SC Quashes All The 88 Mining Leases In Goa

In a landmark judgment with far reaching implications, the Supreme Court on February 7 dealt a severe body blow to Goa’s mining magnets by cancelling leases of all 88 mines and ordered that fresh licences be granted through an auction process. Doubtless, the court’s order will cover every one of 88 mines operational in Goa. These licences were given to 88 companies in Goa in 2015.

While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Apex Court directed the Centre and the Goa government to grant fresh environmental clearances to them. It said the state government was obliged to grant fresh mining leases in accordance with law in view of its previous judgment and not second renewals to mining lease holders. The Apex Court had said in previous judgments that only fresh leases were to be granted by the Goa government, not second renewals.

For my esteemed readers exclusive indulgence, let me also inform them that a Bench of Justices Madan B Lokur and Deepak Gupta said that mining lease holders who have been granted a second renewal in violation of its previous decisions and directions, are granted time to manage their affairs and may continue mining operations till March 15, 2018. The Bench said in no uncertain terms that, “However, they are directed to stop all mining operations with effect from March 16, 2018 until fresh mining leases (not fresh renewals or other renewals) are granted and fresh environmental clearances are granted.” Thus we see that there is no room for doubt on what the Supreme Court wants.

To put things in perspective, the Supreme Court added that, “The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not in the interests of mineral development.” The decision, the Bench said, was taken only to augment the revenues of the state, which is outside the purview of Section 8(3) of the Mines and Minerals (Development and Regulation) Act. This is certainly a clear setback to the Goa state government!

Simply put, the Bench queered the pitch by stating explicitly that, “The second renewal of the mining leases granted by the State of Goa is liable to be set aside and quashed.” It further also directed the setting up of an SIT and a team of chartered accountants to recover the amount from mining companies, which were allowed to extract ore in violation of the law. A clear wrong was thus made out!

It cannot be lightly dismissed that the Bench of Supreme Court of Justices Madan B Lokur and Deepak Gupta also in the same vein added that, “Judiciary must be very cautious and circumspect in diluting or setting aside an economic policy of the government. Courts must intervene against an economic policy of the government only if it was constitutionally unavoidable. Otherwise, good governance could be a casualty.” The court made the observations after quashing the Goa government’s policy to grant a second renewal of 88 mining leases with retrospective effect. Justice Lokur observed that, “Till recently, policy matters, particularly economic policy, were hands off as far as the courts were concerned.” However, recent decisions had seen the court “partially modify this theory and keep the window open to judicially review a policy if it does not serve the common good.” There can be no denying or disputing it!

It is noteworthy that the landmark judgment came on a petition filed by an NGO titled Goa Foundation, which had earlier also raised the issue of companies carrying out mining in violation of various statutes. The Goa Foundation, through its lawyer Prashant Bhushan had argued cogently that the state’s policy on renewing leases did not conform to the Supreme Court’s stand on optimum utilization of natural resources. Bhushan contended that the state government ought to have auctioned the mining leases instead of renewing them.

Truly speaking, Bhushan also pointed out that the mines ordinance approved on 12 January 2015 did not spell out a renewal procedure. He said that all renewals were done before the ordinance came into force with 31 leases being renewed on 12 January, 2015. The Goa Foundation petition alleges that miners and government authorities had colluded to circumvent not just the ordinance, but also the Supreme Court’s ruling of April 21, 2014. The renewal was against the court’s precedents laid down for the appropriate and optimum utilization of natural resources.

According to the petition, 56 leases were renewed between 6 and 12 January 2015, shortly before the ordinance was passed. The petition has named 20 miners whose leases have been renewed. Some of these companies had earlier moved the Bombay High Court seeking to direct the Goa government to consider and grant a second renewal of mining leases.

Be it noted, it was on their petition that the Panaji bench of the Bombay High Court had on 13 August 2014 directed the state government of Goa to execute a second renewal of leases in favour of companies that had paid the required stamp duty. In 2017, the Goa Foundation had appealed this decision before the Supreme Court. The appeal had said that the order “disembodies the directions” of the court.

Of course, Goa Chief Minister Manohar Parrikar said that there was “no need to panic” over the Supreme Court order quashing the second renewal of iron ore mining leases given to 88 companies in the state in 2015. He also submitted that, “According to my information, there is nothing applicable until March 15. I do not want to comment anything unless I go through it.” He also appeared unperturbed and said that, “…That means different possibilities are open. The order does not come into effect from tomorrow so there is no need to panic.”

Needless to say, the Supreme Court on February 7 in its 102-page judgment observed how these leases were hastily renewed by the State in 2014 with retrospective effect from 2007, just before an amended Mines and Minerals (Development and Regulation) Act made auction of leases mandatory for mining notified minerals like iron ore. It cannot be missed out here that the judgment by a Bench of Apex Court comprising of Justices Deepak Gupta and Madan B Lokur traced the “rapacious and rampant exploitation” of Goa’s fragile ecology by private mining lease holders, whose sole motive is to make profit for years. This should never have been allowed to take place at the first instance!

As things stand, the Bench said that, “Rapacious and rampant exploitation of our natural resources is the hallmark of our iron ore mining sector – coupled with a total lack of concern for the environment and the health and well-being of the denizens in the vicinity of the mines.” It also added that, “The sole motive of mining lease holders seems to be to make profits (no matter how) and the attitude seems to be that if the rule of law is required to be put on the backburner, so be it.” This landmark judgment came on the petition filed by an NGO, Goa Foundation, challenging the Goa government’s order in 2015 for a second renewal of 88 mining leases. It also set aside the Bombay High Court order allowing the state government to grant a second renewal to mining leases.

As it turned out, the Supreme Court said while summing up Goa’s mineral policy that, “The primary beneficiary was, of course, the mining lease holder, a private entity, and the price was paid by the average Goan who had to suffer a polluted environment and witness the damage to the State’s ecology.” The judgment minced no words in narrating the role played by the Goa government in the loot of natural resources. It said the State gave private entrepreneurs mining leases “virtually for a song”. It also held that, “Unfortunately, the state was unable to firmly stop violations of the law and other illegalities, perhaps with a view to maximize revenue, but without appreciating the long term impact of this indifference.”

Truth be told, the Bench led by Justice Madan B Lokur who authored the judgment pulled back no punches in stating unambiguously that, “The State sacrificed maximizing revenue for no apparent positive reason, virtually surrendering itself to the commercial and profit-making motives of private entrepreneurs and ignoring the interests of Goan society in general.” The Bench found that some private miners owed the State “staggering” sums of up to Rs 1500 crore “towards value of ore extracted in excess of the environmental clearance”. It was also held by the Bench categorically that the State government had made no “serious attempts to recover such huge amounts”.

Equally significant is the glaring fact pointed out by the Bench that, “The Union Ministry of Environment and Forests also “played ball” by giving environment clearances to 72 of these mining leases.” The Apex Court quoted from Centre’s own Vishwanath Anand Environment Appraisal Committee set up in 2013 to probe mining illegalities and held that, “There was not a single environment related or mining related law or legal requirement that was not violated by one or the other mining lease holder. Quite clearly, the rule of environmental law in Goa had gone with the wind.” The court found that even groundwater was not spared by the evils of rampant mining.

Let me hasten to add here that the 88 mining leaseholders have now time till March 15 to wrap up their operations. But they have no time beyond March 15. The Apex Court has directed the companies to wind down their operations by March 15.

Let me also hasten to add here that the court also ordered the Centre and the State government to grant fresh mining leases strictly as per the provisions of the Mines and Minerals (Development and Regulation) Act, 1957. It banned any second renewals of mining leases. It also directed to recover money from the companies for indulging in illegal mining.

Briefly stated, the court said there was no need to grant the fresh mining leases through competitive bidding or auction. The judgment also made it clear that, “The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction”. However, the Apex Court insisted that the Environment Ministry grant fresh environmental clearances to each new mining lease in the State.

To be sure, the Apex Court ordered a Special Investigation Team (SIT) and the team of chartered accountants constituted pursuant to the Goa Grant of Mining Leases Policy in 2014 to submit a report on the illegalities a report on the illegalities that had been committed so far in the State. This is the second time that the Apex Court has intervened to stop illegal mining in Goa. In 2014, in the Goa Foundation case, the Apex Court has found that rampant mining was going on in the State despite all the iron ore and manganese ore leases having expired way back in November 2007.

More pertinently, the Supreme Court gave the following important instructions while quashing the mining leases that were renewed by the Goa government –

1. Fresh Leases: Goa should grant fresh mining leases as per the provisions of the Mines and Minerals (Development and Regulation) Act, 1957.

2. Green Clearance: Ministry of Environment should grant fresh environmental clearances to the new mining leases as soon as possible.

3. Stop Operation: Mining lease holders illegally given second renewal should stop operations with effect from March 16, 2018.

4. File Report: A Special Investigation Team and a team of Chartered Accountants will give a report on the illegalities committed so far.

According to the top court Bench, circumvention of mining and environment related laws is a big tragedy in itself. The Bench further said that, “Laxity and sheer apathy to the rule of law gives mining lease holders a “field day” as they are the primary beneficiaries and the state is left with some crumbs in the form of royalty.” This should never be allowed to happen!

On a concluding note, the Supreme Court has taken very seriously the exploitation of resources in the mining sector solely for profit maximization. This alone explains that why it has not hesitated in cancelling the leases of 88 firms in Goa. It has also pulled back no punches in criticizing the State government for allowing this to happen!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Five Year Jail Term For Lalu In Third Fodder Scam Case

Let me get moving the nib of my pen by first and foremost pointing out that a Special CBI court in Ranchi on January 24 awarded five years of rigorous imprisonment in jail and a fine of Rs 10 lakh to Rashtriya Janata Dal (RJD) chief and former Bihar Chief Minister Lalu Prasad Yadav in a third fodder scam case RC 68(A)/96 for fake withdrawal of Rs 33.61 crore from Chaibasa treasury out of the five lodged against him 22 years ago. Earlier, a total of 50 accused persons including Prasad and former Bihar Chief Minister Jagannath Mishra were also convicted in the case while six others were acquitted. They were all convicted in the scam case related to the Chaibasa treasury from which Rs 33.13 crore were fraudulently withdrawn against the annual allotment of Rs 7.10 lakh for the year 1992-93.

