Date: 06-Nov-2010
To
Respected, Barack Hussein Obama
Hon'ble President
United States of America
White House
Washington D.C.
Sub: Request for your intervention to secure additional compensation to the survivors and victims of the Bhopal Gas Leak Disaster, the worst industrial accident in human history.
With Respects, Sir:
1. My name is K.V.Dhananjay. I am a citizen of India. I am 36 years old. I am an advocate in practice at the Supreme Court of India and at several High Courts across India.
2. I take this opportunity to extend a warm welcome to you, your family and to your entourage while on a visit to India beginning 06-Nov-2010.
3. I wish to request you for your time and reflection upon the consequences from Bhopal Gas Leak Disaster that occurred on 2-3,Dec 1984 in Bhopal, the capital city of a northern State in India, Madhya Pradesh.
4. An unexpected, accidental or negligent release of methyl isocyanite in an industrial unit in Bhopal led to unprecedented loss of human life and limb - to an extent that the said event is characterised, universally, as the 'worst industrial accident in the history of mankind' (a view also endorsed by numerous decisions of Courts in the United States). In relation to the human toll from this catastrophe, Affidavits by the Government put the number of deaths in excess of 15,000 and severe injuries at 5,58,125.
5. On 14-Feb-1989, the Supreme Court of India set the monetary compensation and settlement in relation to the said disaster at a sum of 470 Million US Dollars . The said sum of 470 Million US Dollars was stated to "finally dispose of all past, present and future claims, causes of action and civil and criminal proceedings ...with respect to all past, present and future deaths, personal injuries, health effects, compensation, losses, damages and civil and criminal complaints of any nature whatsoever ...arising out of, relating to or connected with the Bhopal Gas Leak Disaster, including past, present and future claims, causes of action and proceedings...
6. It may not be profitable now to enquire into what could have been bought with a sum of 470 Million US Dollars in the year 1989. However, in 2009 or 2010, a sum of 470 Million US Dollars will barely cover the cost of producing, marketing and releasing two big-budget Hollywood films.
7. Yes. 'Avatar' and '2012', two Hollywood releases in 2009 that fared better than domestic fare in India cost more than 470 Million US Dollars to produce, market and release. Similarly, 'Iron Man 2' and 'Toy Story 3', two Hollywood summer-2010 movies released in India and elsewhere cost much more than 470 Million US Dollars to produce, market and release.
8. Any person acutely aware of the inadequacy of 470 Million US Dollars to compensate for the ‘worst industrial accident in human history’ will always remember your overwhelming role in compelling BP to provide for a 20 Billion US Dollars reparation fund to account for and to compensate for the Deepwater Horizon Oil Spill that occurred on 20-Apr-2010 from a drilling rig explosion in the Gulf of Mexico - the responsibility for which accident has been fastened upon BP. In all, BP has set aside 32.2 Billion US Dollars in its financial statements to account for the said oil spill.
9. I write here to express my request to you, as the President of the United States, to consider a similar intervention and to persuade Dow Chemicals to provide for a greater sum of monetary compensation to account for the suffering and misery inflicted and forced by the Bhopal Gas Leak Disaster.
10. I thank you for your time for this letter. I hope that you will recognise that the people of this world will incur gratitude towards your office and will ever remain grateful for any personal intervention you may initiate to secure fuller justice to the victims of what has become the worst industrial accident in human history - the Bhopal Gas Leak Disaster.
Sincerely
K.V.DHANANJAY
Advocate
#127, Lawyers Chambers
Supreme Court of India
New Delhi 110 001
Also at:
No.296, Kamakshipalya
Magadi Main Road
Bangalore 560 079
Email: dhananjaylegal@gmail.com
Mob: +91 9902909390
Sunday, November 7, 2010
Tuesday, August 24, 2010
Hysteria and Indian Television - inseparable
Dear Friends
For those still in doubt over the sanity of many people in the television media in India, the 'massive outrage' over Vishwanathan Anand's 'citizenship' query from the Government of India will most likely dissolve all such 'doubt'.
