorporated in the Bill, before it is transmitted to the other House for concurrence.|
|Consideration of the Bill in the other House
|9.20.1 After the Bill is laid on the Table of the other House, the Minister concerned will give notice of a motion in the form at Annex 20 to the Secretary-General of the House and also communicate the recommendation of the President, wherever necessary.|
|Consequential revision of the Financial Memorandum and the one on delegated legislation
PRO 8.2 to 8.5
|9.20.2 In the case of a Bill passed by one House with amendments, the department concerned will determine whether any consequential changes are required in the Financial Memorandum and/or Memorandum regarding Delegated Legislation. If any change is required, a letter will be sent in the form at Annex 21, signed by the Minister-in-charge of the Bill, addressed to the Secretary-General, Lok/Rajya Sabha forwarding revised memoranda, which will be prepared in consultation with the Ministry of Finance/Ministry of Law and Justice (Legislative Department), as may be appropriate.|
|Further scrutiny by Ministry of Law and Justice and assent of the President||9.21 After the Bill is passed by both the Houses:(a) a copy is sent by the LS/RS Secretariat to the Ministry of Law and Justice (Legislative Department) as envisaged in para 9.19 for scrutiny and correction of patent errors, etc.|
|SD 34||(b) on its return from the Ministry of Law and Justice, it will be reprinted by the LS/RS Secretariat with the superscription “as passed by the Houses of Parliament.”|
|(c) the LS/RS Secretariat will send to the Secretary to the President, through the Ministry of Law and Justice (Legislative Department), two copies of the Bill together with five spare copies;|
|PRO 8.32||(d) whenever the President’s assent is required by a particular date, the LS/RS Secretariat, the Ministry of Law and Justice (Legislative Department) and the Ministry of Parliamentary Affairs will be advised well in advance by the department concerned. The Ministry of Law and Justice (Legislative Department) will keep in touch with the President’s Secretariat for the purpose; and(e) the date of assent which is the date on which the Bill becomes an Act, is intimated to the concerned Department and the Ministry of Parliamentary Affairs by the Ministry of Law and Justice (Legislative Department). One copy of the Act bearing the President’s signature is retained in the Ministry of Law and Justice (Legislative Department) and the other copy returned to the LS/RS Secretariat. The President’s Secretariat retains one spare copy.|
|Publication in the official gazette||9.22 The Ministry of Law and Justice (Legislative Department) will:(a) publish the Act in the Gazette of India Extraordinary;(b) forward copies of the Act to all State governments for publication in their official gazettes; and|
|Printing of copies of Act for sale||(c) get copies of the Act printed in a suitable form for sale to the general public.|
|Procedure regarding private Member’s Bill||9.23.1 Whenever a private Member of Parliament gives notice of his desire to move for leave to introduce a Bill, the LS/RS Secretariat sends a copy of the notice together with a copy of the Bill to the concerned department.|
|9.23.2 The department concerned will consult the Ministry of Law and Justice as to the competence of Parliament to enact the measure.|
|9.23.3 The policy of the Government in relation to the Bill will be officially settled in the concerned department with the approval of Cabinet Committee on Parliamentary Affairs. The provisions of paras 5.8.3 and 5.8.4 will mutatis mutandis apply.|
|9.23.4 The President’s recommendation required under clause (1) and/or (3) of Article 117 of the Constitution for the introduction/consideration of private members’ Bills will ordinarily be granted unless very exceptional circumstances especially warrant withholding of the President’s recommendation. In case a department feels that the recommendation of the President to a Bill should be withheld, that department will supply five copies of the brief explaining the circumstances leading to such proposal to the Ministry of Parliamentary Affairs for obtaining the approval of the Cabinet Committee on Parliamentary Affairs.|
|Ordinances||9.24.1 The procedure applicable to Bills will apply mutatis mutandis to promulgation of Ordinances under Article 123(1) of the Constitution.|
|9.24.2 After the terms of a draft Ordinance have been settled in consultation with the department concerned, the Ministry of Law and Justice (Legislative Department) will submit through the Minister of the concerned department and the Prime Minister, for the signature of the President, a copy of the Ordinance together with:(a) a spare copy of the Ordinance;(b) a copy of the Note for the Cabinet; and(c) a copy of the decision of the Cabinet relating to the Ordinance.|
|9.24.3 The concerned administrative department will inform the Legislative Department the date and time at which they had delivered the Ordinance to the President’s Secretariat.|
|9.24.4 The Ministry of Law and Justice (Legislative Department) will:(a) get the Ordinance published in the Gazette of India Extraordinary;(b) inform the department concerned and the Ministry of Parliamentary Affairs as to the promulgation of the Ordinance; and(c) forward copies thereof to all the state governments for publication in their official gazettes.|