While craving for the exclusive indulgence of my esteemed readers, let me also inform them that the Special CBI Court of Judge SS Prasad convicted Lalu Prasad Yadav, Jagannath Mishra and 48 others in the RC 68 (A) / 96 fodder scam case which pertained to the fraudulent withdrawal of Rs 33.67 crore from Chaibasa (now in Jharkhand) district treasury during the period of 1992-93. Altogether 56 persons were facing trial in the case. The Rs 900 crore fodder scam probed by the Central Bureau of Investigation (CBI), relates to fraudulent withdrawal of public funds from different government treasuries over fictitious expenditure on fodder and other expenses for cattle.

For my esteemed readers exclusive indulgence, let me also inform them that the CBI counsel BMP Singh told journalists in Ranchi that, “Under different Sections of the IPC and the Prevention of Corruption Act, Lalu Prasad has been sentenced.” Prasad who has been cooling his heels here at the Birsa Munda Central Jail since December 23, 2017, after his conviction in another fodder scam case, appeared in person to hear the verdict. He was given a seat in the courtroom’s front row where he waited for at least two-and-a-half hours until the punishment was pronounced at 2 pm.

To be sure, while communicating the sentence, the Special Judge of CBI Court – SS Prasad announced that Lalu Prasad Yadav had to undergo rigorous imprisonment (RI) of five years for committing offences under various sections of the Indian Penal Code (IPC) and another five years for offences under the Prevention of Corruption Act. The Judge said that, “Both sentences shall run concurrently”.

Of course, Lalu has the option now of appealing in the High Court and then in the Supreme Court. Let us wait and see whether there he gets convicted or acquitted! We cannot prejudge what will happen in Lalu Prasad’s case finally!

Without getting personal, I very strongly feel that those who indulge in corruption and mint crores of rupees must be punished either with death sentence or at the least life imprisonment! Five years or three years or ten years makes a mockery of our legal system and those who are corrupt are easily able to waste many years fighting legal battles and then just come out of jail in few years time! This should never happen!

To say the least, punishment must be either death or life! Nothing else! Also, the property and bank balance of the corrupt should also be seized completely!

Needless to say, the sword of discretion with the Judges that arms them with the option to award minimum punishment which can be very light must be taken away! Corruption cannot be justified under any circumstances! They must be face to face either life or death!

Only and only then will the corrupt fear indulging in corruption! But we don’t see this happening as there have been no changes made in the Prevention of Corruption Act enacted way back in 1988, 30 years ago! Now we see how they come out within few years with a big smile on their face and no sign of remorse!

To put things in perspective, out of the total 76 accused in this third case of fodder scam, 14 had died during the trial, three became approvers, two pleaded guilty while one has been absconding. Of the remaining 56 facing trial, 50, including Lalu Prasad yadav and Jagannath Mishra were convicted and sentenced to jail terms and fines. Six of them were politicians, three former IAS officers, six Animal Husbandry Department (AHD) officials, one a treasury official and 40 were suppliers to the AHD.

As it turned out, earlier Lalu Prasad Yadav’s lawyer Chitranjan Sinha passionately pleaded for a lighter punishment citing his client’s multiple health issues as the main reason for it. But the CBI, on the contrary, demanded maximum punishment arguing that the accused deserved no leniency as the offences were grave. The CBI’s argument found favour with the court!

Be it noted, Lalu Prasad is currently lodged in the Birsa Munda Central Jail of Ranchi after being convicted for 3.5 years in the RC 64(A)/96 fodder scam case on December 23, 2017. The case pertained to the Deoghar treasury withdrawal in which the quantum of sentence was pronounced on January 6, 2018 by the CBI Special Judge Shiv Pal Singh. Lalu has appealed in the Ranchi High Court against his conviction in the case. He was first convicted in a fodder scam case, RC 20(A)/96 for fake withdrawal of Rs 37 crore from Chaibasa treasury on September 30, 2013 for five years and was barred from contesting elections for a period of six years. Later, he had got bail in the case. In two other fodder scam cases related to illegal withdrawal of money from Dumka and Doronda district (both in Jharkhand) treasuries, verdicts are likely to be pronounced in the coming months! The pending cases are RC 38(A)/96 for fake withdrawal of Rs 3.31 crore from Dumka treasury and verdict expected in February or March and the other is RC 47(A)/96 for fake withdrawal of Rs 139.39 crore from Doronda treasury in Ranchi. The verdict is expected by end of 2018.

Truth be told, Prasad as told earlier has already been convicted in two fodder scam cases in 2013 and 2017 and got five and 3.5 years of imprisonment respectively. His first conviction, on September 30, 2013, was a major blow to the veteran politician who faced disqualification from Lok Sabha and a ban on contesting elections. Lalu has spent about 398 total days in jail till now!

At the risk of repetition, I would say again that corruption must invite the strictest of punishment which should be either death or life along with attachment of all bank accounts and property! There has to be zero tolerance for corruption. Corruption cases must be decided within two years right from the lower to the highest court! If this is implemented earnestly, I challenge that no one will dare indulge in corruption! Those who still dare will meet their just desserts soon! How many will dare then?

But Centre I have to say with regret is just not prepared to change the law of corruption enacted when Rajiv Gandhi was the Prime Minister way back in 1988 and 30 years later we still see no changes being inserted! This alone explains that why now in every state and every big deal we keep hearing of scams involving crores of rupees and still we hardly see quick punishment coming soon! The firm determination to fight corruption will only be displayed when laws on corruption are amended and those indulging in it are punished most strictly as enunciated above! Will it ever be done? It is Centre which holds all the cards!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

SC Seeks Original Records On Judge Loya’s Death

Let me start shaking my pen by first and foremost pointing out that the Supreme Court on January 22 said that the court “can’t rest” its “hands” on the death of CBI Special Judge BH Loya in 2014 in view of the controversy swirling around it since a long time ever since it was first reported in the Caravan magazine. The death of Loya came under the spotlight in November 2017 following a report in Caravan magazine in which Loya’s sister and other close relatives raised questions over the circumstances surrounding the death. The Supreme Court demanded the original records on his death to have a look at the circumstances which led to his death. This it felt imperative to understand the exact reasons which led to his untimely death.

According to official records, Judge Loya, 48, died of a massive heart attack in Nagpur on December 1, 2014 that is a day after he attended the wedding and reception of the daughter of fellow Judge Swapna Joshi who is now a Judge in the Bombay High Court. But there have been media reports pointing at several inconsistencies in the factual scenario surrounding his sudden and untimely demise! This is what many feel need to be probed.

At the time of his death, Loya was hearing the Sohrabuddin Sheikh encounter case in which BJP President Amit Shah was one of the accused. Shah was later discharged from the case within a month after Loya died on December 30, 2014. and the trial in the case is expected to begin next week. The CBI is yet to appeal against Shah’s discharge.

Needless to say, the petitioners who are demanding an independent probe into the death of CBI Special Judge BH Loya claimed in the Supreme Court that there were contradictions in the statements of four Judges recorded by Maharashtra police in the matter. A three-Judge Bench led by CJI Dipak Misra on 22 January dubbed the case “serious”. It also said that it would look at all the records.

Truth be told, Justice DY Chandrachud minced no words in making it clear that, “Let it never be on our conscience that we didn’t look at what we should have. We must look at facts. We would like to see everything.” He also said that, “This case involves serious issues. We have to deal with it with a certain degree of objectivity.” Rightly said!

As it turned out, the Bench on 22 January withdrew all the cases pertaining to Judge Loya’s death to itself. The Supreme Court restrained all other courts from dealing with the issue. CJI Dipak Misra waived all procedural technicalities to refuse to issue notice to any party. He said that, “Notice? Why? Who to? The state is here.”

Going forward, the CJI also rejected a plea by Maharashtra to restrain lawyers from sharing any material with the press. He said that, “We will not pass any gag orders. These are now records of the court.” Opening the arguments, Maharashtra counsel and former Solicitor General of India – Harish Salve claimed that after the recent media reports suggesting that it was not a natural death a second discreet inquiry was done with the Bombay High Court Chief Justice’s consent and that inquiry had not thrown up anything. This is a very significant event and cannot be brushed aside lightly!

Not stopping here, Salve also urged the court to tread cautiously reminding the Bench that the case involved many serving judicial officers, including some elevated to the High Court. Former Supreme Court Bar Association President Dushyant Dave while appearing for the Bombay Lawyers Association which had gone to the Bombay High Court seeking a probe into the death, immediately contested the report. He claimed that “there are very serious contradictions on the face of the record”.

To be sure, Dave alleged that none of the four Judges had accompanied Loya to the hospital the night he died. Dave was baffled to see that not a single Judge accompanied Loya to the hospital inspite of seeing him suffering such a massive heart attack! He also demanded to know why the Judge’s security had been withdrawn in the days preceding his death and contested the entry register of the place he had allegedly last stayed citing RTI replies.

Simply put, Dave said police records show that Dr Prashant Rathi, who claimed to be a relative of Loya, had informed police about the death of the Judge. He asked that, “Why should he have been the informer and why didn’t one of the Judges do this?” There is some merit in what Dave has said!

As if this was not enough, Dave said the Loya matter was initially dealt with by the Sitamarhi police station but subsequent records show the name of Sadar police station. He also questioned why Loya was not taken to reputed hospitals like the Lata Mangeshkar hospital and sought to question the bills raised at Meditrina hospital where Loya was declared “brought dead”. He said that, “The bills were raised under the head of non-invasive lab, neurosurgery, etc., while the police case was that Loya was brought dead to Meditrina.”

Truly speaking, Dave said that, “There is sufficient evidence to show Loya never stayed at the guest house. On November 24, 2014, Loya’s security was withdrawn in Mumbai. Why were Loya’s family members not called to the hospital? There are serious contradictions which require a deeper, independent probe. No one has a personal interest in this case.” He also said that, “It is sad that Justice Mohit Shah transferred the first judge in the Sohrabuddin trial. The second judge (Loya) died. The third judge acquitted Amit Shah and others within a month of Loya’s death.” Senior advocates Indira Jaising and Rakesh Khanna too supported the stand taken by Dave.

Elaborating further, Dave asked: “The Sohrabuddin Sheikh case trial is being held in camera. Why?” He demanded to know why there was secrecy over the documents relating to Judge Loya’s death when two High Court Judges had already addressed a press conference claiming it was a natural death. He repeated Amit Shah’s name several times, prompting Harish Salve to protest.

