Coming straight to the crux of the matter, it must be candidly acknowledged that there have been long standing demand for making BCCI a public body from various quarters. The Law Commission of India recommended to the government on April 18 in its 275th report titled “Legal Framework: BCCI vis-à-vis Right to Information Act, 2005” which it submitted to the Ministry of Law and Justice that the 90-year-old Board of Control for Cricket in India (BCCI) should be declared a public body. This report has been prepared pursuant to the directions issued by the Supreme Court of India in the landmark case of Board of Control for Cricket v Cricket Association of Bihar & Ors, (2015) 3 SCC 251 which also ensured that the Lodha Committee was formed to suggest reforms in the BCCI.

It is extremely important to note that the Lodha Committee headed by former CJI RM Lodha came out with a report dated 18 December 2015 recommending several steps and measures to streamline the working of the BCCI. The Lodha Committee found the BCCI to be lacking in fairness and transparency and proposed measures to ensure transparency. It felt that the people of the country have a right to know the details about the BCCI’s functions and activities. This further necessitated bringing BCCI under the RTI Act and making BCCI a public body. In July 2016, the Supreme Court passed another landmark judgment titled Board of Control for Cricket vs Cricket Association of Bihar & Ors authored by the then CJI TS Thakur along with Justice Fakkir Mohamed Ibrahim Kalifulla accepting gracefully most of the recommendations of the Lodha Committee.

There can be no gainsaying that the Law Commission of India was absolutely direct in recommending to the government that the 90-year-old Board of Control for Cricket in India (BCCI) should be declared a public body. Also, it recommended that the Right to Information (RTI) Act be made applicable to BCCI along with all of its constituent member cricket associations, provided they fulfil the criteria applicable to BCCI. In addition, it also recommended that the BCCI should be held accountable, under all circumstances, for any violation of basic human rights of the stakeholders. 

Needless to say, the Board’s monopolistic activities, directly and indirectly, affect the fundamental rights of citizens, players and other functionaries. This has been complained also many times even by prominent persons including former cricketers. The Law Commission of India said in its 128 page report handed over to Union Law Minister Ravi Shankar Prasad that a private citizen should be able to move the highest court against the BCCI for any violation of his fundamental right. In other words, the BCCI must be held accountable for its actions and should not be given immunity from all the accountability that it owes towards private citizen among others.

To be sure, the Law Commission of India said the Board has been “flying under the radar of public scrutiny and encouraged the environment of opacity and non-accountability”. BCCI too must be held accountable for all its actions and taken to task for all its lapses. This environment of opacity and non-accountability must be replaced with more transparency and accountability because this alone can ensure that BCCI functions properly and meet the high expectations that people pose in it! 

Simply put, the Law Commission was of the view that the BCCI has created “an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India.” In no uncertain terms, the Law Commission of India categorically recommended that, “The BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders”. There can be no denying or disputing it.

As it turned out, the Law Commission which is the government’s highest law advisory body concluded that the BCCI exercises ‘state-like’ powers in the regulation of cricket, and thus comes under the definition of ‘state’. Very rightly said! Moreover, even if BCCI is continued to be regarded as a private body, but owing to its monopolistic character coupled with the public nature of its functions and the ‘substantial financing’ it has received from appropriate Governments over the years (in the form of tax exemptions, land grants et al) it can, within the existing legal framework, still be termed as a ‘public authority’ and be brought within the purview of the RTI Act. Be it noted, the Law Commission of India headed by Justice BS Chauhan has recommended that BCCI should be classified as “state” under Article 12 of the Constitution so that it is answerable to the authorities like the Supreme Court. It also expressly recommended that RTI Act be made applicable to the BCCI along with all of its constituent member cricketing associations, provided they fulfill the criteria applicable to BCCI.” It may be recalled that it was in July 2016 that the Supreme Court asked the Law Commission of India to recommend whether the body can be brought under the ambit of RTI or not. 

Truth be told, the BCCI virtually acts as a National Sports Federation (NSF). The Law Commission recommended that the Ministry website should explicitly mention BCCI in the list of NSFs. This the Law Commission said would automatically bring it within the purview of the RTI Act.

It would be imperative to mention here that while listing some of the reasons why it concluded that the BCCI is a “limb of the state”, the Law Commission pointed out how the cricket board as an entity, is permitted de facto by the state to represent the country at the international stage. It selects the Indian cricket team. The selected players wear the national colours and are the recipients of Arjuna awards.

Truly speaking, the Law Commission of India noted that, “An analysis of the functioning of BCCI also shows that the government does exercise control over its activities and functioning.” As for instance, BCCI falling in line with the foreign policy of Indi, did not recognize a player from South Africa due to their practice of apartheid; and that the cricket matches between India and Pakistan in view of tense international relations were made subject to government approval. The foregoing positions BCCI as a ‘limb of the state’. The Law Commission in its report said that, “It is hereby recommended that the BCCI be viewed as an agency or instrumentality of the state, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32.” 

It cannot be lost on us that the ICC recognizes BCCI as the ‘official’ body representing India and neither the government nor BCCI have ever challenged, discussed or changed the status. The Law Commission also highlighted the political significance that is wielded by the BCCI. It minced no words in saying that, “On several occasions over the years the post of the President of BCCI was occupied by a politician owing allegiance to the then governing political party.”

