Attack On Lawyers: Delhi HC Issues Notice To Delhi Govt And Police

Coming straight to the nub of the matter, the Delhi High Court on January 29 issued a notice to the Delhi Government and also to the Delhi Police on a plea of Delhi High Court Bar Association (DHCBA) seeking an SIT probe in the dastardly attack on lawyers of DHCBA in separate incidents in January. The Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar directed that the report should be filed under the signature of a senior police officer, which shall be shown to the Delhi Police Commissioner. It directed that the report should be filed in two days as the incidents warrants swift and necessary action.

As it turned out, a plea has been moved before the Delhi High Court seeking a court-monitored SIT probe into the attacks on the lawyers, besides guidelines for advocates security.

Truth be told, in a dastardly attack on three cars belonging to two senior lawyers were torched while cars and an office building of their colleague were attempted to be set on fire allegedly by miscreants in three separate incidents between January 4 and January 22. What is most disconcerting to note is that the three senior lawyers includes Kirti Uppal who is the President of Delhi High Court Bar Association and Vikas Pahwa who has been a senior counsel of the Government and has also been conducting cases both in the Delhi High Court and the Supreme Court. This has shaken lawyers not just in Delhi but all across the country!

Let me say this most categorically: If there is one High Court which is reputed for seldom going to strike, it is none other than Delhi High Court. It is only when something very serious happens that Delhi High Court Bar Association decides to go on complete strike. One such rare occasion was on 25 January, 2018. That is why even I was awestruck on reading in the news that the Delhi High Court Bar Association has called for strike on 25 January.

Sure enough, there were compelling reasons for the lawyers of Delhi High Court to go on a complete strike on 25 January. The Delhi High Court Bar Association resolved to abstain from work on Thursday, i.e. 25 January, as a mark of solidarity against a recent dastardly attack on two senior and eminent advocates of the Delhi High Court – Kirti Uppal and Vikas Pahwa. As per a resolution passed by the Executive Committee of the Delhi High Court Bar Association, another attack had been staged against advocate Ravi Sharma, when two of his vehicles parked in the courtyard of his house were burned.

Be it noted, these three advocates who have been attacked have together been supporting firmly the cause of a lady advocate. What wrong have they done? They were just discharging their professional duty and who can it understand better than them who have spent decades in this noble profession?

Truly speaking, the matter reportedly pertains to lodging of a stalking case against a woman lawyer, who was then allegedly dragged out of her residence by the city police to arrest her despite court orders against coercive action. This is reprehensible! What is even more despicable is that the lawyers are now being themselves personally attacked!

What can be more disgraceful than this! This should not have happened at the first instance! How will courts function normally if advocates themselves are subjected to personal attacks and even their vehicles are not spared?

As per the resolution of the Executive Committee of the Delhi High Court Bar Association, even though the FIRs have been registered by the lawyers, the attitude of the police “looks lackadaisical and deliberate protracting”. The police must wake up its ideas! This is a very serious charge!

Needless to say, Delhi police must go all out to make the necessary amends in this direction and ensure that the culprits who attacked the lawyers are swiftly brought to book and strictly punished in accordance with the law! Delhi High Court Bar Association is reputed all over the world for always working in the most professional manner! What is said by its Executive Committee has to be taken most seriously by the Delhi police and steps must be taken by it promptly to restore the faith of the lawyers of Delhi High Court in the police!

To put things in perspective, the resolution of the Executive Committee of the Delhi High Court Bar Association then asserts that, “The Executive Committee is unanimous of the view that the present situation is an extra ordinary in nature in as much as these heinous acts have been executed with the intention to overawe and strike terror in our community by using inflammable substances, in a manner so as to cause injuries or loss of life and damage/destruction of property in order to terrorize the Advocates to refrain from performing their professional duties. The Executive Committee feels that this act of terror threatens the statutory duty of lawyers to conduct themselves fearlessly and with dignity in defending a client.”

To be sure, The Executive Committee also feels that inspite of registration of these FIRs by the lawyers and personal meeting of the Members of the Committee with the Police at the highest level apprising them about the nexus and also providing them with the CCTV footages of these criminal acts, adequate and proper attention is not being given to the matter and their approach looks lackadaisical and deliberately protracting. The Committee further states that Proxy Counsels have been appointed for every Court and a list will be displayed on the notice boards as well as outside every Court room.”

Who can deny that attacks on lawyers in past few years have increased manifold? But what is most concerning to note is that now even the lawyers and that too senior and eminent lawyers like Vikas Pahwa and others are not safe even while practicing in the High Court and Supreme Court! The lawyers of Meerut are most concerned for his safety apart from Delhi because his father – KK Pahwa too is an eminent criminal lawyer in Meerut Bar and I consider myself fortunate to having interacted with him some years ago! Moreover, Vikas Pahwa is a legal luminary whose articles keep coming even in national newspapers like ‘The Times of India’ which I have the privilege of reading myself even though I have not personally met Vikas Pahwa ever till now! But he and his father are always appreciated and held in highest esteem by the lawyers here!

Anyway, coming back to the main subject, the Executive Committee of the Delhi High Court Bar Association of which senior advocate Vikas Pahwa is also a member on January 24 passed a resolution condemning the attacks on 9th and 22nd January on the properties and cars of senior advocates Pahwa and Kirti Uppal who is also the President of Delhi High Court Bar Association by using inflammable substances. Not just this, a similar incident the lawyers claimed had taken place on 4th January when the two cars – Maruti Swift and Honda Amaze which were parked in the east Delhi house of advocate Ravi Sharma were torched by unidentified persons. Police itself admitted that attempts were made to set ablaze Vikas Pahwa’s Greater Kailash office building and cars on 9th January! .

Vikas Pahwa who is also a member of the Executive Committee revealed that, “There is a complete ban. No advocate appeared in courts and no evidence was recorded in any case. We are holding a peaceful protest and have removed our bands. The Bar is also preparing a writ petition seeking an SIT probe into the incident.” Who can question this demand for SIT probe? There must be SIT probe and truth must come out as to who all are behind this dastardly attack on three eminent and senior lawyers of Delhi High Court. All the shops in the court complex are also shut following the Bar’s call and even Judges left their chambers on seeing the lawyers strike!

Advocate Vikas Pahwa’s Greater Kailash office building and parked cars were attempted to be set on fire on January 9. He said such acts of mischief were done to intimidate him. An FIR was registered on January 11 on Pahwa’s complaint. On January 22, Kirti Uppal’s Hyundai Tucson car that was sparked outside her house in South Delhi’s Nizamuddin West was set on fire by unidentified miscreants, according to the FIR registered.

Vikas Pahwa also disclosed that the stilt area of the house was also damaged in the fire. Before the arson attempt at his office building, Pahwa said that two cars – Maruti Swift and Honda Amaze which belonged to advocate Ravi Sharma were set on fire by unidentified miscreants on January 4. The cars were parked at Sharma’s Dayanand Vihar home in East Delhi. Vikas Pahwa also revealed while quoting the FIR filed at the Anand Vihar police station that, “Footage from the CCTV of Sharma’s neighbour showed a man driving a car stopping outside Sharma’s house and throwing something on his cars in flames.”

It goes without saying that the lawyers all across India stand firmly and fully with these 3 senior and eminent advocates of Delhi High Court in this hour. If lawyers who are the officers of the court are themselves attacked in this dastardly manner and the guilty are not quickly brought to book and the Delhi High Court Bar Association finds that police is displaying a total lackadaisical approach then who will defend fearlessly the litigants in courts? This is a very serious question and the police, Centre and Delhi government need to honestly introspect on this!

Needless to say, it is the bounden duty of both Centre and Delhi government to ensure that full protection is given especially to senior lawyers so that no harm is caused to them or to their property in any manner! They must not back away from it! Who is safe if lawyers themselves are not safe and that to in our national capital? No one!

It needs no rocket scientist to conclude that the strike by lawyers of Delhi High Court on January 25 stands fully and firmly justified! It was imperative to highlight the attention of the government to make serious efforts in this direction and to also ensure that police gets rid of its complacency that is too visible in this entire case! One fervently hopes that the police will at least now take suitable action to bring the culprits to book as soon as possible and the lawyers of Delhi High Court would not be compelled to once again go on fresh strike pressing for their demands!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Khap Attacks On Couples Illegal: SC

As my pen starts running, I must note right now with great satisfaction that the Supreme Court on January 16 warned strongly in no uncertain terms that it would step in if the government didn’t bring a law to ban illegal activities of khap panchayats, saying no one had the right to question an adult’s choice of a marriage partner. Why government is always quick to label judiciary as crossing its Laxman Rekha and trying to tread in the territory which belongs exclusively to the executive but does nothing on its part even when the writing on the wall is clear? Why government displays complete inaction for decades but when judiciary tries to step in then spares no time in terming it as “judicial activism”?

While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Apex Court said explicitly that, “Attacks on those opting for inter-caste marriage were absolutely illegal and khap panchayats cannot threaten adult women and men for marrying each other.” When an adult men and women are ready to both marry each other with consent then what business do khap panchayats have to poke their nose in between? How can attack by anyone at the behest of the khap panchayats be justified under any circumstances?

For my esteemed readers exclusive indulgence, let me also inform them that a Bench of Supreme Court led by Chief Justice of India (CJI) Dipak Misra minced no words in sending out very firmly a loud and clear message that, “If they are not bringing a law, we will develop the concept and see to that these types of illegal activities are not carried out.” This was observed by the Bench led by the CJI while sparing no punches in pulling up the government for not responding to an eight-year-old petition seeking a ban on khap panchayats. What the Bench of Apex Court led by the CJI has said is absolutely right!

To put things in perspective, khaps are caste or community groups that wield considerable influence especially in rural areas of north India. They are notorious for holding kangaroo courts that dissolve marriages, dictate dress code, mostly to women, ban cellphones and even force rape victims into marrying rapists. They openly threaten with dire consequences all those who dare to disobey their whimsical orders which includes social boycott, expulsion from a village etc. It is known very well that these khap panchayats very strongly oppose inter caste and inter faith marriages and those who still dare to do it are sometimes murdered also and in many are terrorized by beating them brutally!

How can all this be allowed to go on indefinitely? Why have the khap panchayats been allowed to have their say on not just all important but also all trivial issues? Why did the government make no law to check this menace swiftly and strictly? Is the government not guilty of complete inaction on this score thus compelling the judiciary to step in?

It is noteworthy that khaps by virtue of enjoying tremendous political clout among all major political parties brazenly order attack on any couple who dare to marry inter-caste or inter-religion thus making a complete mockery of the legal and constitutional rights conferred by our legal system to all adults of marrying whomever they want and whenever they want with their own free choice! When the Bench of the Apex Court took up the matter, a khap leader present in the court said that it was incorrect to term the village body illegal.

Going forward, the khap leader also urged that khaps were changing and should be heard before passing an order. The Supreme Court Bench also made it loud and clear that, “What we are concerned is about the rights of an adult girl or boy. They can get involved in a marriage. No panchayat, individual, society or parents can question it.” All these so called khap panchayats, individuals, society and parents must fully understand and appreciate what the Bench of Apex Court has said so categorically.

Needless to say, the Apex Court has explicitly made it illegal for extra-constitutional organizations like the khap panchayats, society, a group of individuals and parents from forcing their marital choices on couples without their consent. When the khap leader said that panchayats were playing a crucial role to usher in change, the CJI Dipak Misra said that, “The changes don’t take in a regressive manner.” Absolutely right!

To be sure, senior counsel Raju Ramachandran, who is assisting the court in the matter has already submitted a report. Raju took the right stand that khap panchayats were influential and the court should take steps to control them. In a list of suggestions, Raju has said that state governments should identify districts, sub-divisions and/or villages that have reported instances of so-called honour killing or khap panchayats assemblies.

It was also observed that a superintendent of police must at regular intervals issue directives to the officer-in-charge of police stations to be extra cautious if any instance of inter-caste or inter-religious marriage comes to notice. Raju also said that a local police station should immediately inform the district police chief on getting to know about a khap gathering. The Supreme Court explicitly told Additional Solicitor General Pinky Anand who represented the Centre that if the government would not come out with its suggestions then the court would pass an order on those given by Ramachandran.

Truth be told, Pinky Anand then sought three weeks to respond to the suggestions that was granted by the court which will now hear the case on February 5. A non-government organisation, Shakti Vahini had filed a public interest litigation (PIL) in 2010 demanding a ban on khap panchayats. The PIL had highlighted specifically that khaps were against inter-caste and intra-caste, as a result several people had been killed in the name of honour.

All said and done, even if now Centre didn’t ban illegal activities of khap panchayats then it has no moral right to accuse the judiciary for stepping in as the Apex Court has warned also of doing so! Supreme Court must be applauded for sending the right message to Centre in no uncertain terms and for also making it absolutely clear that khap attacks or attacks by anyone else on couples is illegal and cannot be justified under any circumstances! It also has made clear that adult couple have every right to marry as per their choice and who are these khap panchayats to intervene in between when it is none of their business to do so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Strike By Delhi High Court Bar Association On 25 January

Be it noted, these three advocates who have been attacked have together been supporting firmly the cause of a lady advocate. The matter reportedly pertains to lodging of a stalking case against a woman lawyer, who was then allegedly dragged out of her residence by the city police to arrest her despite court orders against coercive action. What is even more despicable is that the lawyers are now being themselves personally attacked!

Anyway, coming back to the main subject, the Executive Committee of the Delhi High Court Bar Association on January 24 passed a resolution condemning the attacks on 9th and 22ndJanuary on the properties and cars of senior advocates Vikas Pahwa and Kirti Uppal who is also the President of Delhi High Court Bar Association by using inflammable substances. Not just this, a similar incident the lawyers claimed had taken place on 4th January when the two cars – Maruti Swift and Honda Amaze which were parked in the east Delhi house of advocate Ravi Sharma were torched by unidentified persons. Police itself admitted that attempts were made to set ablaze Vikas Pahwa’s Greater Kailash office building and cars on 9th January! .

It goes without saying that the lawyers all across India stand firmly and fully with these 3 senior and eminent advocates of Delhi High Court in this hour. It is the bounden duty of both Centre and Delhi government to ensure that full protection is given especially to senior lawyers so that no harm is caused to them or to their property in any manner! They must not back away from it! Who is safe if lawyers themselves are not safe and that to in our national capital? No one! Needless to say, the strike by lawyers of Delhi High Court on January 25 stands fully and firmly justified and it was imperative to highlight the attention of the government to make serious efforts in this direction and to also ensure that police gets rid of its complacency that is too visible in this entire case!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

How Can Karni Sena Be Above The Law Of The Land?

How can Karni Sena made up of few totally orthodox self-styled Rajputs no matter what the provocations are indulge in ordering its members to forcibly stop showing of film Padmaavat? How can they decide that which film is to be shown and which film is not to be shown? How can they decide that what should be shown in a film and what should not be shown in a film?

How can members of Karni Sena or any other member of any other group issue a reward of Rs 5 crore or 10 crore on the nose of Deepika Padukone as has been done actually? How can they still continue to roam free and be at large without being arrested by police or anyone else? How can they attack buses of children going to schools threatening the very safety of innocent children and scare them to the extent that we can’t even dream of and vandalize the buses in which the children are travelling as has happened actually at many places and still be at large?

How can they vandalize cinema halls, burn vehicles whichever comes their way and yet police sees everything like a mute spectator? How can Karni Sena overrule Central Board of Film Certification (CBFC) which has cleared the film after making the necessary cuts and order its members to make sure that it is not shown in any cinema hall? How can Karni Sena even overrule Supreme Court which has directed States to ensure that the film Padmaavat is shown without being restricted? How can Karni Sena be above the law of the land and do whatever it feels like without any fear of anything? How can Karni Sena proclaim that above Supreme Court there is the court of the people and with the help of their people who are nothing but goons will ensure that the order of Supreme Court which is the highest court of the land is blatantly disregarded?

How can Karni Sena members beat up anyone who wants to see the movie Padmaavati and yet not be arrested by the police? How can the state administration turn a blind eye to the open violence cycle perpetrated by Karni Sena in roads, streets, cinema halls, shops and anywhere they feel like and just condemn it by indulging in nothing but only and only lip service meant for public consumption? How can Karni Sena block roads, highways, burn vehicles, smash vehicles and indulge in violence, arson and loot without being stopped by the police in any manner?

How can Karni Sena order any person to not see the movie which they feel has insulted their culture? How can Karni Sena openly threaten naked violence and destruction and yet not be arrested promptly? How can Karni Sena mock at our laws and openly dictate that what they decide will operate as law and nothing else can replace it?

