International Solar Alliance Meet In Delhi Was Historic

Introduction

                                                 Coming straight to the nub of the matter, let me start scribbling my pen by first and foremost pointing out that the inaugural summit of the International Solar Alliance (ISA) in New Delhi on March 11 with 40 heads of state in attendance was an impressive showcase for Prime Minister Narendra Modi’s leadership of the global renewable energy agenda which also reiterated India’s firm and full commitment to it. ISA is an alliance of 121 countries located between Tropic of Cancer and Capricorn. Invitations had been sent to 50 signatories including 21 countries that have ratified the ISA treaty.

                             How ISA Evolved?

                                         To put things in perspective, the ISA is an outcome of an idea which PM Narendra Modi presented officially at the United Nations Climate Change Conference in Paris in 2015 and which envisages the direct and active involvement of 121 countries that were situated either fully or partially between the Tropic of Cancer and Capricorn which is essentially Earth’s sunbelt. Along with 121 countries there are organizations from Africa, Southeast Asia and Europe which are directly and actively involved in it. India and France are thee co-founders of the alliance to promote solar energy.

                                        It must be mentioned here that between 2008 and 2010, Narendra Modi who was the then Gujarat Chief Minister had approached the then Prime Minister of India – Dr Manmohan Singh with a concept called Sun-Son. It would be a group of Asia Pacific country researching and developing solar energy which has many benefits. But Centre led by Dr Manmohan did not take up this idea then. But now we see how it has evolved and it needs no rocket scientist to conclude that ISA is inspired by Sun-Son.

                            To recapitulate, the ISA was established on December 6, 2017. On 11 March 2018, Prime Minister Narendra Modi hosted the Founding Conference of the ISA in New Delhi during which the participating States adopted the Delhi Solar Agenda. In his speech at the conference, PM Modi outlined a ten point agenda in terms of way forward and in particular called for making the ISA Secretariat strong and professional. 

                                   ISA was signed by nearly 200 countries in December 2015 in an effort to curb global greenhouse gas emission and limit global warming to within 2 degrees Celsius. In November 2017, Syria signed the deal leaving the US as the only country in the world not to support the framework deal to combat greenhouse gas emissions.       

                                Object of ISA

                                        It must be underscored that the key object of ISA is to make available solar energy at an affordable rate, create solar grids and establish solar credit mechanism. This was revealed by officials to media. According to the ISA’s working draft, its aim is to “ensure access to affordable, reliable, sustainable, and modern energy for all.” The ISA also aims to substantially increase the share of renewable energy globally by 2030.

                                                It must be underlined here that the ISA framework very explicitly says that, “Enhance international cooperation to facilitate access to clean energy research and technology, including renewable energy, energy efficiency and advanced and cleaner fossil fuel technology and promote investment in energy infrastructure and clean energy technology.” Also, a statement from the ISA Secretariat clearly reads as follows: “The vision and mission of the International Solar Alliance is to provide a dedicated platform for cooperation among solar resource rich countries where the global community, including bilateral and multilateral organizations, corporate, industry, and other stakeholders, can make a positive contribution to assist and help achieve the common goals of increasing the use of solar energy in meeting energy needs of prospective ISA member countries in a safe, convenient, affordable, equitable and sustainable manner.” The ISA Secretariat is based in Gurgaon where PM Narendra Modi and the then French President Francois Hollande had laid the foundation stone in 2016.

                                        Upendra Tripathy who is interim Director General of ISA while mentioning the key aims of the summit elucidates that, “The summit celebrates ISA’s birth. It aims to bring together member countries, to mobilize more than $1000 billion by 2030. The ISA will generate a trillion dollar global solar market. The summit will generate political support for solar road maps of member countries in areas of demand aggregation, innovation, standards, quality control, research and development, and capacity building.” India has set an ambitious target of installing 175 GW of renewable energy, including 100 GW from solar by 2020 as announced by PM Modi at the joint launch of the ISA with then French President Francois Hollande on November 30, 2015. The ISA’s major objectives include global deployment of over 1,000 GW of solar generation capacity and mobilization of investment of over $ 1 trillion into solar energy by 2030. 

                            India’s Contribution

                                      Truth be told, India will contribute $27 million to the ISA to create a corpus, build infrastructure and for recurring expenditure over five years (FY17 to FY21). The Solar Energy Corporation of India (SECI) and the Indian Renewable Energy Development Agency have contributed $1 million each to create the ISA corpus. India’s Ministry of External Affairs, through its Development Partnership Administration program, has set aside $1.5-2 billion, as a line of credit facility to undertake solar projects in African countries that have signed and ratified the ISA Framework Agreement.         

                                     As a part of its climate change commitments, India has said that by 2020, 40 percent of its energy will come from renewable resources. India will do whatever it can to contribute fully to the ISA which is the brainchild of none other than the PM Narendra Modi himself. India has reiterated this time and again before the world community and by its acts has demonstrated also its firm and full commitment to it. Modi also announced a Solar Technology Mission that will look at the various aspects of technology development and innovation in the area of solar energy.

                                        In addition, the PM presented 10 action points, including making affordable solar technology available to all nations, raising the share of electricity generated from photovoltaic cells in the energy mix and framing regulations and standards to support the initiative. The PM also announced that 500 training slots will be created for member countries to lead research and development.

                                        Lauding India for taking lead in scaling up its solar power generation capacity, French President Emmanuel Macron said renewable capacity has within two years gone up from 39 GW to 63 GW, while that of solar energy has soared by 140 percent. Macron while hailing India’s contribution said that, “India proves that it is possible. What you are in the process of succeeding in doing is being watched by the entire world. You are attracting investment, you are supporting them, you are training young people and so this is what we shall be doing. This is what 121 countries of the alliance in Asia, Africa, Latin America shall be doing.”

