It must be stated right at the outset that in a landmark judgment with far reaching consequences, the Supreme Court 3 Judge Bench in Tehseen S Poonawalla v Union of India and others in Writ Petition (Civil) No. 754 of 2016 dated July 17, 2018 comprising of CJI Dipak Misra, Justice AM Khanwilkar and Justice Dr DY Chandrachud recommended that the Parliament may create a special law against lynching, asserting that “fear of law and veneration for the command of law constitute the foundation of a civilized society”. We all have seen that in the last few years there has been a sharp hike in the incidents of mob lynching based on rumours and speculations which many times are completely baseless! Those who indulge in mob lynching cannot be allowed to get away under the garb of “mob getting angry” over cow killing or any other cause and must be made to pay the price for their dastardly acts by ensuring that they are either hanged or made to spend their whole life behind bars!

                                      As it turned out, the Bench right at the very beginning in its landmark order made its intentions clear on citizens taking law in their own hands by holding clearly and categorically that, “Law enacted for the benefit of the society by conferring rights on the citizens and to regulate social behaviour in many a sphere, is required to be implemented by the law enforcing agencies and the citizens are duty bound to follow the law treating it as sacred. Law has to be regarded as the foundation of a civilized society. The primary goal of law is to have an orderly society where the citizenry dreams for change and progress is realized and the individual aspiration finds space for expression of his/her potential. In such an atmosphere while every citizen is entitled to enjoy the rights and interest bestowed under the constitutional and statutory law, he is also obligated to remain obeisant to the command of law. It has been stated in Krishnamoorthy v Sivakumar and others (2015) 3 SCC 467, “the law, the mightiest sovereign in a civilized country”. The majesty of law cannot be sullied simply because an individual or a group generate the attitude that they have been empowered by the principles set out in law to take its enforcement into their own hands and gradually become law unto themselves and punish the violator on their own assumption and in the manner in which they deem fit. They forget that the administration of law is conferred on the law enforcing agencies and no one is allowed to take law into his own hands on the fancy of his “shallow spirit of judgment”. Just as one is entitled to fight for his rights in law, the other is entitled to be treated as innocent till he is found guilty after a fair trial. No act of a citizen is to be adjudged by any kind of community under the guise of protectors of law. It is the seminal requirement of law that an accused is booked under law and is dealt with in accordance with the procedure without any obstruction so that substantive justice is done. No individual in his own capacity or as a part of a group, which within no time assumes the character of a mob, can take law into his/their hands and deal with a person treating him as guilty. That is not only contrary to the paradigm of established legal principles in our legal system but also inconceivable in a civilized society that respects the fundamental tenets of the rule of law. And, needless to say, such ideas and conceptions not only create a dent in the majesty of law but are also absolutely obnoxious.”    

                                      It would be pertinent to mention here that the petitioner who is a social activist has preferred this writ petition under Article 32 of the Constitution for commanding the respondent-State Nos. 3 to 8 which includes Haryana, Uttar Pradesh, Karnataka, Jharkhand, Gujarat and Rajasthan to take immediate and necessary action against the cow protection groups indulging in violence; and further to issue a writ or direction to remove the violent contents from the social media uploaded and hosted by the said groups. Mr Sanjay R Hegde who as learned senior counsel appeared for the petitioner in Writ Petition (Civil) No. 754 of 2016 submitted that no individual or vigilante group can engage himself/themselves in an activity of lynching solely on the basis of a perception that a crime has been committed. He also submits “That apart, the supremacy of law has to be recognized and if a law prescribes a punishment for a crime, it has the mechanism provided under the law to do so. The procedural and the substantial safeguards are required to be followed.” He urged with all the emphasis at his command that lynching or any kind of mob violence has to be curbed and crippled by the executive and no excuse can ever be tolerated. Stress is laid on prevention, remedial and punitive measures by him. In this regard, he has placed reliance on a recent judgment rendered in Shakti Vahini v Union of India & others 2018 (5) SCALE 51.

                                  Going forward, it must also be mentioned here that Ms Indira Jaisingh who is learned senior counsel for the petitioner in Writ Petition (Civil) No. 732 of 2017 made her own submissions. She has referred to Martin Luther King Jr. wherein he had said that law may not be able to make a man love him, but it can keep the man from lynching him. She submits that there has been a constant increase in the number of incidents in recent years as a consequence of which citizens belonging to minority communities have become victims of targeted violence which mainly originate on suspicion and at times misinformation that the victims were involved in illegal cattle trade and such other activities. It must be added here that she also referred to certain specific incidents of lynching. It is additionally argued by her that the Central Government be directed to intervene in exercise of the power conferred under Articles 256 and 257 of the Constitution to issue directions to the State Governments. Her point is valid!

                                  Moving ahead, she further urges that in the recent past, self-proclaimed and self-styled vigilantes have brazenly taken law into themselves and have targeted citizens belonging to certain communities and lower strata of the society which cannot be tolerated and it is the obligation of the Union and the States to take immediate action warranted in law to stop such activities. There can be no denying or disputing it! She has further submitted that there have been many an incident of lynching mostly by vigilante groups across the States of Maharashtra, Gujarat, Rajasthan, Uttar Pradesh, Haryana, Karnataka, Madhya Pradesh, Jammu and Kashmir and Delhi. It is her stringent stand that action is required to be taken against the perpetrators when approached by the family members of the victim.

                                      Apart from this, she has canvassed that it is the foremost duty of the Central and the State Governments to ensure that the members of the minorities are not targeted by mob violence and vigilante groups. She also contends that if the illegal actions of these lynchers are not totally curbed, there would be absolute chaos where any private individual can take law into his own hands for the enforcement of criminal law in accordance with his own judgment. What wrong has she said? Nothing wrong!

                                    Now coming to what the Supreme Court ruled after listening to submissions made from both sides. We shall discuss one by one on what all the Apex Court ruled. They are as follows: –

             On the State’s duty to maintain law and order

                                     At the outset itself, the Court asserted that it is the State’s duty to prevent any sort of mob vigilantism, observing, “The States have the onerous duty to see that no individual or any core group take law into their own hands. Every citizen has the right to intimate the police about the infraction of law. There cannot be an investigation, trial and punishment of any nature on the streets. The process of adjudication takes place within the hallowed precincts of the courts of justice and not on the streets. No one has the right to become the guardian of law claiming that he has to protect the law by any means. It is the duty of the States, as has been stated in Nandini Sundar and others v State of Chhattisgarh [2011] 7 SCC 547, to strive, incessantly and consistently, to promote fraternity amongst all citizens so that the dignity of every citizen is protected, nourished and promoted. That apart, it is the responsibility of the States to prevent untoward incidents and to prevent crime.”

