Panel on Mullaperiyar to submit report to court by the third week of February

Tamil Nadu wants it to maintain that dam will continue to serve its purpose

The Surpeme Court-appointed Empowered Committee indicated on Tuesday that it would submit a report on the Mullaperiyar dam to the court in February third week. At a meeting here, it discussed various technical reports on the dam's safety and strengthening measures.

The former Chief Justice of India, A.S. Anand, heads the committee. The other members are: Justice K.T. Thomas, retired Supreme Court Judge representing Kerala; Justice A.R. Lakshmanan, retired Supreme Court Judge representing Tamil Nadu; the former Secretary to the Ministry of Water Resources, C.D. Thatte; and D.K. Mehta, retired Chief Engineer, Central Water Commission.

The committee considered the reports of the studies and investigations conducted by various agencies it had constituted to go into the dam's safety. It also discussed the report of the two technical members who inspected the dam after Kerala raised apprehensions about its safety following mild tremors in the area. The committee discussed the applications filed by Kerala and Tamil Nadu and took their submissions on record.

It also discussed the modalities for finalising its report, as its term ends in February. It decided to meet in the middle of February for finalising the report.

Meanwhile, Tamil Nadu, responding to Kerala's application for a new dam, wanted the committee to maintain that in view of the overwhelming evidence on record on the dam's safety, the existing dam, which was retrofitted and well-maintained, would continue to serve its intended purpose, and that there would be no need for a new one.

Tamil Nadu rejected Kerala's assertion that notwithstanding the unanimous technical opinion, “a public authority [the empowered panel] is endowed with responsibility to take a final call on the replacement of a dam after considering the human factors, viz., the extent and nature of damage to life and property if the dam fails and [the] ecological considerations.” Tamil Nadu said Kerala had taken the extreme stand in desperation.

As for Kerala's stand that a new dam would guarantee the interests of Tamil Nadu, the application said: “In such an event, raising the issues of sharing of the benefits arising from the new dam would tantamount to raising disputes with regard to utilisation of water, the equitable needs of … Tamil Nadu and the equitable sharing of benefits between the two States, which are all outside the scope of the present suit and the inquiry before the empowered committee.”

Tamil Nadu said: “The present dispute is not a “water dispute” as sought to be twisted by … Kerala, but one relating to the constitutional validity of the Kerala Amendment Act, 2006, fixing the water level [at 136 feet] on the alleged pretext of the safety of the … dam. The contentions raised by … Kerala are only an attempt to get over the existing regime and to work out a new regime, which would take away the existing and established rights of … Tamil Nadu to all the waters below the contour line of +155 feet of the existing dam.”

It said Kerala's argument for the principle of just and equitable share and sharing of the benefits of the new dam would show that the “proposal is not bona fide and is only an attempt to get over the existing established rights of … Tamil Nadu to the waters of the Mullaperiyar, which is wholly impermissible. The assertion of … Kerala on sharing the benefits … is totally uncalled-for.”

The committee will continue its deliberations on Wednesday.

Supreme Court pulls up Army in Pathribal encounter case

“You don't allow the criminal justice system to go ahead”

The Supreme Court on Monday pulled up the Army for stalling the prosecution in the 2000 Pathribal encounter case in Jammu and Kashmir, initiated by the CBI against five officers, by not taking action under the Army Act and not allowing the criminal courts from proceeding with their prosecution.

Responding to the court's query on January 20 on the stand of the Army, Additional Solicitor-General P.P. Malhotra told a Bench of Justices B.S. Chauhan and Swatanter Kumar that the Army was not interested in taking over the case and court-martialling the officers under the Army Act.

The Bench is hearing petitions relating to the Centre's claim of immunity and applicability of the controversial Armed Forces (Special Powers) Act (AFSPA) in the North East and Jammu and Kashmir. The CBI, on the other hand, registered cases against Army men, treating some of the killings as encounter deaths, and filed charge sheets in the courts concerned. Shocked to hear this response from the Army, Justice Swatanter Kumar told the ASG: “You [the Army] don't want to take over the case and initiate court martial proceedings against them. You don't allow the criminal justice system to go ahead.”

Justice Chauhan observed: “The victims cannot be remedy less. No person can be harassed. No jawan should exceed limits. You cannot interpret and misinterpret the law and expect citizens to wait.”

“We cannot take over the case,” Mr. Malhotra said. “The Armed Forces are bound to protect their men.”

The Army contended that in a disturbed area, where the AFSPA was in force, no inquiry could be initiated against armed forces personnel called in to assist the civilian police, without the government's sanction let alone a charge sheet being filed.

“They are protected under Section 6 of the AFSPA,” Mr. Malhotra said. This had vitiated the entire CBI inquiry into the episode. The Army personnel shot dead seven alleged militants in the incident. The Army had then claimed that they were responsible for killing several Sikhs in an earlier encounter in Chhattisinghpora during the former U.S. President Bill Clinton's visit to India. But the J&K government later sought sanction for their prosecution after some evidence came to light that it was a fake encounter.

Not satisfied with the ASG's response, the Bench sought Army records to show whether these cases had been put up before the Commanding Officer (CO) of the area for his decision. The CO was the authority to decide whether to court martial the men or allow civilian courts to try them.