To put things in perspective, Harish Salve said that, “The case is unnecessarily being politicized.” Salve urged the court not to allow any references to Shah. But Dave persisted saying that, “Why should a case not be discussed because it involved someone high?”

Bluntly put, Salve said categorically that, “Let’s not cast aspersions by saying things against a person who holds public office.” Dave retaliated by saying that if cases on Shashi Tharoor and P Chidambaram could be discussed publicly, why not that of Shah? Salve said two district judges had accompanied Loya for the marriage reception in Nagpur and they stayed together in a guest house where in the wee hours of December 1, 2014, Loya suffered a massive heart attack.

Salve also said that, “Loya was taken by the two district judges in a car to a hospital and then to another hospital and then to another. These two judges were later joined by another two district judges. All of them have given statements during the discreet inquiry that they had been with Loya all along during his last hours and that there was no foul play or suspicion about the nature of his death.” “The claim in the media report that Loya was taken to hospital in a three-wheeler was completely baseless as the judges have stated in their statements that Loya was taken in a car to the hospital,” Salve said, adding that the then Bombay High Court Chief Justice Mohit Shah was informed about the developments on a real time basis and the Chief Justice had taken steps for adequate medical help to Loya, who could not be revived. Eventually, the Supreme Court asked the Maharashtra state to produce the complete, original records on Judge Loya’s death.

It cannot be lightly dismissed that senior advocate Indira Sawhney who has intervened in the case contended that there were several “overwritings” on the records. She said that the court must summon the original documents, including the register of Ravi Bhavan where the Judges stayed the night of his death, to ascertain their veracity.

It is most shocking to learn that Dave even alleged conflict of interest against Salve for having appeared for BJP President Amit Shah who is an accused in the Sohrabuddin case and now representing the BJP-ruled Maharashtra. The CJI-led Bench said that, “We are looking at the circumstances in which Loya died. Let it not be deflected by personal allegations.” Rightly said!

Alleging that the entire “institution” was out to protect Shah, Dave pointed out serious inconsistencies in the records presented by the State and hinted at a larger conspiracy that could possibly be at work to save Shah. The Supreme Court, however, asked Dave not to cast aspersions as on date records suggested that Loya had died a natural death. Unless and until there is substantial evidence against anyone, the lawyers must desist from making sweeping allegations against anyone!

Of course, hurt by Dave’s diatribe alleging conflict of interest, Harish Salve hit back at the former saying that, “Only some people are concerned about the death while there are some who are using the death of a Judge for other reasons.” As allegations flew thick and fast, the Bench also comprising Justices AM Khanwilkar and DY Chandrachud intervened and asked Dave to lower his voice. Dave had heated arguments with Salve.

Let me hasten to add here that Justice Chandrachud assured both sides of a fair hearing. Speaking for the Supreme Court Bench, he said that, “We are looking into the circumstances that led to a district judge’s death which is a serious issue. Let us look at the matter with a sense of objectivity and not allow the real issue to be deflected by arguments of conflict of interest. Each of you is the judge of his own conscience. We like to see every record and won’t restrict our attention to only those records produced by state.” The court asked both the parties to file documents in a sealed cover. The Apex Court rightly said that, “The issue raised is serious. We must look into the documents with some seriousness. We need objective assistance from counsel, including from Dave.”

All said and done, unless the Supreme Court indicts anyone in this case while delivering its judgment, it shall not be fair on our part to pronounce judgment against anyone because we are not the right person to pronounce verdict against or in favour of anyone. Amit Shah is the BJP President and he too has the right to reputation and the right not to be defamed by anyone. We all must keep our fingers crossed until and unless Supreme Court finally pronounces its verdict on this high profile case! I am sure that truth shall ultimately prevail here also!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

CJI Brings Out A Roster To Allot Cases

Coming straight to the nub of the matter, let me begin at the very beginning by pointing out that after an unprecedented press conference by four senior-most Supreme Court Judges on January 12 over “selective” allocation of cases and amid subsequent parleys to resolve the huge rift, the frozen ice and the huge deadlock has now finally been broken. The Chief Justice of India – Dipak Misra on February 1 published a subjectwise roster for allocation of cases to various Benches. These would be implemented from February 5.

In fact, it would not be an exaggeration if it is concluded that this should have been the norm right from the beginning but it is better to be late than never! The publication of such a roster is a first in the history of the Supreme Court. All credit for it must go to those four Judges who took the great risk risking their own career in the process especially Justice Ranjan Gogoi who is due to take over after the present CJI Dipak Misra retires later this year in November. Justice Gogoi has taken the biggest risk of his life and he has an impeccable record throughout his life and one cannot but appreciate his forthright nature in coming out totally in the open without bothering about antagonizing the present CJI as well as the Centre!

To put things in perspective, the move follows a decision of a Constitution Bench led by Chief Justice Dipak Misra declaring the Chief Justice of India’s dominance as the master of the roster in order to protect the Supreme Court from “anarchy”. The five-Judge Bench, onNovember 10 in 2017, had proclaimed that it was the Chief Justice’s sole prerogative to decide what case has to be heard by which Judge. There can be no denying or disputing this!

To be sure, it had effectively nullified a judicial order passed by the Apex Court’s number two Judge, Justice Jasti Chelameswar to constitute a Bench of the five seniormost Supreme Court Judges to hear a PIL petition for an SIT probe into the Lucknow medical college scam involving an alleged conspiracy to bribe Supreme Court Judges for a favourable order. A Bench led by CJI Dipak Misra had heard the medical college case. A huge controversy had erupted over the composition of the Judges in the roster.

As it turned out, in a sharp departure from past practice where any matter could be allocated to any Bench, Chief Justice of India – Dipak Misra on February 1 had issued a new roster indicating the nature of cases that would be listed before 12 Benches. This latest move is being seen as addressing the grievance of the four seniormost Judges who were not happy with the CJI allotting important cases to any Judge of his own choice even though he/she was much junior as compared to the senior Judges!

Simply put, the new roster shows that the CJI has kept the PIL jurisdiction entirely to the Bench he is presiding over. None of the four seniormost and Collegium Judges – Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph have PILs assigned to their rosters. This again is not correct. Why should four seniormost Judges not hear PILs? But some other positive changes have certainly been made in this roster system!

Truth be told, the Chief Justice’s Bench roster includes PILs, letter petitions, social justice cases, election matters, habeas corpus cases, contempt of court, criminal and all ordinary civil matters, appointments of constitutional functionaries, matters regarding Commissions of Enquiry, disputes on statutory appointments and law officers along with criminal cases. While PILs would be listed only before the Bench headed by Chief Justice Dipak Misra, there is an overlapping of work assigned to different benches as social justice matters would be listed both before the Bench of CJI and that headed by Justice Madan B Lokur. Besides matters pertaining to social justice, Justice Lokur’s Bench will hear matters involving environment protection and conservation, mines, minerals and mining leases.

It is noteworthy that similarly, matters pertaining to religious and charitable endowments will be listed before six different benches. If Bench headed by Justice Lokur is essentially seen as social justice bench, the Bench headed by Justice Rohinton Fali Nariman is being viewed as one largely dealing with corporate matters rooted in company law, mercantile law and commercial transactions. Similarly, Justice J Chelameswar who is the second senior most Judge after the CJI will hear petitions relating to 14 category of cases.

It must be recalled here that on January 12, the four seniormost Judges – Justice Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph had in an unprecedented press conference alleged arbitrary conference alleged arbitrary allocation of work by the CJI and demanded transparency. It is purely because of their outspokenness that we see finally the CJI Dipak Misra relenting and agreeing to bring out roster to allot cases. Had they not spoken out in the media, things would have continued to simmer but nothing would have changed on the ground!

It must also be recalled here that after the press conference, there were hectic parleys that involved the Judges of the Supreme Court, the Supreme Court Bar Association (SCBA) and the Bar Council of India to defuse the crisis. The role played by each of them in defusing the unprecedented supreme crisis in the Supreme Court must be lauded. The SCBA headed by its President – Vikas Singh had come out with a resolution that the Apex Court should follow a roster system for the allocation of matters to the Judges as was prevalent in the Delhi High Court. According to sources, some of the Judges had also suggested to the CJI to examine the roster system prevalent in the Bombay High Court. In fact, this roster system must be implemented not just in Supreme Court alone but also in all the High Courts and not just few as we see right now!

It cannot be lost on us that there are at present 12 Benches headed by Chief Justice Dipak Misra and also comprising Justices Chelameswar, Gogoi, Lokur, Joseph, AK Sikri, SA Bobde, RK Agrawal, NV Ramana, Arun Mishra, AK Goel and Nariman. The Bench headed by Justice AK Sikri will exclusively hear appeals against the orders of statutory bodies. It also must be mentioned here that the matters pertaining to employees in top court, High Courts and the subordinate courts, armed forces and paramilitary forces, personnel law, civil and criminal matters, land acquisition and requisition matters, land laws and agricultural tenancies and matter pertaining to educational institutions have been entrusted to various benches.

As per the roster, the Bench headed by Justice Chelameswar who is the senior-most Judge after the CJI even though he is due to retire soon would deal with matters related to judicial officers, employees of the Supreme Court, High Courts, District Courts and Tribunals for hearings. The Bench will also deal with matters like labour, indirect tax, land acquisition and requisition, compensation, criminal matters, etc.

Going forward, Justice Ranjan Gogoi who is tipped to be the next CJI and who during the press conference had answered in affirmative the concern over the allocation of the PILs pertaining to the late special CBI Judge BH Loya to a Bench headed by a particular Judge has been allocated matters pertaining to labour, indirect tax, company law, MRTP, TRAI, SEBI, RBI, criminal matters, contempt of court, personal law, religious and charitable endowments, mercantile laws, commercial transactions including banking etc. He will also hear matters related to judicial officers, state excise-trading in liquor-privileges, licences and distilleries and breweries.

Now coming to Justice Madan B Lokur. He has been allocated matters including service, social justice, personal laws, land acquisition, mines and minerals and consumer protection. He will also hear matters related to ecological imbalance, protection and conservation of forests throughout the country, protection of wild life, ban on felling trees and falling of underground water level. Justice Kurian Joseph’s Bench has been assigned to deal with matters including labour, rent act, family law, contempt of court, personal law etc. He will also hear matters related to religious and charitable endowments and all land laws and agriculture tenancies.