                                               Furthermore, in Mohd. Haroon and others v. Union of India and another [2014] 5 SCC 252, it has been held that it is the responsibility of the State Administration in association with the intelligence agencies of both the State and the Centre to prevent recurrence of communal violence in any part of the State. If any officer responsible for maintaining law and order is found negligent, he/she should be brought within the ambit of law. No guilty officer should be spared.

                                Also, the Apex Court observed that, “There can be no shadow of doubt that the authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism, be it cow vigilantism or any other vigilantism of any perception, does not take place. When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society. Vigilantism cannot, by any stretch of imagination, be given room to take shape, for it is absolutely a perverse notion. We may note here that certain applications for intervention and written notes have been filed in this regard supporting the same on the basis that there is cattle smuggling and cruel treatment to animals. In this context, suffice it to say that it is the law enforcing agencies which have to survey, prevent and prosecute. No one has the authority to enter into the said field and harbour the feeling that he is the law and the punisher himself. A country where the rule of law prevails, does not allow any such thought. It, in fact, commands for ostracisation of such thoughts with immediacy.”

           On growing mob vigilantism

                                 Truth be told, the Court made some stern and damning observations on the growing mob vigilantism and asserted that such extrajudicial attempts under the guise of protection of law would have to be nipped in the bud, “lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic.” It held that, “Lynching is an affront to the rule of law and to the exalted values of the Constitution itself. We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day. Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order.” It, therefore, highlighted the dire need for State intervention in protecting its citizens from “unruly elements and perpetrators of orchestrated lynching and vigilantism with utmost sincerity and true commitment to address and curb such incidents which must reflect in its actions and schemes”.

            Reference to American authorities

                               Be it noted, the Court also referred to rulings by the American Courts which have dealt with lynching, which at one point of time, was rampant in the American society. The Court noted that the American Courts had deplored this menace and had dealt with it with iron hands so as to eradicate the same. It then observed, “Thus, the decisions of this Court, as well as the authorities from other jurisdictions, clearly show that every citizen has to abide by the law and the law never confers the power on a citizen to become the law unto himself or take law into his hands. The idea is absolutely despicable, the thought is utterly detestable and the action is obnoxious and completely hellish. It is nauseatingly perverse.”

                     On rising intolerance

                           Truly speaking, the Bench highlighted the importance of plurality and tolerance as the building blocks of a truly free and democratic society and the need for preserving the same. It said in no uncertain terms that, “It must be emphatically stated that a dynamic contemporary constitutional democracy imbibes the essential features of accommodating pluralism in thought and approach so as to preserve cohesiveness and unity. Intolerance arising out of a dogmatic mindset sows the seeds of upheaval and has a chilling effect on freedom of thought and expression. Hence, tolerance has to be fostered and practiced and not allowed to be diluted in any manner.”

                                     Having said this, it must now be brought out here that the Apex Court then issued some guidelines to be followed. It also listed the matter on 20 August for further hearing. Those guidelines are as follows: –

A.                Preventive Measures

(i)                         The State Governments shall designate a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measure to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.  

(ii)                      The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today’s fast world of data collection.

(iii)                   The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.

(iv)                   The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.

(v)                      The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

(vi)                   It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which , in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.

(vii)                The Home Department of the Government of India must take initiative and work in coordination with  the State Governments for sensitising the law enforcement agencies and by involving all the stakeholders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.

(viii)             The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director-General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.

(ix)                   The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious consequence under the law.

(x)                      It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.

(xi)                   The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind.

(xii)                The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.

B.            Remedial measures

(i)                         Despite the preventive measures taken by the State Police, it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.

(ii)                      It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

(iii)                   Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.

(iv)                   The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of CrPC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.

(v)                      The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers, in particular, to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial.

(vi)                   To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC.

(vii)                The courts trying the cases of mob violence and lynching may, on an application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness.

(viii)             The victim(s) or the next kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing.

(ix)                   The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.  

C.                   Punitive measures

(i)                         Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.

(ii)                      In terms of the ruling of this Court in Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC 405, the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

                        Simply put, the Bench directed that, “Apart from the directions we have given hereinbefore and what we have expressed, we think it appropriate to recommend to the legislature, that is, the Parliament, to create  a separate offence for lynching and provide adequate punishment for the same. We have said so as a special law in this field would instill a sense of fear amongst the people who involve themselves in such kinds of activities.” Very rightly said! Now it is up to Parliament to act and make lynching a separate offence as soon as possible as the Apex Court has directed.

                                Needless to say, it was made amply clear by the Bench that the measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments. The Bench also made it clear that, “Reports of compliance be filed within the said period before the Registry of this Court. We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become “the new normal”. The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, “must ring with the voices of the people.” The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would in turn, reaffirm the constitutional faith. We expect nothing more and nothing less.”

                          All said and done, Centre must without wasting any more time further take Parliament into confidence and enact a law by which strictest punishment is provided for those who indulge in lynching. It brooks no more delay! Even Supreme Court now has stepped in and so Centre cannot afford to duck this burning issue any longer! Centre must act!

                                 No doubt, all parties must sink their petty political differences and join hands to enact a law against mob lynching so that it acts as an effective deterrent against this most reprehensible crime which is on the rise in our country since last few years! The minimum punishment should be nothing less than life term and the maximum punishment should be death penalty! Ever since Mohammad Akhlaq was lynched in UP’s Dadri in 2015 for allegedly storing and consuming beef in his house and Pehlu Khan lynched in Alwar district of Rajasthan in April 2017, there have been many similar incidents time and again but now there must be an end to it which is possible only if the strictest punishment is meted out to those who indulge in such abhorrent acts of dastardly crime! 

  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road,

Kankerkhera,

Meerut – 250001,

Uttar Pradesh.