Going ahead, the Law Commission underlined how the BCCI has enjoyed tax exemption which amounted to INR 21,683,489/- (INR Twenty-one billion six hundred eighty-three million two hundred thirty-seven thousand four hundred eighty nine. It concluded that the government has provided the Board with “indirect substantial funding” by means of tax exemptions, subsidies, concessions and providing land at “paltry” lease amounts. The Law Commission said categorically and convincingly that, “If the government is foregoing a significant amount of money, which otherwise would have been deposited in the National/State Exchequer, it would quantify as indirect substantial funding by the government. It would follow that the body/entity receiving such benefits would be a ‘public authority’, even though it may be a private, non-statutory or non-government body.” 

To recapitulate, the Law Commission of India made some very important recommendations in its 275th report as we have discussed above. These recommendations are worth implementing. Briefly stated, some of the pertinent recommendations are as follows: –

1. Non-consideration of the role played by BCCI as monopolistic in regulation of the game of cricket has resulted in the Board flying under the radar of public scrutiny, encouraged an environment of opacity and non-accountability. In the past, this has probably given an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India. BCCI exercises ‘State-like’ powers affecting the fundamental rights of the stakeholders, guaranteed under Part III of the Constitution. It is hereby recommended that BCCI be viewed as an agency or instrumentality of State, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32.

2. Human rights are sacrosanct and innately associated with the human personality. These rights are continually evolving, are to be respected by, and can be enforced against not only the ‘State’ but also private bodies/entities. Therefore, the BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders.

3. BCCI virtually acts as a National Sports Federation (NSF). Its own Memorandum of Association states that the Board’s objects and purposes are to control, improve quality, lay down policies pertaining to the game of cricket in India as well as select teams to represent India at international for a. Moreover, as per the statement made in the Lok Sabha, the Central Government has already been regarding BCCI as a National Sports Federation and hence, it is recommended that, for the removal of any doubt, the same be explicitly mentioned in the list of NSFs available on the ministry’s website. This express mention would automatically bring BCCI within the purview of RTI Act. Other sports bodies listed as NSFs’ in Annual Report 2016-17, 177 of the Ministry of Youth Affairs and Sports available on its website do attract the provisions of the RTI Act. This website also contains information regarding (Chief Public Information Officer) CPIOs and Appellate Authorities catering to RTI requests addressed to specific NSFs. 178. In light of the above stated facts, since all other sports bodies which are listed as NSFs are covered under the RTI Act, it is inconceivable as to why BCCI should be an exception.

4. Additionally, it is recommended that RTI Act be made applicable to BCCI along with all of its constituent member cricketing associations, provided they fulfil the criteria applicable to BCCI, as discussed in this Report.

All said and done, the recommendation made by the Law Commission of India in its 275th report is a landmark one and must be promptly implemented. It brooks no more delay now. BCCI must be made a public body as the Law Commission of India has very rightly recommended. The report rightly points out that, “The existence of a right to have access to government information is increasingly accepted around the world, both at the domestic and international levels. With countries such as Mexico and Paraguay designating the ‘right to information’ as the “human right of access to information”. At the domestic level, a right to information was seen to be finding its place in the Constitutional law of several nations, and since the early 1990s, there has been a huge upsurge in the number of States adopting Freedom of Information laws. There is now widespread acceptance of the right to information being an essential part of free expression; found in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and the regional human rights treaties in Africa and the Americas.”

Interestingly enough, under the UK Freedom of Information Act 2000 (FOI), the Secretary of State has the power to designate any person who appears to exercise functions of a public nature as a public authority. In this manner, anybody performing public functions or functions of a public nature can be covered under the ambit of the FOI Act. In Mexico, the General Act of Transparency and Access to Public Information referring to ‘right to information’ as the “human right of access to information” lays down rather exhaustive criteria for inclusion of ‘individuals and legal entities who receive and use public resources and exercise acts of authority’. Article 81 thereof requires the concerned agency to take into account factors such as “if a governmental function is performed, the level of public funding, the level of regulation and government involvement, and whether the government participated in its creation”.

It is time to now wind up. Before that let me leave my readers with what is enunciated in Para 4.9 of the 275th report of the Law Commission of India. It states that, “The right to information is a basic right that buttresses good governance, democracy and the practical realisation of human rights. Good governance is not achieved simply by having efficient government or even a democratically elected government. Freedom of information and the assurance of widespread citizen participation in public affairs and an active civil society are essential for the full realisation of democracy and to develop a culture of human rights and accountability. The recognition of right to information is crucial for achieving these ends, hence there is a need for a guaranteed and legislated right to information.” 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It must be stated at the very outset that no sane person will ever approve of the “fast politics” that has been triggered now even for Parliament not being able to function properly. First, it was Congress party under the leadership of Rahul Gandhi who went on fast for few hours to protest against government policies and now it is PM Narendra Modi and BJP President Amit Shah who went on fast for a day on April 12 to protest against frequent disruptions in Parliament. This is really nothing but a theatre of the absurd!

