Saturday 21 June, 2008

Examine circumstantial evidence carefully: court

Facts so established must conform to hypothesis of guilt

New Delhi: Conviction of an accused can be based solely on circumstantial evidence provided all facts so established are consistent with the hypothesis of his guilt, the Supreme Court held on Friday.

A vacation Bench, consisting of Justices Arijit Pasayat and G.S. Singhvi, said great care must be taken in evaluating circumstantial evidence and if the evidence relied on was reasonably capable of two inferences, the one in favour of the accused must be accepted.

“Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.”

Quoting an earlier judgment, the Bench said: “In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.”

Writing the judgment, Justice Pasayat said: “There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

The Bench said the onus should be on the prosecution to prove that the chain was complete and the infirmity of lacuna in prosecution could not be cured by false defence or plea; the circumstances should be of a conclusive nature and tendency and should exclude every possible hypothesis except the one to be proved.

In the instant case, Roop Singh was sentenced to life, purely on circumstantial evidence, in a murder case by a trial court.

The Punjab and Haryana High Court confirmed the verdict.

Allowing the appeal against this judgment, the apex court pointed out that “the evidence does not present a complete chain of circumstances which ruled out the possibility of any other person being the assailant and/or unerringly points to the appellant as being guilty of the charged offences.”

Hence the Bench ordered his acquittal and directed that he be released forthwith.

Hindu Marriages Act “has broken more homes than uniting:” judge

The increasing number of divorce cases is cause for concern

“Nowadays anticipatory divorce petitions are being filed even at the time of marriage,” says judge

Ego should get dissolved for the sake of the child


New Delhi: The Supreme Court on Tuesday expressed its anguish and concern at the increasing number of divorce cases.

Justice Arijit Pasayat, heading a vacation Bench, orally observed that the Hindu Marriages Act “has broken more homes than uniting.”

He said: “The growing number of divorce cases in the country is having a disastrous effect on children of families which get broken.” In a lighter vein, he said: “Nowadays even at the time of marriages, anticipatory divorce petitions are being filed.”

Hearing a petition filed by Gaurav Nagpal, seeking custody of his minor son, Justice Pasayat said: “Ego should get dissolved for the sake of the child,” even as the mother, Sumedha Nagpal, who argued in person, opposed giving custody of the boy to her separated husband.

Justice Pasayat told the couple that the court was concerned about the welfare of the child rather than their mutual recrimination. “Ultimately the child suffers. If it is a girl, the trauma is more, particularly at the time of the marriage of such children.”

Provision misused

Justice Pasayat said: “The provisions under the Hindu Marriages Act for granting divorce on grounds of either of the spouses suffering from diseases like leprosy and mental illness are being misused by some couples. Those days, our forefathers never had such problems and marital disputes were sorted out within the four walls of the house.”

Gaurav Nagpal filed his appeal against an order passed by the Delhi High Court confirming a trial court order, which granted custody of the 11-year-old boy to the mother.

Justices Pasayat and G.S. Singhvi suggested to the couple that they sort out their differences for the sake of the child. However, when Mrs. Nagpal turned down the offer, the judges heard the couple in the chambers. The Bench will pass an appropriate order on Wednesday if there is no settlement in the in-camera hearing.

Friday 20 June, 2008

Believe it or not PETROL AND DIESEL SHOULD COST US ONLY Rs. 30.39

India is not entirely dependent on foreign supplies of crude oil

The performance of the oil companies does not suggest that they are on the verge of a collapse


One of the most important arguments of the government in justification of the unprecedented rate of increase in the prices of petroleum products was that the move was urgently needed to save the public sector oil companies. In his televised address to the nation on June 4, Prime Minister Manmohan Singh justified the hike by citing their “under-recoveries,” which he claimed amounted to about Rs. 2,45,000 crores.

Dr. Manmohan Singh was, of course, careful in his choice of words. He termed them “under-recoveries” rather than outright losses. One has heard of profits and losses, but pray, what are “under-recoveries”? The answer to that question would reveal all that is wrong with the petroleum-pricing regime in India, which is not only opaque but also illogical.

Simple arithmetic would suffice to prove that the numbers on the “losses” do not quite add up. Significantly, on the same day the hike was effected, the Prime Minister appointed a “high-powered” committee under the chairmanship of B.K. Chaturvedi, member of the Planning Commission, to examine the financial position of the oil marketing companies (OMCs).

