Indian Govt. want to make RTI act toothless

Union Minister Prithviraj Chavan and Central and State Information Commissioners on a proposal to significantly amend the Right to Information Act, 2005. The meeting’s importance lay in the fact that it saw the hopeless isolation of the government side (Department of Personnel and Training, Ministry of Personnel, Public Grievances, and Training) on the proposed amendments. Of the 60 Information Commissioners who attended, all but two were opposed to the idea of tinkering with the historic legislation. What explains such unity of resolve? The DoPT’s package contained two ‘killer’ amendments. The first would include under Section 8 (which specifies exemptions to the Act) applications deemed to be “frivolous and vexatious.” The second would bar from the Act’s purview any discussion leading up to an official decision. The best judge of whether or not an application is “frivolous and vexatious” is the Information Commissioner who is called upon to decide the issue. In the four-and-a-half years since the Act came into force, no information officer has complained of being overburdened by such applications. Nor is there anything to suggest that government functioning is hampered by the disclosure of official discussions (previously known as file notings) and records of process. The only reasonable conclusion is that both the bureaucracy and the political government fear transparency of process because it will expose wrongdoing.

In recent days, RTI queries relating to public spending, governance, distribution of largesse, and even the procedure adopted for deciding awards have proved to be deeply embarrassing for the government. The ghost of RTI amendments has returned – in the controversial form of exemption for the office of the Chief Justice of India. The irony is too glaring to miss. It was the Supreme Court that laid the ground for opening up acts of governance to public scrutiny. In the 1975 State of U.P. vs Raj Narain case, the court said: “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their functionaries…” The RTI Act has empowered the ordinary citizen in a way its architects did not anticipate. Studies have shown its growing appeal across all social strata, which is surely why the government is set on blunting this powerful tool in the hands of the people. Such obscurantism must be seen through and defeated.

Terrorism of Police Kind ( BBC )

http://news.bbc.co.uk/1/hi/world/south_asia/8183662.stm

Human Rights Watch has published a report which criticises the Indian police force for the routine brutality it employs against suspects. The report says despite India’s rapidly developing economy, its police force remains behind the times. Its systems are antiquated and its officers operate above the law. Damian Grammaticas reports from New Delhi

Chief justice of India helpless but admits misuse of IPC 498(A)

CJI points to judges’ ignorance

OUR SPECIAL CORRESPONDENT

HC CJ Gyan Sudha Misra presents a memento to the Chief Justice of India on Sunday. Picture by Manik Bose Ranchi, Aug. 30: Chief Justice of India K.G. Balakrishnan today took a dig at high court as well as district court judges for delivering wrong verdicts because of their ignorance of criminal justice laws. Balakrishnan warned that several people wanted to delay the conclusion of criminal cases. “(But) Judges are supposed to prevent the abuse of law by those who want to delay the delivery of judgment,” he added, alluding to the judiciary’s concern at the high number of pending cases. The Chief Justice was delivering a valedictory address at the conclusion of the first east zone regional judicial conference aimed at equipping senior judicial officers, drawn from seven states — Jharkhand, Bengal, Orissa, Chhattisgarh, Assam, Sikkim and Bihar — to deliver speedy and quality justice. The three-day programme was organised by National Judicial Academy (NJA), Bhopal, in association with Jharkhand High Court and State Judicial Academy. Jharkhand High Court Chief Justice Gyan Sudha Misra, Patna High Court Chief Justice P.K. Mishra, State Judicial Academy in-charge Justice M.Y. Eqbal, NJA director G. Mohan Gopal were present among others. Balakrishnan pointed out that Section 498 (A) (anti-dowry law) under CrPC was one of the most abused laws. “Judges are simply issuing summons and even warrants without properly verifying who are the accused. I have come across such cases in which the accused, sitting in Australia and other countries, are made accused when the case is lodged for the alleged offence of dowry,” he added. Balakrishnan added that the criminal procedure code was amended for the police to follow certain procedures before arrests. “We have come across cases in which even high court judges are ignorant of the legal value of statements recorded before the police under Section 161 of the Evidence Act for delivering judgments,” he said. Calling upon lower court judges to be socially sensitive, he asked them to have control over trial proceedings in order to deliver judgments easily. He also asked them to examine eyewitnesses first before examining other witnesses produced by the defence. “Trial and defence lawyers should not terrorise witnesses. A judge should be alert and caring” he maintained. Misra said the deteriorating law and order situation was a heavy burden on the criminal justice system. “It was worrying that the state functionaries were not invoking the provisions of the National Security Act to keep hardened criminals in jail,” she added. Stressing on the need for quality justice, Misra said she was receiving complaints that the fast-track court has turned into a “farce track court”. Judicial officers, she said, had to wipe out fear that fast-track courts would only convict a person. “They have to strike a balance between expectation of the victims’ of crime and the accused,” she maintained. Former Supreme Court judge S.B. Sinha pointed out that 70 per cent of all the pending criminal cases were petty offences. “Sociological studies suggest that it is the poor who suffer the most because of delay in the delivery of judgments,” he added.