It must be stated right at the very beginning that in a landmark judgment delivered on July 10, 2018 with far reaching consequences, the Delhi High Court in Jasmeen Kaur v Union of India and others in W.P.(C) 7040/2018 while holding merit over technical grounds has opened up a closed opportunity for an aspiring medico to register for the second round of counselling for deemed universities after the due date. How can merit be defeated on technical ground? So Delhi High Court very rightly stepped in and gave the much needed relief to the petitioner which she richly deserved also!

Truth be told, the present petition has been instituted on behalf of a candidate who has secured All India 24,392nd rank in the NEET UG, 2018 examination. At the time of registration for the first round of All India Counselling, the petitioner expressed her options as ‘All India Quota’ seats, as well as ‘Central University Quota’ seats. The petitioner participated in the counseling process but could not be granted admission on account of her All India merit.

Needless to say, it is an admitted position that the second round of All India Counselling for Central and Deemed Universities has commenced on 10th of July, 2018. It is scheduled to continue till the 11th of July, 2018. It is the submission of the petitioner that on account of the circumstance that she limited her options at the time of applying online for registration, to ‘All India Quota’ and ‘Central University Quota’, she has been precluded from registering afresh for the second round of counseling under the category of ‘Deemed Universities’.

As it turned out, the learned counsel appearing on behalf of the respondent no. 1 states that the portal permitting candidates to register for the second round of counseling had since been closed on the 8th of July, 2018 and the petitioner having limited her options as afore-stated in the first round, cannot be permitted to register afresh for the second round under the category of ‘Deemed Universities’ since that option had not been exercised by her earlier. It is further stated that during the process of online registration, candidates are permitted one opportunity to reset their choices and the petitioner having utilized that opportunity, cannot be permitted once again to apply for the category of ‘Deemed Universities’ as an option in the second round of counselling. On a specific query from the court, it emerges that although there are no rules or regulations that bar fresh registration to those who may have exercised limited options on an earlier occasion, the process permitting a candidate, such as the petitioner, to exercise her options at this stage would require the re-opening of the portal which would cause inconvenience and delay in the completion of the process of registration.

Truly speaking, it is very rightly pointed out in para 6 of this landmark judgment that, “It is a settled position that construction of rules or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure is the handmaid of justice and not its mistress [Ref: Salem Advocate Bar Association, T.N. vs. Union of India, reported as (2005) 6 SCC 344]”. Furthermore, it is also rightly pointed out in para 7 of this landmark judgment that, “In view of the foregoing, it is trite to state that merit cannot be defeated on technical grounds. It is an admitted position that considering the All India rank secured by the petitioner, she may be entitled to participate successfully in the second round of counseling for admission to a medical course conducted by the Deemed Universities.”

As it turned out, Justice Siddharth Mridul directed the Centre to open up its online registration facility for the petitioner named Jasmeen Kaur who had secured all-India 24,392nd rank in NEET UG 2018 examination but could not register for second round of counseling for admission to deemed universities since at the time of online registration, she had marked her options as ‘All-India Quota’ seats as well as central university quota seats. Para 8 of this landmark judgment says that, “In this view of the matter, the only course that commends itself in the interest of justice is to direct respondent no. 1 to permit the petitioner to register afresh for the ‘Deemed Universities’ category in the second round of counselling in accordance with law.” Very rightly so!

It cannot be lost on us that the order of the court came on Tuesday i.e., July 10, just a day before the second round of counseling was to close. Following the order, the Centre opened universities. Jasmeen had participated in the first round of counselling but could not be granted admission on account of her all-India merit. The second round of counselling for central and deemed universities began on July 10 and July 11 was the last day of counselling. 

It would be pertinent to mention here that Jasmeen’s counsel Rahul Kriplani told the court that due to the options exercised by her at the time of registration, she has now been precluded from registering afresh for the second round of counselling for deemed universities and stands to suffer the loss of a precious opportunity having already dropped one year for preparation for NEET. In the petition, advocate Kriplani said that Jasmeen had secured Rank 24,392 which puts her in the 98.07 percentile of candidates. This alone explains why the Delhi High Court ruled explicitly in her favour!

Going forward, it must also be brought oput here that in para 9 of this landmark judgment, it is pointed out that, “Needless to state that, the above direction is being issued in view of the special facts and circumstances of the present case and in view of the legal position that there is no bar for a meritorious student to be considered for admission to a medical course by all institutions who conduct such courses.” Absolutely right! How can a meritorious student be barred in such a whimsical and arbitrary manner?

Simply put, Jasmeen’s lawyer rightly argued that, “She then registered to participate in the first round of counseling and at that time opted for admission into ‘15% All India Quota of Government Colleges’ and ‘Central Universities’. It was understood that subsequently, the petitioner would be allowed to opt for ‘deemed universities’, if she did not secure a seat in the first round, as the website of the Medical Council Committee clearly stated that fresh registration was permissible at the time of second round of counseling.” He also rightly said that, “Having not secured any seat in the first counselling (since she had not picked ‘deemed universities’ as an option at the time of enrolling for the first round), the Petitioner sought to opt for Deemed Universities at the time of second round of counselling but was not being permitted to do so. She was not even being allowed to register afresh for Deemed Universities and make payment for the same. However, the information provided on the website of the Medical Counselling Committee, clearly stated otherwise. The last date for making payment and selection of colleges in the second round of counselling was Monday, 09.07.2018.”

As if this was not enough, he also informed that persons with a rank as low as 3,89,871 had obtained admission to MBBS in deemed universities in the first round of counselling. He also argued that there were around 3,100 seats remaining in the second round of counselling and the petitioner would be able to secure admission into an MBBS course of her choice if she is allowed the promised option of fresh registration. His point is certainly valid.

No prizes for guessing that his valid contentions were accepted by the Delhi High Court. His client Jasmeen got the much needed relief from the court. Before disposing of her writ petition apart from what has been stated above, it was also directed by the Delhi High Court in para 10 of this landmark judgment that, “It is further clarified that the option of registering afresh shall be available to the petitioner up till closing of the business hours today, subject to the respondent no. 1 making online registration facility available to the petitioner and informing her in this behalf.” Very rightly so!