Among the terms of reference of the committee is the task of “revisiting” the notion of “under-recoveries.” It was also asked to “examine the reported deficit and real deficit faced by the OMCs.” In effect, the terms indicate the government’s grudging and belated acceptance of the possibility of the actual deficit of the oil companies being lower than what it had cited in justification of its move to increase prices of petroleum products.

Hypothetical prices

Soon after the announcement of the hike, officials in the Ministry of Petroleum and Natural Gas made an attempt to make the increase appear reasonable and moderate. They pointed out that although the oil companies actually required a hike amounting to Rs. 21.43 a litre in the case of petrol, the government was only increasing the price by Rs. 5 a litre. A price of Rs. 71 a litre would be reasonable, they said, at a time when crude oil prices were about $130 a barrel.

India is heavily dependent on the import of crude oil, but it is not entirely dependent on foreign supplies of crude. About one-fourth of the nation’s requirements comes from fields within the country. Indeed, the Oil and Natural Gas Corporation (ONGC) supplies its crude to Indian refiners at a discounted price of $55 a barrel. Logically, therefore, the weighted price of the Indian crude oil basket should be about $111.25 at a time when the international price is $130 a barrel.

A barrel of crude is equal to 158.987 litres, which means that the weighted price of $111.25 a barrel implies that a litre of crude costs about 69 cents, or Rs. 29.39 a litre (assuming that a dollar is worth Rs. 42). Incidentally, a large part of the confusion in the media about the “losses” of the oil companies is caused by the fact that the quantity is expressed in barrels while ordinary consumers actually feel the pinch in rupees for every litre.

The cost of crude oil refining, which is essentially the process of converting crude to products such as petrol and diesel, varies a lot depending on a host of factors. But it depends critically on the grade of crude used and a refinery’s vintage. One assessment, by Tapan Sen, CPI(M) MP and a member of the Standing Committee of Parliament on petroleum and natural gas, mentioned in a letter he wrote to the Prime Minister recently, is that “the cost of crude comprises 93-94 per cent of the cost of the finished product.” He pointed out that if refined products were to cost Rs. 71 a litre, crude ought to cost $256 a barrel — which would be patently absurd.

A senior official in a public sector oil company told The Hindu that the refining margins would vary but they would range at the most from about 20 paise a litre for Reliance Industries’ refinery at Jamnagar in Gujarat to about Re. 1 for an old refinery run by his company. Thus, even if one uses the latter as the cost of conversion, the price of a litre of diesel and petrol would not be more than Rs. 30.39. Incidentally, both petrol and diesel cost roughly the same at the refinery gate; it is only the rates of duties that results in the differential in prices that consumers pay for the two. Of course, this does not include the cost of marketing, the profit margin for the refiner and several other costs associated with petroleum refining. However, it is enough to prove the point that the “under-recoveries” are totally divorced from real-world costs.

It turns out — and this fact has been in the public domain for a long time now — that the “under-recoveries” result from a hypothetical price which is not only unrealistic but also opaque and arbitrary. Its fundamental anomaly arises from the fact that it negates Indian self-reliance in petroleum refining. In fact, the country is actually a net exporter of petroleum products.

Illogical pricing regime

The determination of a notional price for petroleum products is a result of the dismantling of the Administered Pricing Mechanism (APM) in 2004. It rests on the import parity pricing principle, which has much to do with the mounting “under-recoveries” of the oil companies. The method of pricing rests on a fetish — that of linking domestic prices to international prices, no matter that the country does not actually import petroleum products. Since these products are not actually imported, the method uses the next best option, namely to assume these are imported.

It takes the average fortnightly international price of petroleum products, adds ocean freight rates, customs duties and other charges such as insurance and ocean loss to arrive at the import parity price, which is supposed to reflect the cost that any other petroleum product purchaser anywhere in the world would pay for the fuel. This fantasised price is the base price on which the oil companies compute their “under-recoveries,” irrespective of what the cost of the fuel actually is at their refinery gates.

India has a refining capacity of almost 150 million tonnes, which is substantially more than the demand for petroleum products. The logic of benchmarking domestic fuel prices to international prices makes a mockery of self-reliance. This price unification caused by the linkage threatens to open the national market to international oil cartels and other speculative influences which can have adverse consequences for national energy security. It also undermines the competitive edge that the Indian oil industry has achieved over decades.

Does this mean the problems of the public sector oil companies are entirely fictitious? At present the OMCs do face a problem of accessing crude oil in the international market, especially at competitive rates. However, this appears to be more of a short-term cash-flow problem rather than outright losses. The Reserve Bank of India (RBI) has purchased bonds issued by the government to the oil companies, thereby providing some relief to them.