|Post-promulgation action||9.25 As soon as the Ordinance is promulgated, the following action will be taken:(a) The Ministry of Law and Justice (Legislative Department) will supply to the Ministry of Parliamentary Affairs seventy-five copies each of Hindi and English versions of the Ordinance for being laid on the Table of the Houses.(b) The department concerned will indicate to the Ministry of Parliamentary Affairs whether it is proposed to replace the Ordinance by an Act of Parliament.(c) In case it is decided to replace the Ordinance by an Act of Parliament, the concerned department will keep ready a Bill relating thereto for introduction as far as possible on the opening day of the session.|
|(d) The concerned department will take steps to prepare in consultation with the Ministry of Law and Justice (Legislative Department), a statement explaining the circumstances which necessitated legislation by Ordinance. This statement will be laid on the Table of the House at the time of introduction of the Bill seeking to replace the Ordinance. The statement will also be circulated to the members. The number of the copies for the purpose will be as in para 4.1(c).|
|(e) Whenever an Ordinance, which embodies wholly or partly or with modification the provisions of a Bill pending before the House, is promulgated, the concerned department will lay on the Table of each House, at the commencement of the session following the promulgation of the Ordinance, a statement prepared in consultation with the Ministry of Law and Justice (Legislative Department) explaining the circumstances which had necessitated immediate legislation by Ordinance.|
|Legislation in respect of Union territories||9.26.1 Article 246(4) of the Constitution vests Parliament with powers to legislate on any matter in relation to the Union Territories listed in the First Schedule to the Constitution.|
|9.26.2 Of the various Union Territories:(a) Pondicherry has a Legislative Assembly under the Government of Union Territories Act, 1963, with powers to legislate on matters specified in List II (State List) and List III (Concurrent List) in so far as any such matter as applicable in relation to Union Territories;(b) The Union Territories of the Andaman and Nicobar Islands, Chandigarh, Daman and Diu, Dadra and Nagar Haveli and Lakshadweep have an Advisory Committee each, set up by the Ministry of Home Affairs;(c) The National Capital Territory of Delhi has a Legislative Assembly under Article 239 AA of the Constitution of India read with the Government of National Capital Territory of Delhi Act, 1991, with powers to legislate on matters specified in List II (State List) or in List III (Concurrent List) in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.|
|Parliamentary legislation for Union Territories||9.27.1 Proposals for parliamentary legislation for the Union Territories will be initiated by the department concerned, which will consult:(a) the Ministry of Home Affairs on the desirability of undertaking the proposed legislation and the principles involved therein, including the substance of the more important provisions thereof; and(b) the Ministry of Law and Justice (Department of Legal Affairs) from the constitutional and legal points of view.|
|9.27.2 Thereafter the department concerned will:(a) consult other departments concerned with any aspect of the subject matter of the legislation;(b) refer the matter to the Ministry of Law and Justice (Legislative Department) for preparing a draft Bill;(c) send the Bill where the matter relates to entries in List II (State List) or List III (Concurrent List) to the Ministry of Home Affairs for obtaining the views of the Advisory Committee concerned, if it relates to a Union Territory having such a Committee.|
|9.27.3 Thereafter the department concerned will take steps to obtain the approval of the Cabinet and introduce the proposed legislation in Parliament in accordance with the procedure already described in this chapter for central legislation.|
|Legislation by the Legislative Assemblies||9.28.1 Section 3 of the Government of Union Territories Act, 1963, provides for constitution of a Legislative Assembly in the Union Territory of Pondicherry. The Rules of the Business of the said Union Territory of Pondicherry provide that the administrator shall refer for prior approval to the Central Government, every Bill which:(a) if passed by the Legislative Assembly, is required to be reserved for the consideration of the President under section 21 or section 25 of the said Act;(b) relates to any matter enumerated in List III (Concurrent List);(c) attracts the provisions of Article 304 of the Constitution as applicable to the Union territories;(d) relates to any matter which may ultimately necessitate additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the Union Territory or abandonment of revenue or lowering of the rate of any tax;
(e) pertains to any matter relating to universities; and
(f) affects or is likely to affect the interests of any minority community, Scheduled Castes or Scheduled Tribes.