                                      Jibe At America

                                          In an indirect reference to the United States President Donald Trump’s decision to pull out of thee Paris Climate Agreement, Macron said that while some countries quit the historic Paris Climate agreement, the ISA nations have come together to “deliver complete results”. He further added that, “They (ISA member nations) started to act and to deliver complete results. They didn’t wait, they didn’t stop because few countries decided to just leave the floor and the Paris agreement. Because they decided it was good for them, their children and grandchildren and they decided to act and keep acting.”                           

              India To Help 15 Nations Tap Sun

                                    In what can unquestionably be termed as India’s biggest proof of its commitment to ISA is Prime Minister Narendra Modi pledging to fund 27 solar projects worth $1.4 billion in 15 countries through Lines of Credit. This is in addition to the projects worth $143 million that are already under implementation in 13 countries. India will be helping these countries, most of which are in Africa, in rural electrification, mini-grid and off-grid usage, irrigation, street lighting etc.

                                   ISI A True Game Changer

                              What truly makes ISI a true game-changer is that it is a partnership of countries lying fully, or partially, between the tropics, mostly developing countries, which despite being endowed with excellent solar insolation, are among the most energy poor. It is here that ISI will help these countries in tapping their energy potential to the maximum possible extent. In coming together, these countries can work together to find locally appropriate solutions, aggregate demand to suitably modified technology that is affordable and access financial resources necessary for large-scale deployment. In that direction, ISA encapsulates the spirit of Paris Agreement: what every country can do and how we can do better together. Not only is the ISA alliance the most concrete outcome of the Paris Agreement, it is also key to achieving the 2030 Sustainable Development Goals (SDGs). In ensuring the deployment of solar applications, ISA can certainly usher in transformational change which is a shift to more sustainable systems of production and consumption while simultaneously also bringing millions of those unserved by modern energy and economic systems into the fold.   

                              ISA Leaders In Delhi Declaration

                                         In the Delhi Declaration, the leaders of the founding States of the ISA emphasized on the need for sensitization and awareness building on the advantages and opportunities for promoting alternative energy at all levels as reflected in the ISA’s Framework Agreement. The ISA member States also agreed to increase their efforts to pursue an increased share of solar energy in the final energy consumption in their respective national energy mix, as a means of tackling global challenges of climate change and as a cost effective solution by supporting and implementing policy initiatives. They committed to facilitate affordable finance, access to appropriate, clean and environment friendly technology and undertake capacity building, including forging partnerships with international institutions and financial institutions for the benefit of developing countries.

                    Priorities Outlined By France

                                  The French President Emmanuel Macron said three primary things need to be done. Firstly, identify solar energy potential in each country, their projects and financing requirement. Secondly, mobilize available finance and thirdly, to provide a favourable framework. Needless to say, all the ISA countries will now certainly strive in this direction to see that these three primary things that have been outlined by Macron are done at the earliest.

    Countries That Have Signed, Ratified ISA

Australia, Bangladesh, Comoros, Cote d’ Ivoire, Cuba, Dominica, Fiji, France, Gabon, Ghana, Guinea, Guyana, India, Madagascar, Malawi, Mali, Mauritius, Nauru, Niger, Papua New Guinea, Peru, Rwanda, Seychelles, Somalia, South Sudan, Sudan, Sri Lanka, Togo Tuvalau, Uganda, UAE, Venezuela (32)

    Countries Which Have Signed But Not Ratified ISA

Algeria, Benin, Brazil, Burkina Faso, Burundi, Cabo Verde, Cambodia, Chad, Chile, Costa Rica, Democratic Republic of Congo, Djibouti, Dominican Republic, Egypt, Equatorial Guinea, Ethiopia, Gambia, Guinea-Bissau, Kiribati, Liberia, Mozambique, Nigeria, Papua New Guinea, Sao Tome and Principe, Senegal, Suriname, Tanzania, Tonga, Vanuatu, Yemen (30)   

                   Big Diplomatic Achievement For India

                                          It is beyond an iota of doubt that the establishment of ISA marks an emphatic, big and crucial diplomatic achievement for India. It is India’s PM Narendra Modi who is the real originator of the idea of ISA. India has demonstrated how the world can be presented with an alternative model of development, one that is collaborative, equitable, practical, transformative and sustainable. No doubt, it is India’s golden chance to provide global leadership to address the biggest challenges confronting humanity: poverty and climate change.

                                       Time For Action

           

                                        The time for talk is over and the time for action starts. To borrow French President Emmanuel Macron’s words: Now let’s get to work. France too is cooperating with India in all its endeavours which is quite ostensible! India has set a very ambitious target for itself of achieving 100Gw of solar power by 2022 which is only five years from now. In order to achieve this target, technology will undoubtedly play a key role. India understands this fully and now is the time for action to achieve the ambitious target that India has set for itself!           

                        Centre Signs Pact With ISA   

                                            Centre on March 26, 2018 signed ‘The Headquarters Agreement’ with the ISA. The agreement was signed by Minister of State for Ministry of External Affairs (MEA) Gen (Retd) VK Singh on behalf of the Indian government and by Upendra Tripathy who is Interim Director General of ISA. The agreement has provisions covering definition; interpretation and objectives; legal status, headquarters, other premises for temporary use; the ISA Secretariat property funds and assets; communication facility for the implementation of the ISA Secretariat activity; settlement of disputes; supplemental agreements; general provisions for the functioning of the ISA.

                                        MEA said in a statement that, “Accordingly, Government of India recognizes the international legal personality of the ISA. The ISA Secretariat shall enjoy independence and freedom of action in the furtherance of its official functions and shall have the rights to display its logo, flag and other identifiers, on its programs, premises and vehicles. Government of India shall provide support of Rs 125 crore to ISA for creating corpus, building infrastructure and recurring expenditure over five years duration from 2016-17 to 2020-21.”     