It is also true that the public sector oil companies sell LPG at lower-than-market rates but are short-changed by the government through the offer of oil bonds, which are in effect a form of deferred payment.

The performance of the oil companies does not suggest that they are on the verge of a collapse. IOCL’s gross refining margins — the difference between the market price for crude oil and the market price for fuel — was $9.1 a barrel in the April-December 2007 quarter, increasing from $ 3.6 in the same quarter of the preceding year.

The other two major refiners, Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited, made a similar showing during this period. All this does not indicate an industry in distress.

The government, it appears, is more concerned about the profits of the oil companies than setting a fair and transparent price for the scarce resource.


This is an article from "The Hindu"

Just how expert are the terror expert witnesses?

There are concerns about the quality and impartiality of some academic ‘terrorologists.’

When two car bombs were detonated within hours in August 1998 at the U.S. embassies in Kenya and Tanzania, few people had heard of either Osama bin Laden or Al-Qaeda. Nor was anyone that much better informed by 9/11. And that’s just the academics. Terrorism had never really featured as a separate discipline in U.S. universities — principally because it was regarded as a distinctly un-American phenomenon — and even in Europe its popularity, such as it was, was in decline. Indeed, there were some academics who had been openly wondering whether the signing of the Northern Ireland Good Friday agreement signalled the end of the age of terrorism.

The attacks on the World Trade Centre and the Pentagon changed everything, as everyone from the White House down wanted to know all about Al-Qaeda. And, with governments working on the default, problem-solving principle of “when in doubt, throw money at it”, terrorism wasn’t just back on the higher education agenda, it was lucrative with it. Universities on both sides of the Atlantic either revived near-forgotten courses in political violence or set up new ones, and hundreds of lecturers stepped up to lay claim to specialist knowledge.

Since 9/11, research into terrorism has grown prolifically. According to the social science citation index, there were barely more than 100 articles relating to terrorism published in 2001; that figure had almost trebled by the following year and has carried on rising ever since, with more than 2,300 citations recorded last year.

So far, so pretty much what one might expect. After all, universities aren’t immune to outside imperatives. Yet there is a new, more disturbing trend emerging within this field of the terrorist specialist as expert witness in terror trials.

Issue of independence

As with many trends, this one started in the U.S. with academics — such as Dr. Reuven Paz, director of the Project for the Research of Islamist Movements and the Interdisciplinary Centre in Herzliya, Israel; Dr Matthew Levitt, member of the International Centre for Political Violence and Terrorism Research; and Rita Katz, co-founder of the Search for International Terrorist Entities Institute — giving expert testimony. And where the U.S. leads, the U.K. invariably follows. Last year, Evan Kohlman, a veteran of several U.S. terror prosecutions, gave expert evidence that helped to convict Mohammed Atif Siddique, a British-born Muslim, for internet-related terrorism offences.

But just how expert is expert? Doubts have been cast both in the U.S. and the U.K. about Kohlman’s credentials. “He appears to have risen almost without trace,” says David Miller, professor of sociology at Strathclyde University, who is compiling a Spinwatch database of “terrorologists”. “With no expertise beyond an undergraduate law degree and an internship at a dubious think-tank, he has become a consultant to the U.S. department of defence, the department of justice, the FBI, the UK’s Crown Prosecution Service, and Scotland Yard’s SO-15 Counter Terrorism Command.” Yet this is only half the problem. “The real issue is one of independence: many of the expert witnesses to have appeared for the prosecution have been associated with rightwing or pro-Zionist organisations. Under these circumstances, how can the expertise not be in some way contaminated?”

Calling expert witnesses in legal cases is predicated on the assumption that the evidence given will be objective and factually correct — governed by the principle of professional, scientific neutrality. And many terrorism academics have declined to appear as expert witnesses precisely because they feel their subject does not lend itself to such high levels of impartial scrutiny.

“By its very nature, terrorism is shrouded in secrecy,” says Anthony Glees, professor of intelligence and security services at Brunel University. “The only way academics can get inside information is if they have extremely close links either to the intelligence services or to terror groups; and even then there have to be doubts about its accuracy as intelligence reports are often sketchy and contradictory. Any work an academic does must inevitably be then regarded as research-led opinion, which I’m not at all sure meets the standards of evidence and cross-examination required in a court of law. If doctors — just think of those wrongly convicted of child abuse — can’t always be relied on as expert witnesses, it’s hard to see how academics specialising in terrorism can.”