Now coming to Justice Arun Mishra who became the root cause of the controversy as he was given important cases by CJI even though he figured low in the seniority list. The roster has assigned to him matters related to admission and transfer of candidates in engineering and medical colleges which recently saw a sitting High Court Judge – SN Shukla and a retired High Court Judge of Odisha – IM Quddusi caught on the wrong foot. Quddusi was even arrested as part of the probe. Justice Mishra will hear matters related to all admissions/transfers to engineerings and medical colleges, allocation of 15 percent all-India quota in admissions/transfers to medical colleges and establishment and recognition of educational institutions. He will also hear labour, land acquisition, service, criminal, family law and ordinary civil cases. But he has been divested of the PIL matters. He had also recently recused himself from hearing the PILs related to the death of Special CBI Judge BH Loya who was dealing with the Sohrabuddin Sheikh fake encounter case in which the name of BJP President Amit Shah had cropped up!

Be it noted, the rosters of the four seniormost Judges who had called the joint press conference have been changed to some extent. Now the distribution of matters to different Benches have been made absolutely clear. This is certainly a good thing and a good beginning has been made. This is also clearly an acknowledgement that “something was amiss” in the earlier system and this was certainly a “moral victory” for the stand taken by the four seniormost Judges! Now let us see how this gets implemented in the days ahead!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

How Long Will Politicians Justify MFN Status To Pakistan?

It is most hurting to see that Pakistani Army is killing our soldiers and those living in border areas which includes children, women old people etc most mercilessly yet our politicians are fully determined that Most Favoured Nation Status (MFN) to Pakistan cannot be revoked under any circumstances which India unilaterally granted in 1996! They say that how can we disregard Farooq Abdullah who is the former Chief Minister of Jammu and Kashmir or how can we disregard Mehbooba who is now the Chief Minister of Jammu and Kashmir! It is their firm demand that even if lakhs and lakhs of soldiers are killed still Most Favoured Nation status for Pakistan must continue and talks with them must continue endlessly!

Just now we saw how Captain Kapil Kundu 22 years old was due to turn 23 on April 10, Rifleman Ramavatar 28, Rifleman Subham Singh 22 and Havilder Roshan Lal, 42, were mercilessly killed after five or six anti-tank guided missiles were fired upon them! Captain Kapil was only son of his mother who just one year back lost her husband but our politicians are firm that they will not go beyond just registering a strong protest with Pakistani High Commission and rendering lip service by saying “Aab bardasht nahin, bharat maange baaadla, ek ke badle daas, daas ke beadle tees etc, Muh tod jaawab denge, surgical strike kaarenge etc”. It is time we move beyond rhetoric and inflict such deep wound on Pakistan that they never again are to attack our soil. But politicians are just not prepared for it under any circumstances for reasons known best to them!

Why can’t India revoke the Indus Water Treay and stop giving all water to Pakistan? Why can’t MFN status to Pakistan be revoked? Why can’t we send suicide squads to Pakistan and blow off their terror training camps as former Army Chief of India – Gen Shankar Roy Choudhary very rightly advocated in a news channel in 2017! Why can’t our politicians expel all the Pakistani diplomats who are indulging in anti India activities and financing terror attacks on India?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It will not be an exaggeration if I conclude my write-up by saying, “Politicians are far, far, far more dangerous than Pakistan and Justice Markandey Katju is right when he calls them as ‘rogues’ and ‘scoundrels’ for whom MFN status to Pakistan is more important and not our people and brave soldiers who are being killed mercilessly by proxy war sponsored directly by Pakistan since last many decades yet our politicians are just not affected at all which alone explains why MFN status for Pakistan is still continuing till now without being revoked even once since last more than two decades”! Can on earth there be anything more shameful than this? Which self-respecting nation will behave like this? Why politicians like Digvijay Singh who is former CM of Madhya Pradesh and not just him but even those who have served as senior diplomats like former Foreign Secretary – Mani Shankar Aiyyar address Hafiz Saeed who masterminded Mumbai terror attack in which about 200 people were killed and many other such terror attacks and who vows to liberate J&K from India in 2018 as “Hafiz Sahab” just like a courtier addresses his king! What message are such leaders sending to people? That they favour global dreaded terror leaders like Hafiz Saeed and care a damn for the feelings of millions of Indians who since independence are facing the wrath of terrorists sponsored directly by Pakistan! How long will politicians fool people and keep mocking at our soldiers by constantly going to Pakistan, not resorting to a massive retaliatory action against Pakistan, not scrapping the Indus water Treaty with Pakistan, not expelling all Pakistanis from India, not increasing the budget of defence which is now lowest since 1962 and not expelling all Pakistani diplomats from India and keep tolerating the waving of Pakistani flags and chanting of anti-India slogans in India under any circumstances? Why should citizenship of those who indulge in anti-India acts not be revoked? Why is Centre just taking no concrete action on this even after completing 4 years in power?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

New Consumer Protection Bill 2018 Will Entail More Punishment

Coming straight to the crux of the matter, let me begin first and foremost pointing out that a new Consumer Protection Bill has been tabled in the Lok Sabha on January 5, 2018. This was presented on the last day of the winter session of Parliament. The Union Minister for Consumer Affairs – Ram Vilas Paswan introduced the new Consumer Protection Bill, 2018 in the Lok Sabha.

Replacing Old Act By New

Needless to say, if all goes well, the Bill will certainly become an Act sooner than later. It will replace the Consumer Protection Act, 1986. The Consumer Protection Bill, 2018 is more wider in its ambit as compared to the Act of 1986.

Object Of New Bill

This new Consumer Protection Bill, 2018 seeks to enforce stringent provisions in order to protect consumers by regulating online sales, providing for higher manufacturer liabilities, even restricting tall claims, including some made through celebrity brand endorsers. It thus legislates on at least three new areas vis-à-vis the older law. It seeks to set up an authority to safeguard consumer rights in view of current challenges posed by e-commerce, direct selling, tele-marketing and misleading ads, among others.

Wider Scope

As it turns out, the new law will apply to all goods and services, including sale/construction of homes/flats and telecom services. It brings within its fold all forms of selling – offline/online sales, teleshopping, direct selling and multi-level marketing. In other words, this new law envisages wider application covering all goods, services and selling.

Truth be told, while the earlier law did cover unfair trade practices, the current one certainly seeks to make it more comprehensive. It adds practices such as failure to issue a bill or a receipt, refusal to accept a good returned or refusal to discontinue service within 30 days (if it is so stipulated and requested by the consumer) and disclosure of personal information given in confidence, to the list of unfair practices. It also defines unfair contracts. Issues such as excessive security deposit requirements, penalty for breach of contract which is disproportionate to the loss incurred and refusal to accept early repayment of debt on payment of applicable penalty will now fall squarely under its ambit.

Product Liability

It must be reiterated here that the highlight of the new law is the inclusion of the product liability action. Thus, we see that when any one of us suffer any harm due to a defect in a product made by the manufacturer, serviced by a service provider or sold by a product seller, earlier there was no fixed liability but now we have a right to claim compensation once the 2018 Bill becomes a law. The 2018 Bill further lays down the appropriate circumstances under which the manufacturer, service provider and seller will be held liable.

Conditions For Liability

As for instance, we see now that a product manufacturer will be liable to compensate for harm caused to the consumer under any one of the following conditions. Those conditions are as follows: –

1. The product contains a manufacturing defect;

2. It is defective in design;

3. There is a deviation from the manufacturing specifications;

4. It does not conform to the express warranty; and

5. It does not contain adequate instructions for correct usage.

Regulator On Anvil

It is well known that to promote and protect the consumer rights, the Consumer Protection Councils at the district, state and national levels are prescribed under the current law. But its biggest handicap is that it is only an advisory body and hence does not have powers of enforcement. To overcome this handicap, this new Bill brings in a regulator for consumer affairs, much like the Securities and Exchange Board of India (SEBI) for the markets or the Insurance Regulatory and Development Authority of India (IRDAI) for insurers.

To be called the Consumer Protection Authority, the new regulator will be a central authority with offices at the regional level. The new Consumer Protection Authority will have power to monitor and enforce the new regulatory regime that the Bill seeks to implement. The Bill says very specifically that, “This fills an institutional void in the regulatory regime extant. Currently, the task of prevention of or acting against unfair trade practices is not vested in any authority.”

To be sure, this Authority will have the requisite powers to inquire and investigate into complaints and initiate prosecution. It will also be empowered to issue safety notices/pass orders in relation to matters such as recall of goods, reimbursements of the amount paid by consumers, misleading advertisements and unfair trade practices/contracts. This would ensure that consumer protection law is not blatantly violated with impunity as this Consumer Protection Authority would check this and act as a powerful deterrent.

Consumer Disputes Redressal Commission (CDRC)

It must be added here that the CDRCs will be set up at the district, state and national levels. A consumer can file a complaint with CDRCs in relation to:

(i) unfair or restrictive trade practices;

(ii) defective goods or services;

(iii) overcharging or deceptive charging; and

(iv) the offering of goods or services for sale which may be hazardous to life and safety.

Complaints against an unfair contract can be filed with only the State and National CDRCs. Appeals from a District CDRC will be heard by the State CDRC. Appeals from the State CDRC will be heard by the National CDRC. The final appeal will lie before the Supreme Court.

Jurisdiction Of CDRCs

To tell the truth, the District CDRC will entertain complaints where value of goods and services does not exceed Rs one crore. The State CDRC will entertain complaints when the value is more than Rs one crore but does not exceed Rs 10 crore. Finally, the complaints with value of foods and services over Rs 10 crore will be entertained by the National CDRC.

Punishment For Non-Compliance

To put things in perspective, the non-compliance of the order issued by the Consumer Protection Authority is punishable with am imprisonment of up to six months or a fine of up to Rs 20 lakh, or both. The Authority may also impose penalties with regard to the misleading advertisements, food adulteration and spurious goods. A penalty on the endorser of the misleading advertisement is suggested as well, which could put celebrities who endorse products that don’t live up to its claims, in the dock.

Punishment For False Claims In Advertisements

It must be highlighted here that misleading ads in various media touting exaggerated claims are very common and it is the consumers who have to suffer the most because of all this! Earlier there was a lack of clear legal provisions. But this new Consumer Bill of 2018 seeks to specify what constitutes false and unfulfilled claims.

This proposed new Consumer Protection Bill of 2018 imposes a jail term of up to two years and Rs 10 lakh as fine for manufacturers making false and misleading claims in advertisements. This could go up to five years in jail and Rs 50 lakh fine for repeat offenders. Very rightly so!

