Coming straight to the nub of the matter, in a landmark judgment with far reaching consequences,, the Constitution Bench of the Supreme Court in Bir Singh v Delhi Jal Board & Ors in Civil Appeal No. 1085 of 2013 decided on August 30, 2018 has held that Pan India Reservation Rule in force in National Capital Territory of Delhi is in accord with the constitutional scheme relating to services under the Union and the States/Union Territories. As regards States, the Bench observed that, “If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.” Justice Ranjan Gogoi who headed the five-Judge Bench, authored the judgment for the majority (also comprising of Justice NV Ramana, Justice Mohan M Shantanagoudar and Justice S Abdul Nazeer).

                                          In other words, the Bench by a majority held that the Scheduled Castes or Tribes can avail benefit of reservation in government jobs only in their home states and they cannot access quotas in other states where they might have migrated. It was also held by a five-Judge Bench that a person from the SC or ST category should not claim benefits in another state or Union Territory. Upholding the “son of the soil” principle, the Bench said if a person’s status migrates with him it will amount to depriving the rights of SCs or STs of the host state. The court noted that a particular community is notified as SC or ST in relation to a state and that concept would become “nugatory” (of no value) if migrants from other states are in its ambit. It also held that the beneficiary lists cannot be changed by states and alterations of the presidential orders can only be done by Parliament. “Unhesitatingly, therefore, it can be said that a person belonging to a scheduled caste in one state cannot be deemed to be a scheduled caste person in relation to any other state to which he migrates for the purpose of employment or education” the court said. The Bench said the expression ‘in relation to that state or Union Territory’ and ‘for the purpose of this Constitution’ used in Articles 341 and 342 means benefits of reservation would be within the geographical territories of a state or UT in respect of which lists of SCs and STs have been notified by presidential orders, Justice Gogoi said in  his judgment.

                                           It would be pertinent to mention here that the Bench said: “If the special privileges or the rights granted to scheduled castes or scheduled tribes in a particular state are to be made available in all states and if such benefits are to be carried from state ‘A’ to state ‘B’ on migration, the mandate of Article 341/342 would get compromised. Such a compromise must be avoided…” The Apex Court also held that the state could not tinker with list of SCs or STs by including other castes or tribes, saying this can be done only by Parliament and states doing so will lead to constitutional anarchy. In other words, the Apex Court made it clear that, “The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to scheduled castes and under Article 342 in regard to scheduled tribes cannot be varied or altered by any authority including the court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. SCs and STs thus specified in relation to a state or a UT do not carry the same status in another state or UT. Any expansion or deletion of the list by any authority except Parliament would be against the constitutional mandate.”       

                                        Be it noted, only one Judge Justice R Banumathi, differed with the majority. However, Justice R Banumathi agreed with the majority that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education, disagreed with the exception given to National Capital Territory of Delhi. The four Judges were of the view that migrants be allowed benefit of reservation in Delhi subordinate services. Justice Banumathi said: “If the reservation to the SCs and STs are to be extended to all categories of SC/STs all over India or to migrants then there is every possibility of the SCs and STs of other developed states and UTs squandering reservations to SCs/STs who are disadvantaged in the respective states/UTs including UT of Delhi.”

                                 The Issue

                              Needless to say, in State of Uttaranchal v Sandeep Kumar Singh and others (2010) 12 SCC 794 (Civil Appeal No. 4494 of 2006), the following question arose for consideration of this Court:

             “Whether a person belonging to a Scheduled Caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to Scheduled Caste candidate in the matter of employment, in any other State?”

     Takes Note Of Constitution Bench Judgment in Marri Chandra Shekhar Rao

                                        As it turned out, the Bench took note of two earlier Constitution Bench judgments in Marri Chandra Shekhar Rao vs Dean, Seth GS Medical College and others (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs Union of India (1994) 5 SCC 244 that had held that a person belonging to a Scheduled Caste in one state cannot be deemed to be a Scheduled Caste person in relation to any other state to which he migrates for the purpose of employment or education.

Did Not Go Into Correctness Of View Expressed In S Pushpa

                             It cannot be lost on us that in S Pushpa and others vs Sivachanmugavelu and others (2005) 3 SCC 1 it was observed that the principle enunciated in Marri Chandra Shekhar Rao cannot have application here as UT of Pondicherry is not a state. It also held that UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Caste or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law. The Constitution Bench, however, did not go into the correctness of the view expressed by the three-Judge Bench in S Pushpa.   

    Unilateral Action By States In Adopting Pan India Reservation Policy Could Trigger Anarchy

                                        Simply put, the Bench eloquently and elegantly answered the reference as follows: “It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Article 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued 44 under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential orders for a particular State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.”

    Subordinate Services In ‘Capital City’ Are Clearly Central Civil Services

                    Interestingly enough, but as regards NCT of Delhi, the Bench of Apex Court observed that subordinate services in the National Capital Territory of Delhi are clearly Central Civil Services. Referring to Central Services Rules, the Bench observed: “In so far as the services in connection with the affairs of the Union is concerned (Central Services), wherever the establishment may be located i.e. in the National Capital Territory of Delhi or in a State or within the geographical areas of Union Territory, recruitment to all positions is on an All India basis and reservation provided for is again a pan-India reservation. This by itself, from one perspective, may appear to be in departure from the rule set out in Para XVI of the Constitution of India (Articles 341 and 342). However, the close look undertaken hereinbefore indicates such a position is fully in accord with the constitutional structure of a federal polity.”

                                  Going forward, the Bench further added that, “A combined reading of these provisions of the DASS Rules, 1967 and CCS Rules, 1965, therefore, more than adequately explains the nature of Subordinate Services in the NCT of Delhi. These clearly are General Central Services and perhaps, it is owing to this state of affairs that the Union of India in its affidavit has stated that, “Members of the Delhi Administrative Subordinate Service are the Feeder Cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) is consistently adopted”.” The Bench also reproduced observations made in Dr Jagdish Saran and Others vs Union of India with regard to the special status that the capital city enjoys. In the said case, the Supreme Court had observed that Delhi is a ‘miniaturised India’.

                  Justice Banumathi’s Dissenting Opinion

Pan India Reservation Policy: “There can be no distinction between Union Territory of Delhi and other Union Territories/States”, says Justice R Banumathi in her Dissent.

                                       To be sure, Justice R Banumathi also noted that, “If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi.” Justice R Banumathi penned an elaborate order expressing her own reasons for differing with the conclusion of the Constitution Bench judgment authored by Justice Ranjan Gogoi that upheld Pan India Reservation Police in National Capital Territory of Delhi.   