 

Source:  http://www.telegraphindia.com/1090831/jsp/jharkhand/story_11430270.jsp

Bureaucracy, Red tapism and Corruption increase under SAD Govt.

There are alarming sign of increase in Bureaucracy, Red tapism and Corruption in Punjab, India. This state of punjab is presently ruled by  a regional party known as Shromini Akali Dal (SAD) . This govt has failed to bring transpancy and stop corrupt practices, Rather this govt. is acting like a dictator

Here are sign of growing Red tapism, Bureaucracy and Corruption

Illegal and totally unfair Appointment of *bureaucrat* as Punjab CIC

Chandigarh,
It seems like state govt. want to control the autonomy of  State Information Commissions. Earlier for months The State Information Commission is kept without any Chief Information Commissioner since the departure of previous commissioner Mr. Rajan Kashyap,  It is  clear that govt. was waiting for the due retirement of Mr RamishInder Singh( from the post of cheif secratary punjab) to offer him this plum post.

This commission is set for people under RTI act 2005. The ruling govt. is not listening to the views and needs of ordinary people of punjab, Despite the Various citizen groups, civil society organisations and activists opposed this bureaucrat’s appointment as head of SIC, but govt did not even bother to listen rather this govt.  like a dictator simply go ahead with it.Various citizen groups, civil society organisations and activists joined hands to oppose the appointment of another bureaucrat as the Chief Information Commissioner of Punjab. During a press interaction at the Chandigarh Press Club yesterday, they called it a violation of the spirit of the RTI Act and the Constitution of India. The activists vowed to fight tooth-and-nail against such brazen action by the Punjab government.

Current Punjab Chief Secretary Ramesh Inder Singh who is due to retire in September 2009 would be taking over as the Chief Information Commissioner (CIC).

Terming this as illegal, Hemant Goswami of Citizens’ Voice mentioned that under the provisions of the RTI Act, the appointment of a commissioner could be done only if a committee was formed in which all members deliberated on the applications received by the government. He mentioned that according to the RTI Act, the person to be appointed should be an eminent personality with wide experience and knowledge of law, science, social service, management, etc. “However, in Punjab, we have about six information commissioners from government service, there is none from law or other related fields,” he said.

Advocate HC Arora mentioned that the other bureaucrats working in the commission were also not performing their job satisfactorily. Most of the bureaucrats attended the official work for only about 20-30 hours in a month and still claimed lakhs of rupees as travelling and sundry benefits. “Except for Gen PK Grover, none of the information commissioners appear to be serious in the discharge of their duties,” Arora added.

Earlier, social activists and organisations sent a joint representation to the Punjab Governor and the CM against appointment of another bureaucrat in the commission. The activists specially mentioned the alleged callous functioning of PK Verma and Rupan Deol Bajaj and pointed many infirmities in their orders.