It is an established procedure in most countries of the world to reserve all or most categories of 'titles' to individuals who show or prove 'citizenship' to the satisfaction of their federal Government.
Vishwanathan Anand is undoubtedly, the most gifted and honoured of all Indian sportspersons. But, when the Government of India seeks to confer or endorse the conferment of any 'title' upon any person, it is not unreasonable or improper for it to ask the 'potential recipient' to prove his 'citizenship' of India. 'Citizenship' is always the 'legal status' of an individual and a number of intervening circumstances could deprive a person of his 'citizenship'.
Without seeking to defend the action of the Government of India in asking Vishwanathan Anand to prove his 'citizenship' of India, I would like to state that Vishwanathan Anand should simply ask his lawyer to guide him on whether the 'procedure' adopted by the Government of India was authorised for it. Most likely, his lawyer will, if queried, say 'yes'. That is all there is to this issue. What happened is not 'national outrage' but mere 'pursuit of procedure'. And, for quirky ministers already declaring their 'readiness' to apologise for the full viewing pleasure of the prime time audience, I have a suggestion - please visit your nearest therapist; you could be in need of help.
Regards
K.V.Dhananjay
Advocate
Supreme Court of India
+91 9902909390
For those still in doubt over the sanity of many people in the television media in India, the 'massive outrage' over Vishwanathan Anand's 'citizenship' query from the Government of India will most likely dissolve all such 'doubt'.
It is an established procedure in most countries of the world to reserve all or most categories of 'titles' to individuals who show or prove 'citizenship' to the satisfaction of their federal Government.
Vishwanathan Anand is undoubtedly, the most gifted and honoured of all Indian sportspersons. But, when the Government of India seeks to confer or endorse the conferment of any 'title' upon any person, it is not unreasonable or improper for it to ask the 'potential recipient' to prove his 'citizenship' of India. 'Citizenship' is always the 'legal status' of an individual and a number of intervening circumstances could deprive a person of his 'citizenship'.
Without seeking to defend the action of the Government of India in asking Vishwanathan Anand to prove his 'citizenship' of India, I would like to state that Vishwanathan Anand should simply ask his lawyer to guide him on whether the 'procedure' adopted by the Government of India was authorised for it. Most likely, his lawyer will, if queried, say 'yes'. That is all there is to this issue. What happened is not 'national outrage' but mere 'pursuit of procedure'. And, for quirky ministers already declaring their 'readiness' to apologise for the full viewing pleasure of the prime time audience, I have a suggestion - please visit your nearest therapist; you could be in need of help.
Regards
K.V.Dhananjay
Advocate
Supreme Court of India
+91 9902909390
Sunday, July 18, 2010
When is the President's Rule justified for a State?
Dear Friends
The frequent recitation of 'President's Rule' for Karnataka has resulted in a situation where I find myself fielded with several questions from a number of people including politicians, mediamen and lawyers. So, here is a Q and A meant to clarify on the situation:
1.When is President's rule justified in a State?
The President's rule has been imposed on more than 115 occasions since the Constitution of India was put into effect in 1950. The President's rule is meant to be imposed only in the event of a 'break down of the constitutional machinery in a State' and if the 'State concerned cannot be governed in accordance with the Constitution of India'.
2. Does this mean that there should always be a rise in violence and crime rates for the president rule to be imposed ?
Certainly not. A mere increase in crime rate in a State is not a criterion for imposition for the President's rule. The imposition of the President's rule is meant to accomplish an objective in which the State has failed even after specific direction from the Governor of that State.
3. Does it mean that a subjective satisfaction of the Governor is enough to impose the President's rule?
Absolutely not. Our Constitution is founded on principles of democracy. Further, the casting of a vote in our system of democracy is a vote made with knowledge of the fact that the party voted to power will remain in office for the prescribed duration. As such, the President's rule is never meant to save people from the consequences of unpleasant choices. A democratic form of Government mandates that people should take responsibility for their vote. That is, good or bad, they should face the consequences of their vote. If they happen to vote undeserving individuals to office, they should simply suffer the consequences and learn their lesson for the next scheduled election. The concept of President's rule is not meant to protect people from unpleasant consequences of their vote.
