Dear Friends
Bored with English in our Courts? How about Hindi? A serious effort to seek Hindi in arguments is underway at the Delhi High Court. And Tamil is not far behind. But the real problem comes here: What are the equivalents for 'pledge' and 'bailment'. 'Insurance' and 'vicarious liability'? The truth is, we do not have the equivalents for nearly 50% of the words in a legal dictionary. And, we have no consensus over the equivalents we already have. It takes more than a few hundred years to cultivate a language for legal use. Urdu became the only Indian language that received enough nourishment to merit the status of a 'court language' in a handful of provinces. Unfortunately, due to sheer political reasons, it was shelved. Good luck with Hindi this time. But the fact remains that there are 8 Division Benches in the Delhi High Court and half of the Judges who sit in those Benches are persons from non-Hindi speaking States.
And nobody should suggest that street-Hindi or street-Tamil is good for our Courts. A refined Hindi is quite beyond the comprehension of many Hindi speaking Judges. It is like this, the Kannada that most lawyers speak in Karnataka is not good enough for our Courts. So, if our aim is to merely localise our Courts, we might not be doing a great service to ourselves. The fact remains that we do not speak good Kannada or good Hindi or good Tamil most of the time.
If only we could speak good Kannada or good Hindi or good Tamil or a good local language, many of our Courts would have switched over to regional languages long ago. It is that simple. Resistance to a local language in Courts is not so much a resistance to any given Indian language but to the degree of care people generally adopt in speaking it.
--
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-0939
Wednesday, June 16, 2010
Monday, June 7, 2010
'Outrage' for 'Dummies in India'.
Dear Friends
This is the excerpt of a proposed book 'for Dummies in India'. Chapter - 'outrage'.
Why an efficient judiciary is in nobody's interests? Bhopal Gas Leak Disaster has been addressed judicially - more than 25000 deaths. 8 individuals have been sentenced to 2 years imprisonment - after a trial that lasted 26 years.
I want to be outraged at all of this. Will it help?
Did you just arrive from another planet or something?
But the media is all too outraged? I want to add to the noise.
Well, media outrage in India has a lifespan. It is now, '1 week'. Next Monday, there will be another crisis to talk about and everything will be forgotten about this episode.
What went wrong about this trial?
Of what use is it for you to know what went wrong. A few hundred things might have gone wrong.
But surely, we cannot simply forget the Gas Leak victims?
Pray for the departed souls. But do not expect any formal redressal from the judicial system. With the judgment already out in the open, it will be ages before any appeal is decided. Even thereafter, there is another appeal to the Supreme Court.
But I hear so much about judicial reforms in India?
Surely, what makes you think that it is in anybody's interests to strengthen the judiciary in India?
What do you mean?
Well, you should not be asking that X or Y should be punished - you should be asking that X or Y should be prosecuted to the fullest extent and a fair verdict commensurate with the crime be delivered by a judge.
Yes. I want an efficient judicial system in this country.
Yes. That is the root of the problem.
I don't get it.
You see, if the judicial system is strengthened to the point that the guilty will always be punished, do you see the obvious consequence?
No.
A judicial system that nails a murderer will equally nail a corrupt politician or a negligent public servant. You cannot have a judicial system that will only nail criminals and set aside politicians. That never happens and has never happened. It is like a vast fishing net. Whatever is thicker than the net strand will stumble upon the net and get wrapped in it. So, an efficient judicial system is the last thing corrupt politicians want in this country. So, because we need to keep our judiciary weak so as to protect corrupt politicians, we obviously should learn to tolerate such incidents as Bhopal Gas Leak Disaster and move on.
What then is the best use of my time?
Indian film industry churns out the most number of movies in a year and you should head to your nearest multiplex.
How should I know when to expect any judicial reform in this country?
As and when some high ranking politician is convicted for corruption. When that happens and is affirmed by the Supreme Court, take it as a sign that things have changed a lot. Of course, you don't have to watch out for it. If Fire crackers are burst across your town on a Day that is not Diwali or a cricket match day, you should watch your television for confirmation.
--
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
This is the excerpt of a proposed book 'for Dummies in India'. Chapter - 'outrage'.
Why an efficient judiciary is in nobody's interests? Bhopal Gas Leak Disaster has been addressed judicially - more than 25000 deaths. 8 individuals have been sentenced to 2 years imprisonment - after a trial that lasted 26 years.
I want to be outraged at all of this. Will it help?
Did you just arrive from another planet or something?