Prof. Alex Schmid, chair in international relations at St. Andrews University and director of its world-famous Centre for the Study of Terrorism and Political Violence, is more open to the possibility. “I object to the phrase ‘terrorism academic’,” he says. “It is one of those slant words introduced by some critical theorists who want to discredit ‘orthodox scholars’ whom they want to condemn to the dustbin of history for their ossified views of terrorism. It is a caricature.

“Just as there are embedded journalists, there are embedded academics, but they are a tiny minority. Some academics have served in government or international organisations and have a network of contacts that enables them to check open-source information with knowledge available only to the intelligence community. Does that make them dependent? Clearly there are experts, such as those recently identified by the New York Times when describing the Pentagon’s old boys’ network, who are ‘dependent’. Yet most of them were not academics but former military. If there is no independence in academia, where else do you look for it?”

In many ways, however, Schmid is an embodiment of the very things that give Miller and Glees cause for concern. For though he is an internationally recognised scholar, he has also served as officer-in-charge of the U.N. terrorism prevention branch in Vienna, and he is a member of the European commission’s expert group on violent radicalisation.

Miller and Glees are an unlikely pairing. Miller is openly leftwing — one of those trendy critical theorists that Schmid takes a pop at — and there’s not a cat in hell’s chance of anyone ever asking him to stand as an expert witness. At least for the prosecution. But Glees is of the same old-school orthodoxy as Schmid, so for him and Miller to find themselves on the same side of the argument rather suggests they have a point. “I’m often amazed at some of the people who turn up in the media calling themselves ‘terrorist experts’,” Glees says. “There’s one person who is often heard [on TV] claiming expertise based on his sources within MI5. Yet I happen to know, from my own sources within the organisation, that no one at MI5 is talking to him. So where he’s actually getting his information from is anyone’s guess.”

Murky waters

One point here is that if news channels can’t tell whether an expert witness is telling the truth, then what chance is there for a jury? The other point is that even the most impartial of experts can get it wrong. “Shortly after the Madrid bombings in 2004, Crispin Black [the independent intelligence consultant who was once seconded to the U.K.’s Cabinet Office] declared that it was far from inevitable that London would be hit by Al-Qaeda,” Glees continues. “Many others, including me, saw it somewhat differently, and he went rather quiet in July 2005.”

This doesn’t make Black inept; it merely makes him fallible. Combine this fallibility, to which any academic working in this subject area is prone, with the often politicised and controversial methods of research funding, and the connections that some academics have with private security groups who are active in Iraq, and you might think that Miller and Glees had made their point.

Not necessarily, Schmid maintains. “While it is important to think about the relationship between academics and the counter-terrorism agencies, it is also important to think about the relationship between journalistic news values and terrorism. As long as ‘good news is bad news’ and ‘if it bleeds, it leads’ are top journalistic news values, those who produce violence for effect will always be able to receive ample coverage from the media. Terrorism is 1 per cent bang and 99 per cent publicity, as someone once put it. Terrorists depend on publicity, and on journalists and editors who provide that for them. That is a bigger problem than some academic experts testifying in court. I have never done so, but would not exclude it if I regard it as my duty as citizen.” — © Guardian Newspapers Limited, 2008

Spammers pay out a fortune

MySpace has won a record $230 million legal judgment over junk messages sent to its members by a team of notorious American internet spammers.

“Spam king” Sanford Wallace and business partner Walter Rines have been ordered to pay unprecedented damages to the social networking website — amounting to the strongest punishment ever handed out to a spammer in the U.S. A Los Ang eles court heard how the duo sent more than 700,000 messages to MySpace users, fooling them into visiting gambling sites or adult-rated pages. Disguised as comments from friends, the notes contained advertisements that made the pair a small fee every time somebody clicked on them. Though evidence suggested that the pair made about $500,000 from their activities, district judge Audrey Collins used the terms of America’s CAN-SPAM Act, which can levy up to $300 for each infringement of the law, in setting damages.Wallace has long been one of the world’s most high-profile junk marketers, earning the nickname “Spamford” for his recurring trouble with the law. In the 1990s he progressed from circulating fax messages to sending internet spam and rose to prominence as the head of Philadelphia-based spam giant Cyber Promotions.

The two men, who failed to turn up at court for the judgment, were also banned from similar activities in the future.

Hemanshu Nigam, chief security officer for MySpace, said: “MySpace has zero tolerance for those who attempt to act illegally on our site. We remain committed to punishing those who violate the law and try to harm our members.” — © Guardian Newspapers Limited, 2008