Legal Aid Commission

Indian judicial activism

The Supreme Court of India starting from the mid 1970s has re-defined the role of the Judiciary in a developing democratic nation and has stepped up to protect the rights of persons such as prisoners who have fallen through the cracks of the legal system in India.

From accepting postal letters as valid petitions to the Supreme Court for Public Interest Cases to giving broad interpretations to Article 21 of the Constitution of India which guarantees the right to life and personal liberty to an individual, to giving directions to all levels of the government and ensuring these directives are carried out, judges, such as, J Krishna Iyer and J Bhagawati have resorted to being proactive judicial pioneers rather than passive judges in order to ensure that people of the country are not exploited due to their ignorance and poverty.

In 1979, a series of news articles appeared in the Indian Express exposing the plight of some 29,000 prisoners facing trial in Bihar. Some of them were never produced before the courts.

Some others had spent more time in jails as under-trials than the maximum penalty that could be imposed upon them if they were convicted of the offences they were charged with. An Advocate in India filed Writ Applications in the Supreme Court of India for these Prisoners. The Supreme Court in its judgment stated:

“The information contained in these newspaper cuttings is most distressing and it is sufficient to stir the conscience and disturb the equanimity of any socially motivated lawyer or judge.

“Some of the under-trial prisoners whose names are given in the newspaper cuttings have been in jail for as many as 5, 7, or 9 years and a few of them for even more than 10 years without their trial being begun. What faith can these lost souls have in a judicial system which denies them a bare trial for so many years, and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them…. a procedure which keeps such large number, of people behind bars without trial so long cannot possibly be regarded as reasonable..”

The Court relied on the case of Menaka vs. Union of India where the Courts gave Article 21 a wider interpretation and stated that Article 21 imposed a restriction on the State when it prescribed a procedure for depriving a person of his life or personal liberty and that the procedure cannot be arbitrary, unfair or unreasonable.

The Court citing Article 21 of the Indian constitution which guarantees the right to life and personal liberty stated “even under our constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21”.

“It was with these observations that the Supreme Court directed the Bihar government and the Patna High Court to furnish to the Supreme Court details of criminal cases pending in Bihar. The Supreme Court thereafter directed the release of such under-trials who were in detention for an unduly long period.

In the Upendra Baxi case the court entertained letter sent by two Professors of the University of Delhi seeking enforcement of the constitutional right of the inmates in a Protective Home, at Agra who were living in inhuman and degrading conditions.

This precedent was followed in many other cases including the Sunil Bantra case where a prisoner in the Tihar Jail wrote to the Supreme Court regarding inhumane and degrading treatment of inmates

In recent times the Supreme Court have come under heavy criticism for making decisions which are far beyond the powers given to them by the constitution.

A journalist in the Hindu News paper wrote “The rule of law or rather the constitution is in danger of being supplanted by the rule of judges.”

However, in countries, such as, India or Sri Lanka where corruption, exploitation of public funds and the abuse of powers given to authorities are very high in the public sector, and the people are either ignorant or too poor to reach out to the Courts through the process set out in the law and the Legislature is reacting at snail pace or not reacting at all to this void, it is up to the Judiciary to fill the gap by reaching out to the people in all possible ways.

As Justice Bhagawati in the case of Khatri vs State Of Bihar, in which the Bhagalpur Central Jail administration was alleged to have gouged out the eyes of 31 under-trial prisoners stated “Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.

-Swasthika Arulingam, AAL - Director Legal Aid Centre for Victims of Crimes

[Questions and Answers]

Authentication of documents

Question: I want to get the authenticates of my Birth, Marriage and Educational certificates to be forwarded to foreign country. Please help me.

- Chamikara,
Polonnaruwa

Answer: If you want to authenticates of Documents you have to handed over those documents to the Consular Division of the Ministry of Foreign Affairs, Republic Building, Colombo 01, Sri Lanka.

Documents are accepted for attestation from 9.00 a.m. to 1 p.m. and the attested documents are returned to the owners from 10.30 a.m. time to time calling the token numbers through the Public Addressing System. The original certificate should be forwarded for attestation. Photostat copies are not attested.

The Consular Division are attested Only the documents that are written in Sinhala, Tamil, English and Arabic.

Only the translations done by sworn translators are attested and the sworn translator should clearly mention on his/her letterhead or the seal/stamp, the languages in which he is authorized to do the translations. When a Sinhala or Tamil or English document is translated into Arabic, the particulars of the original document should be mentioned in English in the document that has been translated into Arabic.

When the authenticity of a document has to be confirmed before attestation and the specimen signature required for the attestation of a document is not available, the document is forwarded to the relevant authority for verification for which a period of about 3 weeks is necessary.

Letters addressed to the Ambassadors and diplomatic officers of foreign countries, various institutions in foreign countries etc. are not attested. The documents should be in the form “TO WHOM IT MAY CONCERN”. Also the letters/documents regarding the obtaining of visas for foreign countries are not attested.

Consular Division of the Ministry of Foreign Affairs are not attested by Deeds/titles, bank statements, appointment letters, defamatory documents,

Tranfer of the property

Question: My father died two months ago without writing a last will. He has four children. We want to to devide the properties. The value of the property is over Rs. 20 million. What should we do? Please advice us.

- Children,
Colombo

Answer: Acording to the Civil Procedure Code (amendment ) Act, No .11 of 2010 you have to go to the courts to distribute the properties of your father . You have to file a case in a District court where the land is situated.

Section 545 of the Civil procedure code (amendment ) Act ,No .11 of 2010 state as follows.