                                           Why can’t Parliament enact the most strictest of rules for expelling all those MPs and MLAs who disrupt proceedings and don’t allow the Parliament or State Assembly to function properly not just for few years but for life? Why can’t the Parliament enact a law deducting the complete salary of all MPs and MLAs whenever they indulge in disruptions? Why can’t Parliament enact a law by which those disrupting Parliament are sentenced to jail for at least 10 years if not 14 or life term?

                                                Why can’t Parliament enact a law by which MPs and MLAs would not be able to hike their own pay at their own whims and fancies? Why can’t Parliament enact a law prescribing minimum educational qualifications for becoming an MP and MLA even though for other services at lowest level graduate is the minimum qualification? Why can’t Parliament enact a law barring all such candidates from becoming MPs and MLAs against whom even FIR is lodged in any police station just like this strictest rule exists for other services like for Army, Police, Judge etc?

                                              Why are politicians given the long rope in exempting them from all rules and regulations? Why can’t Parliament enact rules to put an end to it? Why any dacoit or robber or murderer or rapist or any other criminal barred from acquiring any government job but are free to contest elections to become an MP or MLA even from jail? Is this not the biggest mockery of democracy?  Why can’t Parliament enact rules to oversee how MPs and MLAs spend their funds and how they use their discretionary powers?     

                                             Why can’t Parliament enact rules to end the membership of all those MPs and MLAs who are found to be indulging in any kind of conduct that brings a disgrace to democracy like leading a violent procession or giving communal speeches etc? Why can’t Parliament enact rules to bar a MP or MLA for life if he/she indulges even in a single act of indiscipline as we see in case of other professions? Why can’t Parliament not enact rules to bar MPs and MLAs who speak out of turn and shout over each other permanently from contesting elections when the service rules in case of other services are so strict that if anyone dares to speak even slightly the service rules are immediately imposed on him/her and his/her services are terminated?

                                       Why can’t Narendra Modi who is our PM and BJP national President Amit Shah take a lead in this direction? Why do they not even ever bother to speak on it? Why don’t they realize that just playing “fast politics” is not going to lead the nation anywhere nor will it change the way the Parliament functions?

                                       Why are MPs and MLAs treated above the law? Why are they allowed to become MP and MLA even after going to jail and even after committing the most horrifying of crimes like rapes, gang rapes and murder etc? Why are MPs and MLAs allowed to themselves indulge in pay hiking when we don’t see the same for any other services?  

                                     Why are MPs and MLAs given the unfettered licence to shout, scream and waste thousands of crores of rupees by not allowing Parliament and State Assemblies to function properly and yet not lose their membership nor lose any pay in this whole sordid affair? Why are MPs and MLAs given the unfettered licence to disrupt Parliament and State Assemblies thus rendering them dysfunctional in the name of “right to dissent” just like traitors and shout pro-Pakistani slogans in India and cite the “right to dissent” conferred on them by the fundamental rights under the Constitution? Why is membership and citizenship of MLAs like Akbar Lone not terminated when he openly shouts pro-Pakistani slogans in India?

                                      Why are they allowed to get away by citing one excuse or the other? What message is being sent to politicians? You can get away even after abusing India and adoring Pakistan!

                                        Can this be ever good for our national interests? Why are we the people of India tolerating all this open sham of democracy by allowing these politicians to give a long rope to themselves in all respects?

                                           Why is membership of those MPs and MLAs not terminated who shout at Speaker or Chairperson and rush to the well at the slightest available opportunity? Why all political parties are united not to do anything on this score and just play the farce of “fast politics” which is not the solution to any of the problems plaguing our Parliament and State Assemblies? Why strictest of rules not enacted for MPs and MLAs to ensure that they behave properly like other government servants and do not consider themselves to be above all laws and regulations?

                                               Why PM, Leader of Opposition and other senior MPs not doing anything on this? This is the real rub! This is the root cause why since last 70 years democracy in our country has become a sham and these politicians even after wasting crores of money by not allowing Parliament and State Assemblies to function properly are not touched in any manner and continue to get full pay and enjoy all perks and allowances!

                                     This is what needs to be finished but for which not a single party in India is prepared for which itself explains why we don’t see any discussion on this happening either in Parliament or in any of the State Assemblies! A common man feels most hurt to see all this and feels that MPs and MLAs must be tried for treason when they disrupt Parliament or any of the State Assemblies and all benefits should be withdrawn from them but we see nothing of this happening as everything in India is controlled by these very politicians who are supposed to be the biggest guardians of democracy but in reality are themselves corroding the very base of democracy by not allowing Parliament and State Assemblies to function properly! This must end now if India is to function as a democracy in the true sense which is possible only when the Parliament itself takes the lead in enacting the most strictest rules for MPs and MLAs and not the most liberal rules that are in place right now which is the root cause of all the deepest malaise that has permeated our democratic system and is corroding it from within!

                                            The moot question is: Are the politicians ever really prepared to do this? Never because that will not serve their vested self interests and petty political interests which alone explains that while they want people to give full detail of all their income but are not ready at all to divulge how much money they themselves receive from foreign countries in the name of political donations! Why politicians have their share of pie in every field and why politicians are empowered to withdraw criminal cases against MPs and MLAs whenever any Chief Minister wants thus making a complete mockery of the entire theme of “due process of law” and “law will take its own course”?