But the media is all too outraged? I want to add to the noise.
Well, media outrage in India has a lifespan. It is now, '1 week'. Next Monday, there will be another crisis to talk about and everything will be forgotten about this episode.
What went wrong about this trial?
Of what use is it for you to know what went wrong. A few hundred things might have gone wrong.
But surely, we cannot simply forget the Gas Leak victims?
Pray for the departed souls. But do not expect any formal redressal from the judicial system. With the judgment already out in the open, it will be ages before any appeal is decided. Even thereafter, there is another appeal to the Supreme Court.
But I hear so much about judicial reforms in India?
Surely, what makes you think that it is in anybody's interests to strengthen the judiciary in India?
What do you mean?
Well, you should not be asking that X or Y should be punished - you should be asking that X or Y should be prosecuted to the fullest extent and a fair verdict commensurate with the crime be delivered by a judge.
Yes. I want an efficient judicial system in this country.
Yes. That is the root of the problem.
I don't get it.
You see, if the judicial system is strengthened to the point that the guilty will always be punished, do you see the obvious consequence?
No.
A judicial system that nails a murderer will equally nail a corrupt politician or a negligent public servant. You cannot have a judicial system that will only nail criminals and set aside politicians. That never happens and has never happened. It is like a vast fishing net. Whatever is thicker than the net strand will stumble upon the net and get wrapped in it. So, an efficient judicial system is the last thing corrupt politicians want in this country. So, because we need to keep our judiciary weak so as to protect corrupt politicians, we obviously should learn to tolerate such incidents as Bhopal Gas Leak Disaster and move on.
What then is the best use of my time?
Indian film industry churns out the most number of movies in a year and you should head to your nearest multiplex.
How should I know when to expect any judicial reform in this country?
As and when some high ranking politician is convicted for corruption. When that happens and is affirmed by the Supreme Court, take it as a sign that things have changed a lot. Of course, you don't have to watch out for it. If Fire crackers are burst across your town on a Day that is not Diwali or a cricket match day, you should watch your television for confirmation.
--
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
Thursday, June 3, 2010
Dear Friends
The sudden realisation by people in Delhi that radiation emitted by Cell Phone Towers is generally higher than internationally recommended levels has a legal aspect to it.
Telecommunications and Telegraph are Central subjects under our Constitution.
Accordingly, only the Parliament may legislate on the topic of telecommunications and the Central Government and its agencies may issue suitable Orders and directions to comply with the law made by the Parliament.
States and their local bodies have practically very little scope for regulating any aspect of 'telecommunication' in view of the fact that 'telecommunication' is a federal subject in India
The act of installing a telecom tower for the purpose of transmitting a radio wave so as to facilitate 'telecommunication' is therefore a topic over which State Governments or local bodies have very limited legal authority.
'Telecommunication' is similarly, a federal subject in many other countries of the world and State Governments and local bodies in countries such as United States, Canada and Australia have often made unsuccessful attempts to regulate telecom towers on one or more 'health' or 'safety' grounds.
In India, local authorities or the States cannot impose any restriction on what should be the maximum Radiowave Frequency (RF) emission levels. Only the Parliament or the Central Government may make any regulation in this regard.
In fact, the Telecom Regulatory Authority of India, (TRAI) is the regulatory body in India in relation to telecom and TRAI should be faulted for having done nothing so far to mandate maximum RF emission levels for telecom towers.
Further, an NGO from Gujarat, Karma Jyot Seva Trust filed a Writ Petition No.471 of 2005 in the Supreme Court seeking the prescription of maximum emission levels for Telecom towers in India. Unfortunately, that petitioner did not pursue that matter and the same was dismissed on 15-Jan-2010 by the Supreme Court by observing that 'the matter is being dismissed for non-prosecution'.
Further, local authorities in many States had objected to the installation of telecom towers on safety grounds and the Supreme Court had stayed all such Orders on 13-Nov-2006 principally on the ground that local authorities do not possess the legal authority to interfere with 'telecom towers' except for limited purposes such as 'structural safety' - the same reasoning adopted by Courts in most other countries of the world where 'Telecom' is a federal subject.
As such, the most that the Municipal Corporation Delhi could do in the matter of telecom towers is to insist on standards for structural safety. If these standards are complied with, the MCD will have no further 'say' in these matters.