All said and done, it is a landmark judgment delivered by Justice Siddharth Mridul of Delhi High Court. It minces no words in sending out a loud, clear and categorical message to all that, “Merit can’t be defeated on technical grounds”. This will certainly give an inspiration to the deserving candidates in future not to hesitate in taking recourse to legal action if they feel that their merit has been snubbed wrongly by the authorities and thus get their right by doing so! It is an excellent and exemplary judgment in which the Judge of Delhi High Court Justice Siddharth Mridul briefly and very forcefully articulates his stand and provides the much needed reprieve to Jasmeen who had petitioned Delhi High Court to get what she was legally entitled also but was being wrongly deprived of! It will not be an exaggeration to say that it is a “must read judgment”! There can be no denying or disputing it! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Coming straight to the key point, the Supreme Court just recently on July 6, 2018 in the landmark case of Shanti Bhushan v Supreme Court of India through its Registrar and another in Writ Petition (Civil) No. 789 of 2018 (Arising out of Diary No. 12405 of 2018) refused pointblank to declare that the function of allocating cases and assigning benches should be exercised by the collegium of five senior Judges instead of the Chief Justice of India. This was what the petitioner wanted but which he failed to get. The petition which was filed by Shanti Bhushan who is an eminent and senior advocate of Supreme Court and also is the former Union Law Minister seeking such relief in his PIL were not acted upon by the Bench of Apex Court comprising of Justice AK Sikri and Justice Ashok Bhushan.

                                           Truth be told, in the writ petition Shanti Bhushan seeks the Supreme Court to clarify the administrative authority of the Chief Justice of India (CJI) as the Master of Roster and for laying down the procedure and principles to be followed in preparing the Roster for allocation of cases as mentioned in para 2 of the judgment. Shanti Bhushan had strongly contended that concentration of unbridled powers on a single person was an anathema to democracy. He, therefore, sought an end to this.

                                     As it turned out, though the petition conceded that the CJI was the master of the roster as settled by convention, it sought reforms by vesting the power of determination of roster to the collegium instead of CJI alone. The petition also stated that this power was abused in certain instances with legal malice. This abuse could be checked only by inserting the necessary reforms.

                                       At the outset, the Apex Court Bench comprising of Justice AK Sikri and Justice Ashok Bhushan expressed its welcome tone regarding the issues that were raised in the petition. The Bench stated that “matter had not been treated as adversarial in nature”. Besides, the Apex Court made it clear that it did not doubt the bona fides of the petitioner and affirmed his respectability.

                                      Going forward, the petitioner argued that the role of CJI as the ‘master of roster’ was not based on any constitutional provision. Justice AK Sikri expressly acknowledged that the Constitution is silent on the role of the Chief Justice as the ‘Master of the Roster’. However, it was added that this role was “based upon healthy practice and sound conventions which have been developed over a period of time and that stands engrafted in the Supreme Court Rules.  

                                         Simply put, the Constitution Bench decision in Campaign for Judicial Accountability and Reforms v. Union of India & Anr (2018) 1 SCC 196 Writ Petition (Cri) No. 169 of 2017 famously known as CJAR judgment was followed by the Bench. The CJAR judgment had affirmed the powers of CJI as the master of the roster. In CJAR, the Constitution Bench applied the decision in State of Rajasthan v Prakash Chand (1998) 1 SCC 1, which was rendered in the context of powers of Chief Justice of High Court. It was said in CJAR ruling that the same principle was applicable to the Supreme Court.

                                           To be sure, the Bench also extensively relied upon the decision in Asok Pande case titled Asok Pande v Supreme Court India through its Registrar and Ors., (2018) 5 SCC Scale 481. Asok Pande’s PIL, among other things, had sought a declaration that allocation of business should be done by a collegiums of three senior Judges. The CJI-led Bench of three Judges refused the prayer on two counts. Firstly, it was held that as per Supreme Court Rules, assignment of cases had to be done by CJI. The Supreme Court Rules are framed by the Supreme Court in exercise of powers under Article 145 of the Constitution. A direction cannot be issued to a rule-making authority to frame rules in a particular manner. Secondly, it re-affirmed the principle that CJI was an institution in himself and that his administrative power to allocate cases cannot be delegated to Collegium. It was held that the present Bench was bound by the decisions in CJAR and Asok Pande’s case.     

   Chief Justice cannot be substituted with the collegium

                                      It would be pertinent to mention here that the pivotal argument of the petitioner was that “Chief Justice of India” was interpreted to mean the collegiums in the Second Judges Case. The petitioner relied on this observation in the Second Judges case – “it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual. Therefore, extrapolation of that principle was sought with regard to CJI’s powers as the administrative head.

                               To state the obvious, the argument was not accepted holding that the Second Judge case was rendered in the context of power exercised by CJI under Article 124 for the appointment of judges. It was held that the power to allocate business was altogether different, as it is an administrative function flowing from Article 145 of the Constitution. This kind of system which is devised for the appointment of Judges cannot be replicated when it comes to the role of the Chief Justice as Master of Roster. We have to keep in mind that the Chief Justice, as the head of the Supreme Court of India, and the Chief Justices of the High Courts, have to perform many other functions, on the administrative sides in their capacities as Chief Justices. Framing of the Roster and constituting the Benches is one among them. In case the expression ‘Chief Justice’ is to be interpreted as ‘Collegium’, it would be difficult to have smooth day to day functioning of the Supreme Court, or for that matter the High Courts, observed the judgment in that regard.

                 Practical hardships

                                 It cannot be lost on us that Justice Ashok Bhushan’s judgment had discussed the rationale behind having a system of CJI allocating cases. Referring to State of Uttar Pradesh and Others Vs. Neeraj Chaubey and Others, (2010) 10 SCC 320, it was observed that “in event the distribution is not done by the Chief Justice of India, it may generate internal strife on account of hankering for a particular jurisdiction or a particular case”. “If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case” – this observation in Neeraj Chaubey’s case was extracted in Justice Bhushan’s judgment.   

                                    Truly speaking, both the Judges – AK Sikri and Ashok Bhushan accepted the submission of Attorney General KK Venugopal that allocation of business by collegiums will affect the day to day functioning of the Court. When it comes to assigning the cases to a particular Bench, it has to be undertaken by the Chief Justice on daily basis in contrast with the meetings of the Collegium for the purpose of appointment of Judges, which is infrequent. Thus, meeting of Collegium for the purpose of assigning the cases to a particular Bench on daily basis is clearly impracticable, Justice AK Sikri observed in that regard. However, both the Judges held that the listing of cases should be strictly in accordance with the Supreme Court Rules, and to that extent they agreed with the petitioner.