|9.28.2 References relating to prior approval to such Bills will:(a) except in regard to para 9.28.1(c) above, be dealt with in the Ministry of Home Affairs; and(b) in regard to para 9.28.1(c), be dealt with in the Department of Commerce in consultation with the Ministry of Home Affairs.In all cases, these references will be dealt with in consultation with the other departments concerned and the Ministry of Law and Justice.|
|9.29.1 Section 3 of the Government of National Capital Territory of Delhi Act, 1991, provides for constitution of a Legislative Assembly in the National Capital Territory of Delhi. The transaction of Business of the Government of National Capital Territory of Delhi Rules provide that the Lieutenant Governor shall refer to the Central Government every Bill which:(a) if passed by the Legislative Assembly, is required to be reserved for consideration of the President under the proviso to sub-clause (c) of clause (3) of Article 239AA or, as the case may be, under the second proviso to section 24 of the Act;(b) attracts provisions of Articles 286, 287, 288 and 304 of the Constituion as applicable to the Capital; and(c) relates to any matter which may ultimately necessitate additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the Capital or abandonment of revenue or lowering of rate of any tax.|
|9.29.2 Subject to any instructions which may be issued from time to time by the Central Government, the Lieutenant Governor shall make a prior reference to the Central Government in the Ministry of Home Affairs or to the appropriate Ministry with a copy to the Ministry of Home Affairs in respect of the following matters:(i) proposals affecting relations of Central Government with any State government, the Supreme Court of India or any other High Court;(ii) proposals for the appointment of Chief Secretary or Commissioner of Police, Secretary (Home) and Secretary (Lands);(iii) important cases which affect or are likely to affect peace and tranquility of the National Capital Territory; and(iv) cases which affect or are likely to affect the interests of any minority community, the Scheduled Castes/Scheduled Tribes or Backward Classes.|
|9.29.3 References relating to prior approval to such Bills will:(a) except in regard to para 9.29.1(c) above, be dealt with in the Ministry of Home Affairs; and(b) in regard to para 9.29.1(c), be dealt with in the Department of Commerce in consultation with the Ministry of Home Affairs. In all cases, these references will be dealt with in consultation with the other Departments concerned and the Ministry of Law and Justice.|
|9.30 All references relating to Bills passed by the Legislative Assemblies of the Union Territory of Pondicherry and the National Capital Territory of Delhi and reserved by the Administrator for consideration of the President, will be dealt with in the Ministry of Home Affairs who will submit such Bills to the President after consulting the Ministry of Law and Justice and other departments concerned.|
|Ordinances||9.31 In every case in which the Administrator of the Union Territory of Pondicherry and the Lieutenant Governor of the National Capital Territory of Delhi is empowered to promulgate Ordinances (Article 239B of the Constitution in the case of Pondicherry and Article 239AA(8) read with Article 239B in the case of NCT of Delhi), prior instructions of the President have to be obtained. The procedure indicated in paragraphs 9.28 and 9.29 above, in regard to Bills will, with necessary changes, apply to obtaining such prior instructions.|
|Extension of enactments||9.32 Under the provisions** of the relevant sections of the enactments relating to the Union Territories the Central Government is competent to extend, by notification, any enanctment in force in a State to the Union Territories of (a) Chandigarh, (b) Dadra and Nagar Haveli, (c) Delhi, (d) Daman and Diu, and (e) Pondicherry. All proposals for such extension will be dealt with in the Ministry of Home Affairs who will examine them in consultation with the Ministry of Law and Justice, other departments concerned and also the Adminstration of the concerned Union Territory if considered necessary.|
|Regulations||9.33.1 Article 240 of the Constitution empowers the President to make Regulations for the peace, progress and good governance of the Union territories of (a) Andaman and Nicobar Islands, (b) Dadar and Nagar Haveli, (c) Daman and Diu, (d) Lakshadweep, and (e) Pondicherry. However, in the case of Union Territory of Pondicherry, this power is available only when the Legislative Assembly of Pondicherry is dissolved or its operation is suspended.|
|9.33.2 The Ministry of Home Affairs shall initiate the proposals for promulgation of Regulations in consultation with the Ministries administratively concerned with the subject matter of the Regulation. After the Regulation is approved by the Cabinet, it is finalised by the Legislative Department and submitted to the President through the Minister of Home Affairs.|
|**(i) Section 87 of the Punjab Reorganisation Act, 1966 in the case of Chandigarh. (ii) Section 10 of the Dadra and Nagar Haveli Act, 1961 in the case of Dadra and Nagar Haveli. (iii) Section 2 of the Union Territories (Laws) Act, 1950 in the case of Delhi.|
NFHS Thanks Nyaya Yodha for conducting RTI session at the weekly NGO meeting on 11-July-2010 in Indira Nagar. The session started with a beautiful analogy of RTI and was fully interactive. Other members also shared their experience with RTI and the results.
Thanks Yodha. It is a fitting reply for those who criticize others for keeping alias as id. It is not the id which matters but your deeds which fetches result.