It is noteworthy that endorsers making such claims will face a penalty of up to Rs 10 lakh and a ban of a year from making endorsements. The repeated offenders would attract fines of up to Rs 50 lakh and a ban of up to three years. In fact the jail term for such repeated offenders must not be less than 5 years. But what an unbeatable irony that for repeated offenders no jail term is prescribed. This again must be set right!

Not just this, the repeated offenders must be barred permanently from making endorsements but this has not been done till now. It must be done before it becomes a law so that it acts as an adequate deterrent for repeated offenders. It is quite baffling that why this has not been done.

Defence For Endorsers

According to the Bill, the endorsers who can prove that they applied “due diligence” or appeared in an ad in “normal course of business” without knowledge of fraudulent intentions may use it as a “defence”. They have every right to stand immune from legal proceedings if they can prove that they had no fraudulent intentions of any kind while endorsing. No one can deny or dispute this! However, the Bill in the same vein also states that, “The burden of proof of such defence shall lie on the person raising such defence”.

Vulnerability Of Consumers

The Bill says that growth in e-commerce, international trade and newer services as well as innovative delivery chains have increased the choice before consumers but also made them vulnerable. So consumers have to be protected from becoming a vulnerable target who are liable to be exploited most easily!

Truly speaking, the Bill also states that, “The modern market place contains a plethora of products and services. The emergence of global supply chains, rise in international trade and the rapid development of e-commerce have led to new delivery systems for goods and services and have provided new options and opportunities for consumers. Equally, this has rendered the consumer vulnerable to new forms of unfair trade and unethical business practices.”

Curbing The Misuse Of Limitation

Unfair trade practices often take advantage of limitations in the current law. This must be plugged in the new Bill. If this is not done, the whole purpose of the new Bill will stand defeated. Pradeep Mehta of the CUTS International which is a consumer rights activist group points out that, “In an earlier era, issues like misleading ads and cheating were dealt with under the Monopolistic and Restrictive Trade Practices (MRTP) Act. But since the Competition Act, 2002, replaced the MRTP Act, it left out effective regulations to deal with unfair trade practices. This new Bill hopefully will address these shortcomings.” The Bill also provides for framing of rules subsequent to passage of the Bill for product recalls and on the responsibility of a firm for both safety and efficacy of its products.

Mediation Cells

Presently, a Redressal Commission operates at the district, state and national levels to adjudicate consumer disputes. The new law stipulates for an alternative dispute redressal mechanism if there is chance for a settlement agreeable to the parties to the dispute. The new Bill calls for setting up of mediation cells attached to the district, state and national commissions.

Conclusion

All said and done, this new Bill is certainly a marked improvement over the previous one. But still many more loopholes can and must be plugged before finally getting it assented to by the President. It certainly merits more deliberation in both Houses of Parliament. Only after a proper debate, discussion and deliberations by both Houses of Parliament should it be passed after going through it in detail so that no loophole is left out. This new Bill directly affects consumers in a huge way and so has to be taken most seriously so that consumers don’t suffer under any circumstances and have enough remedy to pursue when aggrieved which can be possible only if all their genuine concerns are taken into board and simultaneously also addressed before making it into a law by getting it passed in both Houses of Parliament!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

India Can’t Be Refugee Capital: Government

Let me begin at the beginning itself by pointing out that I fully endorse and support the Government’s stand that India can’t be the refugee capital of the world. Centre rightly told the Supreme Court on January 30 that, “We do not want India to become the refugee capital of the world.” What wrong has Centre said?

To put things in perspective, the government was responding to a submission made by Rohingya refugees that the Border Security Force (BSF) at the borders was “pushing back” their compatriots fleeing persecution in Myanmar with chilli spray and stun grenades. Additional Solicitor General Tushar Mehta while appearing for the government orally submitted before a Bench led by Chief Justice of India Dipak Misra orally submitted very rightly that, “People from every other country will flood our country.” Very rightly said!

To be sure, Tushar rightly submitted that, “India will be flooded with refugees. We don’t want India to become the refugee capital of the world. Anybody can enter the country and we can’t do anything? These things are better left to the executive.” What wrong has Tushar said? Judiciary must leave this delicate issue which falls within the government’s purview and which has tremendous security implications to decide for itself!

With due respect to judiciary, I very strongly feel that it should instead first set its own house in order. The 230th report of Law Commission strongly recommended the setting up of more high court benches in different states. But see the unbeatable irony that only one state that is Karnataka has alone gained from it. Karnataka already had a bench at Hubli but 2 more benches still were created at Dharwad and Gulbarga for just 4 and 8 districts by the previous UPA government in 2012! UP has more than 10 lakh cases pending and Karnataka has just less than 2 lakh cases pending still Karnataka has 3 benches and UP just one! Worst of all, West UP which alone accounts for more than half of the pending cases and which alone has 26 districts and whose population alone is 9 crore which is 3 crore more than that of Karnataka has not even a bench leave alone high court and 3 benches! Why judiciary has never stepped in to correct this?

Why Justice Jaswant Singh Commission appointed by former PM late Mrs Indira Gandhi to recommend where all benches were needed in late 1970s had recommended that UP must have 3 benches at Agra, Dehradun and Nainital but not one bench was set up even though on its recommendations benches were set up at Aurangabad in Maharashtra which already had 2 benches, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? Why judiciary never probed this baffling and blatant disregard of the landmark recommendations of the Justice Jaswant Singh Commission report? Why people of West UP and people of Uttarakhand who till 2000 formed part of UP were compelled to travel thousands of kilometers all the way to Allahabad to get justice and not a single bench was given to them despite the landmark recommendation to create 3 benches here by Justice Jaswant Commission and yet judiciary never investigated into the same?

Why judiciary has never ensured that the vacancies in subordinate judiciary the filling of which is in its hands are filled completely and still more than 6000 posts are lying vacant? Why UP has maximum pending cases, maximum population, maximum districts, maximum MPs, maximum MLAs, maximum Judges but has least benches only one at Lucknow which is so close to Allahabad and no bench at West UP which witnesses maximum crime, maximum riots, maximum killings etc and yet judiciary has never taken any action on this? It is high time and judiciary must act on this as soon as possible so that people of West UP especially litigants are not compelled to travel whole night to Allahabad which is more than 700 km away and the high court and benches of 8 states and even Lahore High Court in Pakistan is nearer to West UP as compared to Allahabad and this was raised by Atal Bihari Vajpayee in Parliament as Leader of Opposition in 1986 when he demanded bench of high court for West UP but 32 years later still there is no bench!

Anyway coming back to the main topic: How can this be ignored that India is already an overpopulated country? How can this be ignored that India already has its own refugee problem and lakhs of Kashmiri Pandits have been displaced from their own house in Kashmir? How can this be ignored that Rohingyas are being planted in Kashmir and Jammu which will only serve to further fuel the growing imbalance and fuel further militancy in the area?

Why do Muslim countries especially Pakistan which always champions the cause of Muslims not take Rohingyas in their own land? Why do European countries which lecture India on human rights not either grant them refuge in their own country? Why is America which again believes in lecturing us on human rights not forthcoming in giving refuge to them in their own country?

Why only India is expected to give refuge to Rohingyas? Why no other country comes forward to welcome them in their own country? Why even Bangladesh which has given refuge to Rohingyas seeks all sorts of help for Rohingyas from India and not Pakistan? India has generously helped Rohingyas in Bangladesh by providing them all humanitarian help but how can it disregard its own national and security interests and give refuge to all Rohingyas who have been displaced from Myanmar?

What is the guarantee that terrorists will not infiltrate along with Rohingyas to India? What is the guarantee that those Rohingya terrorists who killed about 100 Hindus after brutally maiming them and torturing them and then killing them will not enter India along with Rohingya refugees? What is the guarantee that those who come to India will not be brainwashed and after getting paid by ISI will not work to destabilise India?

Who can deny that Arakan Rohingya Salvation Army is a Rohingya insurgent group active in northern Rakhine State of Myanmar? Who can deny that Hafiz Saeed who is chief of Lashkar-e-Taiba has close links with these terror groups? Who can deny that Hafiz can easily use Rohingyas in India as mere pawns to destabilize India and carry out terror attacks to kill innocent Indians in large numbers? Who can deny that India will become a refugee capital if such people are not stopped promptly from entering India?

Who can deny that Rohingyas already in large numbers have been staying illegally in India since many years? Who can deny that they must be sent back to their original country from where they came? Who can deny that some parties don’t want them to go back as they are playing voter bank politics and by illegal means have got them Indian citizenship?

I have absolutely no hesitation in concluding that Supreme Court must stay away from ruling in such cases which involves policy making decisions and especially which directly concerns the security of citizens. Tushar rightly said that if the argument of the petitioner is accepted then, “The country would be flooded by refugees. We do not want India to become the refugee capital of the world. These are matters between countries involving diplomatic relations. We cannot allow people to enter like this.” The court will take up the matter next onMarch 7.

On a concluding note, the Supreme Court must take very seriously what Tushar has rightly said and instead direct its whole energy in setting up more benches in lawless states like UP whom former UN Secretary General Ban ki moon had termed as “rape and crime capital of India” still has least benches in India and West UP and Bihar which is another lawless state has none!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Soldiers Have Every Legal Right To Act In Self Defence

Let me begin at the very beginning by expressing my utmost and deepest sympathies with the families of those three young stone pelters – Suhail Lone, Javid Bhat and Rayees Ahmed in their 20s who were killed in firing by army soldiers in Shopian in South Kashmir. The families lives stands completely devastated and nothing can compensate for the invaluable loss that they have suffered with which they have to cope the rest of their lives. The families of those three young stone pelters must now come out of their grief slowly and make sure that they don’t spend their whole life just grieving which will just serve no purpose at all.

It is an unpalatable truth that these three young stone pelters are themselves responsible for inviting death for themselves. Why did they along with around 300 people attack a military convoy comprising people-and-goods carriers of Indian Army which was passing through the village of Ganowpora village in Shopian? Why these Kashmiri youths keep attacking army vehicles and soldiers? Why don’t they understand that soldiers too have weapons with which they too can retaliate which can have most dangerous consequences as we saw here?