 Judicial Reforms the Moral Responsibility of Chief Justice

                                      To say the least, the judgment of Justice Sikri elaborated on the role of Chief Justice of India. It was stated that the Chief Justice of India was “first amongst the equals” when it comes to his judicial functions, implying that his opinion does not carry any added weightage over his colleagues. Also, when a case is allotted to a bench, that bench will have complete dominion over the case, without having to act as per the directives of any external judges. Further, Chief Justice of India carries the “leadership of the Court” acting as the spokesperson and representative of the judiciary in its dealings with the Executive, Government and the Community. For this purpose, the ‘Chief Justice’ has a general responsibility to ensure that the Court promotes change and reform as appropriate. The judicial reforms, which is a continuing process in order to ensure that there is real access to justice, also becomes the moral responsibility of the ‘Chief Justice’.

                             Judicial Qualities

                              Be it noted, both the Judges commented on the qualities to be possessed by a Judge. According to Justice Sikri those are wisdom, patience, a sense of practical reality, fairness and balance, independence of mind and knowledge of the law, moral courage or fortitude, and a total commitment that justice should be administered according to law. Justice Ashok Bhushan quoted the words of former CJI Venkatachaliah that the life of a Judge does not really call for great acts of self-sacrifice; but it does insist upon small acts of self-denial almost every day, and added that only the inner strength of Judges can ensure judicial independence. Finally, Justice Sikri signed off his judgment with the following quote from Edmund Burke – “Applaud us when we run; console us when we fall; cheer us when we recover; but let us pass on – for God’s sake, let us pass on”. No doubt, this is quite apt for the times which the Supreme Court of India currently finds itself in.

                         International Practices

                            It would be imperative to mention here what para 38 of this landmark judgment says. Para 38 says that, “Learned counsel for the petitioner has also referred to and relied on various international practices. During the submission he has referred to practices pertaining to case assignment in United Kingdom Supreme Court, High Court of Australia, Supreme Court of Canada and the practice in United States Supreme Court. The practices and function of each Court are different which has been evolved by time looking to particular background and set of facts. The practice of a Court ripens into a convention by passage of time and rich heritage of conventions are time tested which practice and conventions of this Court have ripened with time which need not be tinkered with or imitated from different international practices of different Courts. As noted above, the law laid down by this Court is that: the power of framing roster which inheres in the Chief Justice has constitutional and statutory backing and by convention it is treated as prerogative of the Chief Justice. We, thus, cannot import the international practices in the constitutional and statutory scheme of this Court.”

Transparency in allocation of cases and formulation of Benches 

                                  The learned counsel for the petitioner laid much emphasis that the procedure and manner of allocation of cases and formulation of Benches should be one which is accessible to public and there should be objective criteria of exercise of the power by the Chief Justice. It was also submitted that the manner and procedure for exercising the power should be put in public domain to allay any kind of misapprehension and to instill confidence in public in general. To this, the Apex Court Bench responded by pointing out that, “We have already noticed above that the manner and procedure for transaction of Court work is elaborately dealt with Supreme Court Rules, 2013.

                                       Furthermore, in para 40 of this landmark judgment, it was pointed out that, “Further, handbook on practice and procedure and office procedure also laid down sufficient guidelines and elaboration of the procedure which is to be followed in this Court. Thus, for transaction of business of the Court, there are elaborate rules and procedure and it cannot be said that procedure and practice of the Court is unguided and without any criteria.” Para 41 further goes on to say that, “We are, however, not unconscious of the fact that working of any system is a continuous process and each and every organisation endeavours to improve the working of its system suitable to circumstances and the need. Improvement of functioning is always a goal of every system and all organizations endeavour to improve the system, which is always a welcome step. The Supreme Court cannot be an exception to above objective and goal.” The Bench thus welcomed ways to improve the functioning of the system.        

                                          All said and done, this landmark judgment makes it abundantly clear that it is the Chief Justice of India who is the Master of the Roster. Justice Ashok Bhushan in para 16 of this landmark judgment sought to make the picture on this more clear by pointing out that, “This Court has recorded its conclusion in Para 59, which is to the following effect:-

          “59. From the preceding discussion the following broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment:

(1)         That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.

(2)         That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.

(3)         That the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4)         That till any determination made by the Chief Justice lasts, no judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the judges constituting the bench themselves and one or both the judges constituting the one or both the judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.

(5)         That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part heard case.

(6)         That the puisne judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

(7)         That no judge or judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.

                             Having said this, it must also be pointed here that Para 17 further reveals about Supreme Court rulings that, “There are series of judgments reiterating the same view as expressed by this Court in State of Rajasthan (supra). In an earlier judgment, Union of India and Another Vs Raghubir Singh (Dead) By LRs. Etc., (1984) 2 SCC 754, a Constitution Bench of this Court noticed that as a general rule of practice and convenience, the Court should sit in Divisions and each Division being constituted of judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention.” Further, in para 18 of this landmark judgment, it is pointed out that in D.C. Saxena Vs Hon’ble The Chief Justice of India, (1996) 5 SCC 216, this Supreme Court made it amply clear that it is the Chief Justice’s prerogative to constitute benches and assign the judicial work and the judicial business would not hinge on the whim of a litigant.

                               Thus we see that the Apex Court Bench comprising of Justice Ashok Bhushan and Justice AK Sikri leaves no room of doubt that it is the Chief Justice who is the master of the roster and decides the allocation of cases and not the 5 seniormost Judges of the Supreme Court as was sought by the petitioner! It was also brought out by Justice AK Sikri in Para 12 of this landmark judgment that, “There is no dispute, as mentioned above, that ‘Chief Justice’ is the Master of Roster and has the authority to allocate the cases to different Benches/Judges of the Supreme Court. The petitioner has been candid in conceding to this legal position. He himself has gone to the extent of stating in the petition that this principle that ‘Chief Justice’ is the Master of Roster is essential to maintain judicial discipline and decorum and also for the proper and efficient functioning of the Court.” Very rightly said! There can be no denying or disputing it!