                                             Why police is under the direct thumb of politicians who cannot function independently because they have the power to “suspend, transfer or dismiss them” whenever they want and why Parliament never enacts a law to finish all this? Why is CBI not made free from government direct control? Why is police always at the mercy of politicians and can take action only when politicians orders them to which alone explains why riots break out, protests on roads turn violent mostly engineered by politicians themselves yet no police action is seen on the ground?

                                        Why Parliament never enacts law to cancel the registration of a political party for at least ten years if their party members indulge in wanton  violence and killings like we saw when former PM late Mrs Indira Gandhi was assassinated which resulted in backlash and more than 4000 Sikhs were murdered in Delhi alone? Why political parties are not made to pay for all the damage that their party members indulge in when they call for bandhs like we saw just recently on April 2 in which more than 10 people lost their precious lives and thousand of vehicles broken and rail tracks smashed and even courts were not spared? Why the registration of such political parties not cancelled for 15 or at least 10 years whose members resort to unprovoked burning of railway stations, burning of police stations, burning of public property, burning of private vehicles, etc which makes a complete mockery of our democratic system which is worse than even dictatorship and yet such political parties very conveniently blame individuals and distance themselves from the ghastly violence indulged into by their members?

                                 Parliament is squarely responsible for all this by not making strictest rules for MPs and MLAs in the last 70 years of independence! Just going on token fast is not going to benefit our country in any manner except point scoring which one political party scores over the other by resorting to such abhorrent gimmicks! Prime Minister is the leader of the country and must rise above all this sham! He must take real concrete actions that will benefit our nation in the longer term but that till now just remains a pipe dream and nothing else!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It must be said right at the outset that the Supreme Court which is the highest court in India has in a landmark decision titled The State of Meghalaya & Anr etc v Phikirbha Khariah & Ors etc  which was delivered on April 6, 2018 very rightly suggested the Centre to videograph all selection proceedings by the Public Service Commission and State Selection Boards. The Supreme Court felt compelled to order this landmark decision as it felt extremely concerned over the serious irregularities reported time and again in selection to public posts. It would certainly not be an exaggeration if it is said that this should have been the norm right from the beginning and not after the top court felt compelled to order this!

                                         While craving for the exclusive indulgence of my esteemed readers, let me inform them that in an order passed recently, the Apex Court has even asked the Department of Personnel and Training (DoPT) to explore the possibility of installing CCTV’s at the venues where examination and interview takes place to ensure that in the event any illegality surfaces, the CCTV footage could be verified by an independent committee of experts. It makes eminent sense to implement what the Supreme Court has so very rightly ordered. This will certainly go a long way in ensuring more transparency which is the need of the hour also and so should not be opposed by any sensible person.

                                                   For my esteemed readers exclusive indulgence, let me also inform them that the landmark decision of the Apex Court has come amid reports of the question papers of the common Staff Selection Commission (SSC) examination been leaked in which lakhs of students took part. The Centre has handed over the probe into the alleged scam to the Central Bureau of Investigation (CBI). One hopes that the CBI gets to the bottom of the matter and makes sure that those involved in it are sent behind bars as early as possible!       

                                      To put things in perspective, the case before the Supreme Court resulted from two separate cases arising from Karnataka and Meghalaya in the appointment to public posts. The Karnataka Public Service Commission (KPSC) filled up 362 posts of Group A and Group D officers for which examinations were held in 2012 and interviews conducted in 2013. Later on an enquiry by the Crime Investigation Department, it surfaced that several candidates had bribed persons in the selection committee.

                                     Going forward, the investigation concluded that all members who interviewed the candidates awarded exactly the same 4 marks to particular candidates. There was no objective assessment by individual members and 566 candidates were awarded same marks which appeared to be pre-determined. Digital video recorder in the KPSC building was replaced to destroy evidence.

                                         Truth be told, the other case which to court pertained to irregularities in appointment of assistant teachers in Meghalaya’s Government lower primary schools. It must be revealed here that the Karnataka case with which the Apex Court dealt was titled Avinash C v The State of Karnataka, C.A. NO. 3543-3555 of 2018 which was decided on 4-4-2018. It was held by the Apex Court in this Avinash case that, “All orders of appointment issued pursuant to Final Order Select List dated 21.03.2014 prepared by KPSC are declared illegal and shall stand quashed.”

                                              Now reverting back to the main case, it must be revealed here that the Bench of Apex Court comprising of Justice Adarsh K Goel and Justice Rohington F Nariman minced absolutely no words in concluding categorically and convincingly that, “Such incidents are being reported in several cases. We are of the view that for the purity of selection to the public posts, it is desirable that as far as possible, the selection process conducted by the selection bodies, especially the State Public Service Commissions and State Selection Boards is videographed.” There is a lot of merit in what the Apex Court has said so clearly. What is the harm in getting it videographed when there is just nothing to hide for anyone? Also, why should the selection process not be more transparent?