Why without any provocation from soldiers do Kashmiri youths start attacking them with stones, sticks and other weapons? Why is restraint by soldiers taken as weakness by these Kashmiri youths? Why are those leaders who provoke such youths to indulge in stone pelting not taken in custody and why are they not prosecuted promptly?

Why are cases immediately withdrawn against these youths who indulge in stone pelting? Are they not being encouraged to time and again indulge in stone pelting? Who is responsible for this? None other than the state government as also the Centre with whose support the Jammu and Kashmir state government is running so freely here!

Why did the Chief Minister permit FIR to be registered against Major Aditya and those soldiers who only acted in self defence? Why is it ignored that Major Aditya was not even present there at the scene of attack and was very far away as reported in news channels? Why is it expected that Kashmiri youths will attack soldiers with weapons and stones and the soldiers will just not retaliate fearing that some stone pelters may be killed?

Do soldiers not have the right to private self defence? Do soldiers only have the obligation of keep facing stones and other weapons mercilessly and yet not retaliate in any manner? Do soldiers not enjoy the protection under Armed Forces Special Power Act (AFSPA)?

Why is it ignored that these soldiers who were attacked by stone pelters were not firing at some innocent people mercilessly which certainly would have been an offence but were just transferring an Army unit’s luggage and skeletal staff from Point A to Point B when a couple of the vehicles got separated from the main body of the convoy? Why is it ignored that Kashmiri civilians have no right to even attack leave alone kill our brave soldiers who fearlessly discharge their duty? Why no FIR against them lodged by police who attacked the soldiers without any valid reason whatsoever who only resorted to lodging FIR against Army soldiers? Is this fair?

How can it be ignored that Army was compelled to lodge counter FIR when police failed to do this? How can it be ignored that a Junior Commissioned Officer who tried to reason with the 300 strong mob was himself attacked and hit by projectile and collapsed and the mob wanted to straightaway murder him and the soldiers had to fire to save his life? How can it be ignored that the Standard Operating Procedures were adhered to in this case as has been testified by none other than the Northern Army Commander – Lt Gen D Anbu?

How can it be ignored that none other than Lt Gen D Anbu has himself told news agency ANI that the army had conducted its own probe into the conclusion that the soldiers had to resort to firing after they were “provoked to the ultimate”? How can what such a senior Army officer is saying be ignored so easily? How can it be ignored that the JCO was attacked very brutally and the mob wanted to virtually kill him which necessitated the firing by the soldiers?

Why has State Government allowed police to lodge an FIR against Army soldiers who were just doing their duty and were attacked without any reason whatsoever? Why Centre did not stop State Government from doing so? Why Centre is not acting even after a national outrage has broken out over the lodging of FIR against those soldiers who in order to save the life of the JCO and their own lives had no option but to fire?

Why is it ignored that Major Aditya who was leading the convoy was at least 200 metres ahead and was not present at the incident spot? Why still the name of Major Aditya was lodged in the FIR against the Army? Why is it ignored that seven Army men were injured and extensive damage was caused to 11 vehicles?

Why the Defence Minister Nirmala Sitharaman is not speaking out in defence of Army? Why did she not strongly object to lodging of FIR against soldiers who were just acting in self-defence which cannot be a crime under any law? Why even the PM Narendra Modi is silent on this?

It is not Sanjeev Sirohi alone or Sageer Khan alone or Amit Sharma alone or a group of lawyers in Meerut alone who are angry at what has happened with the soldiers in Kashmir! The whole nation is enraged with the gross injustice that is being meted out to these brave soldiers who were attacked themselves! It is because of these brave soldiers that India stands united as one nation and it is they who go all out to help Kashmiris stranded in floods without any grudge whatsoever! But see what they get in return!

Not surprising that many lawyers in different parts of India as we see in Meerut have also lodged their strongest protest which they have pointed out also in the memorandum that they have submitted to the DM of Meerut – Anil Dhingra stating that if the Centre does not withdraw the FIR lodged against Maj Aditya or against the soldiers who are all victims and not perpetrators of any crime then they will be compelled to go on hunger strike! Centre must wake up now and do the requisite damage control exercise by promptly getting the FIR withdrawn against Maj Aditya and those soldiers who were themselves attacked! They were not the attackers rather they bore the brunt of attack of more than 300 mob and yet retaliated with the minimum force under very compelling conditions!

How can all this be ignored? If Centre does not act in time the protest against it can like in the case of the film Padmaavat become nation wide and this time the representation will be from all sections and all religions and all castes of our society who think nationally and love their brave soldiers more than anything else! Can Centre again do the huge folly of ignoring all this?

It is for Centre now to decide what course of action it wants to take – appease its coalition partner PDP or keeping in view the national interests and the provocating circumstances under which the soldiers were compelled to open fire order immediate withdrawal of FIR! If soldiers had indulged in unprovoked firing and killed about 100 or 200 or even if three or two or one, I would have been the first to demand the strongest possible action against them! But that is not the case! So I stand with these soldiers and with Maj Aditya in all possible respects and so do most of our countrymen which is quite perceptible and naturally so as they were compelled to fire to save the life of the badly injured JCO and also of their own!

How can this be deemed to be a crime? Under no circumstances can such acts be deemed to be a crime! It is most shameful and disgraceful that these Kashmiri leaders never blame the stone pelters who in most cases are provoked by pro-Pakistani lobby and paid also and never do anything to bring them in the national mainstream!

All said and done, if Indian soldiers don’t restraint themselves even in such provocating circumstances there can be blood all over Kashmir! Is this is what Kashmiri and separatists leaders want? It is for them to decide what is best for Kashmiris!

Why the leaders of political parties or of separatists or their sons and daughters never indulge in stone pelting? Why only youth of middle class families indulge in it? Why the children of Syed Salaluddin and other terror leaders and separatist leaders becoming doctors, engineers and government servants and not stone pelters like other ordinary Kashmiris?

Such terror leaders, separatists and politicians have made stone pelting and anti-India activity a big business industry getting money secretly from Paskistan and undoubtedly are the biggest enemies of Kashmiris and not the soldiers of India who are there to always protect them and always stand by them as they do when some flood comes or any other calamity comes like earthquake etc! Who can deny this? This is what Kashmiri youths must realize and save themselves from being used as a mere pawn in the hands of pro-Pakistani lobby! Centre must act now and withdraw FIR against Major Aditya and those soldiers who have been named in the FIR because what they have done is not a crime from any angle! Can any jurist question this? Every soldier of Indian Army has every right to act in self defence and fire whenever they find that it is absolutely necessary to save the invaluable lives of their fellow soldiers or their own lives!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

India And ASEAN Countries Vow To Improve Ties

To begin with, the India-ASEAN Commemorative Summit 2018 in New Delhi witnessed the presence of the leaders of all ten member states of ASEAN (Association of South East Asian Nations) not just at the summit but also registered their strong presence by being invited by India as guest of honour at the Republic Day Parade. It deserves special mention here that the summit of 2018 was the 25th anniversary of the sectoral partnership, the 20th anniversary of the dialogue partnership and the fifth anniversary of the strategic partnership that was enunciated on the occasion of the 20th anniversary of the commemorative summit in 2012. It is no ordinary feat that the leaders of all the ten ASEAN countries reiterated their firm resolve to strengthen further their relations with India which is now growing by leaps and bounds!

Needless to say, the ties with ten ASEAN countries forms an important aspect of India’s foreign policy. New Delhi is leaving no stone unturned to ensure that it expands the strategic, trade and cultural ties with ASEAN countries. There are, in total, 30 dialogue mechanisms between India and ASEAN across various sectors.

Before proceeding ahead, it must be known that who all are the heads of states who visited India as Chief Guest of ASEAN countries. They are – Nguyen Xuan Phuc who is PM of Vietnam, Najib Razak who is PM of Malaysia, Lee Hsien Loong who is PM of Singapore, Aung San Suu Kyi who is State Counsellor of Myanmar, Hun Sen who is PM of Cambodia, Prayut Chan-Ocha who is PM of Thailand, Joko Widodo who is President of Indonesia, Thongloun Sisoulith who is PM of Laos who assumed office in February 2016, Rodrigo Duterte who is President of Philippines and Hassanal Bolkiah who is Sultan of Brunei and also as PM is head of the government. Hassanal prior to Bill Gates was the richest man in the world. He is also believed to be the longest-reigning monarch in the world. It was in 1994 that the then Indian PM PV Narasimha Rao had invited Singapore ‘s PM Goh to be the Chief Guest at India’s Republic Day Parade and now 24 years later the heads of all 10 ASEAN countries have come together to India which clearly vindicates that a lot of water has flown under the bridge since then!

It cannot be lost on us that India and ASEAN nations together account for 1.85 billion people which implies that it covers about 30 percent of the global population and have a combined GDP of approximately $5.1 trillion. Taken together, India and ASEAN would form the third largest economy in the world. Therefore, it becomes all the more important for both India and ASEAN countries to cooperate together for mutual benefit.

It is noteworthy that Indonesia is the biggest constituent of the grouping in terms of economic output. The GDP of ASEAN countries (in US $ mn at current prices) in total as in 2016 is 2,559,463 and of countries are as mentioned here – Lao PDR 15,903, Cambodia 19,194, Myanmar 68,636, Vietnam 198,196, Singapore 296, 977, Malaysia 299,632, Philippines 311,453, Brunei Darussalam 11,206, Indonesia 931,216 and Thailand 407,048. India has now made the right move in stepping up on the gas and pulling out all the stops to further enhance bilateral ties with all the 10 countries of ASEAN just mentioned above. This is truly commendable!

While craving for the exclusive indulgence of my esteemed readers, let me also inform them that approximately 12.5% of investment flows into India comes from ASEAN. Also, the FDI inflow to India between April 2000 to August 2017 is $ 514.7 billion and outflow from India is $38.7 billion. India rightly intends to enhance this figure much higher and the ASEAN countries too are keen that this figure goes further up as there is a lot of scope for further improvement in trade ties!

For my esteemed readers exclusive indulgence, let me also inform them that the India-Myanmar-Thailand Trilateral Highway and the Kaladan Multimodal Project connecting India and Myanmar are in progress. It must also be noted that a possible extension of the India-Myanmar-Thailand Trilateral Highway to Cambodia, Lao PDR and Vietnam is currently under consideration. This will certainly benefit all the countries collectively and so this possible extension must be completed at the earliest.