Litigant should not to suffer for advocate’s negligence: HC

Litigant should not to suffer for advocate’s negligence: HC

Ahmedabad: While a petitioner had to explain to the court, the eight-year delay in filing an application, court took 13 years in concluding that the delay should be condoned and petition heard. According to case details, Dipak Rawal’s grandfather passed away in 1974, bequeathing his property to Dipak, who was eight years old then. His father and uncles entered into litigations over property dispute. In 1978, Dipak’s father Arvind moved Gujarat High Court after challenging a lower court’s decision. But, the case didn’t move ahead as their lawyer did not appear for the argument. Case remained pending and ultimately, high court dismissed the case in 1988 on account of non-prosecution. By this time, Dipak was a major, but no one in the family realised that their case had been dismissed by the court. Eight years later, Dipak and his family approached the high court again with a plea to hear their case. But, a single judge rejected their plea and noted that Arvind, who after his retirement practised in court, didn’t bother about it at all. The court held that being an advocate, he should know that there is a certain time limit to challenge court orders. This was in 1996. But, the family was prompt to act this time and filed an appeal against single judge’s decision. The appeal, which was to be heard by a division Bench, was ultimately decided in February 2009 and court concluded that the original case should be restored and heard. For accepting that there was no fault of the family, but it was negligence of their advocate, court took 13 years. It ruled, in light of a Supreme Court judgment, that on account of default of part of advocate, the litigant should not be made to suffer.

http://timesofindia.indiatimes.com/Ahmedabad/Litigant-should-not-to-suffer-for-advocates-negligence-HC/articleshow/4209733.cms

State Govt. and Judicial System acting to protect tainted/accused police officers

A writ peition filed to seek a CBI probe into fake encounter cases took ten years to come up for hearing

Year 1994 A writ petition placed before the Punjab and Haryana High Court to seek a CBI probe into fake encounters. But the court “Registry” kept it pending since 1994.

As per the High Court rules If cases were fixed in the Registry. Taking strong exception to a delay of three years in placing before the court a case seeking a CBI probe into fake encounters.

When initially filed, it faced a hurdle at the very thresh-hold. The Punjab and Haryana High court required the counsel to satisfy it that the petitioner was competent to file the present petition in public interest, seeking registration of criminal cases against police officers.”

After the submission court took just TEN years to list the case for hearing, If it has taken ten years to just list a case for hearing, Imagine how long it will take to decide on the case and even after that it is hard to believe if justice will prevail”

The petitioner is claiming to an eyewitness to fake encounters, he had claimed the victims included Nirmal Singh, Baljit Singh, Kulwant Singh Kanta, Baljinder Singh Bijliwala, Kartar Singh Bahal Singh, Satwant Singh Sodhi, Gurmukh Singh, Gurcharan Singh and Nachhattar Singh.

As the matter came up for hearing, the judge took note of efforts made at managing things; and Manak’s struggle for justice. Justice Ranjit Singh observed: “The petitioner appeared in person to state about the pressure on him to withdraw this writ petition”

“Throughout its journey, the petition faced a number of other hurdles at different stages. Initially, the petition was filed through M. S. Rana, advocate of this court.” “Subsequently, D. S. Rajput, advocate, appeared to make submissions. The writ petition was ultimately ordered to be admitted on September 15, 1995.” “In view of the reply filed, which revealed some of the person named by the petitioner indeed had been shown as killed in encounters, the court obviously would have felt the need for some proper investigation to really go into the allegations made in the petition that these were the fake encounters and, thus, cold blooded murders. No directions, however, were given for fixing the case for hearing.”

Counsel representing the petitioner for withdrawing the writ petition filed another application. On January 15, 2004, petitioner, however, stated he did not wish to withdraw the petition, though advocate D.S.Rajput had moved the application on his behalf. The case was adjourned to February 7, 2005.

Hereafter, it was never put up for hearing before the court till another application was filed on behalf of the petitioner through R. S. Bains.

This also indicates the role of the state government to shiled the accused police officers. Why state govt. want the petiotiner to withdraw his petition, Is the state govt. has ordered to do false encounter.

The accused police officer are still enjoying the senior posts in Punjab Police. If the state govt. is currupt and acting un-lawfully, why the judiciary never come forward to give justice to the petitioner  and victims family .