There can be no distinction between Union Territory of Delhi and other Union Territories

                                              No wonder, Justice R Banumathi while dissenting with the majority view which carved an exception for National Capital, observed clearly and convincingly that extending PAN India reservation to the employment falling under the services of Union Territories including Union Territory of Delhi, will be against the Constitutional scheme. According to the Judge, the Constitution Bench decisions in Marrri Chandra Shekhar Rao and Action Committee are applicable with equal force to the Union Territories including Union Territory of Delhi. She minced no words in stating unambiguously that, “There cannot be any distinction between the States and the Union Territories. Likewise, there can be no distinction between Union Territory of Delhi and other Union Territories.”

Services under Union Territories cannot be said to be Central Civil Services

                                  As things stand, while elaborately referring to Service Rules, the Judge observed that, “Services under the Union Territories though they are Central Government services, they are services under the respective Union Territories and not under the direct control of Union of India/different Ministries. Procedure for recruitment to the various posts for the services of Union Territories are different as followed by respective Union Territories. The persons appointed for the services of Union Territories might be governed by CCS (CCA) Rules; but they are employees of respective Union Territories. The appointing authorities are the authorities under the administration of Union Territories and not under the Ministries of Union of India. Central Civil Services are the services directly under Union of India. Contrarily, various services under the Union Territories are the services under the respective Union Territories. Such services under Union Territories cannot be said to be Central Civil Services that is services under Union of India to extend the benefit of PAN India reservation for recruitment to the services under respective Union Territories including Union Territory of Delhi.”   

       Observation in Pushpa judgment not correct

                                           Truth be told, though the majority judgment is silent of correctness of three Judge Bench decision in Pushpa, Justice Banumathi observed that the said case is not a correct decision extending PAN India reservation for the reserved posts recruited by NCT of Delhi or any other Union Territories. She also said that, “When the Scheduled Castes or Scheduled Tribes are specified for each State in relation to one State or Union Territory, neither the State legislature, the administration of the Union Territories and nor the courts can include or exclude other Scheduled Castes or Scheduled Tribes so notified in the Presidential Order. Providing all India reservation to the services of Union Territories 159 including Union Territory of Delhi, would be against the mandate of Articles 341 and 342 and the Presidential Orders issued thereon. If that is permitted, it would amount to addition or alteration of the Presidential Order which is impermissible and violative of the Constitutional scheme.”         

It would defeat the very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union Territory    

                                                More importantly, Justice Banumathi further added: “It is the responsibility of each State/Union Territory to provide for such reservation/affirmative action by positive discretion to bring backward classes/Scheduled Castes and Scheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the Scheduled Castes and Scheduled Tribes are to be extended to all categories of Scheduled Castes and Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Castes and Scheduled Tribes of other developed States and Union Territories squandering reservations to the Scheduled Castes and Scheduled Tribes who are disadvantaged in the respective States/Union Territories including Union Territory of Delhi. If this is permitted, it would defeat thee very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union Territory. The enabling provision of Article 16(4) of the Constitution has to yield to the constitutional scheme of Article 341 and 342 of the Constitution.” She too has a valid point!

                                                     All said and done, it is a landmark judgment in which Supreme Court has upheld  Pan India Reservation Rule in Delhi but also held that States can’t unilaterally introduce it! It was clearly and categorically held that SC/ST status entitling a person to quotas in jobs and admissions in one state will not automatically continue in another when the person migrates, except when he goes to Delhi, as it is the national capital and a microcosm of India. Very rightly so!

                                              Finally and most importantly, it was also held unequivocally that this would be detrimental to the interests of local communities and hence unconstitutional. The Bench was ruling here on several appeals and cross appeals. Also, the Bench refrained from addressing the issues in question as far as other Union Territories are concerned and confined their discussion and the consequential views only to the National Capital Territory of Delhi! Very rightly so! Who can deny it?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Let me begin at the very beginning by first and foremost pointing out that in a landmark judgment with far reaching consequences while deciding a bail application in a drug trafficking case titled Ankush Kumar @ Sonu vs State of Punjab CRM-M-30643 of 2018 (O&M) decided on 9 August 2018, Justice Rajbir Sehrawat of Punjab and Haryana High Court took the unprecedented step of venturing an in-depth analysis of constitutionality of the provisions of NDPS  Act, which puts several arbitrary conditions on grant of bail. It was pointed out that, “On mere opposition by the Public Prosecutor, to the grant of bail to the accused, this Section casts a duty upon the Court to satisfy itself that there are reasonable grounds for believing: (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail. The entire controversy in this case, is regarding the above-said two conditions.” Though the Judge did not hold that the provision is unconstitutional, as he was only considering a bail application, he made several observations in the judgment to the effect that it is discriminatory, irrational and defy human logic which certainly cannot be lightly dismissed!

                   Bail under NDPS

                                  To be sure, the bail provision under Narcotic Drug and Psychotropic Substances (NDPS) Act as contained in Section 37 reads as: “No person accused of an offence punishable for offences involving commercial quantity shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

                                     Needless to say, it was observed by Justice Rajbir Sehrawat that, “Under Indian Constitution as well, the persons/citizens have been given certain rights which are fundamental to the human existence. Out of those, right to life and liberty guaranteed by Article 21 of the Constitution of India is one such right, which is considered to be of such immense importance that it cannot be suspended even for the sake of or under the other provisions of the Constitution itself still effort is made by the State to regulate even this right of the individual citizen, in the name of the ‘interest of society’ or the existence of the State. One such aspect of such Regulation of right of the individual to life and liberty is; providing for the person alleged to have committed an offence to be kept in custody; and the prohibitive conditions for release on bail. Hence, there has been continuous debate on the right of individual not to be kept in custody during pendency of the trial and the privilege of the State to keep him in custody and to prescribe rigorous conditions for his release on bail, if at all he can be. The present case also involves the same struggle between the individual’s right to life and liberty and the might of the State as reflected in the conditions prescribed under Section 37 of Narcotic and Psychotropic Substances Act for release on bail.”  

                         Background

                               Before proceeding ahead, let us first and foremost understand the background and facts of this present case as explained in the initial part of the judgment itself. The facts of the present case are that the FIR No. 35 dated 22.03.2017 was registered under Section 22 of Narcotic Drugs and Psychotropic Substances Act at Police Station Kartarpur, Jalandhar (Punjab). The allegation as contained in the FIR against the petitioner was that on 22.03.2017, ASI Gurnam Singh of Police Station Kartarpur, Jalandhar, along with other police officials was present at Bholath Road; near Maliyan Turning of the road; in the area of Kartarpur; in connection with patrol duty and checking for the bad elements. Then the petitioner was allegedly seen by the police party coming from the side of Maliyan; on foot. On seeing the police party, the petitioner tried to turn back. This led the Police to have suspicion upon the petitioner. Therefore, the petitioner was apprehended by the Police Party. On being apprehended, the petitioner was told that the above said ASI suspected that the petitioner was carrying some intoxicating substance and that he was required to be searched. Therefore, the petitioner was allegedly, given an option whether he wanted to be searched in presence of some gazette officer or a Magistrate. The petitioner is alleged to have reposed faith in the above said ASI Gurnam Singh and expressed no objection to his search by the Police Party present on the spot. The Police, allegedly, made effort to join some independent person in the process but none came forward. Therefore, the search of the person of the petitioner was conducted by the said ASI Gurnam Singh. During the search, a plastic container containing 300 grams of intoxicating powder was allegedly recovered from the back pocket of pant/lower worn by the petitioner. The same was sealed into parcel and taken into possession. Accordingly, the above said FIR was registered on the basis of writing sent to the Police Station by the abovesaid ASI Gurnam Singh. As per the allegations, the sample of the seized material was sent to Chemical Examiner and as per the report of the Chemical Examiner, Alprazolam was found in the sample. Accordingly, the petitioner was kept in custody.