How can Karni Sena suddenly emerge out of the blue and start vandalism and violence wherever they want to stop the film Padmaavati from being screened? How can Chief Ministers of the State ignore their Constitutional duty and allow Karni Sena to do whatever they want? How can Karni Sena declare that they will burn all those cinema halls wherever the film Padmaavati is being screened?

How can Karni Sena members openly wave weapons on streets and burn vehicles and vandalise any shop, mall etc wherever they want on the pretext of opposing the film Padmaavat? How can Centre and all those States where this open orgy of unrestricted violence is panning out tolerate all this quietly? How can Karni Sena brutally burn vehicles, injure people, smash toll plazas, burn cinema halls, vandalise shops and do whatever they like as has actually been happening not just in small cities but even in big cities like Ahmedabad and others?

How can Karni Sena members openly throw stones and injure school children as we saw in Gurugram, etc and yet not be arrested? How can Karni Sena members openly threaten cinema hall owners all over the country to not show the film Padmaavat and if they dare to do then their cinema halls will be vandalized and burnt down as has happened also in different parts of India? How can Karni Sena members claim that they will do this openly and State government and Centre will not be able to do anything to stop them?

How can Centre and State tame surrender itself in front of Karni Sena and abdicate their legal obligation to provide safety to the cinema hall owners as well as the people from being harassed by the members of Karni Sena and allow them to do what they want to do with just little or no action on the ground being taken? How can Karni Sena start governing the country without being elected or without fighting even a single election? How can Karni Sena start behaving like the dictators and order that no one can disobey what they order and law also has to bend in front of them?

How can Karni Sena behave like super PM and super CM and dictate what movie the people will see and what movie they will not see? How can Karni Sena order cash rewards for killing or maiming the actor and actresses who shooted in the film Padmaavati without being even arrested or rebuked by the police or anyone else? How can Karni Sena be allowed to hold the prestige and reputation of our entire country to ransom by openly making a mockery of the elected government both in the Centre and in the States and threatening to do all such acts which are not just illegal but a crime?

At a time when PM Narendra Modi is trying to enhance the country’s image at Davos while attending the World Economic Forum, what message is Karni Sena sending? Who would like to invest in India if untrammelled violence by Karni Sena is allowed to go on like this which should have been contained at the first place? How can Karni Sena be above the law of the land?

No organization can so brazenly disregard all rules and regulations and impose their own Talibani farmaan because if Karni Sena is today allowed to do so then tomorrow many more organizations representing different religions and castes can also start imposing their own brazen diktats and start indulging in huge violence, mayhem and destruction if their whimsical orders are not complied with fully! The members of such fringe groups like Karni Sena should have been arrested well in time as a precautionary measure and released only after it was ensured that the film has operated peacefully! But, most unfortunately, this was not done and the consequences are there for all of us to see for ourselves!

Needless to say, Centre as well as State Governments wherever violence breaks out on a large scale cannot escape from their liability of failing to act well in time to prevent the huge violence that breaks out within no time when members of such radical groups like Karni Sena start assembling on the roads in huge numbers and with dangerous weapons in their hands! It is the duty of the Centre and the State Governments to provide security to the people who want to see films and ensure that vandalizers and anti-social elements are not allowed to have the last laugh by indulging in unrestricted violence and looting – all in the name of protecting the culture of Rajputs! Even I myself don’t favour distortion of history by making such controversial films like Padmaavat which has generated so much of controversy and will never see this film but violence and vandalism in the name of protecting culture is just not acceptable!

This is just not done! It cannot be justified under any circumstances! When we can not just tolerate but accord red carpet welcome to Pakistani invader Gen Musharraf who masterminded Kargil war in which we lost more than 600 soldiers and that too just after 2 to 3 months of the Kargil war and who presented Rs 1 lakh cash prize to dreaded Al Qaeda terror leader Iliyas Kashmiri for presenting him a severed head of an Indian soldier Bhausaheb Maruti Talekar as was reported also in all English dailies and hailed terrorists as freedom fighters and had even threatened to nuke India during Kargil war and even after attack on Parliament was contemplating to do so then why can’t we be similarly tolerant of the film Padmaavat and its producer Sanjay Leela Bhansali who is not a Pakistani invader like Gen Musharraf who himself conceded that he had entered about 15-16 km inside Indian territory during Kargil war just the night before war began to boost his soldiers morale to brutally kill Indian soldiers like Captain Saurav Kalia and 5 soldiers of 4 Jat Regiment were killed after mercilessly torturing them for 22 days maiming them, blinding them and not sparing even their private parts and then finally shooting them on their heads and those Pakistani soldiers who did all this were rewarded by Gen Musharraf? Still why we never see such anger against Gen Pervez? Gen Pervez was even honoured by many big media houses yet we didn’t see any anger anywhere that time! Honour for Gen Pervez Musharraf and hatred for Padmaavat cannot be justified under any circumstances! I strongly condemn it in strongest words!

Such despicable and barbaric acts which shames us so much internationally cannot be justified under any circumstances and those organizations whose members indulge in such mindless violence must be not just brought to book but also must be made to pay for all the damage done so that no one again dares to indulge in violence and vandalism! But this never happens because of lack of political will! Not just this, the main reason why those indulging in violence are not promptly arrested is that parties don’t want to antagonize any particular class as they constitute a major votebank and doing so will cost them dearly in the upcoming elections! How can self-serving politicians allow this?

This alone explains why supporters of powerful groups like Baba Ram Rahim are able to do what they like without being stopped by police or any other security forces as they are instructed by the political class to not take any action unless they are specifically ordered! We saw how when Baba Ram Rahim was arrested and sent to prison after being sentenced in a rape case, violence erupted on a large scale as his followers were not arrested in time nor stopped from marching to the place where he was being tried! Many innocent people lost their lives as a consequence!

This is what is drastically dragging India backwards and a bold way has to be evolved to deal with it before it engulfs our whole country and endanger the well being and prosperity of our great nation! Centre must now step up the gas and so must all the States and take strictest possible action against those goons who don’t spare even children and school buses in the name of protesting against Padmaavat! If this is not done, even God cannot help our nation from being merged in violence and vandalism which will ultimately destroy our nation!

Can any true Indian ever allow this to ever happen? Certainly not! So we must cultivate compassion and tolerance even for views and persons with which we don’t agree just like we saw when Pakistani invader Gen Pervez Musharraf was accorded a red carpet welcome in India by all major parties and media houses! Violent protests can never be allowed nor should they be allowed by the Centre under any pretext and they cannot be justified under any circumstances! Those who indulge in it must be swiftly arrested and made to pay for all the losses that they have caused! Why protesters never destroy their own property if they are so much angry? Ponder!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

President Upholds AAP MLAs Disqualification By EC

Let me begin at the very beginning by first and foremost pointing out cogently that in a big blow to Delhi’s ruling Aam Aadmi Party (AAP), President Ram Nath Kovind approved the Election Commission’s recommendation to disqualify 20 party MLAs for violating the law against holding the office of profit as Parliamentary Secretaries. This was disclosed in a government notification. This is certainly by all parameters a very big jolt for the AAP which it has been candid enough to admit also and has revealed that it would take legal recourse.

While craving for the exclusive indulgence of my esteemed readers, let me inform them that this landmark step by the President comes two days after the Election Commission submitted its report deeming the AAP lawmakers as “unfit” to continue as MLAs. So the President was left with no option but to disqualify these 20 AAP lawmakers. There can be no denying or disputing this!

For my esteemed readers exclusive indulgence, let me also inform them that under the Government of National Capital Territory of Delhi Act 1991, an MLA cannot hold any post in the Government that entitles them to perks or powers unless a law has been passed to exempt the posts. The disqualification of the 20 lawmakers shall not dent in anyway the Kejriwal’s Government’s majority in the Delhi Assembly. But still it is a big setback for the AAP which cannot be denied!

What the law says

It is imperative to know what the law says in this regard. Article 102(1)(a) of the Constitution says that a person shall be disqualified from being a member of either House of Parliament if he holds any office of profit, among other grounds. Article 103 says if a question arises whether a member has incurred such disqualification, it will be referred to the President’s decision. The President shall obtain the Election Commission’s opinion and act accordingly. Article 191(1) contain a similar provision for MLAs and MLCs in the States. Legislators in Delhi are covered by corresponding provisions in the Government of National Capital Territory Act, 1991.

Office of profit

Simply put, the office of profit rule is meant to insulate the legislative from the executive so that people who make laws are not influenced by their positions. The term has not been defined anywhere but the Constitution bans MPs, MLAs from holding positions in the government they are ministers. An office of profit does not necessarily mean financial benefits. Even an administrative position without any financial entitlements can fall foul of this law. The NCT Act very specifically says that those with office of profit can be disqualified by the President on advice of the Election Commission which is binding. Sonia Gandhi had quit as MP in 2006 and sought re-election since she was NAC chairperson. Also, Samajwadi Party MP Jaya Bachchan lost her seat in 2004 for UP film body position. So what has happened with AAP MLAs is nothing new.

Disqualified MLAs

Before proceeding ahead, it would be instructive to mention here the names of these 20 AAP MLAs who are facing the axe of the Election Commission of India which recommended to the President to disqualify them! Also, the names of their constituencies and their nearest rivals in 2015 State Assembly polls must be also mentioned. They are as follows: –

Constituency AAP Department

Chandni Chowk Alka Lamba Tourism

Dwarka Adarsh Shastri I&T

Burari Sanjeev Jha Transport

Wazirpur Rajesh Gupta Health

Najafgarh Kailash Gehlot Law

Rajinder Nagar Vijender Garg PWD

Jangpura Praveen Kumar Education

Narela Sharad Kumar Revenue

Kasturba Nagar Madan Lal Khufiya Vigilance

Moti Nagar Shiv Charan Goyal Finance

Rohtas Nagar Sarita Singh Employment

Mehrauli Naresh Yadav Labour

Janakpuri Rajesh Rishi Health

Gandhi Nagar Anil Kumar Bajpai Health

Sadar Bazar Som Dutt Industries

Kalkaji Avtar Singh Gurudwara Elections

Mundka Sukhbir Singh Languages & Welfare of SC/ST

Kondli Manoj Kumar Food and Civil Supplies

Laxmi Nagar Nitin Tyagi Women and Child and Social Welfare

Tilak Nagar Jarnail Singh Development

To recapitulate, the controversy over the “office of profit” started soon after the AAP’s victory in the 2015 Assembly elections in Delhi. On March 13, 2015, the Kejriwal Government passed an order appointing 21 MLAs as Parliamentary Secretaries to make them happy. These were those 21 MLAs who could not be appointed as Ministers. So they had to be accommodated somewhere and so they were chipped in as Parliamentary Secretaries!

Biggest turning point

Truth be told, this was challenged by a lawyer Prashant Patel who petitioned President Pranab Mukherjee on June 19, 2015, that these MLAs were holding ‘office of profit’ and should be disqualified. This was the biggest turning point! It is solely and solely because of this young and dynamic lawyer Prashant Patel Umrao just 31 years old that these 20 MLAs have had to leave their seats! Prashant who practices in Delhi High Court and Supreme Court said that, “Today, my hard work of three years has paid off. I believe that the law will finally catch up with the offending MLAs. I am least bothered about whether the AAP government is derailed or not. All I know is law should not be bent.” The petition was forwarded to the Election Commission for its recommendations. Initially, the petition was directed against 21 MLAs but one of the MLAs – Jarnail Singh of Rajouri Garden had resigned last year to contest against Parkash Singh Badal in the Punjab Assembly elections. So there were then 20 MLAs left.

Needless to say, the notification issued by Law Ministry on January 20 quoted the President stating that the office of Parliamentary Secretaries was not exempted from the ‘office of profit’ rule. The President is bound by the recommendation of the Election Commission. Under the rules, petitions to the President seeking disqualification of MLAs are referred to the Election Commission.

To say the least, the notification issued by Law Ministry quoting the President stated explicitly that, “…Having considered the matter in the light of the opinion expressed by the Election Commission, I, Ram Nath Kovind, President of India, in exercise of the powers…do here hold that the aforesaid 20 members of the Delhi Legislative Assembly stand disqualified from being members of the said Assembly”. It is most hurting to see that AAP has termed President Ram Nath Kovind’s order disqualifying 20 of its MLAs for holding offices of profit “unconstitutional” and “dangerous for democracy”. What President does must be always respected and it cannot be overlooked that the present President Ram Nath Kovind is himself a lawyer who has practiced not just in Delhi High Court but also in the top court that is Supreme Court and so whatever he does it will be only after taking into consideration all the factors and his long experience as a senior lawyer will help him immensely always in coming to the right conclusion!

Be it noted, the notification also made it clear that, “In the present case, it is not in dispute that the respondents were appointed as Parliamentary Secretaries to the Ministers of Delhi Government by the order of March 13, 2015. Then, the Delhi High Court in Rashtriya Mukti Morcha set aside this order on September 08, 2016. Thus, it is evident that from the date of their appointment on March 13, 2015 till the date of setting aside their appointment order on September 08, 2016, the respondents were de facto holders of the office of Parliamentary Secretaries, albeit, by way of illegal appointment order and, hence, the present proceedings before the Commission on the question of their disqualification is maintainable and shall continue.” It merits no reiteration that the President’s approval of the Election Commission’s recommendation paves the way for the by-elections in the 20 Assembly seats, giving the Opposition BJP and the Congress a golden opportunity to increase their tally. The BJP has four seats in the House and the Congress has none.

To put things in perspective, in its recommendations, the Election Commission said that, “…the respondents did hold de facto the office of Parliamentary Secretaries from March 13, 2015 to September 8, 2016 and the interpretation as sought to be put by them on the order dated September 8, 2016 of the Delhi High Court that they did not hold any office is not legally tenable. Hence, without prejudice to the merits of the case, the reference relating to the question of alleged disqualification of the respondents under Section 15(4) of the GNCT of Delhi Act, 1991 for holding the said office survives and is maintainable in respect of all the said respondents, except respondent no. 16 (Jarnail Singh, MLA of Rajouri Garden) who has resigned his office as MLA on January 17, 2017 and even a by-election has been held in April to fill that vacancy in the Delhi Legislative Assembly”.

It cannot be lost on us that in December 2015, the Election Commission issued notice to the petitioner to furnish relevant documents and subsequently, the hearing on the issue started after the MLAs were also served notices asking for their response. The legislators submitted that they had not drawn any pecuniary benefit from the post and therefore, they were not liable to be disqualified. It would be pertinent to note that the issue also came up before the Delhi High Court which on September 8, 2016 had set aside the appointment of MLAs as Parliamentary Secretaries ab initio as the State government had not taken the concurrence of the Delhi Lieutenant-Governor. The affected MLAs then argued before the Election Commission that Prashant Patel’s petition was rendered infructuous owing to the High Court decision. But in June 2017, the Election Commission held that the legislators did hold de facto the office of Parliamentary Secretaries.

Let me hasten to add here that in its opinion to the President, the Election Commission had said that, “Whether or not the individual Parliamentary Secretaries had actually derived the benefits or participated in executive functions of the Government is of no relevance” as the Supreme Court in the Jaya Bachchan case had laid down that if the post falls under office of profit, the disqualification is imminent. The Election Commission had also cited several judgments including the case of Tamil Nadu Chief Minister J Jayalalitha whose appointment as Chief Minister was invalidated by the Apex Court in 2001. The Commission had said that it is basing its opinion on judicial pronouncements of the past, the Government of National Capital Territory of Delhi Act and the Constitution. All the 20 AAP MLAs had approached the High Court on January 19 with the Judge adjourning the matter for hearing.

It may be recalled here that soon after sweeping the Delhi elections in 2015, the AAP government passed an amendment to the Delhi Members of Legislative Assembly (Removal of Disqualification), Act, 1997 to exempt the post of Parliamentary Secretary from the definition of office of profit with retrospective effect. It may also be recalled that on March 13, the Government had appointed the 21 MLAs as Parliamentary Secretaries, saying that they won’t take remuneration and hence it didn’t fall under the office of profit regulations. It also cannot be ignored that later, the AAP Government tried to push a Bill through Delhi Assembly, giving protection to Parliamentary Secretaries under Office of Profit law. But, the then President Pranab Mukherjee did not give his assent to the Bill and rejected the amendment in June 2015. The same month, an advocate Prashant Patel petitioned the President seeking their disqualification on office-of-profit charge. The petition was referred to the Election Commission.