                          ISA’s Joint Declaration With Banks

                             Four multilateral banks – Asian Development Bank, African Development Bank, Asian Infrastructure Investment Bank and New Development Bank and the GCF of the UN climate body signed a joint declaration on March 10 partnering with the ISA in its efforts to mobilize fund for solar projects across the globe. At present, three multilateral banks – World Bank, European Investment Bank and European Bank for Reconstruction and Development are partners of the ISA to mobilize finance to develop and deploy affordable solar energy in solar rich countries.

                               Conclusion

                                      A good beginning has been made and the groundwork has been initiated. It is beyond a straw of doubt that if ISA succeeds in its aims of making solar energy available at an affordable rate, creating solar grids and establishing solar credit mechanisms, it will certainly serve to increase the global confidence in India’s capacities. Shyam Saran who is former Foreign Secretary rightly points out in his editorial titled “Powering India’s Growth Story” in Business Standard dated 14 March 2018 that, “While welcoming the launch of the alliance one must be conscious of the major challenges that lie ahead. Solar energy is available in daylight hours and even then its availability is variable depending upon weather and cloud conditions. Technological innovation has to focus on cost effective, compact, reliable and environmentally sound storage in order to make solar power a stable and credible alternative to conventional power. Solar power requires space for laying out solar panels and in a densely populated country like India space is at a premium. Nevertheless, despite these challenges there are already multiple applications of solar power which are already economically viable, in particular, in decentralised deployments. India has an unprecedented opportunity to develop solar industry because like China, it offers scale which is critical to reducing costs and to stimulate innovation. The success of the International Solar Alliance rests on the success India is able to achieve in its own ambitious National Solar Mission.”

                                     Shyam Saran further goes on to rightly say in the same enlightening editorial that, “The National Solar Mission recognized the need to not only expand the use of solar power, but also to chart a technology pathway to resolve some of the challenges referred to. It was agreed that a major research and development (R&D) effort must be launched to find power storage solutions aiming for 6-8 hours storage to make solar power comparable to conventional grid power. The proposal was to invite consortiums of research institutions, such as IITs, to submit bids for developing storage systems with specifications laid down by a team of experts. Similarly, in order to reduce the space requirement per megawatt of solar power, nano-technology applications were envisaged and these too could be part of the consortium approach. Finally, it was also agreed that in order to deal with the instability and variability of solar power, hybrid solutions should be explored, such as coupling solar power with gas, bio-mass and even thermal power. In order to do this the mission had envisaged a few pilot projects to demonstrate technical and economic viability. I believe that in taking the initiative forward the government should revisit the technology pathway spelt out in the original mission but never seriously pursued. India must be a technology leader in this sector. China is already laying claim to this position and investing heavily in research and development.”

                                             India has a lot to gain by paying heed to what Shyam Saran has said so eloquently about ISA and the direction to pursue it! India has certainly made a very good beginning. It now only needs to take forward this excellent endeavour along with ISA member countries and strive to bring other countries also into the fold like the China, Germany and the US which are not signatories and Japan has not yet signed the Paris accord! An uphill task but not impossible! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