                                   In a strong rebuttal of the police version, the petitioner has asserted that he is a law abiding citizen and that he has been roped in a false case, to increase the statistics of the Police; during the special drive launched against the Narcotics. In fact, there was no recovery from the petitioner nor was he arrested from the spot, as claimed by the Police. The petitioner was picked up by the Police from his locality on 19.03.2017 from near the place of worship of Peer Di Jagah; in the presence of his brother Lalit Kumar and he was brought to the Police Station and illegally detained there. Subsequently, the petitioner was involved in the present false case by the Police.

                                  Be it noted, the petitioner had filed an application for releasing him on bail pending trial before the Special Judge, Jalandhar. However, the Court of Special Judge, Jalandhar dismissed the bail application filed by the petitioner by observing that the petitioner was found in conscious possession of 300 grams of intoxicating powder. Hence, in view of the rigour of Section 37 of NDPS Act, he was hold to be not entitled to the bail. However, a perusal of the order passed by the Special Judge shows that the Special Judge has adverted to only the condition mentioned in Section 37(1)(b)(ii), in so far as it has expressed itself, to say that the petitioner was found in conscious possession of the intoxicating material. However, as further required under Section 37(1)(b)(ii), the Special Court has not recorded its satisfaction for believing whether the petitioner is likely to commit any offence or not while on bail. However, recording of this satisfaction by the Special Court may not be necessary because the Special Court has not released the petitioner on bail, rather it has dismissed the bail application filed by the petitioner.

                               Of course, feeling dissatisfied with the order passed by the Special Court and to secure his liberty, the petitioner has preferred the present application under Section 439 CrPC for grant of bail, pending trial in the above said case.

                     The Contentions

                                        As it turned out, while arguing the bail applications, the counsel for the accused made a submission before the Bench that any other citizen, the accused is also entitled to be considered for grant of bail under more liberal provisions of Section 439 of CrPC. It was further contended that applying strict provisions of Section 37 of NDPS Act is a discrimination with him. Relying on recent judgment of the Supreme Court in  Nikesh Tarachand Shah vs Union of India and another, it was contended that a similar provision as contained in Section 45 of the Prevention of Money Laundering Act, 2002 has been held to be unconstitutional by holding that the importance of the ‘object’ of the Act cannot be made a ground to trample the right of life and liberty guaranteed to the petitioner under Article 21 of the Constitution of India.

                                  While arguing the case, the learned counsel for the petitioner has repeated the arguments mentioned above; to the effect that the petitioner was picked up by the Police three days in advance and he was framed in a false case. It was further pleaded that the petitioner is not involved in this case at all. The recovery against the petitioner has been concocted by the Police. The Police have not followed the procedure prescribed under Section 50 of NDPS Act, as required by the law as laid down by the Courts in several judgments. No Magistrate or gazetted Officer was actually called on the spot, nor is even shown to have been so called by the Police. No independent witness is joined by the Police at the time of search. Therefore, the safeguard provided for by the Act; under Section 51 of the Act; has also been disregarded by the Police. All these violations have been committed by the Police for the simple reason that had the Police complied with these provisions, the Police would not have been able to frame the petitioner in this false case. It is further contended by the counsel for the petitioner that earlier also, the petitioner was involved in a false case. However, in that case, the petitioner was acquitted by the Special Court; vide its judgment dated 05.04.2017. In fact, the petitioner has never indulged in dealing with the Narcotics at all. Counsel has further submitted that the petitioner has been in custody since 22.03.2017 and despite passage of about one and half years, the prosecution has examined only three witnesses. So, the trial is likely to take a long time. Therefore, the petitioner is entitled to be released on bail pending trial.

Discriminatory In View Of Nikesh Tarachand Shah Ratio

                                    Simply put, on the contention based on Supreme Court judgment in Nikesh Tarachand Shah, the Court observed that in the said case, one of the grounds for holding the provision of Section 45 of Money Laundering Act, 2002 as unconstitutional was that there was no prohibition in the Money Laundering Act for grant of anticipatory bail. It was observed in the said case that a person could be granted anticipatory bail under Section 438 CrPC without adverting to the conditions prescribed under Section 45 of Money Laundering Act and he can continue on bail without the Court recording its satisfaction qua the conditions prescribed under Section 45 of the Money Laundering Act.

                                          It cannot be lost on us that the Court said quite clearly and convincingly that, “However, if a person is somehow arrested then he cannot be released on bail except after recording of the satisfaction by the Court as to the conditions specified in Section 45 of the Money Laundering Act. Therefore, the conditions prescribed under Section 45 of the Money Laundering Act were held to be discriminatory and arbitrary. In the present case also, there is no prohibition under NDPS Act for grant of anticipatory bail.”

                                    Going forward, the Court further said that, “Therefore, a person can get the anticipatory bail irrespective of compliance or consideration of conditions prescribed under Section 37(i)(b)(ii), whereas, if a person is arrested, he cannot be granted bail unless the Court records its satisfaction as to the conditions prescribed under the above said clause of Section 37 of NDPS Act. This can also lead to a thoroughly absurd situation, taking for example, the case of a person who, at initial stage, is just named as an accomplice in a case under the NDPSA Act, without there being anything else against him in the FIR; but his co-accused being arrested with commercial quantity.  

            No Court can record a satisfaction and belief about guilt of an accused at the stage of grant of bail

                                    As things stood, the Court observed that the mandatory requirement of the satisfaction of the Court, at the stage of grant of bail, qua the petitioner not being guilty of such an offence militates against the presumption of the innocence of the accused till he is proved guilty. It said plainly that, “This language also creates an inconsistency in itself, because if a Court granting bail records a satisfaction that there are reasonable grounds for believing that the petitioner is ‘not guilty’ of such an offence then this may, at least to some extent, foreclose the option of the trial Court for holding that the petitioner ‘is guilty’ of such an offence although this may or may not be the intention of the legislature, as observed by the Hon’ble Supreme Court. But the language of Section 37(1)(b)(ii) says so in so many words. As per this language, the “reasonableness” is required only qua existence of grounds for belief of Court but the belief of the Court, as such qua the accused being not guilty is to be unqualified. No Court can record a satisfaction and belief that a person is ‘guilty’ or ‘not guilty’ of the offence at the stage of grant of bail. What is required to be done after a full fledged trial of an accused cannot be sought to be considered and recorded at the initial stage of trial.”   