The Bench also suo motu impleaded the Union Home and Defence Secretaries and asked them to explain their position on whether sanction was a must even for filing an FIR. The Bench said: “These officers will now have to protect themselves. But the Union of India has a dual responsibility. It has to ensure that the innocent are acquitted and the guilty punished.”

The Bench wondered why the Army was reluctant to try these cases when it did not have to take any sanction from the government to act against them. “Article 21 of the Constitution [right to life] is for both the accused and the victims,” The Bench said. It wanted to know from the Army whether in any prior case sanction from the government had been sought for investigating any case.

The Bench directed that the matter be listed for further hearing on February 3.

Supreme Court to hear Amit Shah’s plea to return to Gujarat

  The Supreme Court on Wednesday agreed to hear the plea of former Gujarat Home Minister Amit Shah, who was forced to leave the State during pendency of his trial in Sohrabuddin fake encounter killing case, for permission to return.

A bench headed by Justice Aftab Alam said that it would hear his plea along with the CBI’s petition seeking cancellation of Mr. Shah’s bail in the Sohrabuddin case.

Mr. Shah, who was directed by the apex court to leave the State during the pendency of the trial in Sohrabuddin fake encounter case, had yesterday approached the apex court saying living outside his home state for the last 16 months has caused “irreparable hardship” to him and his family members.

The apex court had on October 30, 2010, directed Mr. Shah to leave the State and ordered him to stay out till further order.

Pleading with the apex court to modify its order, Mr. Shah said, “He will suffer irreparable injury and hardship if an appropriate order to the effect of modification of order of October 30, 2010, is not made.”

“The applicant has remained outside his own State for approximately 16 months resulting into a situation where one of the largest assembly constituencies in the country, which has reposed faith in the applicant since four consecutive terms, is deprived of its representatives,” he said.

Mr. Shah, a close aide of Gujarat Chief Minister Narendra Modi, was arrested by the CBI on July 25, 2010.

Why sleep over repatriation of foreign prisoners, asks court

All prisoners in jail should be sent back within a month

The Supreme Court on Tuesday expressed serious concern over the inordinate delay in the release and repatriation of foreigners languishing in Indian jails even after completing their sentences.

A Bench of Justices R.M. Lodha and H.L. Gokhale, hearing petitions, directed the Centre to deport all foreigners in prison within a month to their countries, mostly Pakistan, Bangladesh, Afghanistan and Iran. It directed the Union Home Ministry to submit a compliance report by February 28.

Ad hoc steps

The Bench pointed out that the government had been taking only ad hoc steps, that too at the instance of the court for deporting those who had completed their sentences and whose nationalities had been established through diplomatic channels.

Violation of Article 21

Justice Lodha said: “This amounted to a gross violation of Article 21 of the Constitution relating to personal freedom. We are constrained to observe that the government has failed to appreciate the urgency and allowed the matter relating to repatriation of a large number of prisoners to linger, ignoring their right to liberty.”

Referring to the Home Ministry's affidavit filed in November last, the Bench said, “It showed that the deportation of some of the foreign nationals was withheld because of the delay in providing special consular access.” Having a dig at bureaucratic delay, Justice Lodha said, “We don't want bureaucrats to sleep over the files.”

The court said that under Clause 4 of the May 21, 2008 Indo-Pak agreement, the two governments should provide nationals of either country consular access within three months of their detention or arrest. But in several cases, consular access was being provided only upon completion of sentence by the convicts. This resulted in delays in the verification of their nationalities and subsequent repatriation.

Assets case: Jayalalithaa answers all 1,339 questions in Bangalore court

  Tamil Nadu Chief Minister J Jayalalithaa's deposition in an alleged corruption case against her is over now. The AIADMK chief has answered all 1,339 questions that a trial court in Bangalore had framed for her.

Today was the Chief Minister's fourth appearance in the court. She answered 190 questions today; yesterday, she had replied to 600 queries. Today, the questioning lasted for nearly four hours, after which the Chief Minister headed back to Chennai.

The next hearing in the case is scheduled for November 29. But Ms Jayalalithaa need not be present in court for it.

The disproportionate case against Ms Jayalalithaa goes back to 1991-1996, when she as Chief Minister is alleged to have amassed wealth disproportionate to her known sources of income. She is accused No 1 in the Rs. 66-crore case.

In 2003, the case was transferred to a Bangalore court for a free and fair trial after a petition in the Supreme Court by DMK leader K Anbazhagan.

The Chief Minister had earlier repeatedly appealed in the Supreme Court seeking exemption from personal appearance during hearing; she said that she did not want to inconvenience the people of Bangalore and so wanted permission to answer questions in writing. On November 4, the top court turned down her appeal, but said she should be given a date of her choice.

When Ms Jayalalithaa arrived in Bangalore yesterday to resume her deposition, it was a deja vu moment for the city. A 25-car convoy led her to the court from the old airport, a fleet of policemen were pressed into service from dawn to dusk on the road that leads to this special court and a tight security blanket was thrown around the route.

Her first date with this court was on October 20. She flew back to Chennai and returned to Bangalore the next day as the proceedings spilled over into the second day.

Then too, several hundreds of policemen were brought in for duty. Also, CCTVs were put up on this sanitized route. 

Like on all her previous appearances, elaborate security arrangements were in place today too. The Chief Minister had a security detail of cops drawn from Tamil Nadu and Karnataka Police in addition to the National Security Guards (NSG).