SC Holds Khap Interference In Marriage Of Adults Illegal

It has to be stated at the very outset that the Supreme Court has rendered a landmark judgment in the case of Shakti Vahini v Union of India and others on March 27, 2018 whereby it held that the right of adult individuals to choose their life partners was above class honour and that it was illegal for khap panchayats to summon and punish couples for this! The Apex Court categorically ruled that any attempt by khap panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely “illegal”. It also ordered that such activities of khap panchayats “are to be stopped in entirety” and called upon Parliament to come up with a suitable legislation. It also laid down “preventive, remedial and punitive” measures.
                          To put things in perspective, while delivering a landmark judgment in the PIL filed by NGO Shakti Vahini in 2010 on the issue, a Bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud also laid down a slew of measures to protect inter-faith and inter-caste marriages generally objected to by the khap panchayats. It ordered authorities to take steps to protect inter-caste and inter-religious couples from honour crimes. The NGO had sought directions to state governments and the Centre to take preventive steps to combat honour crimes.
                                           It is noteworthy that the NGO Shakti Vahini pointed out that at least 288 such cases of honour crimes were reported from Haryana, Punjab, Himachal, Delhi, UP, Bihar and other states between 2014 and 2016. CJI Dipak Misra while reading out the operative part of the judgment said that, “These remedial, preventive and punitive measures will hold field till the legislature brings in a law”. There can be no denying it.
                              It may be recalled that on February 5, during the hearing the Bench said that when two consenting adults agree to enter into matrimony no individual, group or collective rights shall interfere to harass the couple. It had asked the Khaps or Indian Kangaroo courts not to behave like the conscience keeper of society, pointing out that a marriage between two adults was governed by the law. The court had said that it would set up a high-level committee consisting of senior police officers to deal with issues relating to intervention in marriages by bodies such as khap panchayats.   
                                 As things stand, a Bench of CJI Dipak Misra and Justices DY Chandrachud and AM Khanwilkar while disposing of a petition filed by NGO Shakti Vahini in 2010 sent out a very loud and firm message that, “Honour killing guillotines individual liberty, freedom of choice and one’s own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived on some notion that remotely does not have any legitimacy.”
                                        It also must be brought out here that the Apex Court while issuing a slew of directions had asked central and state governments to take preventive, remedial and punitive steps from taking the law into their own hands. It was directed that they must provide protection to inter-caste and inter-religious couples. It was also directed that the police chief in each district should oversee the safety of such couples and take the assistance of the court to make preventive arrests to save them from harassment. In addition, it was also directed that there should be dedicated courts to deal with honour crimes and 24-hour helplines for couples to seek assistance. It was also held that the ruling will hold till a law is passed on dealing with honour crimes.
                                        Simply put, as a first step, the Bench headed by CJI Dipak Misra directed all States to compile data of such districts/sub-districts and villages where honour crimes occurred or khap panchayats assembled in the last five years. Based on this information, 24-hour special cells will be established in such district headquarters to receive complaints from aggrieved couples facing threats from khap panchayats or such other group of persons.
                                    Moving ahead, the Bench also directed that an officer of the rank of Deputy Superintendent of Police shall conduct a preliminary enquiry into such complaints within a week and report to the SP. If the involvement of the members of khap panchayats is found, they will also be charged for the offence of conspiracy or abetment. These district headquarters will also have a safe house to provide shelter to the runaway couple. They will be given protection by the State police, who may even provide logistical support for their marriage under police protection and allow them to stay at the safe house for a period ranging from one month to one year.
                                   Strictly speaking, the Apex Court took both State and police to task by directing that despite complaint, if a honour crime takes place, the concerned police officer will be departmentally proceeded with and punished within six months. Meanwhile, trial in such crimes shall also conclude in six months. This is, in fact,  the crying need of the hour also!
                                           While condemning the honour crimes which can have no justification under any circumstances, the Supreme Court also held that, “The human rights of a daughter, brother, sister or son are not mortgaged to the so-called or so-understood honour of the family or clan or the collective. The act of honour killing puts the rule of law in a catastrophic crisis…class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution…the old order has to give way to the new. Feudal perception has to melt into oblivion paving the smooth path for liberty.” The Bench also added that, “There cannot be any assault on human dignity as it has the potentiality to choke the majesty of law. Therefore, we would recommend to the legislature to bring law appositely covering the field of honour killing.” Without wasting any more precious time, the government must promptly act and usher in a law to appositely cover the field of honour killing as the top court has directed so explicitly!
                                          Needless to say, while stating that khap panchayats or any other institution had no space in deciding consent in marriages, the Apex Court said that, “…the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their consent has to be piously given primacy. If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognize any space for informal institutions for delivery of justice.” In other words, the Apex Court has not left even an iota of doubt that it attaches prime importance to the consent of the two adult individuals to enter into a wedlock and not to the consent of the family or community or clan! Absolutely right!
                                        Truth be told, the Supreme Court Bench also send a loud and warning message to self-appointed guardians of society and khap panchayats by firmly directing that any kind of torture or torment or ill treatment by any assembly in the name of honour that curtails the choice of individuals relating to love and marriage “is illegal and cannot be allowed a moment of existence” and also warned that, “Khap panchayats or such assembly should not take the law into their hands.” Supreme Court’s remarks had come when a counsel representing a khap panchayats said that it had been encouraging inter-caste and inter-faith marriages and referred to provisions of the Hindu Marriage Act which prohibit a union between ‘sapinda’ relationships or close blood relatives among Hindus. What particularly irked the court was that the lawyer said that the khap had been performing its duties as the conscience keeper of society.    
                                       Without mincing any words, the Apex Court held that, “We are on a very fundamental issue. The marriage is between two adults and it is their choice. You cannot take the law into your own hands. Khaps had no business in such matters.” Referring to several judgments including the one passed in the sensational Nitish Katara murder case, the Apex Court had said that, “When two persons marry, if they are adults, the matter ends”. The Bench made it clear that whether a marriage was null or void or illegal could be decided by the court under the law. Very rightly said!
                                          Curiously enough, the Centre too had pleaded with the Apex Court to put in place a mechanism to monitor crimes against women by khap panchayats saying that the police was not able to protect such women. The top court had also said that as a pilot project, it would examine the situation in three districts of Haryana and Uttar Pradesh where khap panchayats were active. The Apex Court, however, rejected the arguments by the khap panchayats that they were trying to advance awareness on same gotra marriages and maintaining sex ratio. Also, the Apex Court while coming down heavily on khap panchayats minced no words in stating most unambiguously that, “They have no authority. They are entitled to lodge an FIR or inform the police. They may also facilitate so that the accused is dealt with in accordance with law. But by putting forth a stand that they are spreading awareness, they really can neither affect others fundamental rights nor cover up their own illegal acts….Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.”
                                      Going forward, on the argument by khap panchayats that it was a “misnomer” to call them by that name, the order said that, “The nomenclature is absolutely irrelevant. What is really significant is that the assembly of certain core groups meet, summon and forcefully ensure the presence of the couple and the family members and then adjudicate and impose punishment.” It must be mentioned here that the Apex Court had invited khap panchayats to hear their views before issuing an order to stop them from harassing or killing couples purportedly to protect the honour of a family, caste, community or faith.
                                      It must be also added here that the Apex Court directed that at the receipt of a complaint that a khap panchayat is to assemble, the Deputy Superintendent of Police shall try to dissuade such a meeting and if they persist, the officer shall be personally present during the meeting and even videograph the proceedings for future action. He may then submit a report to the District Magistrate/Sub Divisional Magistrate for issuing prohibitory orders under Section 144 CrPC.  
                                 As we know fully well, the Supreme Court wants Centre to make a separate law on honour killings. It must be appreciated here that Centre along with States in tandem have been actively working also since last few years in this regard. Presently, a Bill to punish honour crimes titled “The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill” is under consideration also of the Government. 21 States out of 29 have consented also to make honour crimes a separate law altogether.
                                          All said and done, Apex Court has made it absolutely clear that there has to be zero tolerance on honour crimes and honour killings for which there can be no excuse. Also, khap panchayats can’t strike down consenting adults wedding at their own whims and fancies. CJI Misra also while writing for the Bench made it clear that, “Despite social advancement honour killing still persists. It has to be constantly borne in mind that rule of law as a concept is meant to have order in a society. It respects human rights. Therefore, the Khap Panchayat or any Panchayat of any nomenclature cannot create a dent in exercise of the said right.”  The Court also sent a loud and clear message by observing that, “Feudal perceptions such as clan, caste and honour have to melt into oblivion. Any kind of torture or torment or ill-treatment in the name of honour that tantamount to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence.”
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.    