                Uncontrolled, undefined and unlimited discretion of the Public Prosecutor impinging upon the power of the Court to freely decide the question of bail

                                          More importantly, the Court noted that Section 37(1)(b)(ii) makes the application of the conditions mentioned in this provision to be applicable only if the Public Prosecutor so desires. It observed scathingly that, “As per the language of this Section where the Public Prosecutor does not oppose the bail application then Court is not required to apply its mind for arriving at a satisfaction and belief as prescribed in Section 37(1)(b)(ii), despite the fact that the quantity of contraband involved may be many times more than the commercial quantity. So the application of the conditions mentioned in Section 37(1)(b)(ii) becomes the dependant upon the uncontrolled, undefined and unlimited discretion of the Public Prosecutor. This discretion of Public Prosecutor, besides, impinging upon the power of the Court to freely decide the question of bail to the accused, renders the entire process as liable to be discriminatory and un-informed, because Court cannot ensure that the Public Prosecutor has the necessary expertise or sincerity to the cause to take a proper decision, as to taking objection qua bail to the accused.”

        Granting bail would tantamount to quashing charge

                                    Truth be told, another interesting dichotomy that was illustrated by the Court points out that, “While granting bail as per provisions of Section 37(1)(b)(ii), the Court would be required to record, at least, the prima facie, or more than prima facie, satisfaction that the accused is not guilty of the offence alleged against him. And this satisfaction has to be recorded by the Court with reference to the material on record. Whereas at the stage of framing of charge on the basis of same material and record, the Court is to arrive at a prima-facie satisfaction that such a person has committed such offence. In that situation, the accused would be entitled to get the charge quashed, moment he is granted bail by recording satisfaction of the Court as required under Section 37(1)(b)(ii). The accused as a person having protection of legal justness, fairness and rationality can very well put a poser to the Court as to how the Court is restricting its satisfaction to purpose of bail only; despite the satisfaction and belief of the Court being based on the same record and the same being reasonable, and in a given case; even the Court being the same.”

     Humanly impossible for the court to arrive at reasonable satisfaction qua possible future conduct and mental state of an accused

                                        In essence, the Court found fault with the provision which requires the Court to be satisfied that there are reasonable grounds for declaring that the accused is not likely to commit ‘any offence’ while on bail. The Judge rationally observed that, “Moreover, a Court of law would always be well advised to keep in mind that ‘prophesy is not thy domain’. No Court, howsoever trained, can be “reasonably” satisfied that a person would not commit any offence, maybe even under NDPS Act, after coming out of the custody. It can only be a guess-work, which may or may not turn out to be correct. However, it is not the guess-work which is mandated, but it is “reasonable satisfaction”.

                               Truly speaking, it was further observed that, “By extension of any human logic, it cannot be said that the Court can record, any degree of satisfaction, based on some reasonable ground, as to whether a person would commit an offence or whether he would not commit an offence after coming out of the custody. Neither the Court would be able to record a satisfaction that the accused would, likely, commit the offence after coming out of the custody, nor would the Court be able to record a satisfaction that the accused would not commit any offence after coming out of the custody. Hence, the second part of Section 37(i)(b)(ii) requires a humanly impossible act on the part of the court. Since the second part of Section 37 (1)(b)(ii) requires a satisfaction of the Court, which is impossible by extension of any human logic, therefore, this is an irrational requirement. There is no rational way for a Court to record its satisfaction or to arrive at this satisfaction qua possible future conduct and mental state of an accused. Any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guess work, regarding the possible mental state or possible conduct of that person. Even the sophisticated statistical tools of factorization, based on common minimum behavioural factors in large number of people, are still struggling to find a credible answer in this regard.”

                                         Not stopping here, the Court further observed that, “Though it has been held in various judgments that unless the Court so applies its mind and arrive at a satisfaction qua the conditions prescribed by Section, the Court cannot grant bail to an accused, but in none of the judgments, any adequate determining principles have been spelled out for the Court to be guided with, in exercise of such a power qua further possible events. In fact, there can be none, if the Court is to record this satisfaction in a ‘reasonable’ manner and on the basis of the ‘available record’ only; and it is not to delve into a pure guess-work. And if the adequate determining principles are not prescribed or decipherable under that Act or cannot be gathered even by human logic then such a procedure has to be treated to be an irrational, undue and unfair procedure for the purpose of inviolability of the right to life and liberty of an individual.”    

           Past conduct of a person cannot be reasonably made a basis for future reasonable prediction

                                   In hindsight, the Punjab and Haryana High Court also very rightly said that any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guesswork, regarding the possible mental state or possible conduct of that person. It unerringly held that, “It can occur to mind that if a person is a first offender then he is not likely to commit an offence again or that if a person has committed, say; ten offences then he is more likely to commit offence again. But it has to be kept in mind that the second, third, fourth and the Nth offence is always committed by an accused only after first, having committed the first offence. Likewise, there cannot be any ‘reason’ and, therefore, the ‘reasonable ground’ to believe that if a person has committed ten offences; he is again likely to commit the offence. Examples galore in daily life when a criminal calls it a day, say, after 10th crime also. After all scriptures do tell us as to how Balmiki turned into a “Maharishi” and created that Epic, which became a treatise of one of the biggest religion of the world.” 

                              Bail Granted

                         All said and done, after considering all the facts of the case, the Judge observed that there are reasons to come, to a prima-facie, but reasonable satisfaction that the accused is not involved in the crime alleged in the present case. Granting bail to the accused, the Punjab and Haryana High Court observed that, “But, so far as second part of Section 37(1)(b)(ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit ‘any offence’ after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit ‘any offence’ or ‘offence under NDPS Act’ after being released on bail, then this Court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, the satisfaction of the Court in this regard is neutral qua future possible conduct of the petitioner. However, it has come on record that earlier also, the petitioner was involved in a case, but he has been acquitted in that case. So his antecedents are also clear as of now. Moreover, since this Court has already recorded a prima-facie satisfaction that petitioner is not involved even in the present case and that earlier also the petitioner was involved in a false case, then this Court can, to some extent, venture to believe that the petitioner would not, in all likelihood, commit any offence after coming out of the custody, if at all, the Court is permitted any liberty to indulge in prophesy.” Therefore, the petitioner was ordered to be released on bail during trial.    