                                  It is noteworthy that the Bench directed this landmark order to be forwarded to the DoPT for compliance as it even urged the Centre to consider having CCTV cameras installed at the places where the examination and interview takes place. Centre must seriously debate and deliberate on this worthy idea forwarded by the Apex Court and then decide on it at the earliest so that more transparency is ushered in the system process of selecting candidates for different jobs for which the concerned candidates apply! Centre should not just brazenly disregard it as the Supreme Court is the top court which is held in highest esteem all over the country!

                                    It cannot be lost on us that the Judges believed that this will help gather evidence by way of footage to be seen by an independent committee in ruling out possibility of any wrongdoing in the selection process. The report of the committee may then be placed on the website concerned. It was explicitly held by the top court that, “It is desirable that at examination centres as well as interview centres CCTV cameras are installed to the extent viable. Footage thereof may be seen by an independent committee of three members and report of such committee may be placed on the website concerned.”

                                              On a concluding note, there can be no denying or disputing that this must be done at the earliest as the Supreme Court has so rightly desired. No further time should be wasted in doing it. This will promote transparency, accountability and maintain purity in the selection process as has been observed by none other than the top court itself in this landmark case!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Coming straight to the crux of the matter, let me start swiftly moving my pen by first and foremost pointing out that India and Vietnam on March 3, 2018 decided to deepen defence and security cooperation even as they resolved jointly for a free and open Indo-Pacific based on rules-based regional security architecture. This comes in the wake of increasing assertiveness by China in the region from South China Sea in the South Asian region. India and Vietnam have a long and time tested partnership with each other.

                                          In hindsight, the cultural and economic links between India and Vietnam dates back to 2nd century. India never supported US invasion on Vietnam and openly expressed solidarity with Vietnam. India was one of the few non-communist countries to assist Vietnam during the Cambodia-Vietnamese war. India also supported Vietnam’s independence from France and always favoured unification of Vietnam.

                                   While craving for the exclusive indulgence of my esteemed readers, let me inform them that India granted the “Most Favoured Nation” status to Vietnam in 1975. Also, both nations signed a bilateral trade agreement in 1978. In 1993, the Indo-Vietnam Joint Business Council was set up which has been working since then to promote trade and investment. In addition, the Bilateral Investment Promotion and Protection Agreement was signed on March 8, 1997.

                                            For my esteemed readers exclusive indulgence, let me also inform them that in 2003, both nations promulgated a Joint Declaration on Comprehensive Cooperation when the General Secretary of the Communist Party of Vietnam Nong Duc Manh visited India and both nations are now negotiating a free trade agreement. In November 2007, a thirty-three points cooperation was entered into between the two countries which included the following areas: political, defence and security, economic cooperation, commercial arrangement, science and technology, cultural and multilateral and regional cooperation. With the advent of liberalization, the bilateral trade and commerce between India and Vietnam expanded considerably.

                                                As things stand, India is the 13th largest exporter to Vietnam, with exports having grown steadily from $11.5 million in 1985-86 to $395.68 million by 2003. Vietnam’s exports to India rose to $180 million, including agricultural products, handicrafts, textiles, electronics and other goods. Between 2001 and 2006, the volume of bilateral trade expanded at 20-30% per annum to reach US$1 billion by 2006.

                                       To be sure, in 2010, as the ASEAN-India free trade agreement came into effect, the bilateral trade exploded to US$3.917 billion by the end of 2012, with Vietnam exporting $1.7 billion to India in 2012 which is an increase of 56.5% from 2011. It also must be noted that as of 2015 the bilateral trade between India and Vietnam stood at US$7 billion and both countries have agreed on a target of US$20 billion by 2020.   

                                         It cannot be lost on us that India and Vietnam are both members of the Mekong-Ganga Cooperation which was created to develop and enhance close ties between India and nations of Southeast Asia. Vietnam has fully supported time and again India’s bid to become a permanent member of the UN Security Council and also favoured India’s joining the Asia-Pacific Economic Cooperation. India too has always warmly reciprocated this fine gesture and reiterated India’s support for Vietnam in all international matters!

                                      It would be of immense significance to note here that Vietnam has fully and firmly backed increasing the significance of the relationship between India and the Association of Southeast Asian Nations (ASEAN) and its negotiations of an Indo-ASEAN Free Trade Agreement. In retrospect, we saw how in the 2003 joint declaration, India and Vietnam envisaged creating an “Arc of Advantage and Prosperity” in Southeast Asia to this end. India and Vietnam have also built strategic partnerships which is quite visible when we see how this is quite evident in various fields including extensive cooperation on developing nuclear power, enhancing regional security and fighting terrorism, transnational crime and drug trafficking.     

                                            To put things in perspective, Vietnam has also welcomed Indian Navy ships in their region which would enhance India and Vietnam military relations. Vietnam has also welcomed Indian support for a peaceful of the territorial disputes in the South China Sea. Former Foreign Minister Salman Khurshid had while according high importance to Vietnam called it as one of the key pillars of India’s “Look East” policy.