“No person shall effect any transfer of any property movable or immovable, in Sri Lanka, belonging to or included in , the estate or effects of any person dying testate or intestate in or out of Sri Lanka within five years prior to the effecting of the transfer, unless grant of probate has been issued in a case of a person dying testate ,or letters of administration or certificates of heirship have been issued in the case of a person dying intestate and leaving an estate amounting to , or exceeding four million rupees in value.”

Can Labour Tribunal order gratuity?

Question: I am employed in a Mercantile Firm who has a workforce of more than 45 employees. I resigned from my employment after serving the Company for eight years. Although my resignation was accepted, I was not paid my gratuity. Can I file a case against my Employer? Kindly also let me know through your column the powers of the Labour Tribunal with regard to the payment of gratuity.

- P.G.Pathirana,
Boralesgamuwa

Answer: In terms of the Payment of Gratuity Act No.12 of 1983, you are entitled for your gratuity payment. If gratuity has not been paid to you, you can make an application to the Labour Tribunal requesting for such payment. The Labour Tribunal has the power to make order for the payment of gratuity in the case of an employee who makes an application to the Tribunal on the termination of his services and who had been employed in any industry employing less than 15 workmen on any date during the period of 12 months preceding the termination of his services. The Tribunal also has the power to make order on the question of forfeiture of gratuity made under section 13 of the Payment of Gratuity Act No.12 of 1983.

Liability of shareholders

Question: As a shareholder in a Company, will I be liable for any act or default committed by the Company. Please clarify.

- Sent by email

Answer: A shareholder will not be liable for any act, default or an obligation of the Company, by reason only of being a shareholder. The liability of a shareholder to the Company is limited to any liability, expressly provided for in the articles of the Company or under the Act. However, these provisions do not affect the liability of a shareholder to a Company under a contract, including a contract for the issue of shares, or for any tort or breach of a fiduciary duty or other actionable wrong, committed by the shareholder.

Maternity leave for birth of twins

Question: I am working in a Private Company situated in Colombo 3. I am 27 years and about to have my first confinement. My doctor after doing a scan informed me that I will give birth to twins. Please let me know -

Will I be able to obtain double the maternity leave since I will be having two children?

How many days of maternity leave will I be entitled to for my second confinement?

- S.Aponso,
Pita-kotte

Answer: In respect of the birth of the first child, a female employee is entitled to 84 working days as maternity leave provided the confinement results in the birth of a “live” child.

In respect of the birth of the second child, she will be entitled to 84 working days on full pay.

For the third or subsequent confinement she will qualify for only 42 working days on full pay.

If an employee has lost a child and at the time of the third confinement she has only one child, she could qualify for 84 working days of maternity leave for the third confinement.

If a female employee who on her first confinement gives birth to twins is entitled to 84 working days as maternity leave and not double the leave.

Though it is not expressly stated in the Law for the second confinement she will be entitled to 42 days as maternity leave on the basis she already has two living children, what is material is the number of children at the time of the confinement and not the number of previous confinement.

EPF contributions

Question: My brother is working in a Mercantile Firm on a temporary basis after his return from abroad. He is holding an Executive post in the said Firm. I wish to know whether the nature of appointment/status of an employee affect contributions to the EPF? I await your kind reply.

- G.S.Salgadu,
Colombo 9

Answer: While the nature of employment or status is immaterial, employers have to make contributions to the provident fund in respect of employees who are permanent, non-permanent, temporary, apprentice, casual, working few hours with intermittent breaks and working less than a day. Contributions to the Provident Fund should also be made for those who are employed on piece rate basis, contract basis, commission basis or unit (output) basis although the payments made by cash or by any other form. The payable contribution to the Fund has to be calculated upto the extent of the value of the payment to the member.

Tax Appeals Commission Act No 4 of 2012

Question: Please let me know briefly about the Tax Appeals Commission Act No 4 of 2012

- Law student,
Colombo

Answer: Tax Appeals Commission (Amendment) Act, No. 4 of 2012.

1.This Act was passed to amend the Tax Appeals Commission Act, No. 23 of 2011. The purpose of bringing this Act is to make the Tax Appeal procedures more user friendly to the public. The Act contains 13 sections. Legal Effect of the Act/ Importance of the Act:

2.Section 8 of the Act as amended provides for the procedure for preferring an appeal. Furthermore, it states that a person aggrieved by the determination of the Commissioner- General can prefer an appeal therefrom to the Commission within 30 days from the date of such determination.

A new Section, Section 13A, has been inserted immediately after Section 13 of the principal enactment and that Section states that, appeals pending before the Boards of Review under certain Acts shall be deemed to have been referred to the Commission.

By Section 11 and section 12 of the Act, the schedule to the principal enactment is amended to effectively guide the public in their tax appeal matters.

The Section 13 of the Act states the retrospective effect.

It means the amendments made to the principal enactment by the provisions of Section 10 of the Act, shall be deemed for all purposes have come into effect on March 31, 2011.

Revoking nomination made earlier

Question: When I got my appointment I nominated my parents as nominees to receive my EPF benefits. I am now married. Will it be possible to revoke the nomination made earlier and nominate my wife? I await your kind advice.

- P.Justin Gomez,
Kosgoda

Answer: A member could revoke a nomination made earlier and Form “I” should be used for this purpose. If a subsequent nomination is required Form “J” should be perfected and forwarded to the District Labour Office situated in close proximity to the establishment.

Upon the marriage of a member, nomination made before marriage becomes cancelled and null and void. On the death of a nominee, the right of the nominee stands revoked.

If the nominee is a minor a trustee could be appointed to function on his behalf. Refund of benefits could be paid to him and when the nominated minor becomes an adult on completion of 18 years, the appointment of the trustee will automatically get cancelled.

On the death of a member without a valued nomination, the refund of benefits will be made to the heirs of the deceased member.