Further, bodies similar to MCD in countries such as the United States have sued their Telecom regulator in cases where the local authorities felt that the telecom regulator was sleeping over its duties. Similarly, the MCD could sue the TRAI before the Delhi High Court on the ground that the TRAI has contributed to a health hazard by failing to regulate on a critical aspect of 'telecom towers' by not mandating 'maximum RF emission levels'.
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
The sudden realisation by people in Delhi that radiation emitted by Cell Phone Towers is generally higher than internationally recommended levels has a legal aspect to it.
Telecommunications and Telegraph are Central subjects under our Constitution.
Accordingly, only the Parliament may legislate on the topic of telecommunications and the Central Government and its agencies may issue suitable Orders and directions to comply with the law made by the Parliament.
States and their local bodies have practically very little scope for regulating any aspect of 'telecommunication' in view of the fact that 'telecommunication' is a federal subject in India
The act of installing a telecom tower for the purpose of transmitting a radio wave so as to facilitate 'telecommunication' is therefore a topic over which State Governments or local bodies have very limited legal authority.
'Telecommunication' is similarly, a federal subject in many other countries of the world and State Governments and local bodies in countries such as United States, Canada and Australia have often made unsuccessful attempts to regulate telecom towers on one or more 'health' or 'safety' grounds.
In India, local authorities or the States cannot impose any restriction on what should be the maximum Radiowave Frequency (RF) emission levels. Only the Parliament or the Central Government may make any regulation in this regard.
In fact, the Telecom Regulatory Authority of India, (TRAI) is the regulatory body in India in relation to telecom and TRAI should be faulted for having done nothing so far to mandate maximum RF emission levels for telecom towers.
Further, an NGO from Gujarat, Karma Jyot Seva Trust filed a Writ Petition No.471 of 2005 in the Supreme Court seeking the prescription of maximum emission levels for Telecom towers in India. Unfortunately, that petitioner did not pursue that matter and the same was dismissed on 15-Jan-2010 by the Supreme Court by observing that 'the matter is being dismissed for non-prosecution'.
Further, local authorities in many States had objected to the installation of telecom towers on safety grounds and the Supreme Court had stayed all such Orders on 13-Nov-2006 principally on the ground that local authorities do not possess the legal authority to interfere with 'telecom towers' except for limited purposes such as 'structural safety' - the same reasoning adopted by Courts in most other countries of the world where 'Telecom' is a federal subject.
As such, the most that the Municipal Corporation Delhi could do in the matter of telecom towers is to insist on standards for structural safety. If these standards are complied with, the MCD will have no further 'say' in these matters.
Further, bodies similar to MCD in countries such as the United States have sued their Telecom regulator in cases where the local authorities felt that the telecom regulator was sleeping over its duties. Similarly, the MCD could sue the TRAI before the Delhi High Court on the ground that the TRAI has contributed to a health hazard by failing to regulate on a critical aspect of 'telecom towers' by not mandating 'maximum RF emission levels'.
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
Tuesday, June 1, 2010
Mangalore Airport Runway was the ideal setting for the 'Indian Jones' movie - not for a passenger facility
Dear Friends
I submitted an RTI application to the DGCA, a week ago, on 24-May. Just learnt that it is making all people uncomfortable there. The RTI application and the explanation thereto are attached. The RTI application, of course, expands the frontiers of the RTI law. The RTI application was made by me for the benefit of certain lawyers and NGOs at Bangalore. Also reproduced here:
Date: 24-May-2010
To
Sri Bhir Singh Rai (or any other officer dealing with - all matters pertaining to investigation of accidents/incidents to Indian registered and foreign registered aircraft occurring in India, to provide assistance to Courts/Committees of Inquiry and all the other matters relating to Air Safety.)
Director
Central - Assistant Public Information Officer
Director General of Civil Aviation Headquarters
Opposite Safdarjung Airport,
New Delhi 110 003
From:
K.V.DHANANJAY
Advocate
No.43, Ajantha Apartments
(No 36), I.P. Extension
Near AVB Public School
New Delhi 110 092
Mobile: 09902909390
dhananjaylegal@gmail.com
Dear Sir
Sub: Information sought under Sections 5 and 6 of the Central Right to Information Act, 2005
I am an advocate in practice across several High Courts and the Supreme Court of India.