                                             It is noteworthy that India is providing a $100 million credit line to Vietnam that allows Vietnam to buy defence equipment from India. During his visit to Vietnam on 2 September 2016, India’s PM Narendra Modi announced a new line of credit US$500 million for procurement of defence equipment. India is also cooperating with Vietnam in defence in many other fields like giving it 4 large patrol vessels that will enable it to patrol its waters and also Brahmos short range cruise missiles.

                                    Not just this, India is also setting up the Satellite Tracking and Imaging Centre by Indian Space Research Organisation in Southern Vietnam for intelligence gathering to keep an eye on China. Also, Indian Army personnel have been actively providing training to Vietnamese military personnel to work in the UN peacekeeping force. India also trains Vietnamese Sukhoi pilots along with other military personnel. Apart from these, India is helping Vietnam in many other respects!

                                PM Narendra Modi said that, “Defence is an important aspect of our relationship and today we decided to have cooperation in the field of defence production. We will also explore the possibility of co-production and transfer of technology.” Quang said that, “Both sides have agreed to work closely to address regional security challenges including in the domain of maritime and cyber security”. India ranks 28th among the 126 countries and territories that invested in Vietnam in 2017 with 168 projects and total registered capital of$756 million.

                                              Now coming to the present, India and Vietnam on March 3, 2018 decided to work together for an open and prosperous India-Pacific along with an efficient and rules-based regional security architecture, seen as a subtle message to China over its growing military expansion in the region. The Vietnamese President Tran Dai Quang who was on a three-day state visit to India said that he supports India’s multi-faceted connectivity with ASEAN. He also stressed on the need for freedom of navigation and overflight and underlined disputes must be resolved through peaceful and diplomatic means.  Quang also met former PM Dr Manmohan Singh and Congress Parliamentary Party leader Sonia Gandhi and held discussions on ties between both the countries.        

                                             Be it noted, Vietnam President Tran Dai Quang arrived at New Delhi on March 2 after a brief stopover at Bodhgaya. On March 3, he held meetings with President Ram Nath Kovind, PM Narendra Modi and External Afairs Minister Sushma Swaraj. He also delivered a special address on March 4 at the Indian Council for World Affairs.

                                          As is well known, the  Vietnamese Ambasador to India Toh Sinh Thanh said to media while briefing on the visit that, “There are some positive developments, especially on the framework on Code of Conduct (CoC) in South China Sea (SCS). The framework has been approved both by ASEAN and China and they have committed to start negotiations on the details of CoC. I think on ground there is still a lot of work to be done.” He also said that, “Together with India we are the fastest growing economy. We have strong and effective defence cooperation. We are keen on buying defence equipment for the Navy.”

                                         Interestingly enough, the Ministry of External Affairs said in a statement that, “President Quang’s visit will further deepen Comprehensive Strategic Partnership between India and Vietnam.” The visit takes place nearly a month after Vietnamese Prime Minister Nguyen Xuan Phuc was in New Delhi to attend the India-ASEAN Commemorative Summit and Republic Day parade along with other ASEAN leaders. Among the three agreements signed on March 3, 2018, the MoU on economic and trade cooperation will facilitate establishment a framework for enhancing economic and trade promotion, the pact in agriculture is a work plan for 2018-2022 to promote cooperation in transfer of technology and exchange of visits of technical experts in the fields of agriculture  and MoU on Cooperation between the Global Centre for Nuclear Energy Partnership, India (GCNEP) and the Vietnam Atomic Energy Institute (VINATOM) is to strengthen the technical cooperation in the field of atomic energy for peaceful purposes.

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 

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

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.

First and foremost, let me express my profound condolences to all those in Kasganj area in Aligarh district whose relative has either been killed or their relatives injured or their shops burnt or their vehicles burnt or their house ransacked etc and that too on the occasion of Republic Day! This is not happening in West UP for the first time nor will happen for the last time. People here are used to facing all this!

Let me be direct in saying: West UP is notorious for riots breaking out at the drop of a hat like we saw during Muzaffarnagar riots, Meerut riots, Agra riots, Saharanpur riots, Bareilly riots etc! Every district of West UP comprising of about 26 districts is volatile still no high court bench here. The litigants are compelled to travel and so are the victims required to travel about 700 to 800 km whole night some times without reservation to Allahabad as there is no high court bench in West UP and have to face all sorts of inconveniences in doing so! 

It is most distressing to learn that this NDA government in Centre led by PM Narendra Modi has decided to create one more high court bench in Kolhapur in Maharashtra to be a circuit bench which later is usually made permanent as we saw in Karnataka where 2 circuit benches were created for 4 and 8 districts at Dharwad and Gulbarga in Karnataka even though there was already a bench in Hubli! Similarly Maharashtra already had benches at Nagpur, Aurangabad and in Goa but for West UP with more than 9 crore population there is not even a single bench and for whole of UP there is just one bench just 150 km away from Allahabad at Lucknow leaving the rest of UP high and dry!