Delhi HC Restores 20 Disqualified AAP MLAs Membership

Let me start shaking my pen by first and foremost pointing out that the Delhi High Court on March 23, 2018 in WP (C) No. 750/2018, Kailash Gahlot & Ors v Election Commission of India & Ors in which 20 AAP MLAs had filed a writ petition challenging the disqualification  reversed the disqualification of 20 Aam Aadmi Party (AAP) MLAs and restored their membership to the Delhi State Assembly in offices-of-profit case. A Division Bench of the Delhi High Court set aside the January 20, 2018 Presidential order and referred the case back to the Election Commission (EC) for a fresh hearing. This has definitely come as a shot in the arm for AAP at a critical time!
                                          While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Division Bench of Delhi High Court comprising of Justice Sanjiv Khanna and Justice Chander Shekhar said that the January 19 Election Commission recommendation given to the President “is vitiated and bad in law for failure to comply with principles of natural justice”. The Bench ruled that, “There was a violation of natural justice and no oral hearing was given to the AAP MLAs before disqualifying them as legislators.” Valid point!
                                          It needs no rocket scientist to conclude that Delhi High Court has done no great favour to AAP MLAs. Delhi High Court has set aside their disqualification because the Election Commission did not give them a hearing as is the prescribed norm before recommending their disqualification to the President. It may be noted that the Delhi High Court had reserved its judgment on February 28 after the MLAs and the Election Commission had concluded their arguments!
                                           No wonder that AAP on learning of the judgment became overjoyed. Delhi Chief Minister and AAP convener Arvind Kejriwal described it as a victory of the truth. Kejriwal tweeted that, “The truth has triumphed. The people whom Delhi had voted as their representatives were wrongly disqualified.” The reaction of other AAP leaders was also like that of Kejriwal on expected lines.
                                   While craving for my esteemed readers exclusive indulgence, let me also inform them that  however, Delhi Congress chief Ajay Maken said there was “no need for the 20 AAP MLAs to get elated as the court order has given only partial relief”. He added that the Delhi High Court had not “disputed the merit” of the case that “lakhs and crores of rupees had been spent by the AAP government on these MLAs in perks, as that of a Minister.” He also was quick to point out that, “The High Court has only remanded the case to the Election Commission for a final hearing and not set aside the President’s order as such.”
                                           To be sure, the Delhi High Court on March 23 asked why the Election Commission had not informed the AAP MLAs, facing disqualification proceedings, about the decision of one of the then commissioners, OP Rawat to rejoin the Presidential reference proceedings after his recusal earlier last year in 2017. The Delhi High Court minced no words in questioning the flip-flop of OP Rawat who is now the Chief Election Commissioner. A Bench of Justices Sanjiv Khanna and Chander Shekhar remarked that the AAP MLAs should have been informed and told that Mr Rawat had agreed to rejoin and participate.
                                            Bluntly put, the Bench said explicitly that, “We would unhesitatingly and without any reservation hold that the rejoining or withdrawal of recusal by Mr OP Rawat should have been communicated and informed to the petitioners.” But that was not done. The Bench further said that, “This would have materially affected the response and reply of the petitioners…There is also difference between recusal and re-joining on withdrawal of the recusal. These were two separate stages and have different connotations and consequences.”                   
                                    It may be recalled that on April 19 in 2017, OP Rawat had recused himself from the reference proceedings after Delhi Chief Minister and party leader Arvind Kejriwal had questioned his independence. He later re-joined the reference proceedings on September 22, 2017. Rawat had become the Chief Election Commissioner in January this year. The Bench of Delhi High Court comprising of Justice Sanjiv Khanna and Justice Chander Shekhar had minced absolutely no words in stating most unambiguously that, “No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind and impartially.”     
                           It also cannot be lost sight of that another vitiating factor which vitiated the whole decision making process by the Election Commission of AAP MLAs was that Election Commissioner Sunil Arora who had not heard the matter and who assumed the office as late as September 2017 also signed the order. It is also a well settled principle of law that someone who does not hear the matter does not decide on it. But in this case it was violated by the Election Commissioner Sunil Arora as was also pointed out in the editorial of ‘The Hindu’ newspaper dated March 27, 2018 titled ‘Principle & procedure’.  
                               It may be recalled here that the 20 AAP MLAs had been appointed parliamentary secretaries to ministers in the Delhi government in March 2015 after the AAP’s stunning victory in the assembly elections. In September 2016, the Delhi High Court had itself ruled against this appointment and on January 20, President Ram Nath Kovind, on the Election Commission’s recommendation had disqualified all 20 for holding an office-of-profit. The Delhi High Court on January 24 had refused to stay the notification disqualifying the legislators but had restrained the Election Commission from taking “precipitate measures” such as announcing poll dates.
                           As things stand, in its order, the Delhi High Court said principles of natural justice had been violated since the legislators were not given opportunity to be heard. It said that, “Opinion of the ECI dated January 19 is vitiated and bad in law for failure to comply with principles of natural justice”. The Delhi High Court issued orders “quashing” of the opinion and the consequent order/notification dated January 20, 2018, for violation of principles of natural justice.
                                    Needless to say, the Bench said that, “These violations were the Election Commission’s failure to give oral hearing and opportunity to address arguments on merits of the issue whether the petitioners had incurred disqualification, failure to inform that Mr OP Rawat had expressed his intention to rejoin proceedings after his recusal and finally that Mr Sunil Arora had not participated and no hearing were held before him.” The then CEC OP Rawat had recused himself from cases related to the AAP after Kejriwal had questioned his independence on April 20, 2017, when Rawat was an Election Commissioner. Rawat agreed later to rejoin the proceedings on September 22, 2017 without informing the AAP. Arora had signed the January 19 recommendation to disqualify the MLAs.  