“Generally, the courts in such cases are requested to entrust investigation to the Vigilance set up of the state on the ground that it can be expected to be free from influences. It is recently been in news, that head of the punjab vigilance Mr. Sumedh Singh Saini IGP cum director vigilance is himself facing prosecution for encounter cases. He killed nine persons beyween 1995 to 1998 when he was posted as Senior Suprintendent of Police (S.S.P) at Ludhiana.

Punjab administration in hands of criminals:: criminal IPS & IAS officer enjoying top posts

Indian Police Service (IPS) and Indian Administration Service (IAS) are the main organs a state administration. What happens to state adminisration if the persons occupying these posts are criminals. Do you expect a fare deal in public adminstration from these criminal officers. Will they not use government machinery and power to illegally escape from the legal net.

Punjab is known for many bad reasons. It is known for Human Rights Violations all over the world. Now it is known for one more bad reason, that is it employee highest number of criminal officers in Police and Civil Adminstaion, that too on top posts.

As the list pusblished by the govt. of punjab Ten IPS officers and 18 IAS officers who have criminal charges agsinst them still enjoying top posts…

List of the criminal IPS officers in punjab (facing departmental proceedings, charge-sheeted by the court) and still occupying post of a public servant

      Name                                  Current Designation

1. Sumedh Singh Saini    IGP-Cum-Director, Vigilance Bureau, Punjab (India)
2. K.K. Attri                    DGP-cum-Comdt. Gen. Punjab Home Guards
3. Mohd. Izhar Alam      DGP ,Prisons, Pb., Chd
4. G.D. Pandey               ADDL. DGP/ Crime, Pb.,Chg
5. R.P. Singh                  IGP/Rules,Pb. Chg.
6. S.S. Sodhi                  SSP, Friadkot
7. Paramraj Singh
8. Rajinder Singh
9. Devinder Singh Garcha

 source: http://punjabpolice.org/post/index.html          http://www.tribuneindia.com/2008/20080425/main2.htm

In any democratic country is it open to handover the state administration in the hands of officers who themselfs face serious criminal changes ? Shouldn’t these officer be removed immidiately from the posts to restore the trust of the general public in govt. administration. Why central govt. and Apex court of india is overlooking this serious issue.

Worlds most Currupt Judicial System in INDIA

Transparency International India
Registered under the Societies Registration Act 1860, Delhi
the coalition against corruption

Embargoed for publication, broadcast, and electronic transmission until 10 GMT on 24 May2007