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.  

It has to be stated right at the outset that in a significant development, the Uttarakhand High Court on August 21, 2018 in the landmark case titled “In the matter of Brutal Gang Rape and murder of a 12 years old girl in Uttarkashi v State of Uttarakhand & Another in Writ Petition (PIL) No. 102 of 2018 took suo motu cognizance of the rape and murder of a twelve-year-old girl in Uttarkashi. The Bench comprising Acting Chief Justice Rajiv Sharma and Justice Manoj K. Tiwari also appointed Advocates Sanjay Bhatt and lata Negi as the amicus curiae in the case to assist the court in this sensitive matter. The Court took cognizance of two reports published in ‘The Times of India’ dated 20.08.2018 which was titled “Uttarkashi rape: NH blocked for 10 hours” and “City residents march to demand death penalty for rapists of Uttarkashi girl”. This news item has also appeared on 20.08.2018 in the daily editions of ‘Dainik Jagran’, ‘Amar Ujala’ and Hindustan (Hindi).

                                                          While craving for the exclusive indulgence of my esteemed readers, it must be informed here that the Bench directed the Registry to supply the paper book to the amicus curiae free of cost. Para 3 of this landmark order reveals that, “According to the news item, a twelve year old girl in District Uttarkashi was raped and murdered. The accused was not arrested by the Police. The residents of the area have demanded handing over of investigation to the Special Investigation Team (SIT) or Crime Branch Criminal Investigation Department (CBCID) and also to take action  against the Police personnel under whose jurisdiction the crime took place.”

                                                 For my esteemed readers exclusive indulgence, it must also be informed here that para 4 further goes on to reveal that, “It is also highlighted in the daily edition of ‘The Times of India’ that time has come to re-look into the land reforms by restricting outsiders from purchasing the agricultural land in Uttarakhand. There is a reference to Section-118 of Himanchal Land Reforms and Tenancy Act which restrict outsiders from buying land in the hill State. Residents of the area have also demanded to take stringent action against the culprits.”

                                                              More importantly, the Bench of Uttarakhand High Court in para 5 of this landmark order sought to remind the State Government of Uttarakhand that, “This Court had already directed the State Government to consider amendments in the law for imposing death penalty upon persons convicted of rape upon minors. The State Government, till date, has not made its stand clear in the matter.” Very rightly said! There can be no denying it!

                                           Bluntly put: Can on earth there be anything more unfortunate than this? Why this dilly-dallying on the part of the State Government? Why no prompt action taken to check rape upon minors? Why State Government has not made its stand clear in the matter? Why State Government has not introduced mandatory death penalty for rape on minors? This is terrible! The Uttarakhand State Government must make its stand clear at least now on this key issue!       

                                                           As it turned out, Paresh Tripathi who is the Chief Standing Counsel submitted that accused has been arrested yesterday and he will be produced before the Court within 24 hours. The Bench then very rightly noted in para 7 that, “We are of the considered view that the inquiry and investigation in these sensitive matters should be carried out by permanent Special Investigation Teams (SIT).” Needless to say, the setting up of SIT to investigate and inquire in such sensitive matters is a right step in the right direction!

                                          Finally and most importantly, in its concluding part, the Bench of Uttarakhand High Court comprising of Acting Chief Justice Rajiv Sharma and Justice Manoj K Tiwari in this landmark order in para 8 summed up by saying that, “Accordingly, we issue the following mandatory directions: –

         Permanent SITs within 48 hours

A.  The Principal Secretary (Home) to the State of Uttarakhand is directed to constitute Special Investigation Teams in all the Districts of Uttarakhand within 48 hours, comprising of the following: –

a)   Senior Superintendent of Police/Superintendent of Police.

b)  Additional Superintendent of Police/Circle Officer (CO)/Inspector.

c)    Inspector of Police (Woman).

d)  Psychologist/Counsellor.

e)   Woman Social Worker.

        Handing over the case to a SIT

B.   The present matter is ordered to be handed over to the Special Investigation Team, Uttarkashi immediately after consultation of Special Investigation Team, with a direction, to complete the inquiry and investigation in the matter within four weeks and thereafter, to submit the charge-sheet. Till then, the investigation is permitted to be carried out by the local police.

                Speedy trial in all such cases

C.   All the Trial Courts throughout State of Uttarakhand are directed to ensure speedy trial of cases registered under Section 376 I.P.C. as well as under the Protection of Children from Sexual Offences Act (POCSO), by holding day to day trial.

            State’s response on land reforms

D.  State Government is directed to file its response as to whether it is contemplating to prohibit outsiders from purchasing agricultural land in the State of Uttarakhand.

  Protection to victims and their families

E.   State Government is directed to provide protection to the victims and close family members of the victims in rape cases.

Prohibition against divulging victim’s or family members identity

F.    Social media is prohibited from divulging the name/identity of the victim and her family members, including their blurred pictures.

                                        To be sure, the Bench then in para 9 ordered to list the matter on 31.08.2018. In its last para 10, the Bench then ordered that, “Let a certified copy of this order be supplied to learned counsel for the parties today itself, as per Rules.” A lot more is to come when it comes up on 31 August! One has to concede in all fairness that there has to be zero tolerance for such heinous crimes like child rape and death penalty has to be strictly and swiftly implemented in all such cases!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has to be said right at the outset that in a significant and landmark judgment with far reaching consequences, the first Bench of Madhya Pradesh High Court in the landmark case of Praveen Pandey vs The State of Madhya Pradesh and others delivered on July 31, 2018 which is in continuation of the order dated 10.04.2018 has issued significant directives against the call of a strike by State Bar Council and Bar Associations, including debarring members/officials of the Bar Council/Association which gives a call for a strike, from appearing before the courts. It held in no uncertain terms that, “The litigant has a right to get justice. He will get justice only if the Courts are functioning in the country but the members of the Bar cannot make the third pillar of democracy non-functional by deciding to withdraw from work. Their action is antithesis of democratic life of the country.” Very rightly said!

                                          Truth be told, the Bench of Madhya Pradesh High Court comprising Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla also directed the high court administration to frame rules to the effect that the members of the Bar, who abstain from work shall stand debarred from appearing in courts and the conditions thereof. The Bench also observed that the State Bar Council, which is a statutory authority created to enroll and impart discipline in the members enrolled with it, fails to discharge its role as warranted under the law then the severe action is warranted against the disciplinary authority itself.  

                            Background  

                          To put it pithily, advocate Praveen Pandey had set the ball rolling by challenging the call to all the advocates in the State by the Madhya Pradesh State Bar Council to abstain from court work from 9th to 14th April 2018. In an earlier detailed order dated 10th April, 2018, the Bench had observed that the decision of the State Bar Council calling upon the advocates in the State to observe the ongoing week-long protest and to abstain from all judicial work and court proceedings is illegal and unconstitutional. The Bench had also observed that call to abstain from judicial work is a violation of the fundamental right of an advocate. Also, the advocates in the State were directed to resume work forthwith so that poor, needy, under-trials, convicts and numerous other persons desirous of seeking justice from the Courts to not suffer on account of lack of legal assistance.