Responding to allegations that the Election Commission finalized its opinion in the office of profit matter against 20 AAP MLAs without hearing their arguments on the merits of the case, the new Chief Election Commissioner OP Rawat said that the parties had two opportunities to request the Election Commission to hold hearings but they didn’t. When asked about the Election Commission’s last ruling of June 23, 2017, which states that the Commission will intimate the next date of hearing in “due course”, Rawat said that, “These (two) notices were issued only for that (purpose). If they felt the need or imperative for oral evidences, then they should have pointed it out and we would have fixed a date for hearing. But you (AAP) are not talking of that. You are talking of something that is already known to the Commission.” The two notices that Rawat referred to were issued to the party MLAs on September 28 and November 2, 2017, in which they were asked to file their written submissions on the information provided by the Delhi government with regard to the offices of Parliamentary Secretaries.

Relevant case laws

The Election Commission in its recommendations said that the Supreme Court in the case of Maulana Abdul Shakur vs Rikhab Chand (1958) had defined the concept of office of profit under the government. The court said the government’s power to appoint a person to an office, or to keep him in that office, or revoke his appointment at its discretion, and payment from government revenues were important factors in determining if one held an office of profit. Payment from a source other than the government revenue was not the decisive factor.

In Pradyut Bordoloi vs Swapan Roy (2001), the Supreme Court outlined the following questions for the test: whether the government makes the appointment; whether the government has the right to remove or dismiss the holder; whether the government pays the remuneration; what are the functions of the holder; does he perform them for the government; and does the government exercise any control over the performance of those functions? Three other rulings were cited to highlight the grounds on which a distinction between the holder of an office of profit and of a post/service under the government could be made.

In Guru Gobinda Basu vs Sankari Prasad Ghosal (1964), the Apex Court said that, “But all these factors need not coexist. Mere absence of one of the factors may not negate the overall test. The decisive test for determining whether a person holds any office of profit under the government, the Constitution Bench holds, is the test of appointment; stress on other tests will depend on the facts of each case.” The court said the final query was, whether, on account of holding of such office, would the government be in a position to influence him so as to interfere with his independence in functioning as an MLA and/or would his holding of the two offices involve a conflict of interest.

It has to be noted that while citing the judgments, the Election Commission said the AAP MLAs were appointed Parliamentary Secretaries by the Delhi government, which exercised control over them. The government had the power to remove them, their work was allocated by Ministers concerned as delegated authority and expenses of their offices were paid from government revenues. The Election Commission then concluded that, “There could be no dispute that the office of Parliamentary Secretary was an office under the government.”

Also, when the former President Pranab Mukherjee referred the complaint by lawyer Prashant Patel who way back in March 2015 had complained that these 21 AAP legislators were occupying offices of profit to the Election Commission, it had said in last June that the MLAs “did hold de-facto the office of parliamentary secretaries. A parliamentary secretary assists a minister, and the office comes with perks similar to those that ministers get. Therefore they had to be disqualified and that was done accordingly!

Conclusion

All said and done, now that the President has approved the disqualification of AAP MLAs, the 20 assembly constituencies will automatically fall vacant as soon as the President signs the recommendation letter. The elections will have to be held within six months. It is highly unlikely that the High Court or Supreme Court will now after such a long time step in and stay the disqualification as AAP MLAs want.

It is notable that the Delhi High Court in September 2015 while reacting to another private petition had struck down the posts of parliamentary secretary in September 2015. It will certainly not be an exaggeration from any angle to say most categorically that, “AAP has just no option but to again gear up for fresh elections in these constituencies”!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Why MFN Status For Pakistan Is Still Continuing?

How much more shamelessly our politicians will act? How long will our soldiers and people living in border areas along the long border with Pakistan keep getting killed, their houses get destroyed, their schools get burnt, their hospitals also bombed and worst of all even their religious places not spared and still this Most Favoured Nation (MFN) status for Pakistan keep continuing relentlessly which was unilaterally and shamelessly granted to them way back in 1996? How long will politicians ignore everything and keep ranting against Pakistan from every public platform but doing nothing on the ground to substantiate it except returning the cross fire?

How long will politicians keep insisting that you can change your friends but not your neighbours? How long will soldiers of Indian Army, BSF and other forces keep getting killed on the border regularly after being targeted by Pakistani soldiers, terrorists fully trained and armed to the teeth by Pakistani Army and yet our politicians will continue maintaining cordial relations with Pakistan? How long will our politicians keep going to Pakistan shamelessly without being even invited and keep kowtowing before them like a pet dog?

How long will our Ministers keep threatening of more surgical strikes knowing it fully well that Pakistan cares a damn and keep firing at our soldiers daily on border areas and keep killing them as also the civilians staying near border continuously? How long will politicians shamelessly ignore the repeated demands by leaders cutting across party lines like Shashi Tharoor of Congress, Subramanium Swamy of BJP, Udhav Thackeray of Shiv Sena, Rajeev Chandrashekhar who is independent MP etc and still do nothing on this score? How long will politicians shamelessly call Pakistan as “Aatankistaan” in UN but do nothing to translate it into reality by declaring Pakistan as “Aatankistaan” as Maulana Mehmood Madani who heads Jamiat-e-Ulema-e-Hind very rightly demanded and stop giving it all concessions and nuking all relations with Pakistan?

Why the hell is MFN status for a rogue country like Pakistan who has been waging relentlessly a proxy war against India still continuing till 2018? Should we all Indians be proud of it? Whom are our politicians fooling by openly attacking Pakistan by lip but doing nothing on ground to totally boycott Pakistan?

Why attack on our temples like Akshardham, Raghunath, etc fail to shake our politicians who still strongly favour MFN status for Pakistan and feel it must continue at any cost come what may? Are we slaves of Pakistan? Then why inspite of facing so many casualties by proxy war sponsored directly by Pakistan are our politicians determined that lives of soldiers and people cannot be above Pakistan and so MFN status for Pakistan must continue unrelenting and unabated?

Why even our national media is so conspicuously silent on it and hardly raises it forcefully? Is there some external power who is behind all this? How can we be so insensitive and nonchalant towards the suffering and brutal killings of people living close to border areas and soldiers?

Why is India keeping an army of Pakistani diplomats and not sending them off to Pakistan until and unless cross border terrorism stops completely? Why inspite of NIA disclosing that Pakistani diplomats were funding separatists and terrorists to carry out more terror attacks in India still no strict action is being taken on the ground by expelling them all from India? Why are Pakistani diplomats and ex-diplomats allowed to fish in troubled waters by allowing them access to politicians of India, former Army Chiefs of India etc as we witnessed during the recent Gujarat Assembly polls?

Why inspite of attack on our Parliament, Red Fort and other places of national importance by terrorists trained and sponsored directly by Pakistan are our politicians very firm that MFN status for Pakistan must continue uninterrupted which cannot be disturbed under any circumstances? Is there some grain of truth in what Vineet Narain alleged way back in 1995-1996 that politicians of India receive unaccounted money from foreign countries by Hawala route as was testified even in Jain diaries but which was not pursued to the end? Is this is what compels our politicians to look the other way and still keep ensuring that MFN status for Pakistan continues uninterrupted and unabated?

Why even repeated terror attacks sponsored directly by Pakistan and executed by terrorists trained and armed and paid by Pakistan on our financial capital Mumbai as well as administrative capital Delhi and many other cities all across India are our politicians very firm that MFN status for Pakistan must continue and it cannot be withdrawn under any circumstances? Why politicians are not ready to declare Pakistan a “rogue and a terror sponsor country” even though it keeps pleading in UN and also in talks with other countries to do the same? Is it just because of the old adage that, “When money speaks truth is silent?”

What else is the reason behind politicians not withdrawing MFN status from Pakistan and instead placing it in “rogue country status”? Why can’t politicians really speak out on this? Why don’t they speak out when they have nothing to hide from the people as they time and again make tall claims? Can any politician come out in the open and explain on this?

Why inspite of losing lakhs of soldiers and millions of people to proxy war directly sponsored by Pakistan are we not behaving like a tiny country called Kuwait who has not lost so many lives but still has decided to expel all Pakistanis from Kuwait as there are a direct threat according to them on their security and for them national interests are paramount and has severed all relations with Pakistan? Can anyone again explain this to me? Can any politician explain that why just 2 to 3 months of Kargil war in which we officially lost more than 600 soldiers did our politicians decide to invite Gen Pervez Musharraf who was the then Pakistani Army Chief and who masterminded Kargil war like a royal emperor to India?

What did we get in return? Our plane hijacked and dreaded Pakistani terror leaders like Maulana Masood Azhar, Omar Sheikh and others were released and they later plotted terror attack on Parliament and have till now killed thousands of people and soldiers and are still at large! Gen Musharraf mocked at India and hailed terror leaders as “heroes” and terrorism as “freedom struggle” still why our politician left no stone unturned to woo him disregarding completely the supreme sacrifices made by our Kargil war heroes like Captain Saurav Kalia who along with 5 soldiers of 4 Jat Regiment were tortured mercilessly for 22 days, eyes, ears and nose pierced with hot iron rods, whole body burnt with cigarette and even their private parts were not spared before finally shooting them on the head and then handing their dead body badly mutilated back to India, Captain Vikram Batra who sacrificed his life fighting enemies to win back Tiger Hills etc ?

As if this was not enough, Gen Musharraf even paid Rs 1 lakh cash prize to dreaded Al Qaeda leader Iliyas Kashmiri for presenting him a severed head of an Indian soldier Bhausaheb Maruti Talekar and vowed to keep it with him as trophy! But how are our politicians concerned for whom inviting Gen Musharraf like an emperor and having lunch and breakfast and dinner were more important than anything else within few months of Kargil war? Is this the real reason why Justice Markandey Katju calls our politicians as “rogue and scoundrels”?

Why can’t all Pakistanis be expelled from India? Why can’t our Ministers stop this stupidity of allowing Pakistanis medical help by citing humanity even as our people living close to border areas are regularly on daily basis facing bullets and becoming blind or suffering other physical disabilities yet we see this not affecting our politicians in any manner who are surrounded by many black cat commandoes and who are totally safe and stay in big houses peacefully? Why can’t they go close to border areas and stay there the ground reality for themselves?

Why MFN status was given to Pakistan at the first instance in 1996 when they had engineered the killings of thousands of Kashmiri Pandits and even those Muslims who had supported them in any manner? Why is it still continuing even 22 years later in 2018? Why is J&K not being fully and finally merged with India even after more than 70 years of independence?

What message are politicians sending by lashing out with their lips in public rallies but doing nothing concrete on ground to substantiate that they mean seriously what they say and that it is not said just for public consumption? MFN status for Pakistan! Most disgraceful and most hurting!

Why can’t politicians nuke all relations with Pakistan? Why can’t Pakistan be boycotted completely until and unless they mend their ways? Are we not encouraging them by maintaining still cordial relations with them as if nothing has happened and even inviting and honouring Pakistani invaders like Gen Musharraf? This alone explains why India has always been taken for granted in the international forum!

It will not be an exaggeration if I conclude my write-up by saying, “Politicians are far, far, far more dangerous than Pakistan and Justice Markandey Katju is right when he calls them as ‘rogues’ and ‘scoundrels’ for whom MFN status to Pakistan is more important and not our people and brave soldiers who are being killed mercilessly by proxy war sponsored directly by Pakistan since last many decades yet our politicians are just not affected at all which alone explains why MFN status for Pakistan is still continuing till now without being revoked even once since last more than two decades”! Can on earth there be anything more shameful than this? Which self-respecting nation will behave like this?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

UIDAI Under Fire For FIR Against Scribe

Let me begin at the very beginning by pointing out that the Unique Identification Authority of India (UIDAI), which has filed an FIR against a journalist who exposed a breach in its Aadhaar database denied that it was trying to gag the media or whistleblowers. After facing a widespread criticism for filing a criminal complaint naming a journalist – Rachna Khaira of ‘The Tribune’ among others, the UIDAI said in a press release statement that, “It was duty bound to place all facts before the police and criminal proceedings have been initiated for the act of unauthorized access as it takes criminal violations seriously.” It triggered a political firestorm with the government saying it was committed to press freedom and the Opposition accusing it of ‘fascism’.

To put things in perspective, the FIR was filed two days ago by a Deputy Director of UIDAI which is the parent body of the Aadhaar project against The Tribune’s Rachna Khaira for her report, which claimed that unknown agents had provided her access to Aadhaar’s database for just Rs 500. Should she be punished for exposing how anyone can exploit the loophole to gain access to Aadhaar’s database? Certainly not.

Rather she should be commended and awarded for her exemplary work and courage to expose the wrongdoing and loopholes prevalent in the Aadhaar! American whistleblower Edward Snowden said the Indian journalist whose report on alleged Aadhaar data breach led to lodging of an FIR merits an award and not a government probe for the work. He also said the Indian government should reform its policy to safeguard privacy of its citizens. Absolutely right!

Needless to say, Snowden tweeted on Twitter that, “The journalists exposing the #Aadhaar breach deserve an award, not an investigation. If the government were truly concerned for justice, they would be reforming the policies that destroyed the privacy of a billion Indians. Want to arrest those responsible? They are called @UIDAI.” He also remarked in his tweet that, “It is the natural tendency of government to desire perfect records of private lives.”

It must also be revealed here that according to the police, on January 4, 2018, a complaint was received from Deputy Director UIDAI BM Patnaik stating that an input had been received through The Tribune newspaper, dated January 3, 2018, mentioning that they had purchased a service being offered for Rs 500 by anonymous sellers over ‘Whatsapp’. The service provided unrestricted access to details for any of more than one billion Aadhaar numbers including name, address, postal code, photo, phone number and email. What wrong has been done by Rachna in exposing this?

Yet what did she get in return? The Press release by the Editors Guild of India noted as the Delhi Police Crime Branch confirmed filing of the FIR that the journalist was booked under the IPC Sections 419 (punishment for cheating under personation), 468 (forgery), 471 (using a forged document), Sections of the Information Technology Act and the Aadhaar Act. How fair is it to book a brave journalist under so many Sections? Most reprehensible!

It is heartening to note that even the Editors Guild of India stated most explicitly that, “Instead of a direct attack on the freedom of press UIDAI should have ordered a thorough internal investigation into the alleged breach and made its findings public”. Very rightly said! But most unfortunately what UIDAI has done is just the reverse which can rightly be termed as “Shoot the messenger”! How can this be ever justified by anyone? No way!

It is also heartening to note that it is not just the Editors Guild of India and opposition parties who have condemned the action but even the local press clubs have not lagged behind in condemning this dastardly action of lodging an FIR against the brave journalist – Rachna Khaira. Expressing serious concern over the FIR, the Editors Guild of India said that, “It is clearly meant to browbeat a journalist whose investigation on the matter was of great public interest. It is unfair, unjustified and a direct attack on the freedom of the press.” Very rightly said!

It is noteworthy that AICC spokesman Manish Tewari alleged that there have been systematic assaults on scribes and an atmosphere of fear and violence has been created against them. He asked the people to introspect whether they want a liberal, democratic and fascist country. Tewari alleged that media organizations have been systematically hounded and targeted and demanded that the FIR against “The Tribune” and the journalist be withdrawn if the government believes in the freedom of press.

He said that the newspaper which warns the government that the privacy and the private data of thousands of citizens are at risk is rewarded with an FIR. He very rightly said that, “If this is not fascism, if this is not trying to muzzle dissent, if this is not gross abuse of state authority, then I am afraid, we possibly do not have a definition for it….” Nothing on earth can justify an FIR against the brave journalist Rachna Khaira who dared to take the system head on and expose the loopholes by exploiting which any person can obtain any information from UIDAI database!

To be sure, the Editors Guild also rightly pointed out that, “Instead of penalising the reporter, UIDAI should have ordered a thorough internal investigation into the alleged breach and made its findings public.” Raj Chengappa who is President of Editors Guild of India rightly asserted that, “The Guild demands that the concerned Union Ministry intervene and have the cases against the reporter withdrawn, apart from conducting an impartial investigation into the matter.”

What is most amazing is that inspite of FIR being lodged against her, Rachna appeared calm and responded calmly by saying that, “I think I have earned this FIR. I am happy that at least the UIDAI has taken some action on my report and I really hope that along with the FIR, the Government of India will see what all breaches were there and take appropriate action.” On being asked whether she stood by her report, she responded confidently that, “Yes, of course, I stand by every word in it.” She refrained from commenting on the issue as she felt that it is not the right time.