                                      It must be brought out here that while the Delhi High Court set aside the disqualification of 20 AAP MLAs on the ground that the Election Commission’s (EC) opinion was “bad in law” and against the principles of natural justice, former poll panel chief and former CEC AK Joti said that, “The legislators were given enough adequate opportunity to present their side of the case.” Joti was the Chief Election Commissioner when the Election Commission tendered its adverse opinion in the office-of-profit case to President Ram Nath Kovind. The opinion was given just two days before his retirement.
                                   It must also be brought out here that Joti also revealed while speaking with journalists that, “They were given sufficient opportunity to give their representation (in writing). But they did not give any representation. The first notice went in September and then another in November. So it’s not like an opportunity was not given. I don’t want to comment on the High Court’s order.”  
                                 Truth be told, the Delhi High Court Bench directed the Election Commission to hear the arguments again. It said that, “Order of remand is passed to the ECI to hear arguments and thereafter decide the all important and seminal issue: what is meant by the expression ‘office of profit held under the Government’.” The High Court also asked the Election Commission to “re-examine the factual matrix to decide whether the petitioners had incurred disqualification on appointment as parliamentary secretaries, without being influenced by the earlier order or observations on the said aspect in this order.”
                                 It is noteworthy that lawyer and petitioner Prashant Patel was the first to complain to then President Pranab Mukherjee in June 2015 that the MLAs holding the offices of Parliamentary Secretaries were in violation of the Constitution. He had sought their disqualification under Section 15 of the Government of National Capital Territory of Delhi Act, 1991. While the initial complaint was against 21 MLAs but Rajouri Garden MLA Jarnail Singh had resigned from his post to contest election against former Punjab CM Parkash Singh Badal in 2017 state election of Punjab.
                                     In response, the Delhi Legislative Assembly had then passed the Delhi Memebr of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015, excluding Parliamentary Secretaries from ‘office of profit’. But the President had refused to give assent to this Bill. It is of utmost significance that none other than Delhi High Court itself had struck down the posts of Parliamentary Secretaries.
                                   Again, in response, the MLAs had then approached the ECI, contending that it shouldn’t entertain the petition against them, claiming that the High Court had already set aside their appointment as Parliamentary Secretaries. But the ECI had rejected their contention in June 2017 and recommended their disqualification. The MLAs then scrambled to Delhi High Court again for interim protection. But the court refused to grant them relief and expressed displeasure over their conduct for two years during the pendency of the proceedings before the Election Commission of India. Justice Rekha Palli had rapped the MLAs for using their petitions before the High Court as a shield to avoid participating in the Election Commission of India proceedings. But during the pendency of the petition, President Ram Nath Kovind had approved their disqualification.                                    
                                          The Delhi High Court noted that, “We have upheld validity of reference made by the President. The President need not make a fresh reference.” Now whether Prashant decides to appeal against the Delhi High Court order to the Supreme Court or not remains in the realm of speculation. Only time will decide that what future course of action he takes. No doubt, he has devoted his full three years to this case which he himself candidly acknowledges also as he feels that his fight is not personal against anyone but is a fight for principles which was grossly violated in the case of these 20 AAP MLAs appointed as Parliamentary Secretaries! This despite the glaring fact that a Constitutional clause prohibits legislators or parliamentarians from holding any position with monetary or other benefits which comes under the definition of office of profit. This clause is aimed at reducing conflict of interest situations for public representatives.
                                     One thing is quite clear: The AAP MLAs have only got temporary reprieve by Delhi High Court and not a very big reprieve! Delhi High Court held categorically that, “Opinion of the ECI dated 19th January, 2018 is vitiated and bad in law for failure to comply with the principles of natural justice. Accordingly, Writ of Certiorari is issued quashing the said opinion dated 19th January, 2018 and the consequent order/notification dated 20th January, 2018 for violation of principles of natural justice, namely, failure to give oral hearing and opportunity to address arguments on merits of the issue whether the petitioners had incurred disqualification and also on account of failure to inform that Mr O.P. Rawat had expressed his intention to rejoin proceedings after his recusal and lastly because Mr Sunil Arora had not participated and no hearings were held before him.”
                                 In its concluding remarks, the Delhi High Court Bench also held categorically that, “Order of remand is passed to the ECI to hear arguments and thereafter decide the all important and seminal issue: what is meant by the expression “office of profit held under the government” and re-examine the factual matrix to decide whether the petitioners had incurred disqualification on appointment as Parliamentary Secretaries, without being influenced by the earlier order or observations on the said aspect in this order. The writ petitions are accordingly partly allowed in the aforesaid terms, without any order as to costs.” It goes without saying that the Election Commission of India will now abide by what the Delhi High Court has said and decide only after giving the AAP MLAs an opportunity to present their side of version also before announcing its own judgment on this all important issue!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