                                     Be it noted, para 3 points out that, “Subsequently, on 01.05.2018, an order was passed to examine the question as to what will be the reasonable reasons for the District Bar Associations or the High Court Bar Associations calling upon its members to abstain from work and if such call is given, what steps can be taken by the statutory or non-statutory Authorities.” Furthermore, para 4 states that, “On 09.05.2018, the suggestions were invited from the general public and the members of the Bar Associations as to in what circumstances, Bar Association can give call to its members to abstain from Court work and if the Bar Association gives the said call, how the situation is required to be addressed so that fundamental rights of the Advocates to appear before the Court are not infringed.”

                           To be sure, para 5 while highlighting the contention of State Bar Council stated that, “The State Bar Council has submitted written submissions on 1907.2018, inter alia alleging that the writ petition has become infructuous as the reliefs claimed in the writ petition have already been granted. However, it is stated that the Hon’ble Supreme Court has given a detailed and exhaustive judgment in Ex-Capt. Harish Uppal vs Union of India and Another (2003) 2 SCC 45 as well as in Common Cause, A Registered Society and others vs Union of India and others, (2006) 9 SCC 295. Therefore, there is no need for this Court to discuss and decide the issues, which have already been settled by the Supreme Court. It is further stated that the question as to whether fundamental right of an Advocate to appear before the Court is infringed or not, is purely hypothetical and academic in nature and should be answered only in an appropriate petition. It is also said that call for abstaining from work is purely voluntary in nature and thus, there is no question of violation of anyone’s fundamental right when a member voluntarily abstains from work. It is also pointed out that the Supreme Court is seized of a matter in Writ Petition (Criminal) No. 144/2018 (Deepak Kalra vs State of M.P. and others). It is also pointed out that the Supreme Court can travel beyond the lis involved in the matter under Article 142 of the Constitution of India to do complete justice but no such parallel power is available with the High Court. Therefore, the issue raised by this Court could not be answered in the present petition.”

                          As it turned out, the Bench noted in para 8 that, “The argument that the writ petition has become infructuous is not tenable for the reason that in exercise of power under Article 226 of the Constitution of India, the Court can issue any direction or order. The High Court has power to issue a writ to any person or Authority including any Government within the territory of this Court for enforcement of any of the rights conferred by Part-III of the Constitution of India and/or any other purpose. The writ jurisdiction is being exercised to protect the fundamental rights of the members of the Bar to appear in the Court and also the fundamental rights of the citizens of the State to get their cases decided with the assistance of the Advocates engaged by them.”

                               Needless to say, the Bench noted in para 16 that, “In Ex. Capt. Harish Uppal’s case (supra), the Court delineated steps to be taken before the call for abstaining from work is to be given. It was held that a protest on an issue involving dignity, integrity and independence of the Bar and Judiciary, can be taken provided it does not exceed one day. But, such decision has to be taken by the court as to whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore, it was directed that the President of the Bar must first consult the Chief Justice or the District Judge before Advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and will have to be abided by the Bar. Still the State Bar Council as well as the Bar Associations has not cared to follow the directions of the Supreme Court or to give respect to said decision though they are duty bound to follow the law laid down by the highest court of the country.”

                             Not stopping here, the Bench further goes on to observe in para 17 that, “The Advocates are officers of the Court. Their duty is to aid and assist in dispensation of justice. The strike or abstention from work impairs the administration of justice and is inconsistent with the duties of an Advocate. The Bar Association is not Trade Union under the Trade Union Act, 1926. The Trade Union Act has a right to demonstrate as a mode of redress for resolving the grievances of the workers but the Advocates though are members of Bar Association but are professionals engaged by the sufferers for redressal of their grievances by intervention of the Court. By abstaining from work, the members of the Bar do not help anybody. The members of the Bar are protectors of independence of the judiciary. They must rise to maintain independence of judiciary by being an active participant in the administration of justice and not by withdrawing from the pious duty enjoined on them in terms of the Advocates Act, 1961.”

                                   It also cannot be lost on us that the Bench in its landmark judgment also held in para 18 that, “The litigant has a right to get justice. He will get justice only if the Courts are functioning in the country but the members of the Bar cannot make the third pillar of democracy non-functional by deciding to withdraw from work. Their action is antitheses of democratic life of the country.” Also, in para 19 it was held that, “Even though the Supreme Court has held that strikes are illegal and the members of the Bar cannot resort to strike but the strikes are still common. Within the jurisdiction of this Court almost 9000 working hours have been lost on account of decision of the members of the Bar to abstain from work in three months. The situation will be alarming if yearly figures are tabulated. The judgment of the Supreme Court in the case of Ex. Capt. Harish Uppal (supra) has not deterred the State Bar Council or the Bar Associations at the State and the District level to abstain from work. Though the Supreme Court has said that a protest or an issue involving dignity, integrity and independence of the Bar and Judiciary can be overlooked if it does not exceed one day. It has been further said that such call to abstain from work would be in the rarest of rare cases and that it will be for the Court to decide whether or not the issue involves dignity or independence of the Bar and/or the Bench. Therefore, it was ordered that the President of the Bar must first consult the Chief Justice or the District Judge before the Advocates decide to absent themselves from Court work. The decision of the Chief Justice or the District Judge will be final, to be followed by the Bar. But such solemn hope has never been followed. Rather, after decision is taken by the State Bar Council or by the Bar Association(s), the Court is informed of the decision.”

                                             To say the least, para 20 aptly questions that, “In these circumstances, the question arises: how to address the menace of frequent calls of strike or of abstaining from Court work by the Bar Association(s) and or State Bar Council. There are different options available; one is to proceed with the decision of the cases listed for hearing. If the case is decided in the absence of an Advocate or it is dismissed in default, in either case, the litigant who may not be aware of the call of the strike, suffers. Such process, in fact, is not conducive to administration of justice as it leads to applications for recall of the orders passed and further burdens the docket of court. The second opinion is that the contempt proceedings be initiated against the office bearers and/or the members who abstain from work but initiation of contempt proceedings is also not a suitable option in as much as, by the time contempt proceedings could be decided, the mischief of abstaining from work would be done. Still further, the initiation of contempt proceedings against the members of the Bar is not a practical solution as large number of Advocates cannot be possibly proceeded against in contempt proceedings. Therefore, the third option is to oust the office bearers from managing the affairs of the Bar Association(s) or the State Bar Council so that the members of the Bar are not prohibited from appearing in the courts. By prohibiting the members of the Bar, not only the fundamental rights of the Advocates are defeated but also the fundamental right of the citizens to have decision on merits from the Courts of Law gets defeated.”