4. This would mean that people have to put up with a bad Government and endure it for the full length of five years?
Precisely. This is a natural consequence of democracy - we should take responsibility for who we vote and if we make a bad choice, we should exhibit the maturity to put up with the Government for five years so that the pain we experience will teach us to discriminate and to choose a better candidate in the forthcoming election.
5. If a cabinet minister is alleged to be involved in illegal mining, can it be said that the 'constitutional machinery in the State has failed'?
If a cabinet minister is involved in illegal activity, he should be punished under the law - no law in India confers any immunity upon any minister breaking the law. Illegal mining is a serious offence in India. There is a law to deal with illegal mining and it should be invoked against an erring minister. As such, I fail to understand how illegal mining in the State could be termed as a 'failure of the constitutional machinery in the State'. However, should there be objective and verifiable material which would implicate several ministers of the cabinet in the commission of an illegal activity, the Governor may instruct the Chief Minister to dismiss 'forthwith', ministers so implicated. Should the Chief Minister fail to satisfactorily refute the material shown by the Governor, the Chief Minister would incur a constitutional duty to immediately dismiss the offending 'ministers'. Should the Chief Minister fail to so dismiss offending members of his cabinet, a situation would have been created whereby the Government of the State cannot be carried on in 'accordance with the Constitution'. Obviously, no State in India can be allowed to function as if the Chief Minister would hold no regard for the rule of law - for a Chief Minister to knowingly continue the tenure of ministers who are shown to be involved in massive illegality, even in the face of an express directive from the Governor, would warrant the imposition of the President's rule.
6. What is the extent of material that would be required for the Governor to so act?
As already stated, the Governor cannot reach a subjective satisfaction in the matter of imposition of President's rule. Further, the incriminating material against the offending ministers should be of such nature that it is objective and verifiable. Mere political allegations are of no use. Should the material fail the test of 'strict rules of evidence' employed by a court of law, it should at least merit admissibility should the court relax some rules of evidence in a manner it does in deserving cases. As such, unless there is objective and verifiable material to impeach the credibility of a minister, it would be futile to even consider the imposition of 'President's rule' in a State.
7. Can the Court intervene in the event of an improper imposition of 'President's rule' in a State?
Very much. However, rarely does a Court grant relief in time in such matters. Often, the decisions of Court take so much time in these kinds of matters that by the time the decision is delivered, a new election would have been held and everybody would have forgotten the entire episode. First of all, should the 'President's rule' be wrongly imposed upon a State Government, the affected persons may only move the High Court. The Supreme Court does not have original jurisdiction in such matters. Because this class of litigation is very infrequent at the High Courts, any petition is generally heard by a 'Single Judge' who generally hears residual matters. Thereafter, any decision of such 'single judge' is appealable to a 'Division Bench' (that is, a bench consisting of two judges). Further, the decision of the Division Bench may further be appealed to the Supreme Court. As such, because too much time is consumed in the process of deciding such matters, the option of securing an intervention by the Court is time consuming and is generally of no practical assistance to those injured by improper imposition of 'President's rule'..
--
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
The frequent recitation of 'President's Rule' for Karnataka has resulted in a situation where I find myself fielded with several questions from a number of people including politicians, mediamen and lawyers. So, here is a Q and A meant to clarify on the situation:
1.When is President's rule justified in a State?
The President's rule has been imposed on more than 115 occasions since the Constitution of India was put into effect in 1950. The President's rule is meant to be imposed only in the event of a 'break down of the constitutional machinery in a State' and if the 'State concerned cannot be governed in accordance with the Constitution of India'.