It is most shocking to learn that for just 6 districts of Kolhapur, Solapur, Ratnagiri, Satara, Sangli and Sindhudurg in Maharashtra, the Centre has approved a high court bench at Kolhapur which shall start functioning soon but for 26 districts of West UP, the Centre is not prepared to create even a single bench of high court in any of these districts! It is even more shocking to learn that as if this is not enough even Pune will soon get a high court bench. Maharashtra’s Food and Civil Supplies minister Girish Bapat had also said that the city of Pune will also get a circuit bench! Thus when a high court bench will be created at Pune, Maharashtra will have five high court benches and UP would have just one and West UP none! It was in the October 25, 2015 issue of ‘The Indian Express’ newspaper that it was published as headlines that, “Bombay High Court urged to set up bench in Pune, Kolhapur: CM Devendra Fadnavis”. The Chief Minister of Maharashtra Devendra Fadnavis had conceded while addressing a conference of the Bar Councils of Maharashtra and Goa that, “The demand of lawyers seeking a bench in Pune and Kolhapur is justified. The Cabinet has decided to approve this demand and has sent a request to the Bombay High Court to set up these benches.” 

The population of Maharashtra is just half of UP still Maharashtra has now 4 benches and one more will be added soon taking the tally to 5 and UP has just one bench at Lucknow and worse still West UP which owes for more than half of UP’s total pending cases, has not even a single bench of high court! Maharashtra has less than 2 lakh pending cases and UP has more than 10 lakh pending cases still UP has just one bench and West IUP which accounts for more than half of the pending cases has no bench! Is this fair? This is atrocious! BJP got so many seats from West UP in Lok Sabha elections and yet see what reward it has got? No bench till now!

To put things in perspective, the elected representatives of West UP like Rajinder Aggarwal who is MP from Meerut demands 3 high court benches at Meerut, Agra and Gorakhpur in Parliament, Satyapal Singh who is MP from Baghpat and also Union Minister demanded 5 high court benches and so also Gen VK Singh who is also Union Minister and MP from Ghaziabad and but their own government is not prepared to set up even a single bench of high court in any hook and corner of not just West UP but entire UP for reasons known best to them! The more than 9 crore people of West UP always live in an atmosphere of getting killed or looted or raped or gangraped or being subjected to any other kind of crime as criminals here fear just no one. Still no bench!

Just recently, a 100 year old woman was raped in Meerut and she died within no time! A young girl of 7 to 8 years was gang raped in Muzaffarnagar and then killed and this keeps happening every now and then but inspite of being so close to Delhi, it never attracts the kind of attention that Nirbhaya gang rape case attracted! In Hapur a young girl of about 8 years was similarly raped and people protested strongly because no one was arrested! No one is safe in West UP and criminals know that because of huge pending cases it will take decades before the case is finally decided and by the time they are decided they would die a natural death! Gang rape on national highway as happened at Bulandshahr and that too when her whole family accompanied her is nothing new!

Chief Justice of UP – Dilip Babasaheb Bhosale rightly pointed out that in Maharashtra woman are so safe that they can go anywhere even in the night but in UP no one is safe even with their family and even on the national highways! Yet see the irony that Maharashtra has now 4 high court benches, shall soon have 5 and UP only one as Justice Jaswant Commission were implemented in Maharashtra to set up a bench at Aurangabad but not in Agra and West UP where maximum crime incidents occur has none as both a single bench at Lucknow and high court at Allahabad are in Eastern UP!

Criminals are ruling the roost and Centre yet firmly reiterates that no bench for West UP! Who is gaining most by Centre’s inaction in setting up a bench here? Criminals and only criminals! Who is suffering most by this inaction? Girls, women and the common people who don’t have police protection with them unlike Ministers who are fully guarded always! 

Truth be told, the latest violence in Kasjang near to Aligarh and the killing of a person and the subsequent huge burning of buses, trucks, buildings etc and fight breaking out on streets clearly indicates that how things are deteriorating from worse to worst in West UP and is the worst reminder that if most strong steps are not taken well in time, things will spiral completely out of control! In 2013 after the Muzaffarnagar riots in which again huge violence broke out and many were injured and killed and many displaced! Still we see no bench here! 

Ban ki Moon who was earlier UN Secretary General had slammed UP and not Karnataka or Maharashtra or Assam as “rape and crime capital of India” still we see that UP has just one high court bench and that too just 150 km away from Allahabad at Lucknow and these 3 states have 3 to 4 benches each! Isn’t it shameful? Why different parameters for different capital cities? Why no high court or bench for Bhopal, Bhubaneshwar, Dehradun, Thiruvananthapuram and others? Why have they been singled out?

It is most disgraceful that more than half of pending cases are from West UP and still not a single bench of high court exists here. This despite the fact that Justice Jaswant Singh Commission had recommended 3 benches for West UP and hilly areas which now constitute a separate state named Uttarakhand but Centre for undisclosed reasons decided not to allow even a single bench anywhere in UP even though on its recommendations benches were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal! This is plain ridiculous!