JUDICIAL CORRUPTION FUELS IMPUNITY,
CORRODES RULE OF LAW
According to the 32 country Global Corruption Report 2007: Corruption in Judicial Systems issued today by Transparency International (TI), corruption in judiciary is undermining judicial systems, denying citizens access to justice and the basic human right to a fair and impartial trial, sometimes even to a trial at all. The Report concludes that a corrupt judiciary inhibits access to justice and redress for human rights violations. It undermines economic growth by damaging the trust of the investment community, and impedes efforts to reduce poverty.
When courts are corrupt, ordinary people suffer
Petty bribery and political influence in the judiciary erode social cohesion: one system for the rich and another for the poor fractures communities. This Survey of attitudes towards corruption reveals that in more than 25 countries, at least one in ten households had to pay a bribe to get access to justice. In a further 20 countries, more than three in ten households reported that bribery was involved in securing access to justice or a “fair” outcome in court.
Tipping the scales of justice
Corruption in the judiciary also includes any inappropriate influence on the impartiality of judicial proceedings and judgments and can extend to the bribing of judges for favourable decisions, or no decision at all. It also includes the misuse of judicial funds and power, such as when a judge hires family members to staff the court or manipulates contracts for court construction and equipment. It can also play out in biased case allocation and in other pre-trial procedures, such as when bribed court clerks “lose” files and evidence. It can influence any trial or court settlement, and the enforcement – or not – of court decisions and sentences.
The Report finds that despite decades of reforms to protect judicial independence, the pressure to rule in favour of political interests remains intense. Though many judges around the world are indeed acting with integrity, problems remain. And for judges who refuse to be compromised, political retaliation can be swift and harsh. Unfair or ineffective procedures to discipline and remove corrupt judges can end up being used instead for the removal of independent judges. Failure to appoint judicial officials on merit can lead to the selection of a pliant, corruptible judiciary. “Problematic” judges can be reassigned or have sensitive cases transferred to more pliable judges. Interference from politicians or civil servants can also buy “legal” cover for embezzlement, nepotism, cronyism and illegal political decisions.
Bribery is the other dark thread of judicial corruption. The Report mentions the possibility of judges accepting bribes to delay or accelerate cases, accept or deny appeals, influence other judges or simply to decide a case in a certain way. Court officials may seek bribes for services that should be free; lawyers may charge additional “fees” to expedite or delay cases, or to direct clients to judges known to take bribes.
According to TI’s Global Corruption Barometer 2006, 77 percent of the Indian respondents described their judicial system as corrupt. About 36 percent of people paid bribes to Judiciary. The average amount of money paid in bribes by a household in India in the past 12 months was maximum in Judiciary (Rs. 3,817) as compared to other sectors. In February 2006, 26 Supreme Court judges faced a backlog of more than 30,000 pending cases; over three million cases were pending in the high courts. At the current rate of resolution, it is the work of 350 years for the country’s 670 judges. A chapter on ‘Indolence in India’s Judiciary’ is attached.
LAJPAT BHAWAN, LAJPAT NAGAR-IV, NEW DELHI-110 024, INDIA
Tel. : 91-11-26224711, 26224519 Telefax : 91-11-26460825, Email : tiindia@gmail.com Website: www.tiindia.in
Transparency International India
Registered under the Societies Registration Act 1860, Delhi
the coalition against corruption
2
Role of Media & Civil Society
Opaque court processes that foster bribery can also prevent the media and civil society from monitoring court activity and exposing judicial corruption.
Solutions: independence, openness, adequate resources, accountability
The Report offers the following recommendations to promote judicial independence and accountability, encourage individual integrity, more effective enforcement of the law and to safeguard the judiciary against political influence -
Judicial appointments
1. Judicial selection process through an independent judicial appointments body
2. Judicial appointments should be merit-based, with clear and well-publicised selection criteria; candidates should be required to demonstrate a record of competence and integrity.
3. Civil society, including professional associations linked to judicial activities, should be consulted on the merits of candidates.
Terms and conditions
4. Judicial salaries should reflect experience, performance and professional development; fair pensions should be provided on retirement.
5. Protections to safeguard salaries and working conditions against interference by the executive and legislature branches should be established.
6. Judicial transfers should be based on objective criteria to protect independent and impartial judges.
Accountability and discipline
7. Judges should receive limited immunity for actions relating to judicial duties.
8. Allegations against judges should be rigorously investigated, including by an independent body.
9. The removal process should be transparent and fair, with strict and exacting standards; if there is a finding of corruption, a judge should be liable to prosecution.
Transparency
10. The judiciary should provide the public with reliable information about activities and spending.
11. Access to information on laws, proposed changes in legislation, court procedures, judgments, judicial vacancies and appointments is needed.
12. The prosecution must conduct judicial proceedings in public and publish reasons for decisions.