On being asked whether she had received any organizational support, Rachna said that, “I am very happy that not only the Chandigarh media, the Delhi media and even the international media have assured me of support. I am also happy that the report has been applauded by the big names in the media. The Tribune is providing all the legal assistance to me.” The Tribune’s Editor-in-Chief Harish Khare while reiterating his full solidarity with Rachna lamented that, “We regret very much that the authorities have misconceived an honest journalistic enterprise and have proceeded to institute criminal proceedings against the whistle blower.” The Chandigarh Press Club (CPC) too while condemning the FIR lodged against Rachna lamented that, “Instead of taking action against people, who were involved in the data breach, the government agency preferred to lodge a case against the reporter, who exposed the loopholes in the system.” CPC Secretary General Barinder Singh Rawat also hit out saying that, “In an act of ‘shoot the messenger’, the UIDAI had filed a case against the reporter of The Tribune for an article on how anonymous users accessed Aadhaar details and sold it for a fee.”

All said and done, Rachna Khaira merits award as Edward Snowden advocated and not probe! It is the job of the journalists to take the risk like Rachna to find out such fact and report them so that the authorities can act on them well in time. All journalists not just young but even seniors should look forward to her as a shining beacon of hope always ready to face the grave challenges which comes in her journey while pursuing her journalism career and should always try hard to emulate what she has done! Why journalists alone? We all must always get inspired by what Rachna Khaira has done and should try our level best to always act like her – to always be solely concentrated in bringing out nothing but the real truth even if it exposes the high and the mighty which includes the Government in the Centre! Hats off to Rachna Khaira! We are all proud of you and for what you have done! Superb!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Supreme Court Facing Supreme Judicial Crisis Is Alarming

To begin with, what has happened on January 12, 2018 is completely unprecedented in the history of Supreme Court of independent India! Never before have the Hon’ble Judges of the Supreme Court ventilated their grievances against the Chief Justice so openly in front of the media! Transcending judicial protocol which prohibits the sitting Judges from interacting with the media, all these 4 Justices accused Chief Justice Dipak Misra of assigning cases of “far-reaching consequences to the nation” to junior hand-picked Judges against the time-tested convention, practice and tradition of the court!

Truly speaking, this is certainly a very serious charge and the CJI Dipak Misra would also now certainly deliberate on it and be more careful from now onwards! Why can’t well defined rules be made in this direction so that there is no confusion of any sort regarding picking of Judges for hearing sensitive cases? It can certainly be done if judiciary resolves firmly to do so!

It cannot be denied that all these 4 Judges – Justices Ranjan Gogoi who is next in line to replace Dipak Misra who is the present Chief Justice of India, Jasti Chelameswar who is senior to Gogoi but will retire early on June 22, 2018, Madan B Lokur and Kurian Joseph who make the current Supreme Court collegium are man of strong character and carry great reputation with them of always sticking to prescribed norms! I have never heard anything against any of these 4 Judges which may raise a question mark on their impeccable integrity! So what they say has to be taken most seriously.

It must be brought out here that the seven-page letter which was addressed to the CJI and circulated at the press meet minced no words in stating that certain Supreme Court Judges arrogate to themselves the “authority to deal with and pronounce upon” cases which ought to be heard by other appropriate Benches. The letter is of October 2017 origin which implies it was written about three months back. Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measures but their efforts failed.

To be sure, Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measure but their efforts failed. With a heavy heart, the Judges said that, “With the independence of the judiciary and the future of democracy at stake, they had no other choice but communicate to the nation to please take care of this institution.” Justice Chelameswar also sought to make it clear that, “They decided to act now because they did not want any wise men to say 20 years later that Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph sold their souls and did not take care of the interests of this illustrious institution.”

It cannot be lightly dismissed that Justice Ranjan Gogoi has highly risked his chances of becoming the next Chief Justice by coming out in the open to air his differences with Chief Justice Dipak Misra! The other Judges also have taken a great risk by daring to come out in the open. They have acted as per their conscience and it needs real great guts to do so! How many of Judges in the Supreme Court have acted like them in the past? The answer is a big “none”!

Going forward, Justice Chelameswar also lamented that, “The administration of the Supreme Court is not in order. Many things undesirable have happened in the last few months. As seniormost judges of the court and of this country, we hold a responsibility to the institution and to the nation.” He also quipped that, “The convention of the court demands that important cases of public interest or sensitive matters should be first heard by the Chief Justice of India. If the CJI is not willing for some reason to hear the case, then it should be assigned to the next senior-most judge in the Supreme Court. Instead of that, such cases have been assigned to certain Benches and eventually given a quiet burial.” This is a very serious charge!

Justice Chelameswar went on to further add that, “Unless the institution is preserved and allowed to maintain its dignity, democracy will not survive. The hallmark of a good democracy are independent and impartial judges.” Who can dispute or deny this? Why can’t their invaluable suggestions be implemented after taking into board the CJI Dipak Misra along with other Judges of the Supreme Court?

Why drag on with the old deadwood? Why can’t fresh changes be made in the functioning of the highest court of India? Why do we forget that even judges are not infallible?

He also pulled back no punches in recounting that the trigger for the press conference was a meeting they held with the Chief Justice on the morning of January 12 regarding the assignment of a petition, seeking an independent probe into the mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin encounter case to a particular Bench!

Be it noted, they had expressed their reservations to the CJI about the assignation of the Loya case. But the CJI refused to budge. They had then informed him about their intention to go public. Though Justice Chelameswar did not name the Loya petition, Justice Gogoi, who is scheduled to take over as Chief Justice of India after Dipak Misra retires on October 2 in 2018, spoke up to clear the air by saying that the petition is indeed regarding Judge Loya’s death. He said: “Yes, yes. It was the Loya case.”

Justice Gogoi further added that, “It is the discharge of our debt to the nation that brought us here. We have discharged our debt to the nation by saying what is what.” The revelation at the press conference came a couple of hours after a Bench led by Justice Arun Mishra who is a very junior Judge in Supreme Court heard the Loya petition. One has to concede here that a Bench led by Justice Arun Mishra termed the alleged mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin Sheikh encounter case as a “serious matter” and asked the Maharashtra government to respond by January 15.

It also said the case should be heard bi-parte rather than ex-parte while asking the Maharashtra government to file the Judge’s autopsy report. It decided to hear the case despite protests from the Bombay Lawyers Association, represented by senior advocate Dushyant Dave that it has already field an identical case and it is pending before the Bombay High Court. The Apex Court is hearing petitions filed by Maharashtra based journalist BR Lone for a probe into Loya’s death on December 1, 2014.

Another petition has also been filed by Congress leader Tehseen Poonawala on the same issue. Loya had died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague’s daughter. The issue embroiled into a major spotlight in November 2017 after media reports quoting his sister fuelled suspicions about the circumstances surrounding his death and its link to the Sohrabuddin case. Poonawala in his lea said the circumstances of the death of the Judge were “questionable, mysterious and contradicting”. Even Caravan magazine had covered it in detail some time back.

It must be revealed here that the 4 Judges said the letter written in October 2017 did not mend matters. Their efforts to convince the Chief Justice to take corrective measures had failed thus forcing them to go public. The letter written by the 4 Judges reveals their utter anguish at the recent judicial orders and an erosion in the judicial independence of the court. The letter said the Chief Justice’s authority, as the master of the roster to decide which Bench should decide which case, did not make him a “superior authority”.

Furthermore, the letter also stated that, “The Chief Justice is only the first among equals – nothing more or nothing less”. Yet, they said, “there have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the Chief Justices of this court selectively to the Benches of their preference without any rational basis for such assignment.”

Truth be told, the letter which the Supreme Court’s four seniormost Judges have made public has emphasized the row between the Apex Court and the government over finalizing the Memorandum of Procedure (MoP). The four Judges expressed displeasure over delays in finalizing the MoP and observed that the government’s “silence” on the matter meant it had been accepted. The MoP lays down the procedure to be followed in appointment of Judges in the higher judiciary and while it came into existence in 1993, plans to revise the existing MoP have been stalled after differences between the Supreme Court and the government came out in the open.

It cannot be lost on us that the MoP was laid down on the directions of the Supreme Court in the Second Judges Case of 1993 (Supreme Court Advocates-on-Record Association and Another versus Union of India), wherein a nine-Judge Constitution Bench devised the Collegium system of appointments. The letter observed that the MoP was finalized and sent by the “then Hon’ble the Chief Justice of India to the government of India in March 2017”. The letter stated that, “The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record-Association (Supra)”.

It is noteworthy that the letter also mentions a Supreme Court order dated October 27, 2017. The letter mentions that, “We deem it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest.”

To recapitulate, it was on October 27, while hearing a petition that was filed by lawyer RP Luthra, who had challenged the appointments made to the higher judiciary in the absence of the revised MoP that a Bench of Apex Court comprising of Justices AK Goel and UU Lalit had issued notice to the Centre and directed the presence of Attorney General KK Venugopal. The development came as a surprise as it meant clearly that the Supreme Court had taken up the matter, which till then was being dealt with on the administrative side, on the judicial side.

To put things in perspective, all these 4 Justices have said in their letter that, “We need to consider the prayer that there should be no further delay in finalisation of MoP in larger public interest. Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period.” Who can deny that 10 High Courts in India are without proper Chief Justice and have only acting Chief Justice? Who can deny that there will be many vacancies in Supreme Court as many Judges are about to retire this year? Who can deny that there are more than 470 vacancies in the strength of High Court Judges? Who can deny that there are nearly 6000 vacancies in the strength of Judges in lower courts? Why are these vacancies not being filled? Why is Centre neglecting judiciary?

Why is Centre not creating more high court benches as recommended by 230th report of Law Commission of India? Why Nehru had the guts to create a bench just about 150 km away from Allahabad at Lucknow 70 years back in 1948 but no PM till now 70 years later had the courage to set up a bench anywhere in any part of UP even though Union Minister like Satyapal Singh demand 5 benches and Rajinder Aggarwal who is BJP MP from Meerut demands benches at Meerut, Agra and Gorakhpur and so also other MPs from West UP keep demanding benches regularly only to be ignored time and again?

All said and done, this open rift in the Supreme Court has sent shockwaves throughout the nation. Former CJI RM Lodha says the controversy could have been avoided but doesn’t fault the judges conscience call. He says during his term, he strictly went by seniority while assigning cases to avoid allegations of arbitrariness. This “dangerous and discretionary bomb” must be defused by ending all discretion vested in CJI in this behalf by making written rules of going strictly by seniority as former CJI Lodha very rightly and strongly advocates!

KTS Tulsi who is an eminent senior lawyer said that, “I am sure they (4 judges) have exhausted all other remedies. One could see pain on their faces while they were speaking. The whole matter is with respect to judicial propriety.” Justice RS Sodhi however feels that, “By press conference, are you going to hold a referendum and ask people what is right and wrong?” Prashant Bhushan defends them saying that, “Somebody had to confront the situation, where the CJi is blatantly misusing his powers. Hence the unprecedented step.”

Former Chief Justice of Punjab and Haryana High Court Justice (retd) Mukul Mudgal said that, “The four senior-most judges must have had compelling reasons to go public and they are not public hungry judges”. Subramanian Swamy who is a lawyer as also BJP MP in Rajya Sabha says that, “We cannot criticize them (the four judges). They are men of great integrity…We must respect them.” Salman Kurshid who is an eminent Supreme Court lawyer too lamented that, “I feel agony that the highest court of the land should come under such stress that forces judges to address the media.”

Former Supreme Court Judge KT Thomas said that, “It should not become a precedent. Sitting Supreme Court Judges interacting with the media especially concerning matters relating to administrative, business and judgment side of the top court have never happened before. The image of the institution will not suffer from today’s event. The Supreme Court is far above all these.” Former CJI TS Thakur felt that this should have been sorted out within the institution instead of bringing them out in public. He asked that, “How did a press conference by four senior judges of the Supreme Court help resolve their discontent against the Chief Justice of India? It does not help anybody, particularly the institution if someone was to bring it out in the open. Roster issues are also matters which can be sorted out.”

Senior lawyer Rebecca John said it must have been the last resort available to the four judges. Attorney General KK Venugopal said that, “What has happened today could have been avoided. The judges will now have to act like statesmen and ensure that the divisiveness is wholly neutralized and total harmony and mutual understanding prevail in future. This is what all of us at the bar want and I am sure that the judges, including the CJI, will rise to the occasion.”On a concluding note, the only silver lining out of this entire supreme judicial crisis in the highest court of India which is certainly most alarming is that now many are realizing rightly that fixed rules must be made clearly and very urgently stipulating that only seniormost Judges will hear sensitive cases and all discretionary power available right now with the Chief Justice should be immediately abolished!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Will Electoral Bonds Usher In Transparency?Will Electoral Bonds Usher In Transparency?

Let me begin right at the very beginning by first and foremost pointing out very explicitly that secrecy and non-disclosure of names of donors can never usher in transparency no matter how tall claims the government may make repeatedly through its eminent and senior leaders. Why should there be any secrecy at all? Why can’t there be full and fair disclosure of names of all donors who donate to political parties?

Why this hush-hush secrecy of not disclosing names of donors on one pretext or the other? Why is Centre not making any serious effort to make sure that nothing is hidden by politicians and that everything is disclosed by them relating to payment which they receive from different sources? Why is Centre offering just lame excuses for not disclosing the names of all the donors who donate generously to political parties?

Why under this electoral bond scheme the donor’s identity won’t be revealed to the beneficiaries? What is there for politicians to hide? Why Centre wants full transparency from people but not from politicians? Why can’t politicians too reveal every money which they get from different sources for fighting elections just like any other common person? Why special exemptions for political parties and politicians? Do they deserve this?

Why government is trying to project this electoral bond as most viable method on cleaning up poll funding without making the names of donors public? Why on one hand Arun Jaitley claims that the present system ensures unclean money coming from unidentifiable sources and most political groups seem fairly satisfied with the arrangement and would not mind this status-quo to continue but on the other hand makes sure that even under the electoral bonding method the names of donors are not made public? What sort of transparency is this?

Why on one hand Arun Jaitley claims that the effort, therefore, is to run down any alternative system which is devised to cleanse up the political funding mechanism but on the other hand throws up another opaque system which protects the identity of the donors from being made public? How can any sane person support another opaque system with just few minor changes? Why can’t there be full transparency with nothing hidden from the public?

It is noteworthy that the government on January 2 had notified electoral bonds as a new instrument for donations to political parties. Arun Jaitley has himself said that, “The government is willing to consider all suggestions to further strengthen the cleansing of political funding in India. It has to be borne in mind that impractical suggestions will not improve the cash-dominated system.” Who can be better equipped than Arun Jaitley himself who has been a senior lawyer of Supreme Court and also Union Law Minister to understand best that not disclosing the names of donors will only make sure that even those involved in wrong activities too can donate money without their name being made in public? How can this be justified under any circumstances?

Truth be told, under the new system the prospective donors will be required to buy interest-free electoral bonds of designated denominations which they will forward to the parties of their choice. The donors’ identity won’t be revealed to beneficiaries. Jaitley says this is needed to discourage cash donations. He does not say why and how. In any case, it’s far from certain why the present system of cash donations will cease with the advent of electoral bonds as the role of cash in the electoral battle will continue to remain as dominant as before if not more! Who can dispute or deny this?

It must also be revealed here that the life of the electoral bond would be only 15 days. A bond can only be encashed in a pre-declared account of a political party. Every political party in its returns will have to disclose the amount of donations it has received through electoral bonds to the Election Commission. The entire transactions would be through banking instruments. Jaitley reveals that as against a total non-transparency in the present system of cash donations where the donor, the done, the quantum of donations and the nature of expenditure are all undisclosed, some element of transparency would be introduced in as much as all donors declare in their accounts the amount of bonds that they have purchased and all parties declare the quantum of bonds that they have received.

To be sure, Jaitley also reveals that, “How much each donor has distributed to a political party would be known only to the donor. This is necessary because once this disclosure is made, past experience has shown, donors would not find the scheme attractive and would go back to the less desirable option of donating by cash. In fact the choice has now to be consciously made between the existing system of substantial cash donations which involves total unclean money and is non-transparent and the new scheme which gives the option to the donors to donate through entirely a transparent method of cheque, online transaction or through electoral bonds. While all three methods involve clean money, the first two are totally transparent and the electoral bonds scheme is a substantial improvement in transparency over the present system of no transparency.” Jaitley has a valid point. But even this method is not perfect.

I have absolutely no hesitation in concluding that a wrong is a wrong whether it is a smaller or a bigger wrong. The present system of electoral bonds may be definitely a better alternative than the earlier one but even this too has many shortcomings. These shortcomings too needs to be removed and the system of electoral funding must be made totally transparent with no room for secrecy of any kind!