It is so shocking that Jawaharlal Nehru had the guts to set up a single high court bench for UP so close to Allahabad at Lucknow way back on July 1, 1948 but 70 years down the lane, no PM has shown the guts to create even a single high court bench anywhere else in West UP or in Bundelkhand or in Gorakhpur from where present CM Yogi Adityanath himself hails and who has been getting elected as MP since 1998 and had even raised the demand for a high court bench there inside Parliament but now even after coming close to completing one year in office, it seems he has chosen to just forget everything! Satyapal Singh who is former Mumbai Police Commissioner and represents BJP as MP from Baghpat and recently was sworn in as Union Minister had demanded right inside Parliament the setting up of 5 high court benches for UP at Meerut, Agra, Gorakhpur, Jhansi and Varanasi but what a pity that Centre is not ready to set up even a single bench anywhere in UP even as PM Narendra Modi is all set to complete 4 years in power after few months! This is the real tragedy!

Just recently a woman committed suicide in one of the district of West UP as she was being threatened by those who committed gang rape. Woman are being murdered, raped and gangraped! This has been happening time and again. West UP has become the epicenter of all crime, rape, dacoities, gangrapes, murders and still Centre is not prepared to set up even a single Bench of High Court for any of the 26 districts of West UP!

Why high court and benches of 8 states and even Lahore high court in Pakistan is nearer to West UP as compared to Allahabad still no bench is being created here? Why West UP inspite of emerging as epicenter of murders, rapes, gangrapes and communal clashes still has no high court bench which only punishes victims especially woman who has been raped or gangraped to travel all the way about 700-800 km away to Allahabad to get delayed justice after few decades as Allahabad High Court is already overburdened with more than 10 lakh cases whereas no other state in India has more than 2 lakh pending cases and still some of them have 3 high court benches but UP has just one at Lucknow which is very close to Allahabad? How can all this be justified?

Why no steps are being taken to create a bench here even though it has been promised by many governments in Centre and by many Union Ministers? What stops Centre? Why Centre is ignoring that Soli J Sorabjee who is former Attorney General of India and one of the most reputed lawyer of Supreme Court had himself said that, “A high court bench in West UP can be created by Centre without the recommendation of the Chief Justice or State Government in this behalf”.

BN Krishnamani who is former Chairman of Supreme Court Bar Association had himself said that, “Only by the creation of a high court bench in West UP can the people get justice here”! He was amazed that Lucknow has high court bench since 1948 but West UP not even seventy years later!

Why the population of West UP at more than 9 crore is more than all States except UP of which it is itself a part, Maharashtra and Bihar and here too the area of West UP at 98,000 square km is more than Bihar at 94,000 square km and still it has not been made a separate state? Why West UP accounts for more than half of pending cases of UP and still no attempt is being made to create it as a separate state or at least create a bench here? Why Karnataka with just 6 crore population which is 3 crore less than West UP has not just high court but 3 benches also but West UP with more than 9 crore population has not even a single bench leave alone a high court by making it a separate state?

Why Karnataka has not more than 2 lakh pending cases and West UP has more than 5 lakh pending cases still West UP has not even a single bench compelling litigants from West UP to travel whole night more than 700 km away often without reservation all the way to Allahabad and suffer untold miseries and Karnataka has a high court and 3 benches at Hubli, Dharwad and Gulbarga? Why the 230th report of Law Commission was selectively implemented only in a peaceful state like Karnataka and not in a state like UP which former UN Secretary General Ban ki moon slammed as the “rape and crime capital of India” and which has maximum population more than Pakistan and many other countries, maximum MPs, maximum MLAs, maximum Mayors, maximum villages more than 1 lakh, maximum towns, maximum tehsils, maximum pending cases more than 10 lakh, maximum pending cases in lower courts, maximum Judges, maximum crime, maximum dowry deaths, maximum rapes, maximum gangrapes, maximum custodial deaths, maximum PM since independence including the incumbent PM Narendra Modi who represents Varanasi, maximum delay in deciding of cases and what not and yet still has least high court benches in India? Why is West UP being accorded such a shabby and third rated treatment that the high courts and benches of 8 states and above all even Lahore High Court in Pakistan is nearer to West UP than Allahabad still it has not even a single high court bench here?

The latest shocking Kasganj violence which witnessed naked dance of destruction, death, vandalism, loot and violence underscores the “complete jungleraj” prevailing in West UP yet no serious attempt is being made to create a high court bench here! Is there any logic in it? Why when Centre can create one more bench for Maharashtra which already has 3 benches then why can’t it create one bench at least in West UP?

The lawyers of West UP stopped working on February 15 after learning about it that a circuit bench of high court has been approved at Kolhapur in Maharashtra and resumed working from February 27 only after Gen VK Singh who is a Union Minister assured the lawyers that he would get a meeting of lawyers and PM to convince Modi of the dire need to set up a bench here! For how long will lawyers of West UP keep striking? Already the lawyers of West UP have been struggling since last more than 50 years for a bench and have gone on strike for 6 months also as in 2001, 3 to 4 months as in 2014-15 apart from the everySaturday since May 1981! Centre must relent at least now and create a bench here as it has done in Maharashtra so that the litigants are not compelled to travel whole night about 700 km on an average many times without reservation also all the way to attend court hearings at Allahabad! No more excuses! When Maharashtra can have 4 to 5 benches then why can’t UP have at least 3 to 4 or at least 2 benches? Why West UP has no high court bench even in 2018 when Lucknow can have bench since 1948 even though it was so close to Allaahabad? Centre must act impartially now! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.