                                   But it was also made amply clear in this landmark judgment by Justice AK Sikri in Para 24 that, “The power of the ‘Chief Justice’ does not extend to regulate the functioning of a particular Bench to decide cases assigned to him once the cases are allocated to that Bench. A Bench comprising of puisne Judges exercise its judicial functions without interference from others, including the ‘Chief Justice’, as it is supposed to act according to law. Therefore, when a particular matter is assigned to a particular Bench, that Bench acquires the complete dominion over the case.” It also mentioned the relevant rules in this regard as pointed above! In conclusion, this landmark judgment sets to rest all the key questions that were raised so brilliantly by eminent and senior Supreme Court lawyer Shanti Bhushan by filing the PIL which ultimately led to the culmination of this landmark judgment!    

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 

Coming straight to the nub of the matter, it has to be said at the very outset with a lot of appreciation that in the landmark case of Manoj Singh Pawar v State of Uttarakhand & others Writ Petition (PIL) No. 156 of 2016 which was delivered on June 18, 2018, the Uttarakhand High Court issued a slew of landmark directions to check drug peddling and abuse in the state. We all know that drug peddling and abuse has become a very common phenomenon. It has to be checked from spreading further so that the damage can be contained from further spreading!

                                       As it turned out, the Bench comprising Justice Rajiv Sharma and Justice Lok Pal Singh specifically took note of drug abuse in educational institutions, prevailing so rampantly. It directed the State to ensure that a policeman in plain clothes is stationed around each educational institute from 8 am to 6 pm. It further directed all educational institutes in the State to ensure appointment of the senior-most teacher as the nodal officer to counsel students every Friday on the ill effects off drugs.    

                                    Simply put, the present petition has been filed by the petitioner, Mr Manoj Singh Pawar highlighting the opening of liquor vend right in the heart of Almora town in the close proximity of District Hospital, opposite the Government Museum and Govt. Girls Inter College and bus stand. Mr Manoj had drawn the Court’s attention to the fact that the establishment of liquor vends is regulated and controlled under the Uttar Pradesh Number and Location of Excise Shops Rules, 1968 which bars opening of such vends in close proximity of places of public worship, schools, hospitals or residential colonies. Similar instructions had been issued by the State as well.

                                      Briefly stated, the essence of Sub-rule 4 of Rule 5 is as follows: “4(a) No shop or sub-shop shall be licensed within a distance of 50 (fifty) meters in case of Municipal Corporations; within a distance of 75 (seventy-five) meters in case of Municipal Councils and Nagar Panchayat; and within a distance of 100 (one hundred0 meters in other areas from any place of public worship or schools or hospitals or residential colony:

Provided that if any place of public worship, school, hospital, residential colony comes into existence subsequent to the establishment of shop or sub-shop, the provisions of this rule shall not apply:

Provided further that the distance restriction shall not apply in areas designated as “commercial” or “industrial” by the development authority/industrial development authority or other competent authority.  

(b) The distance referred in clause (a) shall be measured from the mid point of the entrance of the shop or sub-shop along the nearest path by which pedestrian ordinarily reaches to the mid-point of the nearest gate of the place of public worship or a school or a hospital or a residential colony, if there is a compound wall and if there is no compound wall to the mid-point of the nearest entrance of the place of public worship or a school or a hospital or a residential colony.”

For the sake of brevity, the mention of explanation after Sub-rule 4 (a) has been omitted.

                                                 It would be pertinent to mention here that in view of the petitioner’s submissions, the Bench observed that, “This should not have been permitted to be done by the State government. The availability of narcotics including liquor, wine should not be readily available. These liquor vends should be far away from the educational institutions, busy hubs, commercial centers, hospitals, factories, temples etc.” Very rightly said! There can be no denying it!

                                        Truth be told, the Bench then enlarged the scope of the petition in larger public interest to ensure that no liquor vend is issued licence, opened, and operated in contravention of these rules. During the course of the hearing, it also interacted with the police authorities in the State, and expressed its concerns with regard to the availability of charas, heroin and artificial drugs to the students community in the State. It lamented the fact that “drug abuse has broken the social fabric and has destroyed number of families”, and directed the officers to sensitize the entire police force to ensure that drugs are not available to the students.

                                          Going forward, the Bench was further informed that a Special Operational Group (SOG) has been constituted in each district under his jurisdiction. It however noted several deficiencies in the machinery put together by the State, observing, “There are no special check posts to check the smuggling of drugs/narcotics substances from across the border as well as in the bordering districts of Himachal Pradesh, Uttar Pradesh, Haryana. A startling revelation has been made by the Deputy Inspector General that there is only one Drug Inspector available in the entire Kumaon Range. There are no rehabilitation centers in the entire Kumaon Region for rehabilitation of the youth addicted to drugs. There are no sufficient number of psychiatrists for counseling in the hospitals. There is no separate ward earmarked for rehabilitation of drug addicts.”

                                      Needless to say, the Court then opined that kingpins of the trade should be booked under the provisions of Money Laundering Act, 2002. It in fact went on to direct the Principal Secretary (Home) to the Government of Uttarakhand to issue directions to all investigating officers in the State to take recourse to Section 27A (punishment for financing illicit traffic and harbouring offenders) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for charging those accused of such activities in order to curb the menace of drug abuse.

                               Having said this, it is now time to dwell upon the mandatory directions which were issued by the Bench of Uttarakhand High Court before disposing of the  petition. Those directions are as follows: –

   Constitution Of Special Protection Groups

A.  The Special Operational Groups shall be headed by an Officer not below the rank of Inspector along with at least 10 police personnel out of which 5 should be women. The S.S.P./S.P. of each district shall be personally responsible to monitor the operations carried out by the Special Operational Group. The Circle Officer of the concerned Circle shall be the Supervising Officer.

  Appointment Of Drug Inspectors Within 3 Months

B.  The State Government is directed to appoint more Drugs Inspectors in each district in cluster of two districts in hill areas and two Drugs Inspectors in each plain district i.e. Dehradun, Haridwar, Udham Singh Nagar and plain areas of Champawat and Nainital within three months from today.

Special Check Post On Indo-Nepal Border

C.   The Director General of Police, State of Uttarakhand is directed to set up special check posts on Indo-Nepal Border to check the free flow of narcotics substances into the State of India from Nepal. The Special Check Post shall be headed by a person not below the rank of Sub Inspector. Needless to add that the check post shall be equipped with the latest state of art equipment i.e. Scanners. The check posts shall be set up within three months from today and the necessary equipments shall be supplied within this period only.  