                         Now coming to para 21 of this landmark judgment. It states that, “Section 34 of the Advocates Act, 1961 empowers the High Court to make Rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the courts subordinate thereto. In exercise of such powers, the High Court has frmaed the High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012 which are published in M.P. Gazette (Extraordinary) on 7.6.2012 but such Rules do not contemplate the consequences of the members of the Bar of abstaining from work either voluntarily or in terms of resolution of the State Bar Council or the High Court or the District Bar Associations. Therefore, we deem it appropriate to direct the High Court to prescribe in such Rules that the members of the Bar, who abstain from work shall stand debarred from appearing in Courts and the condition thereof.” The Bench then minces no words in stating clearly and categorically in next para 22 that, “The State Bar Council is a statutory Authority created to enroll and impart discipline in the members enrolled with it. If such Authority fails to discharge its role as warranted under the law then severe action is warranted against the Disciplinary Authority itself.”

                                          Finally and most importantly, the Bench concludes this landmark judgment in para 23 by giving various directions. It states explicitly and elegantly that, “Therefore, in these circumstances, to give effect to the mandate of the decision of the Supreme Court in Ex. Capt. Harish Uppal’s case (supra), we pass the following directions so that the functioning of courts is conducted smoothly in discharge of its duties of administration of justice:

(A)        IF THE CALL FOR ABSTAINING FROM WORK IS GIVEN BY THE STATE BAR COUNCIL – A STATUTORY BODY CONSTITUTED UNDER THE ADVOCATES ACT, 1961

(i)                         If the State Bar Council gives call to the Members/Advocates enrolled with it to abstain from the Court work, without the consent of the Chief Justice even for a day, the office bearers of the State Bar Council will be debarred to appear before any court for one month or till such time the office bearers direct resumption of court work.

(ii)                      If the decision is taken to strike or to abstain from work within one year of an earlier decision, leading to debarment of the office bearers to appear in court, then the State Bar Council itself shall stand suspended from the day of call of strike or decision to abstain from work by whatever name called. Such suspension shall be initially for a period of one month or till such time, the decision is recalled.

(iii)                   During the above said period, the affairs of the State Bar Council shall be conducted by the Advocate General as an ex officio member of the Bar Council in terms of Section 3 of the Advocates Act; and

(iv)                   Any further call for strike or abstaining from work shall entail supersession of the State Bar Council. The Advocate General shall manage the affairs of the State Bar Council and conduct the elections of the State Bar Council within six months. In such elections, the defaulting members of the State Bar Council, as per the above directions, shall not be eligible to contest the election for a period of three years.

(B)         IF THE CALL FOR ABSTAINING FROM WORK IS GIVEN BY THE HIGH COURT BAR ASSOCIATION(S) OR DISTRICT COURT BAR ASSOCIATION(S):

(i)                         If the call for abstaining from work is given by any High Court Bar Association or District Court Bar Association, the State Bar Council shall intervene and forthwith declare such strike as illegal unless such strike has been resorted to in consultation with the Chief Justice and/or the district judge, as the case may be;

(ii)                       as a consequence of declaring the action of the Bar Association(s) as illegal, the State Bar Council shall appoint an ad hoc committee to manage the affairs of such Bar Association(s) for a period of one month superseding the elected office bearers. The elected office bearers shall not be permitted to appear before any court for a period of one month. If the Bar Association resolves to resume work so as to not to resort to strike or from abstaining from work, the elected office bearers of the Bar Association shall resume their office;

(iii)                   if the office bearers of the Bar Association again call for strike or to abstain from work, the State Bar Council shall conduct fresh elections to such Bar Association, in which, all office bearers of the Bar Association shall not be eligible to contest the election for a period of three years either of Bar Associations or the State Bar Council; and

(iv)                   if the State Bar Council fails to act in terms of the above directions, the members of the State Bar Council shall be deemed to have vacated their office and the fresh elections will be conducted in the manner mentioned in clause A(iv) above.

(C)         The High Court is directed to examine and incorporate in the High Court of Madhya Pradesh (Conditions of Practice) Rules, 2012, the consequences of the members of the Bar, the office bearers of the Bar Association(s) and/or the State Bar Council of not appearing in the Court including the action of the debarment of such erring members and the period thereof. Necessary direction should be carried out within a period of three months.

The writ petition stands disposed of.”

                                 On a concluding note, it can be said that it is a landmark judgment which if implemented in Madhya Pradesh for whom it is meant will go a long way in checking the lawyers from going on strike at the drop of a hat. It needs to be implemented not just in Madhya Pradesh but also in all other parts of India. Strike by lawyers should only be the last option and not the first option at the drop of a hat! This is exactly what this landmark judgment of Madhya Pradesh High Court truly entails!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Let me start by first and foremost pointing out that the consolidated draft National Register of Citizens (NRC) which is a database of Indian citizens in Assam and is being prepared under the Supreme Court’s watch, is a critical step in resolving one of Assam’s longstanding and most complicated problem of illegal immigrants from Bangladesh. No politics should be done over it. No credit should be taken by any political party for it and it must be kept completely out of the dirty theatric politics over it because if this is not done then it will become completely embroiled in it and nothing substantial will ever take place actually which will be our nation’s biggest misfortune!

                                              To be sure, the list which was made public on July 30 has left out the names of over 4 million (40,07,707 to be precise) of the state’s 32.9 million residents. But those left out should not panic. Applicants left out of the NRC may be given a personal hearing under a fresh Standard Operating Procedure (SOP) being devised by the Home Ministry. The Registrar-General of India (RGI) and the Home Ministry are exploring several options to provide adequate opportunity to 40 lakh of the 3.9 crore applicants whose names were not included in the final NRC draft published on July 30.

                                                Be it noted, RGI Sailesh told media that the SOP would ensure that filing claims and objections was a fair and credible process. He said that, “There may be many applicants who may not understand the process and the required documentation. So we have to see that every person has the right information and the assistance required.” An official said that the circle officers or block development officers would be asked to give personal hearings to applicants even after they had exhausted the option of filing “claims and objections”.

                                   While craving for the exclusive indulgence of my esteemed readers, let me inform here that on July 31, a Supreme Court Bench had ordered the government to frame in consultation with State NRC Coordinator Prateek Hajela, a “fair” SOP to deal with the claims and objections of those who did not find their names in the draft NRC. RGI Sailesh revealed that, “The SOP will also go into the aspects of disposal of claims and objections so that reasonable time and adequate opportunity are given to applicants. The rules say that any person can make an objection against an inclusion and any person whose name is not there can file a claim.” Every precaution is being taken to ensure that no bona fide citizen is left out! Still one just fails to comprehend that why some leaders are trying to give it a political twist and are warning of nation getting immersed in “civil war” and “bloodbath” if any action is taken on illegal immigrants! This is what is most deplorable, degrading and dangerous which cannot be justiified under any circumstances!