Jaitley has rightly said in a Face book post that India has not been able to evolve a transparent political funding system, despite being the largest democracy in the world. But now his government has been in power since the last four years. So he cannot offer any excuses for India not having been able to evolve a transparent political funding system. It is the bounden duty of his government to make sure that the system of poll funding is made totally transparent and there is no room for secrecy of any kind in any form which will only serve to further enhance the reputation of his government in the Centre!

According to the Association for Democratic Reforms (ADR), almost 70 percent of the Rs 113 billion of party funding received over an 11-year period came from unknown sources. What makes matters even more worse is that the Centre in 2016 retrospectively amended the Foreign Contributions Regulation Act (FCRA) to redefine the status of London-headquartered multinational Vedants, which had contributed to the BJP and the Congress party after the Delhi High Court held that both parties – BJP and Congress were guilty of violating FCRA rules. Neither party has been made to penalize for this blatant violation of all rules!

How can this be ever justified? Who can justify the decision to not disclose the names of donors under the electoral bonds scheme which will only serve to promote the dangerous trend of opacity in political funding? How can this be denied that most private donors prefer anonymity for fear of reprisals from political parties and they would still prefer to continue with cash donations under the Rs 2000 slab as is enumerated under Section 29C of the Representation of the People Act as also via electoral trusts as it is here that anonymity is better maintained?

Why Centre is just aiming to reduce the big role that unaccounted cash has in the electoral process of electing candidates? Why Centre does not care to do more to address the need to have public accountability of sources of political funding? Why Centre has drawn a Lakshman Rekha that this naming of donors can never be done?

Why Centre is not ready to bring in more transparency rather is seen to be eschewing transparency in this new method of electoral bonding? Why all the great legal luminaries in the Cabinet of Centre have failed thoroughly to work out on this in a satisfactory manner? Why is Arun Jaitley expecting the people to do the homework on this score?

He himself is such a great legal luminary! Why can’t he work out himself a fair and transparent system of electoral funding? Why can’t a roadmap be put forward by Centre with clear timelines and with the ultimate aim of ushering in complete transparency in the system of political funding?

Why Centre fails to appreciate that just introducing electoral bonds will not usher in transparency in the electoral system unless accompanied by other corollary measures? Why there is no clarity right now on how much a party or a candidate spends in an election and from where all they get funding for fighting their elections? Why there is no mechanism to monitor the spending of money by parties and candidates during elections?

Why parties are not asked to show their source of funding which are dubious in many cases? Why no strict penalty is imposed against any political party who is found to have acquired huge money from “unexplained sources”? Why political parties are exempted from disclosing the name of donors received from foreign countries? Unless this is done, all other steps will prove to be “an exercise in futility”! Also, foreign countries by donating lavishly can subjugate our country indirectly and remote control them through their representatives in Delhi! Who can deny this possibility can never happen under any circumstances?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

No Need To Play National Anthem In Cinemas: SC

Let me start penning my thoughts by first and foremost pointing out that in a landmark ruling, the Supreme Court on January 9, 2018 said that cinema halls across India no longer needed to play the national anthem before film screenings thus reversing an order passed over a year ago. The ruling comes just a day after the Centre asked for “status quo ante” – or a return to the situation before the court had passed its November 2016 order saying that it would frame fresh ruleswithin six months. Now cinema halls will not be obligated to play the national anthem before the screening of film begins and it would be a purely voluntary exercise.

I too fully endorse this viewpoint. Why wear patriotism on your sleeves? Senior and eminent advocate of Supreme Court Rajeev Dhavan rightly said that, “The anthem had a ceremonial significance and a “sacred element” which should not be trivialized by playing it four times a day in cinemas”. What is the point of doing all this useless showoff when our politicians don’t have the guts to terminate Most Favoured Nation (MFN) status to Pakistan even after more than 22 years having conferred it way back in 1996 and that too unilaterally? Kuwait has not lost a single soldier at hands of Pakistani army or terrorists still it has ordered all Pakistan is to leave Kuwait and has severed all relations with it as they felt that Pakistanis are a threat to their security! Can Indian politicians ever dare to do so?

What is the point of doing this useless showoff when more than our lakh soldiers have been killed directly by cross border terrorism sponsored by Pakistan and still our leaders don’t have the guts to do what Rajeev Chandrashekhar who is independent Rajya Sabha MP from Bangalore demanded that Pakistan should be declared a “terror sponsor country” and Maulana Mehmood Madani of Jamiat-e-Ulema-Himd demanded that Pakistan be labelled as “Aatankistan” rather enjoy paying uncalled trips to Pakistan and some even castigate their own leaders and PM from Pakistan? What is the point of doing this useless showoff when our leaders shamelessly invite Pakistani invader Gen Pervez Musharraf within 2 to 3 months of Kargil war masterminded by him in which we lost officially more than 600 soldiers and he himself conceded that he had entered 15-16 km inside Indian territory just one night before Kargil war to motivate his soldiers to slaughter our soldiers like animals and we saw how Captain Saurav Kalia and 5 soldiers of 4 Jat Regiment were after being captured alive tortured continuously for more than 20 days and were blinded with hot iron rods, beaten mercilessly and maimed and private parts were cut and put in the mouth and then dead body was handed over to India and not just this he threatened himself to nuke India if Indian soldiers dared to step even one step inside their territory as he feels Pakistan alone has the unfettered right to invade still he was given a red carpet welcome and leaders of all major parties felt extremely overjoyed to have company with him while having breakfast, lunch and dinner? Not just this he even awarded dreaded Al Qaeda terror leader Iliyas Kashmiri who was earlier in Pakistani Army with one lakh rupees as cash prize for presenting him a severed head of an Indian soldier Bhausaheb Maruti Talekar on 27 February 2000 as reported in all English dailies and promised to always keep it with him as a “fond memory” and Pakistani media proudly published Iliyasi carrying head of Bhausaheb?

Not just this he terms dreaded terror leaders like Osama Bin Laden, Hafiz Saeed and Syed Salaluddin as “Osama to hero hain ji hero. Hafiz Saeed to hero hain ji hero. Bharat ke liye yeh aatankwadi hain paar Pakistan ke liye to yeh hero hain ji hero bilkul aasli freedom fighter hain ji”! Can there be anyone more shameless than us that we still forgot everything and accorded him VVIP treatment? Commonwealth countries had expelled Pakistan but India got them readmitted!

Don’t our politicians still shamelessly sing national anthem? Does it serve any purpose other than fooling illiterate people? Don’t our politicians always keep an eye on votebank politics and for preserving their votebank are ready to exploit any issue like Ram temple and Babri Masjid and due to this we have seen how riots broke out in 1993 and how thousands lost their lives in riots, bomb blasts etc?

What is the point of doing this useless showoff when our politicians don’t have the courage to amend the Prevention of Corruption Act under which any person amassing crores of rupees is just jailed for a few years or may be even one year and pay just a few lakh rupees as fine and then again indulge in the same old money minting tactic of corruption? What is the point of doing this useless showoff when corrupt people openly mock at our laws and so do killers and other criminals and even after committing worst crimes are able to play with the system because of cases pending for many decades due to which they die a natural death or escape punishment because of many loopholes in our laws and even if convicted come out within few years from jail and there too the rich and powerful are able to manipulate all sorts of comforts by bribing those who are corrupt?

To be sure, a Bench headed by Chief Justice of India Dipak Misra said that, “The interim order passed on November 30, 2016 is modified that playing of national anthem prior to screening of a film is not mandatory or directory”. Before the 2016 ruling, some state governments which includes Maharashtra had made it mandatory for the national anthem to be played in theatres across the state. Legal experts said that any such executive order by states would still stand. Those executive orders shall not be affected by this landmark judgment.

It is noteworthy that the court specified that if the anthem is played in theatres, moviegoers will have to stand in a show of respect, but said that differently abled people would be exempt. The exemption granted to the disabled persons “shall remain in force on all occasions”. The Bench while disposing of a PIL which had asked to specify what would constitute disrespect and abuse of national anthem said that, “Citizens and people living in India are bound to show respect”. The court said that the Prevention of Insult of National Honour Act 1971 make it “clear as crystal that no one can be intentionally prevented from singing or cause disturbance in assembly by singing the anthem.” The Prevention of Insult to National Honour Act 1971 states that, “Whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both”. The court said that the offenders would be penalized.

Truth be told, a Bench led by Chief Justice of India Dipak Misra clarified that it is not mandatory to play the anthem before screenings. The court left the choice of whether to play the anthem or not to the discretion of individual cinema hall owners. However, if the anthem was played, patrons were bound to stand up in respect.

To put things in perspective, the court took note of its judgment in the Bijoe Emmanuel versus State of Kerala which dealt with three children belonging to the Jehovah Witnesses sect who refused to sing the anthem in the school assembly though they stood up in respect, to drive home the point that standing up was a sign of “proper respect” to the anthem. “Proper respect is shown to the National Anthem by standing up when the National Anthem is sung,” the Bench quoted Justice O Chinappa Reddy’s words in the verdict.

What cannot be missed out here is that the modification will be in place till the Union government takes a final decision on the recommendations of an inter-ministerial Committee on the occasions, circumstances and events for the solemn rendering of the national anthem. The Committee will examine whether any amendment is necessary to the Prevention of Insults to National Honour Act, 1971, to expand or specify the meaning of ‘respect’ to the national anthem. The Committee which was set up on December 5, 2017, will submit its reportin six months.

It must be add here that the Union Home Ministry has appointed a 12-member inter-ministerial Committee led by Additional Secretary BR Sharma which would take a final call on the playing of the national anthem in cinema halls and public places. It will recommend changes, if needed, in the existing laws. The first meeting of the Committee which was set up on December 5 2017 and which will have officers of the rank of Joint Secretary from 11 Ministries and departments of the Union government will be held on January 19. It will submit its report within six months.

Let me hasten to add here that the decision came after the Supreme Court in October 2017 said “the people cannot be forced to carry patriotism on their sleeves” and it could not be assumed that if a person did not stand up for the national anthem, he or she was “less patriotic”. Attorney General KK Venugopal submitted that the Committee would conduct a comprehensive study of the issue. The government began the hearing by referring to its latest affidavit, suggesting that the court modify its November 30, 2016 order and give cinema hall owners discretion till the Committee took a final decision.

Going forward, the Supreme Court accepted the Centre’s submission that an inter-ministerial Committee constituted onDecember 5 was looking into all aspects relating to the playing and singing of the national anthem and let the government have a final say. Supreme Court had justified its November 2016 order making it mandatory to play the national anthem in cinema halls saying it was “for the love of the motherland”. It had also said that the national flag be displayed on the screen while the anthem was playing.

It may be recalled here that Justice Dipak Misra before he became the CJI, headed the Bench that issued the order which had been backed by the government. But the order came in for criticism from the court in October 2017 when Justice DY Chandrachud very rightly asked if people needed to stand up to prove their patriotism. I fully agree with Justice Chandrachud and ask those who keep making it a prestigious issue that why inspite of prominent leaders like Shashi Tharoor, Subrahmanium Swamy and many others that MFN status for Pakistan must be revoked, all Pakistanis must be ordered to leave India just like Kuwait has done and Pakistan be declared a “Terroristan” as India led by Sushma Swaraj who is External Affairs Minister addressed it in UN but still officially is not ready to take any hard action against Pakistan where it hurts them most even though its closest ally US has frozen all aid to Pakistan?

Leaders have just no convincing answer except evading it or giving lame excuses! Endless cries of families of slain soldiers and innocents have no effect at all on our heartless politicians surrounded by many black cat commandos for their security 24 hours who are not ready to withdraw MFN status to Pakistan under any circumstances! Instead they foolishly resort to senseless slogans like “Bharat mein rahane hain to Vande Mataram kehana hain, Bharat mein rahane hain to rashtra gaan gaana hain. Jinhe nahin gaana hain who jain Pakistan”!

It is a different matter that no party including BJP has the guts and courage to make a law by which those who wave Pakistani flags and burn our national flags and openly chant anti-Indian slogans which burns even moderates like me with fury are made to vacate India and go to Pakistan or any other country of their choice! To sing or not to sing anything should be best left to the concerned individual himself/herself and politicians must instead concentrate on appointing more Judges, more high court benches in big states like UP where there is just one bench established by Jawaharlal Nehru way back in 1948 but since then no leader till now in 2018 seventy years later is ready to set up even one more bench here anywhere and people of remote areas like those in West UP and Bundelkhand and Gorakhpur are compelled to travel more than 800 to 900 km on an average all the way to Allahabad as there is no bench anywhere else in such as big state and another lawless state Bihar has not even one bench!

UP has maximum pending cases and still it has least benches whereas peaceful states like Karnataka, Assam and Maharashtra have 3, 4 and 3 benches each! MPs from West UP like Rajinder Aggarwal from Meerut earnestly keep demanding benches at Meerut, Agra and Gorakhpur and Satyapal Singh who was just made Union Minister and is MP from Baghpat also had demanded benches at Meerut, Agra, Gorakhpur, Jhansi and Varanasi which is PM constituency but Centre is not ready to create even one more bench anywhere just like predecessor Congress! To act earnestly and sincerely always so that people gains most is the best way to be nationalistic. Just like if a bench is created in West UP more than 9 crore people will benefit and litigants would not be compelled to travel many times without reservation whole night all the way to Allahabad to get justice. Not tolerating nonsense from any foreign country is the best way to show nationalism! But how much we keep tolerating cross border terrorism is known worldwide and it requires no elaboration!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

The Proposed Financial Resolution and Deposit Insurance Bill

To begin with, a lot of fire and storm has been kicked by the proposed Financial Resolution and Deposit Insurance (FRDI) Bill even before it has been passed by Parliament leave alone being assented by President. There is a widespread perception that if a bank fails everyone will have to sacrifice and this includes the depositors and the part of the money which is not insured. It is argued that this Bill can’t be avoided as it is part of the G20 (Group of 20 countries) FSB (Financial Stability Board) requirement. We all know that India is a member of the FSB and G20. As a member, India had accepted that it would work out a resolution package. The whole idea of this proposed Bill is that if at any point of time a bank fails then how can they be saved?

To put it bluntly, this proposed Bill envisages that all the creditors will have to be part of the bail-in provision and depositors are also creditors. The bail-in provision in this proposed Bill is expected to eliminate haircut. If the bank survives, then the depositors including the non-insured deposits will get back the money. If it fails then they are bound to lose the money! This is why there is so much of hue and cry over it! Mamata Banerjee who is the Chief Minister of Bengal said that, “It is a travesty that the Centre as an owner of the nationalized banks is now trying to replenish the eroded capital of banks by forcibly taking away the small depositors savings instead of facing the crisis in the banking.”

It must be brought out here that the FRDI Bill 2017 was tabled in the Lok Sabha on 10 August following which it was referred to the Joint Parliamentary Committee. The Committee has been asked to submit its report to the Parliament by the last date of the Budget session in 2018 in the upcoming winter session of Parliament which started on December 15 after consulting all the concerned stakeholders. The Bill has been facing unrelenting criticism from several quarters for some of its provisions and this includes the “bail-in clause that reportedly suggests that depositor money could be used by failing financial institutions to stay afloat.

Be it noted, this bail-in clause can be used by the bank to simply refuse repayment of a customer’s money and instead issue securities such as preference shares. Its purpose is to provide capital to absorb the losses of a bank to ensure its survival. Here survivor does not mean safety of depositors bank but restoration of capital of the bank. This must be set right and depositors interests must be accorded the top priority always!

It also must be brought out here that some of the provisions of the proposed FRDI Bill is facing so much of vehement opposition because it provides for people’s money to be used to bail out banks that made bad lending decisions! Why should people suffer interminably because of wrong decisions made by bank lenders? Why should those bank lenders not be punished for their negligence or willful deceit?

It is noteworthy that the Government through its Finance Ministry has been quick to clarify that, “The provisions contained in the FRDI Bill, as introduced in the Parliament, do not modify present protections to the depositors adversely at all. They provide additional protections to the depositors in a more transparent manner.” The Government also said that, “The FRDI Bill will strengthen the system by adding a comprehensive resolution regime that will help ensure that, in the rare event of failure of a financial service provider, there is a system of quick, orderly and efficient resolution… The FRDI Bill is far more depositor-friendly than many other jurisdictions, which provide fort statutory bail-in, where consent of creditors/depositors is not required for bail-in.”

Let me hasten to add here that the government’s statement reiterated its commitment to support banks. It said that, “The FRDI Bill does not propose in any way to limit the scope of powers for the government to extend financing and resolution support to banks, including public sector banks. Government’s implicit guarantee for public sector banks remains unaffected.” Banks are bound to feel happy.