2. Does this mean that there should always be a rise in violence and crime rates for the president rule to be imposed ?
Certainly not. A mere increase in crime rate in a State is not a criterion for imposition for the President's rule. The imposition of the President's rule is meant to accomplish an objective in which the State has failed even after specific direction from the Governor of that State.
3. Does it mean that a subjective satisfaction of the Governor is enough to impose the President's rule?
Absolutely not. Our Constitution is founded on principles of democracy. Further, the casting of a vote in our system of democracy is a vote made with knowledge of the fact that the party voted to power will remain in office for the prescribed duration. As such, the President's rule is never meant to save people from the consequences of unpleasant choices. A democratic form of Government mandates that people should take responsibility for their vote. That is, good or bad, they should face the consequences of their vote. If they happen to vote undeserving individuals to office, they should simply suffer the consequences and learn their lesson for the next scheduled election. The concept of President's rule is not meant to protect people from unpleasant consequences of their vote.
4. This would mean that people have to put up with a bad Government and endure it for the full length of five years?
Precisely. This is a natural consequence of democracy - we should take responsibility for who we vote and if we make a bad choice, we should exhibit the maturity to put up with the Government for five years so that the pain we experience will teach us to discriminate and to choose a better candidate in the forthcoming election.
5. If a cabinet minister is alleged to be involved in illegal mining, can it be said that the 'constitutional machinery in the State has failed'?
If a cabinet minister is involved in illegal activity, he should be punished under the law - no law in India confers any immunity upon any minister breaking the law. Illegal mining is a serious offence in India. There is a law to deal with illegal mining and it should be invoked against an erring minister. As such, I fail to understand how illegal mining in the State could be termed as a 'failure of the constitutional machinery in the State'. However, should there be objective and verifiable material which would implicate several ministers of the cabinet in the commission of an illegal activity, the Governor may instruct the Chief Minister to dismiss 'forthwith', ministers so implicated. Should the Chief Minister fail to satisfactorily refute the material shown by the Governor, the Chief Minister would incur a constitutional duty to immediately dismiss the offending 'ministers'. Should the Chief Minister fail to so dismiss offending members of his cabinet, a situation would have been created whereby the Government of the State cannot be carried on in 'accordance with the Constitution'. Obviously, no State in India can be allowed to function as if the Chief Minister would hold no regard for the rule of law - for a Chief Minister to knowingly continue the tenure of ministers who are shown to be involved in massive illegality, even in the face of an express directive from the Governor, would warrant the imposition of the President's rule.
6. What is the extent of material that would be required for the Governor to so act?
As already stated, the Governor cannot reach a subjective satisfaction in the matter of imposition of President's rule. Further, the incriminating material against the offending ministers should be of such nature that it is objective and verifiable. Mere political allegations are of no use. Should the material fail the test of 'strict rules of evidence' employed by a court of law, it should at least merit admissibility should the court relax some rules of evidence in a manner it does in deserving cases. As such, unless there is objective and verifiable material to impeach the credibility of a minister, it would be futile to even consider the imposition of 'President's rule' in a State.
7. Can the Court intervene in the event of an improper imposition of 'President's rule' in a State?
Very much. However, rarely does a Court grant relief in time in such matters. Often, the decisions of Court take so much time in these kinds of matters that by the time the decision is delivered, a new election would have been held and everybody would have forgotten the entire episode. First of all, should the 'President's rule' be wrongly imposed upon a State Government, the affected persons may only move the High Court. The Supreme Court does not have original jurisdiction in such matters. Because this class of litigation is very infrequent at the High Courts, any petition is generally heard by a 'Single Judge' who generally hears residual matters. Thereafter, any decision of such 'single judge' is appealable to a 'Division Bench' (that is, a bench consisting of two judges). Further, the decision of the Division Bench may further be appealed to the Supreme Court. As such, because too much time is consumed in the process of deciding such matters, the option of securing an intervention by the Court is time consuming and is generally of no practical assistance to those injured by improper imposition of 'President's rule'..
--
Regards,
K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390
Wednesday, June 16, 2010
Are our local languages good for our Courts?
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
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
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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