In relation to the disastrous Air India Express Flight IX-812 [BOEING 737-800 Aircraft that departed from Dubai International Airport (IATA-DXB) to arrive at Mangalore International Airport, Mangalore, Karnataka (IATA-IXE)] that crash-landed on the Runway at the Mangalore International Airport at Bajpe, Mangalore, Karnataka around 06-30 Hrs [Indian Standard Time (IST)] on Saturday, 22-May-2010, the following information is sought:
I. Complete and unedited audio recording (on an appropriate media), of all human communication and interaction, captured by the cockpit voice recorder or any similar device pre-installed inside the aforesaid aircraft [including the Digital Flight Data Recorder (DFDR)] and retrieved thereafter from the aforesaid aircraft;
II. Complete and unedited audio recording (on an appropriate media) of all communication that occurred inside the Air Traffic Control Room in relation to the landing of the aforesaid aircraft on the Runway at the Mangalore International Airport at Bajpe, Mangalore, Karnataka.
III. Copies of all instruction or directions, if any, (published on or after 01-Jan-2006) issued by the Director General of Civil Aviation under Section 5A of 'The Aircraft Act, 1934' (Act No.XXII) in respect of additional precaution mandated for flights that take off or descend upon the Runway at the Mangalore International Airport (formerly, Bajpe Airport) Bajpe, Mangalore, Karnataka.
A Demand Draft for a sum of Rs.500 drawn on ING Vysya Bank, Karnataka High Court Branch, Bangalore, bearing the Number 320214 and dated 24-May-2010 is attached herewith.
I further assert that the information sought herein is not exempted from disclosure in terms of Section 8 or 9 of the Right to Information Act, 2005 and your office is under a positive legal duty to furnish information sought herein.
I undertake to pay the balance costs upon due intimation, immediately thereafter.
I would prefer to receive information by Post at the address above mentioned.
SINCERELY
(K.V.DHANANJAY)
Advocate
--
The explanation for the RTI (not provided to the DGCA) is:
The RTI application has been made by me.
The Mangalore International Airport is thoroughly defective in design and this airport should never have been approved for use as a passenger airport. A series of PILs were instituted by other lawyers at the Karnataka High Court and the nature of mishap that took place on Saturday was foretold in those petitions. As such, the statutory authorities that were responsible for the design and operation of this airport were clearly forewarned and could therefore become criminally liable for the disaster that struck the airport on Saturday morning.
The purpose of the RTI is to establish, primarily, if the pilots in charge of the fateful aircraft did say anything to suggest that they 'dreaded' the Runway at the Mangalore airport. Because the DGCA has already maintained, publicly, that the pilots in question were highly competent, any evidence of those pilots expressing 'fear' of landing at the Mangalore Airport Runway could clearly establish that the design of the airport was inherently defective and that such defective design could not have been overcome or mitigated by subsequent and special training.
The other provision -Section 5A of the Aircraft Act, 1934 grants wide powers to the DGCA to issue any instruction as may be deemed necessary by the DGCA to ensure 'safety of aircraft operations'. Any person who fails to comply with such direction could become liable to pay a penalty of a sum of Rs.10 Lakhs and suffer imprisonment for a term upto 2 years. We are keen to note the extent of precaution and care exercised by the DGCA in relation to the operation of the Table-Top Runway at the Mangalore International Airport. Whether the DGCA took special steps to mitigate the possibility of a disaster at this airport can be ascertained with reference to the directions that were issued by it in relation to this airport, under Section 5A of the Aircraft Act, 1934.
Further, the reason why I state that the design of the Runway was inherently dangerous is because, any aircraft that commits an error and makes a less-than-perfect landing was imposed with a foreseeable risk of dropping off the cliff, unless the aircraft came under immediate control of the pilot. Such a design should never have been approved for a passenger airport in the first place.
Notwithstanding the DGCA or its loyalists' claim that the Mangalore International Airport was the safest airport in India, Saturday's incident puts the burden on the DGCA to prove that the airport was not defective in design.
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
I submitted an RTI application to the DGCA, a week ago, on 24-May. Just learnt that it is making all people uncomfortable there. The RTI application and the explanation thereto are attached. The RTI application, of course, expands the frontiers of the RTI law. The RTI application was made by me for the benefit of certain lawyers and NGOs at Bangalore. Also reproduced here:
Date: 24-May-2010
To
Sri Bhir Singh Rai (or any other officer dealing with - all matters pertaining to investigation of accidents/incidents to Indian registered and foreign registered aircraft occurring in India, to provide assistance to Courts/Committees of Inquiry and all the other matters relating to Air Safety.)