Truth be told, the Bill empowers Resolution Corporation which has been envisaged as an oversight body to monitor the failure of financial resolutions and to limit the fallout of the failures of a systemically important financial institution on the overall sector – to cancel the liability of a failing bank or convert the nature of the liability. It is a significant omission that no specific deposit insurance amount is prescribed and this has been also opposed by many stakeholders. Presently, we see that all deposits up to Rs 1 lakh are protected under the Deposit Insurance and Credit Guarantee Corporation Act 1961 that is sought to be repealed by this proposed Bill. There are many other glaring loopholes.

To be sure, Mamta Pathania who is co-project Director at National Consumer Helpline and faculty member at the Indian Institute of Public Administration too voices her apprehensions by saying that, “The provisions of the Bill have been creating a lot of confusion in the minds of the people. Ultimately, bank deposits are considered the safest investment option by any investor.” What is equally important if not more is that even political parties like the Congress and various trade unions have also characterized the provision as anti-people and anti-poor and have also apprehended that ultimately it is small depositors who will have to pay the price for bad lending choices of banks, especially loans given to big corporates. This is really most reprehensible. Why should common man pay for misdeeds of big corporates?

One has to concede here with grace that the Finance Minister Arun Jaitley has himself acknowledged that “a lot of corrections could still take place”. No doubt, after the 2008 global financial crisis, governments all over the world have been forced to bring in laws to resolve failure of financial institutions and not to depend on public-funded bailouts. In India too, a new legal framework was felt as imperative to prevent such failures of financial institutions especially banks which explains why we see this proposed FRDI Bill being worked out by Government!

According to the Ministry of Finance, there is presently no comprehensive and integrated legal framework for resolution, including “liquidation of financial firms in India”. The Ministry said that current resolution instruments available under respective legislations are “limited, and so is guidance on the process leading up to the resolution”. It said in a statement on January 2 that, “The current resolution regime is especially inappropriate for private sector financial firms in the light of significant expansion of private financial firms and many of these acquiring systemically important status in India.”

As it turned out, the Finance Ministry made it a point to highlight that, “The Insolvency and Bankruptcy Code, 2016 has introduced in the country a comprehensive resolution regime for mainly non-financial firms, but such a regime is not available in the country for financial firms.” It also reiterated that the FRDI Bill proposes to establish a “Resolution Corporation” (RC) and a comprehensive regime to enable timely and orderly resolution of a failing financial firm. It also sought to make it clear that, “It provides for detecting incipient insolvencies in financial firms by introducing a five-stage health classification of financial firms and stepping in to appropriately nurse a financial firm at the stage when its health becomes weak and it is classified in the category of material risk to viability.” The five-stage categories are primarily modelled on their risk of failures: low, moderate, material, imminent and critical risk to viability. If it is in the critical stage risk category then the RC has various ways in which it can resolve it which includes taking over the administration of the firm on the day on which is classified as critical.

Truly speaking, the Finance Ministry also made it a point to reveal that, “FRDI Bill also introduces a menu of resolution tools, including transfer of whole or parts of the assets and liabilities of a financial firm to another person, acquisition, merger or amalgamation, bridge service provider and bail-in and mandates recovery and resolution planning obligations to enable careful monitoring of risk to viability of a financial firm”. The Resolution Corporation will insure bank deposits and the insured limit will be set in consultation with the RBI.

To put things in perspective, on the “bail-in” provision of FRDI Bill, the Ministry said that it has only been proposed as one of the tools to be used in the event a financial firm is sought to be sustained by resolution. The statement of Finance Ministry explained that, “Bail-in amounts to liabilities holders bearing a part of the cost of resolution by reduction in their claims. Bail-in is only one of many resolution tools in the FRDI Bill; others are acquisition, merger and bridge service provider, and is to be used either singly or in combination with other tools.” It was also added that, “Bail in provision may not be required to be used in case of any specific resolution. Most certainly, it will not be used in case of a public sector bank as such a contingency is not likely to arise.”

It was reiterated by the Finance Ministry that the FRDI Bill does not prohibit the central government from extending support to banks, including PSU banks. It also reaffirmed that, “Government’s implicit guarantee for solvency of public sector banks remains unaffected as the government remains committed to adequately capitalize the public sector banks and improve their financial health. The government is committed to protecting the existing protection to depositors and providing additional protection to them.”

Needless to say, the moment this FRDI Bill will be made a law, India would also finally have a law to swiftly address the issue of insolvency of companies in the manufacturing sector. As stated earlier, this Bill aims primarily at finding and finalizing a resolution plan to get a troubled company back on track, or, in the event of a complete failure, to ensure a quick winding up. The plan is to have a similar law for firms in the financial sector so that if a bank, a Non Banking Finance Company (NBFC), an insurance company, a pension fund or a mutual fund run by an asset management company, fails, a quick solution is available to either sell that firm, merge it with another firm or close it down with the least disruption to the system, to the economy and to investors and to other stakeholders.

This is to be done through a new entity termed as a Financial Resolution Corporation which is envisaged as an agency that will classify firms according to the risks they pose, carry out inspections and at a later stage take over control where necessary. This is what was recommended by the Financial Sector Legislative Reforms Commission headed by Justice BN Srikrishna. This is exactly what is being sought to be implemented now!

All said and done, the proposed Bill is yet to take its final shape. It has to incorporate valuable suggestions it gets from the Joint Parliamentary Committee. Also Arun Jaitley said that, “The Cabinet will place the recommendations in the public domain and ask for feedback. So I think a lot of corrections will take place.” So let us hope fervently that the glaring drawbacks in the proposed Bill will be weeded out before it is finally made into a law and the depositors interests will not be compromised under any circumstances!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Chavan Gets Bombay High Court Relief In Adarsh Scam

To begin with, in a big reprieve for the former Chief Minister of Maharashtra and Congress leader Ashok Chavan who was the Chief Minister between December 2008 and November 2010 and currently the President of the Maharashtra unit of the Congress in the Adarsh housing society case, the Bombay High Court has on December 22, 2017 set aside the sanction granted by the Maharashtra Governor to prosecute him for his role in it. A Bench of Justice Ranjit More and Justice Sadhana Jadhav of Bombay High Court while quashing and setting aside the sanction order said that the order passed by the Maharashtra Governor granting sanction to prosecute Ashok Chavan in the Adarsh housing society scam “cannot be sustained” since it was not based on any fresh material produced by the CBI that could be considered as plausible evidence by courts during trial.

To put things in perspective, the Bombay High Court was hearing a petition filed by Ashok Chavan challenging the decision of Maharashtra Governor C Vidyasagar Rao granting sanction to the CBI to prosecute him in the scam. The Bench had earlier made Rao a respondent in the matter. This is the second major relief for the Congress in recent times. On December 22, a Special CBI Court acquitted all accused, including former telecom minister A Raja in Congress led UPA regime, in the 2G spectrum allocation case.

It must be revealed here that the CBI in its FIR filed on January 2011 had named former Maharashtra Chief Minister Ashok Chavan as accused 13 in the Adarsh society case. According to the FIR, Chavan got involved in a criminal conspiracy when he was the Revenue Minister in 2000. His proposal that civilians be made members of the society was approved though his ulterior motive was to reportedly allow his relatives to secure flats in the society. The flats in the society were meant for widows of Kargil war. The FIR stated that RC Thakur, Brigadier Madan Mohan Wanchu and Kanhaiyalal Gidwani were also involved in the plot.

It must be also revealed here that the CBI said that after the induction of civil members, state government officials expedited the process of land allotment. In 2009, then CM Ashok Chavan had exempted the society from reserving 15% space for a recreational ground – an exemption not allowed by the previous government. In turn, Chavan secured membership for his relatives, according to the CBI.

Truly speaking, the FIR said Chavan had abused his position to favour the society. A case was filed on charges of conspiracy, cheating, forgery and Sections of the Prevention of Corruption Act, 1988. The CBI had recorded Chavan’s statement in the case. It had also questioned several people to ascertain the number of civilians who got flats in the society on his orders. They found that there were six such flats. Two were registered in the name of Chavan’s mother-in-law and sister-in-law.

It cannot be lost on us that in 2014, the former Governor K Sankaranarayanan refused sanctions to prosecute Chavan. The CBI had moved an application in a special court, seeking the approval to remove Chavan’s name from the list of accused, which it rejected. In October 2015, the Joint Director of CBI, Mumbai had sought sanctions to prosecute Chavan under Section 197 (issuing or signing false certificate) of the Criminal Procedure Code, based on fresh material, namely, the Justice JA Patil Commission report and the Bombay High Court’s observations of the criminal revision application. The key accused in the case, former member of Legislative Council Kanhaiyalal Gidwani had died in December 2012.

Before proceeding ahead, let me quickly recapitulate the entire sequence of events in this high profile case. They are as follows –

April 19, 2013: Justice JA Patil Inquiry Commission report was submitted to the government.

August 19, 2013: The CBI forwarded the report to the offices of the SP, ACB and its Mumbai branch.

December 17, 2013: The erstwhile Governor K Sankaranarayan refused sanction to prosecute Ashok Chavan.

December 20, 2013: Justice JA Patil Inquiry Commission was tabled in Legislative Assembly.

January 15, 2014: The CBI submitted an application in the Trial Court, seeking to delete Chavan’s name from the list of accused due to then Governor’s refusal to grant sanction.

January 18, 2014: The Trial Court rejected the CBI application.

May 25, 2014: The CBI filed a criminal revision application before the single Judge of the Bombay High Court for quashing and setting aside the order of the Trial Court.

March 27, 2014: The CBI filed supplementary chargesheet before the Trial Court, stating that Chavan was not involved in benami transctions in respect to the flats of Adarsh society.

June 19, 2014: The CBI filed a second supplementary chargesheet and informed the Trial Court the investigation had been completed.

November 19, 2014: Bombay High Court dismissed the criminal revision application field by the CBI.

December 15, 2014: Chavan field a criminal application recalling theNovember 19 order. The application was dismissed on March 4, 2015 by the Bombay High Court.

April 1, 2015: Chavan filed a special leave petition (SLP) challenging the order dated November 19, 2014 and March 4, 2015.

July 13, 2015: The Supreme Court issued notices to the state government and the CBI on the SLP. The SLP is pending before the Supreme Court for final disposal.

October 8, 2015: The CBI sent fresh proposal (second application) seeking sanction to prosecute Chavan.

While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bombay High Court held in its judgment categorically that, “It was permissible for the Governor, the sanctioning authority, to review or reconsider the earlier decision of the erstwhile Governor not to grant sanction to prosecute the petitioner (Ashok Chavan) in terms of the fresh material which had surfaced after the earlier sanction was refused.” So whatever the Governor did, he was well within his right to do so. There can be no denying or disputing it!

It must be mentioned here that the Bench also added that, “However, the agency (CBI) failed to present any fresh material capable of being converted into evidence that can be substantiated at the time of trial. Therefore, in the absence of fresh material, the sanction cannot be sustained and is quashed and set aside.”

For my esteemed readers exclusive indulgence, let me also inform them that in December 2013, the then Maharashtra Governor K Sankaranarayanan had refused sanction for the CBI to initiate proceedings against Chavan. On February 4, 2016, Sankaranarayanan’s successor C Vidyasagar Rao granted sanction to prosecute Chavan for alleged offences of criminal conspiracy and cheating under relevant sections of the Indian Penal Code, and under various provisions of the Prevention of Corruption Act. However, the Bombay High Court did not agree with the argument made by senior counsel Amit Desai, appearing for Chavan, that material to be considered by the sanctioning authority can only be evidence collected by the investigating agency.

To be sure, Justice Ranjit More made it clear that, “The material which is required to be considered by the sanctioning authority is not limited to the evidence collected by the investigating agency during the course of investigation”. But in the same vein the court also observed that such material must be admissible and capable of being converted to evidence, which can be substantiated at the trial stage. Who can question this?

Needless to say, the Bench of Bombay High Court while pronouncing its judgment held that, “The sanctioning authority is an independent agency, which cannot allow itself to be influenced by any opinion in the case of absence of material. This is the case of absence of material and in such a case earlier order of refusing sanction could not have been reviewed. Is it not a case of non-application of mind and, therefore, the same must be dealt with at the earliest if possible in order to avoid ignominy to a public servant.” Every person has the right to reputation which cannot be denigrated by anyone without substantial proof which has to be approved in a court of law. Who can question this? Chavan contended that the decision to review the December 2013 decision of the then Governor was politically motivated and biased, and there was no additional material warranting review of the decision. It was also argued that the February 2016 order was motivated by change in political circumstances and not by any change in material aspects.

Be it noted, while appearing for the CBI, lawyer Hiten Venegaonkar had earlier told the court that validity of the Governor’s February 2016 order granting sanction to prosecute Chavan in the case can only be tested in the trial court. Senior counsel Amit Desai while appearing for Chavan had argued that the 2016 order was motivated by a change in political circumstances and not by any change in material aspects of the case.

Truth be told, in an earlier affidavit filed by the agency, it said that it approached the Governor for the second time seeking sanction as there was additional and fresh material against Chavan. On October 8, 2015, the CBI sent a fresh proposal in the form of a second application seeking sanction to prosecute Chavan, which was granted by the Governor. The CBI had relied on the report submitted on April 19, 2013, by a two-member judicial commission set up by the government to inquire into the Adarsh scam and a previous order of the court passed in November 2014.

As it turned out, the Bombay High Court while trashing aside the evidence produced held that, “Neither the extract of (the)… Commission report nor the order passed by the Single Judge of the Court are admissible as evidence and, therefore, it cannot be considered. In the absence of fresh material, the Governor has no jurisdiction to review the order of the erstwhile Governor.” The Court held that, “The Commission report is only recommendatory in nature”. The court said that the challenge by the petitioner to Governor’s order can be entertained at the pre-trial stage since the same was passed without there being any fresh material.

Of course, while rejecting former Maharashtra CM Ashok Chavan’s petition challenging the trial court’s decision to reject the CBI plea seeking deletion of his name from the list of accused persons, the Bombay High Court that the single Judge merely expressed his tentative opinion “which in our considered opinion cannot constitute fresh material”. Additional Solicitor General Anil Singh had claimed that the report of the Commission and certain observations made by the Single Judge were “additional material”. The Bombay High Court, however, while disagreeing with him said in its judgment that, “The ASG’s arguments cannot be entertained as it would amount to abuse to process of law”.

All in all, this latest judgment by Bombay High Court is a huge relief to Ashok Chavan who was on tenterhooks till the judgment finally came. He too expressed a sigh of relief and said that, “ Truth has prevailed. I have full faith in the judiciary. The governor’s order was politically motivated. The High Court order reaffirms my faith in the judiciary. I am satisfied. The Governor had given the sanction to prosecute me, overruling the decision of his predecessor. With today’s court decision, the Governor’s office has been saved from setting a new precedent.” He is well within his rights to feel happy and vindicated by this Bombay High Court latest judgment! Well, there can be no denying this!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Why Lawyers Of West UP Strike Every Saturday?

To begin with, it is no ordinary matter that the lawyers of West UP have been on strike every Saturday since May 1981 to protest against denying West UP even a single bench of high court even though the Justice Jaswant Singh Commission had recommended the setting up of a high court bench at Agra apart from Nainital and Dehradun which are now in Uttarakhand but not a single bench was created anywhere. On the contrary, Centre took just no time to create a high court bench at Aurangabad in Maharashtra in 1985 on the recommendations of the Justice Jaswant Singh Commission as also at Madurai in Tamil Nadu and Jalpaiguri in West Bengal! It was then that the lawyers of West UP decided to set up a Central Action Committee to pursue the most sacred and legitimate demand for a high court bench by fighting for it relentlessly till it reaches its logical conclusion.

It was decided to observe Saturday of every week as a protest day against Centre’s discriminatory policy towards West UP! Today is January 6 and so again the lawyers of all 26 districts of West UP will be on strike and no work will be done in any court of any of these 26 districts of West UP! It has been more than 36 years that lawyers have been doing so but Centre is caring a damn!

In hindsight, 21 December is a date which I can never forget in my life because it was on this black day in 2014 that Dr OP Sharma who is the former President of Meerut Bar and who is held in highest esteem here lost his only son – Tarun Sharma who also was a budding advocate to bullets and that too right in front of his house! He was about to be engaged just after about two to three months! He had pursued his MBA from New Zealand and then chose to follow the worthy footsteps of his father by wearing black coat but his live was abruptly cut short by bullets!