It is of the view that all the judicial & prosecutorial appointments and removals must be transparent, independent of the executive and legislative branches, and based on experience and performance. Journalists must be free to monitor and comment on legal proceedings, reporting reliable information on laws, proposed changes in legislation, court procedures and judgments to the public.
Civil society’s oversight role is imperative. By monitoring and commenting on the selection of judges, judicial codes of conduct and the discipline of judges, how courts handle cases and how judges make decisions, civil society can call attention to systemic weaknesses that facilitate corruption, and put
LAJPAT BHAWAN, LAJPAT NAGAR-IV, NEW DELHI-110 024, INDIA
Tel. : 91-11-26224711, 26224519 Telefax : 91-11-26460825, Email : tiindia@gmail.com Website: www.tiindia.in
Transparency International India
Registered under the Societies Registration Act 1860, Delhi
the coalition against corruption
3
governments on notice that they will be called to account for making good on their anti-corruption commitments.
TI’s work in fighting judicial corruption
The Report also highlights the TI’s national level efforts to curb judicial corruption. Its work in combating corruption in judicial systems is diverse:
􀂃 monitoring judges’ court attendance and the quality of their judgments
􀂃 helping to screen candidates for judgeships, making appointments transparent and merit-based
􀂃 offering free legal advice to corruption’s victims through 16 Advocacy and Legal Advice Centres in 12 countries.
In its work against political interference and bribery in the judiciary, TI draws on many allies within judicial systems who are committed to the common goals of transparency and equal justice under law.
(Dr. S K Agarwal)
Vice Chairman TI India
LAJPAT BHAWAN, LAJPAT NAGAR-IV, NEW DELHI-110 024, INDIA
Tel. : 91-11-26224711, 26224519 Telefax : 91-11-26460825, Email : tiindia@gmail.com Website: www.tiindia.in
Transparency International India
Registered under the Societies Registration Act 1860, Delhi
the coalition against corruption
4
May 28, 2007
Dear Friends,
As you may be aware that the Transparency International (Berlin) has recently released its 32 country
Global Corruption Report 2007: Corruption in Judicial Systems. According to this Report, corruption in judiciary is undermining judicial systems, denying citizens access to justice and the basic human right to a fair and impartial trial, sometimes even to a trial at all. The Report concludes that a corrupt judiciary inhibits access to justice and redress for human rights violations. It undermines economic growth by damaging the trust of the investment community, and impedes efforts to reduce poverty.
When courts are corrupt, ordinary people suffer
Petty bribery and political influence in the judiciary erode social cohesion: one system for the rich and another for the poor fractures communities. This Study reveals that in more than 25 countries, at least ten % of households had to pay a bribe to get access to justice. In a further 20 countries, more than 15% of households reported that bribery was involved in securing access to justice or a “fair” outcome
Corruption in the judiciary also includes any inappropriate influence on the impartiality of judicial proceedings and judgments and can extend to the bribing of judges for favourable decisions, or no decision at all. It also includes the misuse of judicial funds and power, such as when a judge hires family members to staff the court or manipulates contracts for court construction and equipment. It can also play out in biased case allocation and in other pre-trial procedures, such as when bribed court clerks “lose” files and evidence. It can influence any trial or court settlement, and the enforcement – or not – of court decisions and sentences.
The Report finds that despite decades of reforms to protect judicial independence, the pressure to rule in favour of political interests remains intense. Though many judges around the world are indeed acting with integrity, problems remain. And for judges who refuse to be compromised, political retaliation can be swift and harsh. Unfair or ineffective procedures to discipline and remove corrupt judges can end up being used instead for the removal of independent judges. Failure to appoint judicial officials on merit can lead to the selection of a pliant, corruptible judiciary. “Problematic” judges can be reassigned or have sensitive cases transferred to more pliable judges. Interference from politicians or civil servants can also buy “legal” cover for embezzlement, nepotism, cronyism and illegal political decisions.
Bribery is the other dark thread of judicial corruption. The Report mentions the possibility of judges accepting bribes to delay or accelerate cases, accept or deny appeals, influence other judges or simply to decide a case in a certain way. Court officials may seek bribes for services that should be free; lawyers may charge additional “fees” to expedite or delay cases, or to direct clients to judges known to take bribes.
According to Global Corruption Barometer 2006, 77 percent of the Indian respondents described their judicial system as corrupt. About 36 percent of people paid bribes to Judiciary. The average amount of money paid in bribes by a household in India in the past 12 months was maximum in Judiciary (Rs. 3,817) as compared to other sectors. In February 2006, 26 Supreme Court judges faced a backlog of more than 30,000 pending cases; over three million cases were pending in the high courts. At the current rate of resolution, it is the work of 350 years for the country’s 670 judges. A chapter on ‘Indolence in India’s Judiciary’ is attached.
A copy of the above Report is enclosed for your information and records. Kindly acknowledge.
(Dr. S K Agarwal)
Vice Chairman TI India
LAJPAT BHAWAN, LAJPAT NAGAR-IV, NEW DELHI-110 024, INDIA
Tel. : 91-11-26224711, 26224519 Telefax : 91-11-26460825, Email : tiindia@gmail.com Website: www.tiindia.in