It is noteworthy that in 2009, India announced a contribution of $50 million to the ASEAN-India Fund to support the implementation of the ASEAN-India Plans of Action for deepening ties across economic and socio-cultural spheres. It also cannot be missed out that projects worth approximately $48 million are under various stages of implementation or processing. The other sector specific funds between India and ASEAN are – ASEAN-India Science & Technology Development Fund (AISTDF) and ASEAN-India Green Fund.

To be sure, China’s trade with ASEAN is certainly right now bigger than India’s. But this does not mean that India cannot leave behind China in the near future. India must exert all its influence to further strengthen bilateral ties with all the 10 ASEAN countries and I am sure that they too will appreciate that India is far less aggressive than China and much more dependable ally which never intends to occupy the territory of any other country unlike China which can never be trusted under any circumstances!

But for this to happen, India will have to really work very hard in this direction. It is here that the laudable move by the Modi government to invite all the 10 ASEAN countries as Chief Guests at the Republic Day Parade is most significant. But a lot of groundwork still remains to be done. In 2006, China’s export to ASEAN countries was 8.6% and India’s export was 2.6%. In 2006, China’s import to ASEAN countries was 11.5% and India’s was 1.5%. In 2016, China’s export to ASEAN countries was 12.5% and India’s export was 3.3%. Now coming to imports in 2016, China’s import share was 20.7% and India’s import share was 1.9%.

Honestly speaking, India lags far behind China in its trade relations with ASEAN. The India-ASEAN trade is currently only US$71 billion and has been declining regularly since reaching a peak of US$80 billion in 2011-12. In contrast, the ASEAN-China trade is US$450 billion. This is the real difference between India and China. In 2016 India invested US$1 billion in ASEAN as compared to US$10 billion by China. It is only Singapore alone which is a large investor in India and is credited with a cumulative total of about US$30 billion which constitutes more than 98% of the ASEAN total.

It is a matter of grave concern that among ASEAN’s trade partners, India ranks low at 7th way behind China, Japan, USA, Australia, South Korea and the European Union. This despite the glaring fact that ASEAN countries are its immediate neighbouring countries and still India is seventh in investments which must be addressed as it has been long neglected and it is China which has gained most at our cost! The bilateral trade went up from $2 billion in 1992 to $12 billion in 2002 and then jumped high to $72 billion in 2012.

There is no reason why it can’t still further jump very high if leaders of India and ASEAN resolve to collectively and unitedly work in this direction henceforth! It is disappointing that a two-way target of $100 billion that was set by the 25th anniversary of the bilateral relationship in 2012 could not be achieved and the figure that could be achieved was just $76 billion! But that does not mean that future cannot be changed to our delight if India and ASEAN countries implement on what they have vowed to work together and cooperate in all fields and increase the investment level considerably as also increase the business ties to new heights!

It must be divulged here that in his meeting with Vietnamese Prime Minister Nguyen Xuan Phuc who was the first to arrive for the India-ASEAN summit, PM Modi discussed with him maritime cooperation and defence ties. The two countries signed two Memorandum of Understanding (MoUs) in the field of information and broadcasting and space cooperation. External Affairs Ministry spokesperson Raveesh Kumar said in a tweet that, “Long standing traditional & strategic partnership! PM@narendramodi met with Vietnamese PM Nguyen Phuc. Discussed cooperation in trade and investment, defence, maritime & other areas.”

It must also be divulged here that Vietnam is one of the claimants of the South China Sea of which more than 90% is claimed by China. In other words, both countries – India and Vietnam have a common and powerful adversary – China and so must cooperate in all respects to outmanoeuvre the latter in all possible ways! The other ASEAN countries such as the Philippines, Taiwan, Malaysia and Brunei also have overlapping claims to the waters of the South China sea with China.

According to Indian officials, maritime cooperation is an area of key focus in the summit. It is the theme of the summit’s retreat along with security. The other MoU that was signed was for implementing an arrangement between the Indian Space Research Organisation (ISRO) and the National Remote Sensing Department of Vietnam to establish a tracking and a data processing facility in Vietnam under the ASEAN-India space cooperation. The MoU will also define the framework and conditions of cooperation to establish a facility to provide Indian remote sensing satellite data over the ASEAN region to enable remote sensing applications, which include natural resources management, ocean development and disaster management by member states.

Let me hasten to add here that President Ram Nath Kovind asserted that India-Vietnam relations are on an upward curve and said the two countries need to enhance cooperation in oil and gas sector. Kovind while welcoming Vietnamese PM Nguyen Xuan Phuc who had called on him at Rashtrapati Bhavan said that, “We need to redouble our efforts to reach the target of USD 15 billion in bilateral trade by 2020.” He said India remains committed to encouraging its industry to explore investment opportunities in Vietnam in pharma, solar, education and other sectors. He said that, “We also need to enhance cooperation in the oil and gas sector, including through trilateral cooperation with friendly countries.” Kovind while welcoming him also said that, “India is delighted to host him as a guest of honour at the Republic Day celebration.” On India celebrating 25 years of its partnership with ASEAN, Kovind said that, “This makes his presence even more special. Vietnam is a preferred partner for India in ASEAN.”

Interestingly enough, Singapore Prime Minister Lee Hsien Loong who is co-chair of the ASEAN-India Commemorative Summit said that, “We believe that India makes a major contribution to regional affairs, helping to keep the regional architecture open, balanced and inclusive.” Loong also remarked that, “India has set a goal of establishing 100 smart cities. Singapore, an urbanised city-state, is ready to partner on this journey and help develop urban solutions based on our own experience. Andhra Pradesh’s new capital city of Amaravati is one example.” Very rightly said!

It is indisputable that India has a lot to learn from Singapore and gain from it in many ways. Singapore has played a very crucial role in India’s closer integration with ASEAN. We should never forget this!

Going forward, Loong said that, “It is an honour for all the ASEAN leaders to be in New Delhi for this occasion. ASEAN leaders are also deeply honoured to be invited as chief guests at tomorrow’s 69thRepublic Day Parade. He also rightly pointed out that, “ASEAN and India’s combined population of 1.8 billion represents one quarter of the world’s population. Our combined GDP exceeds $4.5 trillion. By 2025, India’s consumer market is expected to become the fifth largest in the world, while in southeast Asia middle-class households will double to 163 million. Both regions are also experiencing a demographic dividend – 60% of ASEAN’s population is below 35 years old, while India is projected to be the world’s youngest country with an average of 29 by 2020. ASEAN and India also have fast-growing internet user bases, which will help us grow the digital economy. Against this backdrop, we still have much scope to grow our ties – India accounted for only 2.6% of ASEAN’s external trade in 2016.”

It cannot be disputed that Loong rightly suggested that, “First, ASEAN and India should redouble efforts to promote trade and investment. We need to keep existing pathways up to date and relevant, including the ASEAN-India Free Trade Area (AIFTA). We should work together to conclude a high quality Regional Comprehensive Economic Partnership (RCEP), surpassing the existing AIFTA. This would create an integrated Asian market comprising nearly half the world’s population and a third of the world’s GDP. Streamlining rules and regulations will stimulate investments in both directions, complement India’s ‘Act East’ policy and facilitate ‘Made in India’ exports to the region. Second, our people will benefit greatly from greater land, air and maritime connectivity. We appreciate India’s efforts to improve land connectivity including the extension of the trilateral India-Myanmar-Thailand Highway and India’s $1 billion line of credit to promote infrastructure connectivity with ASEAN. We look forward to working closely with India to boost our physical connectivity, including by expeditiously concluding the ASEAN-India Air Transport Agreement. This will enhance people-to-people Indian and ASEAN carriers tap new and emerging markets, especially for business, investment and tourism. Digital connectivity is another important area of cooperation, and can shape people-to-people connections for the future. India’s Aadhaar system creates many new opportunities, for instance, to harmonise our Fintech platforms or connect e-payment systems.”

It is remarkable that the highest-level of participation at the India-ASEAN Commemorative Summit to mark the 25 years of Indo-ASEAN ties comes in the backdrop of increasing Chinese economic and military assertiveness in the region. India’s influence as a powerful counterbalance to China cannot be discounted by anyone. This alone explains why these 10 ASEAN countries too seek to play a long innings with India and cooperate with us in all possible respects!

To say the least, India is working tirelessly on its Act East Policy which strongly pushes for strengthening ties with the 10 ASEAN countries with emphasis on three Cs – connectivity, commerce and culture. India is also working actively on boosting connectivity with South East Asia by land, air and sea and a trilateral highway connecting India, Myanmar and Thailand, the work of which is still in progress and is a key part of it. India-ASEAN trade stands at over $70 billion trade and the two sides are also negotiating a Regional Comprehensive Economic Partnership (RCEP). The RCEP is a proposed Free Trade Area (FTA) between the 10 ASEAN countries and the six countries with which ASEAN has FTAs – Australia, China, India, Japan, New Zealand and South Korea. India has a special bond with South East Asian countries as Buddhism and the Indian epic Ramayana is common in most of these countries even though most of the South East Asian nations have their own version of Ramayana.

Be it noted, there are more than 400 flights that operate in a week between different Indian cities and Singapore. However, there are just 200 flights a week with Thailand and Malaysia respectively. What is most concerning that there is still no direct flight between India and the largest and the most important country in ASEAN – Indonesia but I am sure that this can be rectified by both the countries acting in tandem for which due initiative must be taken in this regard. Similarly we also seriously observe how there are regular shipping links between Indian ports and that of Singapore and Klang in Malaysia but with other countries we either have few or not even a single shipping link with the other ports in the region. This must be addressed and cannot be left unaddressed!

To be sure, Prime Minister Narendra Modi while addressing the leaders of the ASEAN countries at the ASEAN-India Commemorative Summit said that security and freedom of navigation will be in the heart of India-ASEAN cooperation in the twenty-first century. Modi also said that, “Humanitarian and disaster relief efforts, security cooperation and freedom of navigation will be the key focus areas for our maritime cooperation.” The leaders also agreed on establishing a joint mechanism to ensure safety and freedom of navigation in the maritime domain.

Simply put, the statement on the maritime mechanism is significant as it is the first time that India has taken up forming of a special maritime mechanism with all the ASEAN heads of states at a single summit. A joint statement that was issued after the plenary session of the Commemorative Summit stated that maritime security and freedom of navigation featured prominently in the ‘Delhi Declaration’. The declaration indicated at common concern pertaining to the South China Sea and reaffirmed the “importance of maintaining and promoting peace, stability, maritime safety and security, freedom of navigation and overflight in the region and other lawful uses of the seas and unimpeded lawful maritime commerce.”