He had everything in him to become like his illustrious father an eminent lawyer and even a Judge of High Court and Supreme Court but alas that was not to happen as bullets snatched the promising life of an intelligent young lawyer! He too as long as he was alive vociferously and actively supported the legitimate agitation for a high court bench in West UP and always lead from the front in demanding it along with his father! He also had done LLM and even PhD was within his reach if his life was not cut short! Even a senior and eminent criminal lawyer of Meerut Bar – KP Singh too was shot dead by criminals with impunity some years back!

Just recently, a 100 year old woman was raped in Meerut and she died within no time! Most recently a young woman was gang raped in Meerut and she was crying saying that she would have to travel so far to Allahabad to attend court hearings as there is no high court bench in West UP! Why can’t a single high court bench be set up for West UP when both high court at Allahabad and a single bench in Lucknow are both in Eastern UP? I really fail to understand why Centre is so opposed to a bench here just like the earlier past governments in Centre?

In Hapur a small girl aged 6 or 7 years gangraped then people protested in huge numbers in streets! This keeps happening every now and then! It is now treated as new normal! No one is safe in West UP and criminals know that because of huge pending cases it will take decades before the case is finally decided and by the time they are decided they would die a natural death! Gang rape on national highway as happened at Bulandshahr is nothing new! Muzaffarnagar riots in West UP shamed us internationally yet no bench here!

Chief Justice of UP – Dilip Babasaheb rightly pointed out that in Maharashtra woman are so safe that they can go anywhere even in the night but in UP no one is safe even with their family and even on the national highways! Yet see the irony that Maharashtra has 3 high court benches and UP only one and West UP where maximum crime incidents occur has none as both a single bench at Lucknow and high court at Allahabad are in Eastern UP! How can this be ever justified by anyone? Criminals are ruling the roost and Centre yet firmly reiterates that no bench for West UP! Who is gaining most by Centre’s inaction in setting up a bench here? Criminals and only criminals!

The Union Government has set aside Rs 3,320 crore for building 3143 court halls and 1682 residences for Judges but what about a high court bench in West UP? Why can’t a few crore rupees be spared for setting up a bench anywhere in West UP? Why even 1 district is not considered fit to be granted a bench in whole of West UP?

Why is it ignored that high court itself was initially in West UP at Agra for 3 years before being shifted to Allahabad? Why Justice Jaswant Singh Commission recommendation to create a high court bench in Agra in West UP was most brazenly disregarded even though on its recommendations benches were set up at other places like Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Madurai in Tamil Nadu? Why Centre is not prepared to make any concession on bench issue for West UP? Why many BJP leaders like Laxmikant Vajpayee meet UP CM Yogi Adityanath and demand bench just like others leaders have been doing since independence but still no bench is being created here?

It needs no rocket scientist to conclude that it is the “poorest of the poor” people among the more than 9 crore people of all religions, castes, communities and sexes without any discrimination whatsoever who will stand to gain the maximum if a high court bench is created in West UP! What is the problem then in creating a high court bench for more than 9 crore people living in 26 districts of West UP in 2018 when a high court bench for Lucknow for just 12 districts was created way back in 1948 on July 1? Why even after 70 years is Centre not prepared to create a high court bench in West UP even though the people are compelled to travel for about 700-800 km whole night all the way to Allahabad as there is no bench here and have to spend huge money for staying, lodging and other expenses?

Why can’t all this be avoided by setting up a high court bench in West UP or by attaching 26 districts of West UP with Delhi High Court which is so nearby? Why the high court and benches of 8 states and above all even Lahore high court in Pakistan is nearer to West UP as compared to Allahabad? Why the lawyers of West UP were compelled to go on strike for 6 months from July to December 2001 demanding the creation of a high court bench in West UP yet no action taken?

Can anyone in Centre even dream as to how the lawyers managed to strike for so long thereby depriving themselves from livelihood for full 6 months in 2001 and how they struggled to meet their daily end yet no bench created? Even in 2014-15, the lawyers of West UP went on strike for 3 to 4 months and even boycotted Lok Adalats and protested whole night outside the court but again Centre just gave empty assurances but nothing materialized on ground! Even in 2009, the lawyers of West UP went on strike and even called a bandh in whole of West UP to protest the decision to not create a single bench here! Even in 2010, the lawyers of West UP went on strike for a month demanding bench.

Why this hatred for West UP? Have people of West UP ever opposed the creation of just one bench for whole of UP in Lucknow which is just 150 km away from Allahabad where high court itself is located? If Lucknow is capital then so are Bhopal, Bhubaneshwar, Dehradun and Thiruvananthapuram among others but there we see neither high court nor bench!

Why a high court bench at Port Blair for just 3 lakh people, a high court for just 6 lakh people of Sikkim, for just few lakhs of people of people in Manipur, Meghalaya and Tripura as also in many other smaller states? Why a high court now for Uttarakhand since 2000 for just 88 lakh people but not even a bench for more than 9 crore people of West UP? Why such a raw and third rated treatment for them?

Recently, President, PM and Chief Justice of India among others wished the nation on “Constitution Day” and everyone reiterated the dire need to make justice accessible to poor people! But I fail to understand why since last 70 years a single bench has been denied to West UP thus compelling people to travel without any reason so far to Allahabad to get justice? Why when 230th report of Law Commission recommended creation of more high court benches was it not implemented in big states like UP and Bihar which top in the crime rate, murder rate and still UP has just one bench and Bihar has no bench even though Law Minister Ravi Shankar Prasad is from Bihar? Why more than half of pending cases from West UP as acknowledged even by Justice Jaswant Commission yet no bench created here?

Why for a peaceful state like Karnataka 2 more benches were approved in 2012 at Dharwad and Gulbarga for just 4 and 8 districts even though a bench existed at Hubli even though the pending cases are less than 2 lakh and that of UP stands at more than 10 lakh pending cases? Similarly why many other states like Maharashtra and Assam have 3 and 4 benches but for UP which has maximum population more than 22 crore as CM Yogi Adityananth keeps boasting still has least benches in India inspite of having maximum pending cases in high court about 10 lakh and more than 58 lakh in lower courts?

Why maximum MPs, maximum MLAs, maximum villages more than 1 lakh whereas in other states the number is not more than few thousands at the most, maximum districts, maximum crime etc all in UP yet least benches here? Why former UN Secretary General Ban ki Moon slams UP as “crime and rape capital of India” still we see least benches here and here too West UP which accounts for maximum crime has least benches? Why even leaders of BJP as also other parties are repeatedly killed by criminals without any fear and crime rate is exceeding so much that even foreign tourists are not spared as we saw a Swiss couple beaten up badly in Agra still no bench here? Why even 100 year old woman is raped by criminals without any fear still no bench here? Gang rape is becoming a routine in West UP yet no bench here!

Why Centre does not have pity on more than 9 crore people of West UP in whose support lawyers have been waging agitating for a bench since independence and which has intensified since 1981 when lawyers decided to strike every Saturday and make sure that no lawyer does any work on this day and unitedly demand the creation of a bench here? Why lawyers even started striking many times even on Wednesdays yet Centre took no notice? Why even Atal Bihari Vajpayee demanded bench for West UP inside Parliament yet no action?

Why all Union Ministers, MPs and MLAs have unitedly demanded creation of a bench here yet no action? Why for 36 years lawyers of West UP have been striking which should find entry even in Guinness Book of World Records for most period of strike still no bench is being created here? Why in 1955 the then UP CM Sampoornanand had demanded the creation of a bench in Meerut but Centre didn’t agree even though Lucknow had a bench since 1948?

Why this stupidity that the people of Uttarakhand had to travel thousands of kilometers as it had no bench and for more than 50 years were compelled to travel all the way to Allahabad as a single bench was created at Lucknow in 1948? Why bench was not approved for any other place? Why even after 70 years nothing has been done to remedy this grave injustice?

Why inspite of population of West UP being more than any other state except Maharashtra and Bihar and here too areawise Bihar with 94000 square km is smaller than West UP with 98000 square km still it has no bench? Why Centre fails to appreciate that the population of West UP is more than the population of many states put together and similarly the pending cases also are the highest and more than the cases of several states put together yet not even a bench here leave alone high court? Why the maximum cases of rapes, gang rapes, riots, murders, etc are all from West UP yet not even a high court bench here?

Why inspite of repeated assurances by successive governments in Centre was nothing done to fulfil it? With what face is Centre denying a bench even now when Amit Shah who is BJP national President and Rajnath Singh who is Union Home Minister had repeatedly assured that a bench would be created once NDA comes to power in Centre and in UP?

Why only lip service of “speedy justice”, “justice to be made accessible to the poor” and “justice at doorsteps” if no step is taken to create a bench in West UP where incidents of crime are touching dizzying heights? Why Centre fails to appreciate that lawyers of West UP striking since such a long time for 36 long years every Saturday and regularly holding meetings after meetings to chalk out new strategy to push forward the surge of creating a bench can be resolved only by creating a bench here in any of the 26 districts wherever Centre wishes to do so? Is it such a big deal?

Should it not be done immediately? It is the litigants who will stand to gain and here too it is the “poorest of poor” who will benefit most if a bench is created here and all strikes every Saturdayand sometimes even on Wednesday and sometimes for 6 months in a row will become a matter of past! Does Centre not wishes this to happen?

Why then it refuses to take any action on this score? Why is Centre not taking some action to ensure that this more than 36 year old strike by lawyers of West UP is brought to an end by mutual deliberations, discussions and decisions? Why is decision on this score being postponed inordinately when a bench was created at Lucknow in 1948, in Dharwad and Gulbarga for just 4 and 8 districts and in many other places even though the law and order situation is worse in West UP as compared to any other place for which benches were approved? Why litigants of 26 districts of West UP are compelled to travel whole night all the way to Allahabad as there is no high court bench here? Why lawyers of West UP are compelled to strike every Saturday since 1981?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

All 2G Scam Accused Acquitted By Special CBI Court

Let me begin at the very beginning by pointing out straightaway that in a verdict which grabbed the news headlines of all news channels as well as newspapers and magazines, a Special CBI court on December 21, 2017 acquitted all the accused, including former Telecom Minister AA Raja and DMK MP Kanimozhi and telecom company owners in the infamous 2G scam. The judgment acquitted them in all three separate cases lodged by the CBI and the Enforcement Directorate (ED). No doubt, this has come as a big respite for all those who were very anxiously waiting for this verdict to come!

Before proceeding ahead, let me point out here that the case centres around five main allegations: fixation of an arbitrary cut-off date; violation of First Come First Serve policy in issuing Letters of Intent (LoIs); granting of Unified Access Service licences to two ineligible companies and payment of Rs 200 crore bribe to Kalaignar TV Pvt Ltd, promoted by the family of DMK patriarch M Karunanidhi.

Terming the CBI chargesheet as a “well choreographed” one, Special Judge OP Saini minced no words in saying pin pointedly that, “The CBI’s evidences were incorrect facts which miserably failed to prove charges against the accused in 2G spectrum case.” Reacting to the acquittal, the CBI and the ED said they would appeal against the judgments. Naturally, they have to appeal because by this judgment it is their reputation that has taken the worst beating because they failed to convince by their arguments that a prima facie case existed against all the accused in the 2G scam!

To be sure, at the end of his 1,500 pages order, Special CBI Judge Saini said that, “I have absolutely no hesitation in holding that the prosecution (CBI) has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet.” It must be pointed out here that among the accused, it was Raja who had spent longest period – 15 months in jail during the trial. Kanimozhi was in jail for six months from May 21, 2011 to November 28, 2011. Without a doubt, their face looked cheerful and happy as they have finally got a long-awaited respite. They cannot be faulted because this is what they were looking for.

To put things in perspective, the fifteen other accused allowed to walk free include former Telecom Secretary Siddharth Behura, Raja’s erstwhile private secretary RK Chandolia, Swan Telecom promoters Shahid Usman Balwa and Vinod Goenka, Unitech Ltd MD Sanjay Chandra and three top executives of Reliance Anil Dhirubhai Ambani Group (RADAG) – Gautam Doshi, Surendra Pipara and Hari Nair. Saini, whose court came into being on March 14, 2011 for hearing 2G cases exclusively, also, acquitted Essar Group promoters Ravi Kant Ruia and Anshuman Ruia and six others in a separate case arising out of the 2G scam probe. Besides Ruias, Loop Telecom Promoters IP Khaitan and Kiran Khaitan and Vikash Saraf, one of the Essar Group Directors, Loop Telecom Ltd, Loop Mobile (India) Ltd and Essar Teleholding Ltd also were acquitted.

It is noteworthy that the CBI had alleged that there was a loss of Rs 30,984 crore to the exchequer in allocation of licences for the 2G spectrum which were scrapped by the top court on February 2, 2012. Raja and Kanimozhi who is daughter of DMK supremo M Karunanidhi were also let off in another case lodged by the ED under the money laundering law arising out of the 2G scam. It is certainly by all accounts a great relief for them!

It would be pertinent to mention here that in its chargesheet, the ED had also named DMK supremo M Karunanidhi’s wife Dayalu Ammal as an accused in the case in which it had alleged that Rs 200 crore was paid by Swan Telecom (P) Ltd (STPL) promoters to DMK-run Kalaignar TV. Along with them, 16 others, including Shahid Balwa and Vinod Goenka of STPL, Asif Balwa and Rajiv Aggarwal of Kusegaon Fruits and Vegetables Pvt Ltd, film producer Karim Morani, P Amirtham and Sharad Kumar, Director of Kalaignar TV, were also acquitted in the money laundering case.

In hindsight, the Judge did not pay much significance to nearly Rs 200 crore transferred to DMK controlled Kalaignar TV by some of the accused persons and companies. He dismissed the transaction saying none of the accused persons claimed that it was part of illegal gratification in lieu of alleged favour granted to them by Raja. The Judge also find no illegality in the Raja’s decision to advance the cutoff date for receiving application for grant of licences from October 1, 2007 to September 25.

What also cannot be missed out here is that though the Department of Telecom gave just one hour for the applicants to submit their bids, leading to a chaos and scuffle, Judge Saini justified the decision. He also took no notice of the fact that the one-hour time, without any prior notice was too short for any bidder to procure a bank draft ranging from Rs 200 crore to Rs 500 crore. Brushing aside this damning accusation against Raja, Saini went on to justify the decision, saying, “A non-serious player, who had no financial resources, would block the way of a serious player by claiming early mover advantage. This was the main disadvantage of determining seniority by date of application and as such, it was injurious to the interest of serious players, who had the financial resources to execute the telecom project.”

It also cannot be lost on us that Judge Saini also said that whenever an officer wanted to delay an application, “he would wrap it up in the mantle of first-come first-served, that is, unless earlier application was disposed of, the next will have to wait despite no fault of his own.” He said change of criteria was a facilitating innovation. The Judge also seemed to be impressed by the allegations made by the accused persons against prime witness Aseervadam Achary about his political motives. The court rubbished its testimony saying explicitly that, “He was a man with political testimony and used to think of joining political party.”

Be it noted, Justice OP Saini said that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” It was also held that, “When defence started arguments, they kept filing written submissions contemporaneously with their oral submissions. Not only this, the most painful part is that the Special Public Prosecutor was not ready to sign the written submissions filed by him. What is the use of a document in a court of law, which is not signed by anyone? When questioned as to why the Special Public Prosecutor was filing unsigned written submissions, his reply would be that some defence advocates had also not signed the written submissions.”

While acquitting A Raja, Ms Kanimozhi and 15 others, including 4 companies, of all the charges in the CBI case, Special Court Judge OP Saini said that, “There is no evidence on the record produced before the court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first-come, first-served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of Swan Telecom Pvt Limited (STPL) and Unitech group companies, non-revision of entry fee and transfer of Rs 200 crore to Kalaignar TV (P) Limited as illegal gratification.”

The Judge minced no words in stating quite explicitly that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” In his judgment acquitting all the accused in the 2G spectrum case on December 21, Special Judge OP Saini said that, “Everything happening in the Department of Telecom (DoT) then was known to several other companies – and that there was no secrecy and sanctity. Everything taking place in DoT was conveyed by officials concerned to each company in advance.’

It was also held by the Judge that, “Everything was leaking in DoT. There was no secrecy or sanctity. Who is responsible for it? There is no evidence. In such a situation, no blame can be cast on any of the accused alone. In such a scenario where every official information was being leaked, it cannot be argued that a specific information was conveyed to a specific company by a specific individual, unless there is a definite evidence on this point. It is all in the realm of speculation.”

Furthermore, the Judge also while exonerating Raja and all others of any wrongdoing held that, “It is clear that the Ministry of Finance was not very enthusiastic about its objections regarding pricing of initial spectrum/revision of entry fee. Moreover, [the then] Finance Secretary admitted that after receipt of reply of DoT, they did not pursue their objections seriously. If the Finance Ministry had been serious, and Sh. A Raja was not heeding its query for revision of entry fee, the matter must have been reported to the Cabinet Secretariat or PMO.”