India And Jordan Firm Up Security Cooperation

Coming straight to the nub of the matter, let me begin by first and foremost pointing out that India and Jordan which have traditionally enjoyed good bilateral relations have decided to strengthen it further now by signing a landmark framework on March 1, 2018 in defence cooperation thus paving the way for a joint strategy to counter common threats. The officials who oversaw this landmark framework being signed between both the nations – India and Jordan said that the defence agreement which is the first such understanding between the two sides, is the biggest takeaway of the visit by the Jordanian king Abdullah II to India. There can be no denying it.
India And Jordan Firm Up Security Cooperation

                                As it turned out, a press release from the Ministry of External Affairs (MEA) said that, “The purpose of the MoU is to promote cooperation between India and Jordan in the field of defence by defining the scope of such cooperation and making provisions for implementation of the cooperation in some of the recognized areas like training, defence industry, counter-terrorism, military studies, cyber security, military medical services, peacekeeping etc.” It must be pointed out here that the defence agreement is primarily the culmination of broadening security and defence related dialogue between the two sides since the king’s last visit in 2006. A lot of water has flown under the bridge since then.
                                        While craving for the exclusive indulgence of my esteemed readers, let me inform them that India and Jordan had held the first bilateral security dialogue in July 2016. According to officials, this exchange, especially in the field of cyber security, is likely to deepen in the coming years. Both countries are fully determined and committed to work ahead with renewed vigour in this direction by cooperating in full earnest with each other.              
                                        For my esteemed readers exclusive indulgence, let me also inform them that TS Tirumurti who is the Secretary-in-charge of Economic Relations in the MEA said that the security cooperation is based on the tremendous experience that Jordan has in the region of West Asia and North Africa. It cannot be lost on us that Amman has provided critical support to India during the 1991 evacuation of citizens from Iraq and also during the latest crisis in Iraq and Syria. India too has firmly and fully reiterated its commitment to always cooperate with Jordan in all matters and in all possible ways.    
                                          Truth be told, on March 1, King Abdullah II visited the Manesar based headquarters of the National Security Guards (NSG), where he witnessed a demonstration of the group’s skills in the field of counter-terrorism. King Abdullah II was highly impressed with the counter-terrorism capabilities of the NSG. A presentation on Advanced Light Helicopter was also done before the visiting dignitary. The Jordanian king is known to be an accomplished para trooper and a helicopter pilot himself.
                                         It would be pertinent to mention here that TS Tirumurti disclosed that, “The Jordanian side has lot of experience in this matter and both sides are resolved to cooperate against terrorism.” Both India and Jordan decided to step up defence cooperation to combat terror and prevent cyber security crimes as Prime Minister Narendra Modi and Jordanian King Abdullah II held talks on key strategic issues after giving a clear message that terrorism and radicalization are not linked to any religion.        
                                              It must be revealed here that both the leaders discussed a gamut of issues ranging from Syrian refugees to Palestine and resolved to enhance cooperation in the economic sphere. Ahead of their talks, the two leaders addressed a conference on ‘Islamic Heritage: Promoting Understanding & Moderation’ during which Modi asserted that, “The action against terrorism and radicalisation is not against religion. It is against the mindset that misleads our youth to inflict atrocities against innocents. Complete welfare and inclusive development are possible only when Muslim youths have a Quran in one hand and computer in the other”. Absolutely right!
                                        It is noteworthy that King Abdullah II bin Al Hussein who is a 41st generation direct descendant of Prophet Muhammad is known for his global initiative to fight radicalisation and terrorism. He is also the custodian of the Al-Aqsa mosque which is the third holiest site in Islam which is located in the Old City of Jerusalem. This is what makes his trip to India historically relevant as good relations with Jordan is the key to establishing good relations with all other Islamic countries in the world!
                                          Needless to say, after extensive talks between their leaders, the two sides signed 12 agreements in a wide range of areas including defence, health and medicine, setting up of the next generation Centre of Excellence (COE) in Jordan, long term supply of rock phosphate and fertilizer and setting up of a Hindi Chair at the Jordan University. The defence cooperation which is a key element of the visit envisages to promote cooperation by “defining the scope of such cooperation and making provisions for implementation of the cooperation in some of the recognized areas like training; defence industry; counter-terrorism; military studies; cyber security; military medical services, peace-keeping etc”. When asked about the details on the pact on defence cooperation, Tirumurti said that, “It is a framework agreement under which several areas of agreement were delineated. The two countries will explore what are the avenues which can be taken to move forward. There was nothing specific that was decided.” But it cannot be denied that the road to future defence cooperation has certainly been opened with this historic visit by King Abdullah II to India! A Jordanian defence delegation had come to India in December 2017 and the two sides had held discussions on a range of issues.        
                                    Be it noted, the Jordanian King who addressed Modi as “my dear brother” said that the global war against terrorism is a fight among moderates of all faiths and their extremist counterparts “who spread hatred and violence”. The Jordanian King Abdullah II bin Al Hussein said that, “We need to recognize and reject them is information groups promote about Islam, or indeed any religion. We need to take back the airwaves and internet from the voices of hatred, those who have victimized our world only with bombs and terror but with ignorance and lies”. He said that inclusion is the path to co-existence and called for building strong and successful countries. He also reiterated that, “It is our strongest defence against turmoil and our greatest promise of our future and prosperity, security and peace.”
                                       Apart from defence and security, health is another focus area for mutual cooperation between India and Jordan. The thrust will be on several sectors, including universal health coverage and regulation of pharmaceuticals and medical devices. Jordan has more than 10,000 Indians working in textile, construction, health and manufacturing sectors, universities and IT, financial and fertiliser companies. A memorandum of understanding was also signed for setting up a centre in Jordan for training at least 3,000 Jordanian IT professionals over five years. A similar unit will be based in India to train master trainers in IT from Jordan.
                                On a concluding note, it has to be admitted that both sides have now come close in forging ahead a new partnership in security and defence cooperation. But still a lot of ground has to be covered even now. The groundwork has been done which is most important. Now it has to be cemented and raised further to new heights of mutual cooperation and sharing. Both sides have a lot in common and both can gain immensely by this mutual defence cooperation!  This landmark visit by the Jordanian king to India has certainly rekindled a lot of high hopes and expectations in both the countries which is a good news for both the countries!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

CJI : How Can A Convict Head A Party?