Special Task Force At Check Posts Adjoining Neighbouring States

D. The State Government is directed to have Special Task Force (STF) at all the check posts adjoining the State of Uttarakhand i.e. Himachal Pradesh, U.P., Haryana etc. to check the transportation of narcotics and more particularly artificial drugs in the State. The units and check posts shall keep a close vigil on the buses, trains and other conveyances in the State of Uttarakhand.

      Uprooting Of Cannabis From The Wild

E.  The State Government is directed to undertake special drives to uproot the cannabis found even in the wild. All the revenue officers, forest officers and elected representatives of Panchayat Raj Bodies are directed to inform the police about the illegal cultivation of cannabis, opium and poppy in their respective areas.

                 Awareness Drives

F.    The State Government is also directed to launch awareness drives to make the people aware of the ill effects of drugs on the society. The District Magistrate of the district shall be the Nodal Officer to make the citizens aware of the ill-effects of the drugs and controlling the same. The State Government shall make sufficient provisions for awareness drives through electronic media, print media, internet, radio television etc.

    Latest Kits To Investigating Officers

G. The State Government is directed to provide latest kits to the Investigating Officers to investigate the matters under the Opium Act, NDPS Act and other allied Acts.

Registration Of Cases Under Money Laundering Act

H. The State Government through the Director General of Police is directed to register cases against the kingpins under the Money Laundering Act, 2002 at the time of lodging the FIR under the NDPS Act and Opium Act and also, if necessary, by attaching their properties provisionally relating to supply of poppy straw, coca plant and coca leaves, prepared opium, opium poppy and opium, opium by cultivator, cannabis plant and cannabis, manufactured drugs and preparation and psychotropic substances including artificial drugs etc.

Rehabilitation Centres In Each District Within Six Month

I.     Since the drugs menace has attained alarming preparation, the State Government is directed to establish Rehabilitation Centers in each district of the State within a period of six months from today. The rehabilitation centers shall provide all the basic necessities to the inmates including boarding, lodging, counseling etc.

Appointing One Psychiatrist For Counseling

J.    The State Government is directed to appoint one Psychiatrist for counseling in each Rehabilitation Center. The Counselor appointed in rehabilitation center shall also visit all the schools falling in his jurisdiction advising the students about the ill effect of drugs.

Counseling Of Students In All Schools

K.   All the educational institutions i.e. government run, government aided, private schools, minority institutions, are directed to appoint the senior-most teacher as the Nodal Officer to counsel the students on every Friday of the month about the ill-effects of drugs. In case, he finds any drugs abuse or symptoms, he shall be at liberty to summon the parents of students. The parents will be sensitized against the drugs abuse in parent-teacher meetings.

One Policeman Around All Educational Institutions

L.   The State Government is directed to ensure one plain clothed policeman from 8AM to 6 PM around all the educational institutions to nab the drugs peddlers and kingpins. The local intelligence units are directed to keep a close watch on the shops including Dhabas, tuck shops, Khokas, tea stalls to ensure that the owners thereof are not permitted to indulge in the sale of drugs etc.

Raiding Of Factories, Industries And Medical Shops

M.         The Drugs Inspector while raiding the factories, industries, medical shops shall be accompanied by a person not below the rank of Circle Officer including the Gazetted Officer from the Food and Supplies Department.

SSP/SP To Personally Monitor All Cases

N. The SSP/SP of the concerned district shall personally monitor all the cases registered under the Opium Act and the NDPS Act, 1985 to plug the loopholes during the course of enquiry and investigation to increase the conviction rate.

Updating Executive Magistrates And Gazetted Officers

O.            The Executive Magistrates and the Gazetted officers throughout the State shall be informed about their duties to be discharged under the NDPS Act more particularly, Section 50 and the latest law laid down by the Hon’ble Supreme Court of India and by this Court from time to time.

Cancellation Of License If Liquor Is Supplied to Minors

P.   The Police Officers shall ensure that no minor is served any drugs, alcoholic beverages in any medical shops, bars restaurants and through vend. No vend shall supply/sell the liquor to any minor. In the eventuality of liquor being supplied/sold to a minor, the license issued for bar/vend shall be cancelled after putting them to notice. This direction shall be complied with by the police force as well as by the Excise Department. The concerned Circle Officer shall visit every medical shop at least within 24 hours to check the supply of drugs to any minor.

Examination Of Respondent Liquor Vend

Q.            The SDM, Almora is directed to measure the distance as per the Rules and the norms prescribed by the State Government within 72 hours. In case, the distance is found less than 100 meters, the State Government shall shift the liquor vend within 7 days from today at an appropriate place and if, it is more than 100 meters, it shall be permitted to operate

Ensuring That All Liquor Vends Comply With The Law

R.  The Secretary, Excise to the State of Uttarakhand is directed to ensure that no liquor vend is situated in violation of the Uttar Pradesh Number and Location of Excise Shop Rules, 1968 as well as the instructions issued by the State Government on 16.06.2008. The necessary exercise shall be undertaken within one week from today.

                              All said and done, it is a landmark judgment with far reaching consequences. It has issued most landmark directives which must be implemented in letter and spirit. To check the young age group from getting immersed in drug abuse, it is imperative that these landmark directives are implemented in its entirety!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

 It is most dismaying, degrading and disappointing to note that shocked at the absolute pathetic state of shelter homes like Nari Niketans and Children Homes where many inmates, including a deaf and dumb girl, was subjected to rape and forcible abortion, the Uttarakhand High Court in a recent case titled Shivangi Gangwar v State & others Writ Petition (PIL) No. 07 of 2016 dated May 23, 2018 while expressing its shock has been compelled to passed a string of directions ranging from regular inspection of such custodial institutions, segregation of normal and mentally ill inmates to strict action against those employing children for begging or drug peddling or anyone meting out corporal punishment to children in child care institutions and loans to the inmates of After Care Organization to set up entrepreneurial activities.

Introduction

Let me begin at the very beginning by first and foremost pointing out that in a latest landmark judgment by the Bombay High Court titled Mr Ali Abbas Daruwala v/s Mrs Shehnaz Daruwala (Writ Petition No. 114 of 2018 with Civil Application No. 518 of 2018) which was pronounced on May 4, 2018, the Bombay High Court has held that merely because parties are governed by the Muslim Personal Law, it should not be an impediment in the wife invoking provisions of the Domestic Violence Act. In other words it implies that the wife even if governed by the Muslim Personal Law is fully entitled to invoke the provisions of the Domestic Violence (DV) Act whenever she finds it necessary to do so. Justice Smt Bharati H Dangre who was hearing the case held in no uncertain terms that there is no embargo on a court to grant relief to a woman who is an “aggrieved person” within the meaning of the DV Act, merely because she is a Muslim. Very rightly so!