The Judge accepted the defence contention that nowhere had the Telecom Regulatory Authority of India (TRAI) recommended revision or indexation of entry fee. Nor had it recommended auction of spectrum. The Judge said: “No witness had deposed that TRAI had recommended revision of entry fee for 2G spectrum, except Nripendra Misra, a former Secretary Telecom, and a former TRAI Chairman. However his view is not supported by the contents of the recommendations.”

The Judge also made it clear in the 1552 page judgment that, “The chargesheet is based mainly on misreading, selective reading, non-reading and out-of-context reading of the official record. Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness-box.” He also said that, “Proceeds of crime is the foundational fact for the offence of money laundering. Since there are no proceeds of crime, there can be no offence.” He concluded by saying that, “The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused, made in its well choreographed chargesheet. Accordingly, all accused are entitled to be acquitted and are acquitted.”

Eminent Supreme Court senior lawyer KTS Tulsi while hailing the judgment said that, “A truckload of documents did not have anything on the basis of which it could be said that the ineligibility of Swan or Unitech was ignored or Raja’s link with transfer of Rs 200 crore to Kalaignar could be established. The court accepted the statement of D Subbarao, referred to as a sterling witness, for coming to the conclusion that there was no loss to the exchequer and at best it was only some sacrifice of revenue (for the benefit of poor subscriber). Once the court came to the conclusion that A Raja was not responsible for change of policy with regard to the cut-off date and its change from first come first serve to first paid, there was virtually nothing left in the case. On detailed careful scrutiny of the files, their notings and evidence of the authors of those notings, the court came to the conclusion that there was no interference by any of the accused persons in processing the files. In addition to that, the court found that in fact Raja passed the correct order and that for the change of policy, DS Mathur was responsible. Moreover, the Solicitor General of India had approved the decision with regard to the change of policy of first come first serve from date of application to date of payment. Thus, it was almost impossible for Raja to be held responsible for the same.”

But Special Public Prosecutor Anand Grover who was appointed after SPP and senior advocate UU Lalit was appointed as a Judge of the Supreme Court is not happy with the judgment. He said the trial Judge made silly mistakes in even reading the basic document, the chargesheet. He asked: “If the chargesheet was faulty, why did he frame charges at all? He should have discharged all the accused only on that ground. No trial Judge proceeds with the trial after finding the chargesheet faulty.”

He said the trial Judge appeared to have completely missed the tabular chart provided by CBI detailing the transfer of Rs 200 crore by Dynamics, a real estate company to Kusegaon, a fruit and vegetable trader, which had no business. The money was then transferred to Cineyug Films to be finally routed to Kalaignar TV. He said that, “The money trial was vivid and detailed. The motive was clear. The tabular chart provided by CBI during trial proceedings clearly brought out the sequence and motive behind the payments. Yet, the chart does not even get referred to by the trial Judge. This is strange process of accused getting acquitted.”

He further added that it was the cardinal duty of the trial Judge to look for facts in the midst of the jungle for documents. He lamented that, “But, the Judge preferred to go by the contradictory and varying explanations given by the defence lawyers on the money trial. The trial Judge made so many mistakes.”

All said and done, the decision by the learned Judge has to be accepted by one and all as binding unless and until it is overturned by the higher court. But one thing is quite clear: CBI and ED miserably failed in doing its homework properly. The outcome of the case could have been different if the CBI and ED had been more serious in pursuing the case right from day one!

Severely castigating the CBI for putting “no question” to any witness that a “transaction of Rs 200 crore was a transaction of illegal gratification linked to (UPA telecom minister) A Raja” in the allocation of 2G spectrum in 2008, Special Judge OP Saini acquitted all accused charged with criminal breach of trust, conspiracy and cheating over alleged largescale irregularities in the allocation. Saini pulling up the CBI for “remaining silent” and “filing a well-choreographed chargesheet” and noting that the prosecutor had made it out to be a “case of high political corruption”, said: “I have endeavoured hard to persuade myself to take an expansive and liberal view of the prosecution case. However, in view of deficient, or I may say nil evidence on record, I find myself unimpressed and unmoved, whatever may be nature of the case. High profile nature of a case cannot be used as a ground for holding people guilty without legal evidence.”

What a pity that the CBI Special Judge OP Saini had to say that, “I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 am to 5 pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain…Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.”

This shows how well prosecution, CBI and ED were prepared in such a high profile case! It is really tragic! In a veiled reference to the Comptroller and Auditor General’s estimate of a presumptive loss of Rs 176,000 crore to the exchequer in grant of 2G licences, Special Judge OP Saini said categorically that, “Some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels and a huge scam was seen by everyone where there was none. These are only a few examples of how policy issues are strewn around here and there in a disorderly manner. Because of this, it becomes very difficult for outside agencies and institutions to understand issues in proper perspective, leaving scope for controversy.” Centre must spell out all its policy issues clearly so that no such stinging remarks are required to be made by any Judge again as we see most unfortunately here in such a high profile case!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.04411111111111111

102

IMA 12 Hour Strike In Pvt Hospitals Against Medical Commission Bill

Coming straight to the core point, the Indian Medical Association (IMA) on January 1 has called for a 12-hour shutdown of all private hospitals in India on January 2 to protest what they call it the “anti-people and anti-patient” National Medical Commission (NMC) Bill, 2017 that seeks to replace the Medical Council of India (MCI). This NMC Bill was presented in the Lok Sabha on December 29. The IMA has 2.77 lakh members, which includes corporate, hospitals, polyclinics and nursing homes across the country.

Dr Avinash Bhondwe who is former President of IMA said that the IMA has announced a nationwide strike between 6 am and 6 pm on January 2 as a mark of protest against the Bill. Dr SS Utture who is President of IMA said that the Bill in its present form was unacceptable and the IMA action committee has declared a black day on January 2.He said that, “This Bill is anti-poor, anti-people, non-representative, undemocratic and anti-federal in character”.

It must be brought out here that the decision to go on a 12-hour strike came after a delegation of the IMA led by President KK Aggarwal and its national President Ravi Wankhede met Union Minister of health and family welfare JP Nadda seeking strict amendments in the Bill that was tabled in the Lok Sabha. Wankhede said that, “IMA strongly opposes this Bill and has no option but to take the issues to our patients and the people. We have called for 12-hour shutdown.” Routine medical services like OPD and elective surgeries across the country will be withdrawn between 6 am and 6 pm.

Terming the Bill as “anti-people and anti-patient”, the IMA in a statement has stated that the Bill purported to eradicate corruption is “designed to open the floodgates of corruption”. IMA, which is not a statutory body, has been vehemently opposing the Bill to set up the NMC ever since it received the Union Cabinet clearance and has demanded key amendments in it. It issued a statement after the delegation met the Health Minister Nadda which stated that, “NMC is an anti-poor Bill with pro-private management clauses. A Bill to regulate the medical education and medical practice without the concurrence of the medical profession will be a disaster.”

To be sure, the IMA doctors alleged that there are hidden agendas in the proposed Bill. According to Section 26(1)(b) of the Bill, permission to start medical colleges/PG/superspeciality courses or increase seats in MBBS/PG/superspeciality courses will be directly granted by the Medical Assessment and Rating Board directly, which will have three members nominated by the Centre. This will vastly increase Centre’s clout which can misuse whenever it likes as all the three members would be directly nominated by it!

It must be added here that as per Section 26(1)(f) of the Bill, it is provided that MAR Board take such measure, including imposition of monetary penalty, against a medical institution for failure to maintain the minimum essential standards specified by the UGME Board or the PGME Board, as the case may be. The material point for consideration is that all the three monetary penalties are not to be less than one half and not more than ten times the total amount charged by such institution for one full batch of students of undergraduate course or postgraduate course as the case may be. The medical fraternity points out that it yields such wide period and discretionary power to the Board and in the name of charging fine, the permissibility of the period turns out to be substantial before the closure is invoked which means that during the impending period the learner would be taught and trained in compromised ambience resulting in impoverished teaching and it would end up in generation of half-baked health manpower, which would be ill conducive to the healthcare delivery system! They have a valid point!

Going forward, as per proviso 2, Section 33(1)(d), the NMC can permit a medical professional to perform surgery or practice medicine without qualifying the National Licentiate Examination, in circumstances and period that may be specified by regulations. Utture said such sweeping powers are not only illegal but will give ample scope for manipulation and corruption. This operationally means that without ascertaining the required levels and certification thereto, the Commission would be permitting people to practice surgery and medicine in an open ended manner which tantamounts to legalizing quackery in an operational sense and thus the lives of the people at large would be openly under threat! Medhavi Tomar who is President of IMA (Meerut unit) lambasted the illogical move saying that, “On one hand, the government plans to abolish exams for foreign graduates despite the fact that they will not be conversant with the infections and diseases of the country, but on the other hand, they want the MBBS students who have already studied for the degree to go through another entrance exam to get themselves a degree. The doctors will also protest against the EXIT exam which the government believes should be undertaken by the MBBS students to finally get their graduation degrees.”

It is noteworthy that the doctors are protesting against the NMC Bill for seeking to allow practitioners of ayurveda, yoga and naturopathy, unani, siddha and homeopathy, to practice modern (allopathy) medicine once they complete a short term “bridge” course.” Dr Shishir Jain who is Joint Secretary, IMA (UP unit) and Finance Secretary, IMA (Meerut unit) said that, “According to current norms, cross-pathy is not allowed, which means a doctor belonging to one category cannot prescribe medicines for another category. For example, an allopathic doctor cannot prescribe homeopathic medicines. But if the NMC Bill is passed, cross-pathy will be allowed, once they complete a six-month course.”

It cannot be lost upon us that many in the medical fraternity are voicing their serious apprehensions over the Health Ministry calling the shots in the days to come and not the doctors! SK Sarin who is former Chairperson of Governors, Medical Council of India minces no words in stating it most unequivocally that, “It is possible that in the near future NMC will become subservient to the health ministry, given that the representation of the medical profession in the new regulatory framework is minimal. The proposed NMC Bill discreetly intends to equate the post-graduate degrees given by MCI or proposed NMC and the National Board of Examination (NBE), which is unjustified too. Standards have been laid down for MCI courses, but not for NBE courses which are often run in private hospitals and nursing homes.”

Elaborating further, SK Sarin also points out that, “It is well known that doctors in private practice have limited time and exposure to teaching and research. Equating the two degrees would do disservice to the profession. Why would a teacher stay in a government run medical college if he or she can earn five times more and still be designated as a professor? It would be advisable if some serious thought is given before the burial of government-run medical college starts. Similarly, NMC shouldn’t open gates to overseas doctors to regularly practice medicine or perform surgery without qualifying the National Licentiate Examination or induct Ayush colleagues without clearing NEXT. Also, the accreditation and rating function of the Medical Assessment and Rating Board (MARB) should be out of the ambit of NMC. This was also the recommendation of the Parliamentary Committee report in March 2016. MARB’s impartialty is dented if it seeks directions from the commission or government, more so as penalties on non-compliance on educational standards are monetary and regulation of fee structure of up to 40% of seats in private institutes is under its domain.”

As per Section 55(2) (zl) of the National Medical Commission Bill, the Ethics and Medical Registration Board shall maintain a separate national register including the names of licensed AYUSH practitioners. The names of BAMS and BHMS graduates are already registered with their respective councils and on availing the bridge course they would be incorporated in a separate register maintained by the NMC, resulting in dual registrations with two registering councils, which is neither open nor permissible. Utture lamented that, “The disciplinary jurisdiction on such persons with reference to breach of ethics is not indicated in the proposed Bill as they have dual registrations to their credit. As such these are the floodgates that have been opened up in terms of the statutory provisions for backdoor entry into medical profession entitling practicing modern medicine.”

The proposed NMC will have 10% elected members (part time) and 90% nominated members. We thus see that it will not have a desired “representative character” with reference to “elected and nominated/appointed members” whereas currently we see that the MCI has 75% elected members and 25% nominated members. Why has the strength of elected members dwindled down to a mere 10% and that too part time whereas the strength of nominated members has been raised hugely from 25% to 90%? Will this not directly increase government’s interference?

As per Section 10 of the Bill, the functions vested with the Commission under the Act are generic and cosmetic in character. Thereunder it is to exercise appellate jurisdiction with respect to decisions of the autonomous boards. As per Section 10(1) of the Bill, Commission would be framing guidelines for determination of fee in respect of such proportion of seats not exceeding 40% in the private medical institutions. This operationally means that the fee regulation would be limited to a maximum of 40% seats in the private medical institutions, which is difficult to comprehend as to why such a ceiling and furthermore it could be anything from nil up to 40% which is quite paradoxical!

It also brings into fore as to what would be the chargeable fee for those percentage of seats for which no guidelines would be framed by the Commission. Does this not open the floodgates of discretion and nepotism? Also, this operationally will mean that the present 15%, which is available to private institutions which includes deemed universities for charging higher fee, would stand augmented to the entire remainder which could be anything between 60% or more which as is blindingly obvious is a real travesty of its type.

Section 15 of the proposed Bill inserts provision which introduces licentiate examination as mandatory for practicing and doing further post graduate courses after acquiring MBBS qualification. It has been discussed above but it must be added here that the IMA doctors apprehend that the standard and level of licentiate examination would be such that the students belonging to backward communities would find it greatly difficult to clear the same easily and handily! They would thus suffer immensely as they would neither be able to practice nor even take admission in PG courses. The same holds true for those who come from backward areas/states and also from north-east region as well!

Be it noted, as per Section 29(b) of the Bill, the MAR board is to look into ‘whether adequate faculty and other necessary facilities have been provided to ensure proper functioning of the medical college or would be provided within the time limit specified in the scheme while granting permission to start Medical college or PG courses. Does this not vest the board with the sword of wide discretionary power to accord approval by hypothetically making the assumptive presumption that the stipulated minimum requirements would be completed within due course of time? Will this not impact adversely and prejudice the desired quality of medical education?

What is even more concerning to note is that as per proviso 2 , Section 29(d) of the Bill, the MAR Board can relax the criteria for opening of the medical colleges at its discretion with the previous approval from the Central Government? Will this not ensure that extraneous considerations finally rule the roost in relaxing criteria? Why the regulatory stipulations which are mandatory in nature and binding in character should be opened to concessions or condonation by exercising the route of discretionary authority? Should such route of discretionary authority be allowed? Certainly not!

As per Section 44(1)(2) of the Bill, although autonomy is widely anticipated to be the hallmark of the NMC Bill, 2017 and the Boards thereunder would be called as “Autonomous Boards” but the ground reality is just the opposite! Centre would be entitled to give directions to the Commission and autonomous boards on all questions of policy which would be binding for the Commission and autonomous boards to comply with! Where is the guarantee that Centre will not misuse it?

Section 45 further strengthens the hands of the Centre by incorporating that Central Government would be within its rights to give such direction it may deem necessary to the State Government for carrying out all or any of the provisions of this Act and State Government shall comply with such directions. Does this not directly undermine the authority of the State Government and clashes directly with the cardinal principles which govern the federal polity as stipulated in the Constitution? Similarly we see how Section 10(1)(f) of the proposed Bill makes it obligatory for State Medical Councils to comply with the directions/policy of the NMC thus bringing it under Centre’s direct thumb!

Last but not the least we see how Section 58(3) has a direct adverse bearing on the employees of the MCI. It brings out that on the dissolution of the MCI the person appointed as Chairman of the MCI and every other person appointed as the member and any officer and other employees of the council and holding office as such immediately before such dissolution shall vacate their respective offices and such chairman and other members shall be entitled to claim compensation not exceeding three months pay and allowances for the premature termination of term of their office or of any contract of service. This clause severely impacts the employees of the council who earlier enjoyed full time salaried status and permanence of employment in character but are now rendered jobless thus leaving them to fend for themselves. Is this not violation of Article 21 read with Article 12 of the Constitution of India because Article 12 vests entitlement to decent life and living as a fundamental right to every citizen and Article 12 clearly mandates a State (in this instant case the MCI) to be an ideal employer?

I can still go on and on. But due to constraint of space I have to now finish. One has to concede that the IMA protests are not without reason. Centre must work out the solution which lies in the problem itself! Centre must take into board all the legitimate concerns of the IMA and work out a new Bill after addressing them properly! Why insist on EXIT exam for Indians alone when Centre is planning so many concessions for foreign students? All such vexed issues must be addressed and they can be if the government is willing and earnest in its endeavours to do so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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