Coming straight to the nub of the matter, let me begin by first and foremost pointing out that none other than the Chief Justice of India (CJI) Dipak Misra has directly questioned the logic behind having a criminal and corrupt person to head a political party. Going ahead, the CJI also said that such a lapse was a huge blow to the purity of the election process. Absolutely right!
                                            Not stopping here, the CJI Dipak Misra heading a three-Judge Bench comprising also of Justice AM Khanwilkar and Justice DY Chandrachud observed that, “Far worse is the prospect of democracy when such a criminal has the power to choose candidates for elections under his party’s banner”. Who can deny or dispute this? When a person who is himself/herself a criminal, how can he/she choose good candidates to contest elections?
          Different parameters for politicians
                                               It would certainly not amount to an exaggeration if I say that no democracy can survive long where such criminals and convicts are allowed to have a free run in election process by being allowed to head a party and choosing candidates of their own choice to fight elections! Why when for getting any government service, there are so many strict parameters like there should not be even a single case pending against the candidate and even if someone maliciously lodges FIR still that candidate is barred from getting any government job then why such a long rope has been extended to politicians that even after becoming dacoit like Phoolan Devi and killing many people, you can still later enter Parliament and become MP and similarly head political party and even contest elections from jail as we see in case of many politicians like Mukhtar Ansari etc? Can anyone explain this to me?
                                              I have not even an iota of doubt in my mind that politicians being allowed to get away even after doing anything is the root cause of corruption not just breeding in our society but also spreading its tentacles far and deep inside! Why are politicians not barred just like other aspirants of government jobs once even an FIR is lodged against them and their name appears in police case diaries? Why no laws have been made till now in this regard? Why politicians want no action on this score to be taken?   
                                                Needless to say, the CJI Dipak Misra very  rightly pointed out that, “A convicted person can’t contest election. Then how can he form a political party and select candidates? What you cannot do individually, can you do collectively through some agents? That is our question?” He also very rightly pointed out that, “A criminal deciding who the people should vote for by itself goes against the basic tenet of democracy”. No person in his right senses will ever question what the CJI has said so elegantly!
        Against our judgment
                                         To put things in perspective, the CJI Dipak Misra also did not dither in pointing out explicitly that, “This goes against our judgments that corruption in politics to be ostracised from the purity of elections”. He orally observed this while addressing the government and Election Commission. It is a sad commentary on the state of affairs of our country that while politicians don’t waste a minute in barring candidates from getting any government job even is someone maliciously files a false case against him/her but when it comes to politicians then even after committing the most heinous crimes there is still no bar imposed and yet politicians always keep talking of “high moral ground”! Have they ever taken such “high moral ground” themselves and barred all those with criminal background from heading parties or contesting elections or giving them undue prominence just to win elections?
                                          Truth be told, the CJI very rightly pointed out that, “So is it that what you cannot do individually [that is to contest in elections], you can do collectively through some of your agents?” He also rightly said that, “A man cannot directly contest in an election, so he constitutes a group of persons to form a political party and contest in an election. People could form an association to do philanthropic activities like having a hospital or a school. But when it comes to … governance, it is different.” Why don’t our politicians pay heed to what our CJI Dipak Misra is saying so explicitly?
                                                   It would be pertinent to mention here that Additional Solicitor General Pinky Anand said the government needed time to file a response. There can be no denying that the Supreme Court rightly said that banning convicted persons from becoming office-bearers of parties would be in consonance with its past judgments against corrupt politicians. The Supreme Court made it amply clear that it was of the view that a convicted person – criminal or corrupt – cannot head a political party.
                                                    It needs no rocket scientist to conclude that one cannot but concede to what the Supreme Court has said on this so categorically. But it sought the final view of the Centre within two weekson the matter! The matter was fixed for final disposal on March 26.
                          It must be recalled here that in December 2017, the Supreme Court had agreed to examine whether the Election Commission should be empowered to de-register a party because a convicted person had formed it or was a crucial office-bearer. Advocate Ashwini Kumar Upadhyay who had filed the petition reasoned that if a convicted person was banned from elections, he or she should also be barred from leading a party and controlling its other elected members. The petition specifically names leaders such as Lalu Prasad Yadav of the RJD who was convicted in the fodder scam and Om Prakash Chautala of the INLD who was found guilty in the junior teachers recruitment scam case.
                                                  No doubt, Ashwini had also very rightly pointed out in his petition that, “Presently, even a person, who has been convicted forheinous crimes like murder, rape, smuggling, money laundering, sedition, loot, dacoity etc, can form a political party and become party   president”. Is this not an open  mockery of our democratic system? Yet politicians shamelessly continue to defend status quo without bothering for the perilous consequences that emanates directly from it! This is what is most hurting to see but have to accept it as an unpalatable truth which has engulfed our nation!                     
                                        Truly speaking, it was in November 2017 that the Election Commission had said that there should be a life term ban on convicted parliamentarians and MLAs from contesting elections. What is wrong in doing this? Nothing wrong rather it is the crying need of the hour!
                                            Simply put, the petition by Ashwini had also sought to declare Section 29A of the Representation of the People Act, 1951, “arbitrary, irrational and ultra vires the Constitution, and to authorize the Election Commission to register and deregister parties as suggested by the Goswami Committee on Electoral Reform.” The petitioner, however, withdrew this prayer. But  I very strongly feel that Election Commission must be authorized to register and de-register parties if they don’t comply with rules and regulations!
                                              Also, I very strongly feel that convicts must be completely barred from exercising any control of any kind on political parties! Only then can we hope of some real semblance of true democracy flourishing in our country! All said and done, what the CJI has said while heading a three-Judge Bench of the Supreme Court has a lot of merit in it and must be implemented by barring convicts and criminals from heading political parties or from influencing it in any manner! Only then can good people get a chance of heading political parties who are otherwise kept on the margins!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.   

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