Case Background

While craving for the exclusive indulgence of my esteemed readers, let me inform here that the Bombay High Court was hearing a writ petition filed by one Ali Abbas Daruwala who had challenged a judgment delivered by the Family Court of Bandra dated June 22, 2017, wherein the wife’s application for maintenance was allowed. The Family Court of Bandra in its judgment had directed Ali Abbas to pay Rs 25,000 per month to the wife and Rs 20,000 per month each for both their kids towards maintenance. Ali Abbas then decided to appeal to the Bombay High Court against this judgment. Ali Abbas who is the petitioner and who is aggrieved by the said order prays for quashing and setting aside the said order on the ground that the Family Court has exceeded its jurisdiction in passing the said order.

For my esteemed readers exclusive indulgence, let me also inform them that in 2015, Shehnaz filed a petition for divorce under the Dissolution of Marriage Act, 1939 before the Family Court in Bandra. She prayed for getting the custody of their children, maintenance and accommodation. She also filed a separate application for maintenance and accommodation which was opposed by Ali Abbas in an application under Order 7 Rule 11(a) of the Civil Procedure Code.

Truth be told, this application was rejected and the wife again filed an application for maintenance and accommodation on May 20, 2016. Thereafter, it was claimed by the husband that he gave her a talaq on March 29, 2017 considering how she was asking for a divorce before the family court. He also stated that Shehnaz initially accepted the amount of Mehar that was returned, only to give it back in May. In June 2017, the respondent wife filed an application under Sections 12, 18, 19, 20, 22 and 23 of the Domestic Violence Act, 2005.

Submissions Made

Be it noted, the petitioner’s advocate Anagha N Nimbkar submitted before the Court that both parties are governed by the Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. She submitted that the divorce in the said case is sought under the Dissolution of Muslim Marriage Act by way of a ‘Khula’, which is divorce by consent at the instance of the wife in which she gives or aggrieves to give a consideration to the husband for release from marriage. Nimbkar further submitted that the divorce was sought exclusively under the Dissolution of Muslim Marriage Act, which does not have provisions for ancillary reliefs, unlike the Domestic Violence Act. 

It would be pertinent to mention here that while appearing for the respondent-wife, Tanbon E Irani submitted that the provisions of the Protection of Domestic Violence Act do not create any restriction on the wife to invoke the provisions of the Protection of Domestic Violence Act do not create any restriction on the wife to invoke the provisions of the said enactment on the ground that she is governed by Muslim Personal Law. She also submitted that the talaqnama was not accepted by her client and relied on the judgment of the Apex Court in Shayra Bano v Union of India & Ors to prove that talaqnama is not valid. 

It is noteworthy that though the learned counsel for the petitioner had vehemently argued that the parties are governed by Muslim Personal Laws and therefore the provisions of the Domestic Violence Act cannot be invoked. But Mrs Tanbon Irani submitted that there is no intention of the legislature to restrict the provisions of Protection of Women from Domestic Violence Act, 2005 to a particular category of women to specifically exclude the women belonging to the Muslim religion.

Judgment Delivered

As it turned out, on the applicability of the Domestic Violence Act in this case, the Bombay High Court noted that, “The scheme of the enactment does not restrict the applicability of the provisions of the Act to a particular category of women, nevertheless to a woman belonging to a particular religion. No doubt the Muslim women are also governed by several other enactments in the form of Muslim Women (Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim Marriage Act, 1939 etc., however, the rights conferred under the said enactments can in no way curtail the operation or protection granted under the Protection of Women from Domestic Violence Act.”

Going forward, the Bombay High Court also concluded that if both parties are governed by Muslim Personal Law, it is not an impediment in the wife invoking the jurisdiction of the court under the provisions of the Domestic Violence Act and there is no embargo of the said court to confer the relief on the woman, who is an “aggrieved person” within the scope and meaning of the Act, merely because she belongs to Muslim religion. It also held categorically in para 8 of its landmark judgment that, “Perusal of the provisions of the Protection of Women from Domestic Violence Act, 2005 would reveal that it is an enactment to provide for more effective protection for rights of women guaranteed under the Indian Constitution who are the victims of the violence. The enactment no way intends to restrict its application to any particular category of women but it intends to protect the women aggrieved, who are victims of Domestic Violence.”

It was also held in the same para that, “The definition and connotation of “Domestic Violence” under Section-3 of the enactment do not indicate any intention either express or implied to exclude Muslim women. Section-36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, the scheme of the enactment do not restrict the applicability of the provisions of the Act to a particular category of women, nevertheless to a woman belonging to a particular religion. No doubt the Muslim women are also governed by several other enactments in the form of Muslim Women (Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim Marriage Act, 1939 etc., however the rights conferred under the said enactments can in no way curtail the operation or protection granted under the Protection of Women from Domestic Violence Act.”

It also cannot be lost on us that in para 10 of this landmark judgment by the Bombay High Court, it was specifically held that, “The purpose of any provision of law which is beneficial to a woman is to provide some solace to a woman during the subsistence of the marriage or even after she is divorced out of the said marriage and since the Domestic Violence Act is an enactment to provide effective protection of rights of woman, who are victims of violence, the respondent-wife cannot be denied the umbrella of the said legislation.” 

Thus, we find that the husband’s challenge to order directing him to provide maintenance was dismissed. The court also noted that wife has no shelter, has been subjected to vagrancy and is unable to maintain herself and her children and in such circumstances the impugned order cannot be faulted with and their appears to be no illegality or perversity in the said order which would warrant any interference at the instance of this order. The impugned order was thus upheld!

Conclusion

All said and done, it is an excellent judgment which must be emulated by all the courts in India. It specifically provides for protection of Muslim women from the domestic violence. It also makes it clear that just like any other woman, a Muslim woman who is governed by provisions of Muslim Personal Law can also invoke the provisions of the Domestic Violence Act wherever genuine and seek relief. It is made absolutely clear by the Bombay High Court that she is not barred in any way from seeking relief in such genuine cases!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.