Flickr

This is a test post from , a fancy photo sharing thing.

Old Parents of Indian Husband face destitution because of Rubbish indian maintenance law [125 Cr.PC]

Indian legal system is a complete mess. It has absolutely NO provision to protect the interest of senior citizens. Indian legal system seems to be designed to protect only unscrupulous females and encourage “Legal Terrorism”

             Elderly Parents of Indian Husband are at receiving end from all sides of Indian matrimonial laws.. On one side the provisions like IPC 498-A and Domestics Violence Act 2005, put the innocent elderly parents in jail just to protect the interests of unscrupulous wife of their son. They are being punished for no fault, and no one is there to listen to their plight.

            In India we do not have any social security system like the one is there in developed countries. Hence elderly parents have total dependency on their male child for any kinf of support in their old age. But Indian legal system has taken that support also.

          The maintenance law like Cr.PC 125 (3) which is designed so that elderly parent of a Indian husband must face destitution. This rubbish Indian maintenance law Section 125 (3) Cr PC envisaged this

Situation:-

If any Indian husband fails to pay maintenance to his unscrupulous wife, any Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

          This provision came to be interpreted by the Supreme Court in Kuldeep Kaur v. Surinder Singh,3 wherein it categorically ruled that the liability of the husband to pay maintenance cannot be satisfied

by sending the person to jail. Imprisonment should be resorted to only as a measure to make the party to pay the maintenance. It was a case where the husband argued that his liability for the failure of paying maintenance stood satisfied by way of his imprisonment. The import of section 125(3) Cr PC was spelt out by the Supreme Court thus:

A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the

other. Sentencing a person to jail is ‘mode of enforcement’. It is not a ‘mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance, who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability, which he has refused to discharge. Be it also realized that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance ‘without sufficient cause’ to comply with the order. It would indeed be strange to hold that a person who ‘without reasonable cause’ refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail.

          The provision gives an impression that the maximum time of imprisonment would be one month, which could further be reduced if payment is made prior to the completion of the term. In fact this position must have prompted the lower courts to treat it as a punishment, a sort of fine and made them to declare that the debt of maintenance has been discharged. This view could be supported on the basis of section 421 Cr PC made for the recovery of amount due by the court. In terms of section 125 (3) Cr PC it is after the execution of the warrant that one has to be sent to the prison. It is in this context that the problem of recovery arises.

          If he is to go to jail for want of money will he be covered by the provision of the Civil Procedure Code or will he be treated as an offender and find his way to the criminal court? If he is covered by the civil procedure he is to go to a civil prison after following the procedure laid down in the Civil Procedure Code. If he is covered by the latter his imprisonment would make him clear of the debt. In practice it is seen that persons imprisoned under section 125 (3) are treated as any other prisoners. And their liability appears to stand discharged by the imprisonment. However, Kuldeep Kaur v. Surinder Singh has overturned this position. Imprisonment is to be taken as a quasi method to effect recovery rather than as a punishment over the failure to make payment. Many questions arise in this context.

 

If a person who has no property or employment is to be in jail till he makes the payment how can he find resources to effect payment?

How can he earn while he is in jail? Is he not liable to make payment even during his imprisonment?

Are we not punishing his dependents by putting him in jail?

If the person have old dependent parents or if had already effected divorce and remarried, his position becomes worse. His family may be constrained to live without the support, as the main member who has to be in the jail for failing to maintain his unsruplous wife. Are we not indirectly encouraging  destitution of his remaining dependent/family to maintain while coercing him not to destitute the members of his unsruplous wife? Is it desirable to send such a person to prison when we try to avoid imprisonment of persons who are convicted of crime?

 

We all are Victims of “Indian Legal System” which runs at the hands of feminists …. 

Shame On Indian Law makers ….

Shame on Supreme Court of India…