Director
Central - Assistant Public Information Officer
Director General of Civil Aviation Headquarters
Opposite Safdarjung Airport,
New Delhi 110 003
From:
K.V.DHANANJAY
Advocate
No.43, Ajantha Apartments
(No 36), I.P. Extension
Near AVB Public School
New Delhi 110 092
Mobile: 09902909390
dhananjaylegal@gmail.com
Dear Sir
Sub: Information sought under Sections 5 and 6 of the Central Right to Information Act, 2005
I am an advocate in practice across several High Courts and the Supreme Court of India.
In relation to the disastrous Air India Express Flight IX-812 [BOEING 737-800 Aircraft that departed from Dubai International Airport (IATA-DXB) to arrive at Mangalore International Airport, Mangalore, Karnataka (IATA-IXE)] that crash-landed on the Runway at the Mangalore International Airport at Bajpe, Mangalore, Karnataka around 06-30 Hrs [Indian Standard Time (IST)] on Saturday, 22-May-2010, the following information is sought:
I. Complete and unedited audio recording (on an appropriate media), of all human communication and interaction, captured by the cockpit voice recorder or any similar device pre-installed inside the aforesaid aircraft [including the Digital Flight Data Recorder (DFDR)] and retrieved thereafter from the aforesaid aircraft;
II. Complete and unedited audio recording (on an appropriate media) of all communication that occurred inside the Air Traffic Control Room in relation to the landing of the aforesaid aircraft on the Runway at the Mangalore International Airport at Bajpe, Mangalore, Karnataka.
III. Copies of all instruction or directions, if any, (published on or after 01-Jan-2006) issued by the Director General of Civil Aviation under Section 5A of 'The Aircraft Act, 1934' (Act No.XXII) in respect of additional precaution mandated for flights that take off or descend upon the Runway at the Mangalore International Airport (formerly, Bajpe Airport) Bajpe, Mangalore, Karnataka.
A Demand Draft for a sum of Rs.500 drawn on ING Vysya Bank, Karnataka High Court Branch, Bangalore, bearing the Number 320214 and dated 24-May-2010 is attached herewith.
I further assert that the information sought herein is not exempted from disclosure in terms of Section 8 or 9 of the Right to Information Act, 2005 and your office is under a positive legal duty to furnish information sought herein.
I undertake to pay the balance costs upon due intimation, immediately thereafter.
I would prefer to receive information by Post at the address above mentioned.
SINCERELY
(K.V.DHANANJAY)
Advocate
--
The explanation for the RTI (not provided to the DGCA) is:
The RTI application has been made by me.
The Mangalore International Airport is thoroughly defective in design and this airport should never have been approved for use as a passenger airport. A series of PILs were instituted by other lawyers at the Karnataka High Court and the nature of mishap that took place on Saturday was foretold in those petitions. As such, the statutory authorities that were responsible for the design and operation of this airport were clearly forewarned and could therefore become criminally liable for the disaster that struck the airport on Saturday morning.
The purpose of the RTI is to establish, primarily, if the pilots in charge of the fateful aircraft did say anything to suggest that they 'dreaded' the Runway at the Mangalore airport. Because the DGCA has already maintained, publicly, that the pilots in question were highly competent, any evidence of those pilots expressing 'fear' of landing at the Mangalore Airport Runway could clearly establish that the design of the airport was inherently defective and that such defective design could not have been overcome or mitigated by subsequent and special training.
The other provision -Section 5A of the Aircraft Act, 1934 grants wide powers to the DGCA to issue any instruction as may be deemed necessary by the DGCA to ensure 'safety of aircraft operations'. Any person who fails to comply with such direction could become liable to pay a penalty of a sum of Rs.10 Lakhs and suffer imprisonment for a term upto 2 years. We are keen to note the extent of precaution and care exercised by the DGCA in relation to the operation of the Table-Top Runway at the Mangalore International Airport. Whether the DGCA took special steps to mitigate the possibility of a disaster at this airport can be ascertained with reference to the directions that were issued by it in relation to this airport, under Section 5A of the Aircraft Act, 1934.
Further, the reason why I state that the design of the Runway was inherently dangerous is because, any aircraft that commits an error and makes a less-than-perfect landing was imposed with a foreseeable risk of dropping off the cliff, unless the aircraft came under immediate control of the pilot. Such a design should never have been approved for a passenger airport in the first place.
Notwithstanding the DGCA or its loyalists' claim that the Mangalore International Airport was the safest airport in India, Saturday's incident puts the burden on the DGCA to prove that the airport was not defective in design.
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
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