No doubt, just like the presence of US President Barack Obama as the Chief Guest at Republic Day in 2015 sent a signal to the rest of the world, the ASEAN leaders participation has a resonance of its own and the whole world has taken notice of this also. Former Ambassador K Shankar Bajpai said that, “As far as India is concerned, we have a tradition to invite a guest of honour as chief guest for the Republic Day parade of 26 January. But so far we have not done something like inviting 10 leaders for a diplomatic engagement on this day.” Former External Affairs Minister Natwar Singh also while welcoming the hosting of 10 chief guests at the Republic Day Parade said that it is a unique event. He said that, “We have hosted multiple heads of states as in 1983 when we hosted the NAM summit and more recently in the India-Africa Summit. But this event is unique as it comes in the context of major changes in the regional order.”

It is heartening to note that Delhi Declaration has called for joint fight against terror. The ASEAN-India Commemorative Summit also came out with a comprehensive statement targeting terrorism and agreed to uphold freedom in the maritime domain. Focusing on the presence of the Islamic State and other forms of radicalism in the region, a joint statement, titled ‘Delhi Declaration’, issued after the plenary session, supported a common approach to counter terrorism and sought a “comprehensive approach to combat terrorism through close cooperation by disrupting and countering terrorists, terrorist groups and networks, including by countering cross border movement of terrorists and foreign terrorist fighters and misuse of Internet including social media by terror entities.”

It is beyond a straw of doubt that out of all the countries of ASEAN region, Philippines had the most serious threat from the Islamic State in the last few years and the bilateral discussion focused on this aspect. Preeti Saran who is Secretary in charge of Eastern Affairs while highlighting the support that Philippines received from India to counter the Islamic State terrorists who had taken over the city of Marawi in Philippines where a battle was waged by the Philippines military forces said that, “President Duterte conveyed his deepest appreciation for the $500,000 assistance that was provided by India to resettle victims of the Marawi siege.” A joint working group meeting is likely to be held between the two countries to finalise details of counter-terror cooperation between Delhi and Manila.

Of course, the issue of security identity cards for the citizens, on the lines of the Aadhaar card of India also came up during the bilateral discussion with Philippines. Ms Saran said that, “A team from Philippines was here last week to study the Aadhaar card of India.” It is great to note that Philippines too has been greatly influenced by the Aadhaar card of India and wants to start it after studying it in India and understanding it comprehensively.

It must be underlined here that the security scenario in the Rakhine province was also discussed between Prime Minister Narendra Modi and Aung San Suu Kyi who is the State Counsellor of Myanmar and Modi conveyed his concern on the huge security challenges confronted by India in the wake of the influx of thousands of Rohingyas refuges to India since last few years! Both sides discussed the housing project that India would build to rehabilitate the Rohingyas. India is serious in building houses for Rohingyas but wants them to go back to Myanmar.

After the meeting between Modi and Suu Kyi, Raveesh Kumar tweeted, “The two leaders had a productive discussion on intensifying bilateral cooperation, including a follow up on key decisions taken during PM’s visit to Myanmar in September 2017.” The meeting came nearly a month after India and Myanmar inked an agreement on restoration of normalcy and development of the Rakhine state and days after Bangladesh and Myanmar agreed on repatriation of Rohingyas. Signed during Foreign Secretary S Jaishankar’s visit to Myanmar, the pact was the first government-to-government agreement by Myanmar with a cooperation focused on socio-economic development in the Rakhine state.

It must be added here that India and Cambodia signed four agreements ranging from prevention of human trafficking, Mutual Legal Assistance in Criminal Matters to Culture. In addition, India will provide soft loans through Line of Credit (LoC) to finance the ‘Stung Sva Hab Water Resource Development Project’ worth $36.92 million. The two countries have also decided to strengthen their defence cooperation through capacity building and exchanges of senior level personnel.

Apart from this, India will also help set up a Centre for IT excellence in Cambodia. The two sides also agreed on a $20 million concessional LoC by India for construction of transmission line in Cambodia. India has offered additional LoC for infrastructural projects in Cambodia, including in health sector for setting up of super speciality hospitals and for road, rail and digital connectivity.

To put things in perspective, this is the first visit by a Cambodian PM in the last ten years. PM Modi and Cambodia’s PM Hun Sen agreed to explore the possibility of extending the India-Myanmar-Thailand Trilateral Highway further to Cambodia and beyond. In his joint statement, Modi said that there was an agreement on strengthening relations in every sector.

Not stopping here, Modi also said that, “India and Cambodia will build up on relations in every field, including economic, social development, capacity building, business, culture and tourism. We are ready to further strengthen our relations with Cambodia in the coming future.” On his part, Sen appreciated India’s LoC and grants-in-aid for developmental projects in Cambodia, restoration and conservation of temples, capacity building programmes, scholarships and funding for social development through Quick Impact Projects (QIPs) under Mekong Ganga Cooperation initiative. India would increase the number of QIPs from 5 to 10 annually in Cambodia.

It is imperative to mention here that Modi also mentioned Archaeological Survey of India’s efforts in the restoration on Angkor Wat and Ta Prohm Temples in Cambodia. Modi also said that it is part of their joint cultural heritage and an example of cooperation between both nations. Besides, he also reaffirmed India’s commitment to undertake restoration and conservation work at the ancient temple of Lord Shiva at Preah Vihar.

In their joint statement, both sides expressed interest in enhancing cooperation in maritime domain. The joint statement said that, “They support complete freedom of navigation and overflight and pacific resolution of maritime issues based on international law, notably the 1982 UNCLOS.” On terrorism, they called upon all nations to adopt a comprehensive approach in combating terrorism, which should include countering radicalisation, recruitment, movement of terrorists, including foreign terrorist fighters. They called for blocking sources of financing terrorism supply of weapons of mass destruction, drug trafficking and other criminal activities besides dismantling terrorist bases, and countering misuse of the internet including social media and information and communication technologies by terrorist entities.

Describing terrorism as a “curse” on humankind which poses a “grave threat” to global peace, security and stability, the leaders unequivocally and unanimously condemned terrorism in all its forms and manifestations. According to a joint statement, they underscored that there was no justification whatsoever for acts of terrorism and recognized that terrorism could not be and should not be associated with any religion, nationality, civilization or ethnic groups. Reaffirming their resolve to fight terrorism, the two leaders affirmed that those responsible for committing, abetting, organising and supporting terrorist acts must be held accountable and be punished.

It must be appreciated here that in separate meetings, leaders from Vietnam, Philippines and Myanmar “underscored the importance of ASEAN-India relations for peace, security and socio-economic development in the Indo-Pacific region”. Indian President Ram Nath Kovind who hosted the leaders for a luncheon, said that India stands “shoulder-to-shoulder” with ASEAN in pursuit of a rules-based regional architecture that is open, inclusive and equitable. PM Modi also conveyed that, “ASEAN is the fulcrum of India’s Act-East policy”.

It needs no rocket scientist to conclude that relations between India and ASEAN have come a long way in the last 25 years! The highest culminating point has been the presence of all the 10 ASEAN leaders as chief guests in the Republic Day Parade. It is for the first time that the ASEAN flag fly in the sky over Rajpath on 26 January, 2018.

It must be highlighted here that in an unprecedented move to promote India-ASEAN ties under New Delhi’s Act East Policy, the Prime Minister Narendra Modi announced prior to the announcement of the Republic Day Awards that Padma Shri which is India’s fourth highest civilian award would be awarded to one achiever from each of the regional bloc’s 10 member states. Stating that “in an unprecedented and symbolic gesture” of India-ASEAN bonding and on the occasion of silver jubilee of the India-ASEAN Dialogue Partnership and India’s Republic Day, External Affairs Ministry spokesperson Raveesh Kumar tweeted that Modi “announced Padma Shri award for one individual from each ASEAN country”. Those achievers who have been named for the award ahead of the Republic Day Parade are – Haji Abdullah Bin Malai Haji Othman of Brunei for medicine, Hun Many of Cambodia for public affairs, Nyoman Nuarta of Indonesia for art, Bounlap Keokangna of Laos for art; Thant Myint-U of Myanmar for public affairs, Jose Ma Joey Concepcion of the Philippines for trade and industry, Tommy Koh of Singapore for public affairs, Somdet Phra Ariya Wongsa Khottayan of Thailand who is the Supreme Patriarch of Thailand and Nguyen Tien Thien of Vietnam who is the Secretary General of the National Vietnam Buddhist Sangha.

All said and done, the visit of all these 10 ASEAN leaders to India was very fruitful and historic. PM Narendra Modi thanked all of them for coming to India and they too expressed their gratitude for inviting them as chief guest at the prestigious Republic day parade. A lot of ground has been covered in the relations between India and ASEAN but still a lot more remains to be done and they have all collectively appreciated this and vowed to further improve the relations between them and take them to greater heights!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Khap Attacks On Couples Illegal: SC

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Strike By Delhi High Court Bar Association On 25 January

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

President Upholds AAP MLAs Disqualification By EC

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

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

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

What the law says

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

Office of profit

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

Disqualified MLAs

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

Constituency AAP Department

Chandni Chowk Alka Lamba Tourism

Dwarka Adarsh Shastri I&T

Burari Sanjeev Jha Transport

Wazirpur Rajesh Gupta Health

Najafgarh Kailash Gehlot Law

Rajinder Nagar Vijender Garg PWD

Jangpura Praveen Kumar Education

Narela Sharad Kumar Revenue

Kasturba Nagar Madan Lal Khufiya Vigilance

Moti Nagar Shiv Charan Goyal Finance

Rohtas Nagar Sarita Singh Employment

Mehrauli Naresh Yadav Labour

Janakpuri Rajesh Rishi Health

Gandhi Nagar Anil Kumar Bajpai Health

Sadar Bazar Som Dutt Industries

Kalkaji Avtar Singh Gurudwara Elections

Mundka Sukhbir Singh Languages & Welfare of SC/ST

Kondli Manoj Kumar Food and Civil Supplies

Laxmi Nagar Nitin Tyagi Women and Child and Social Welfare

Tilak Nagar Jarnail Singh Development

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

Biggest turning point

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

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

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

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

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

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

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

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

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

Relevant case laws

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

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

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

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

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

Conclusion

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Why MFN Status For Pakistan Is Still Continuing?

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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