                                            For my esteemed readers exclusive indulgence, it must be also informed here that in a most matured and balanced stand the RGI Sailesh when asked by media if it would be appropriate to call the 40 lakh applicants “infiltrators”, as they were being referred to by some political leaders stated unambiguously that, “We don’t have any nomenclature for them. We have the list of eligible people for inclusion in NRC and the total [number of] applicants in NRC. For us they are applicants.” The Home Ministry too commendably had earlier told the Assam government that no action should be initiated by the administration or the police based on the draft NRC. The RGI has been asked to use all means of communication, including websites, toll-free numbers and SMS, to provide information to the public about the draft NRC.

                           Truth be told, while it is not yet clear who will decide the fate of the 4 million applicants who have been left out and have not made it to the final draft of the NRC, the issue of illegal immigrants in Assam has been historically determined by two tribunals. The first is the Foreigners Tribunal (FT) which was set up by the Assam government in 1964 to identify the legal status of suspected foreigners in Assam. There are 100 FTs in Assam as on date. The second is the Illegal Migrants Determination Tribunal, or IM (DT), established in 1985, with special provisions for Assam. It only considered the cases of those who had allegedly entered India after March 25, 1971 and crucially these placed the onus of proving citizenship on the accuser rather than the accused. The IM(DT) Act was subsequently struck down by the Supreme Court as being unconstitutional in 2005.

                                           As it turned out, high pendency has severely plagued the working of the two tribunals, according to data from a 2012 white paper issued by the Assam government. Between 1985 and 2012, about 221,000 cases were referred to the two tribunals. During this period, they disposed of only about 97,000 cases. In these, they declared about 55,000 individuals as foreigners, leading to the deportation of 2,442 individuals. Between the two tribunals, the IM (DT) courts have been seen to be far less efficient and also less likely in declaring a person a foreigner. However, they were more likely to effect deportations. The high pendency in the two tribunals has been attributed to the lack of judicial supervision, long vacancies of members and inadequate staff. And now, in Assam, there are 4 million cases to be heard. What all has been disclosed here was effectively highlighted by Arjun Srinivas who is a recipient of the Mint-Hindustan Times-HowIndiaLives Data Fellowship 2018 in Hindustan Times newspaper dated August 9, 2018.

                                                     Going forward, Zia Haq in this same newspaper and same date further goes on to point out elaborately that, “The list made public on July 30 has left out the names of over 4 million (40,07,707 to be precise) of the state’s 32.9 million residents. Assam has witnessed large-scale migrations from Bangladesh, with which it shares a 267.5-km border. Natives want illegal migrants to be deported. The terms of citizenship in Assam were written into an agreement, the so-called Assam Accord which was signed on August 15, 1985 by the then Rajiv Gandhi-led Congress government with the All Assam Students Union (AASU). It was the culmination of a six-year agitation led by the student body against illegal settlers. According to the pact, anybody who can prove that they or their families were in Assam prior to the midnight of March 24, 1971 would be deemed a citizen. The NRC was not a part of the Assam Accord. It was suggested by the previous Congress government on May 2, 2005 during tripartite talks involving the state government and the AASU in which former PM Manmohan Singh was present. In June 2010, the Tarun Gogoi-led Congress government of Assam started a pilot project in two districts – Barpeta and Chaigaon – to vet citizenship and update the citizens’ registry, first compiled manually in 1951, the year of India’s first census. The names of many native Assamese like Dhrubojyoti Sharma of Rangia, a central committee member of the Asom Gana Parishad are missing. The aim of publishing the citizens register, a list of all Indian citizens in Assam, on the directions of the apex court is to identify genuine residents. A correct NRC will be a milestone. Residents need two sets of documentation to prove citizenship. The first is to furnish documents in “List A”. This refers to any government-certified document from before 1971, such as names in a similar 1951 citizens register, or a school certificate, birth certificate, land records etc. This is the so-called “legacy data”. Then, they are required to submit documents mentioned under “List B”. Purpose of documents under List B need to clearly link up with those in List A, proving ancestry.”    

                                                Having said this, let us now discuss some pertinent questions on this very vexed issue as also on citizenship in India which is grabbing the eyeballs of not just the people of India but extending all across the globe! This will certainly enable more clarity on this vexed issue which is being unnecessarily politicised by few politicians for serving their own vested political interests. Rahul Tripathi has brilliantly dwelt on the same in The Indian Express dated August 3, 2018. They are as follows: –

                     How is citizenship determined in India?    

                           Indian citizenship can be acquired by birth, descent, registration and naturalisation. A person domiciled in India as on November 26, 1949 – the date when the Constituent Assembly adopted the Constitution – autmoatically became a citizen if he or either of his parents was born in India, or if he had been in India for at least five years until that date.

                       For those born in India after the Constitution came into effect, the Citizenship Act, 1955, grants citizenship by birth based on birth dates. Anyone born between January 26, 1950 and July 1, 1987 is a citizen by birth; a person between July 1, 1987 and December 3, 2004 is a citizen by birth if either of his parents is a citizen of India at the time; those born on or after December 3, 2004 is a citizen by birth if both parents are citizens of India at the time, or if one parent is a citizen and the other is not an illegal migrant – defined as a foreigner who entered India without valid documents, or stayed beyond the allowed period.

                               Citizenship by registration can be acquired by persons of Indian origin who have lived in India for 7 years before applying, persons of Indian origin who live in any country outside undivided India, persons marrried to a citizen of India and who have lived in India for 7 years before the application. Any minor child can be registered as a citizen if the government is satisfied that there are special circumstances.

          Is it possible for a foreigner with no connection to India(marriage, descent etc) to become a citizen of India?

                                    This is citizenship by naturalisation. Any foreigner, provided he is not an illegal immigrant, can acquire citizenship, provided he has stayed in India for 12 consecutive months preceding the date of application, and for 11 years out of the preceding 14 years.

            Is citizenship permanent?

                        Under Section 9(1) of the 1955 Act, a person ceases to be a citizen if he or she voluntarily acquires the citizenship of another country or renounces Indian citizenship. India does not allow dual citizenship. Under Section 10, anyone who has become a citizen of India by naturalisation or by registration due to marriage to an Indian citizen can be deprived of the citizenship by the Home Ministry for certain reasons.

         How is Assam different? Why a separate National Register of Citizens?

               This is because of a history of migration. During British rule, Assam was merged with Bengal Presidency for administrative purpose. From 1826 to 1947, the British continuously brought migrant workers to Assam for cheap labor in tea plantations. Two major waves of migration came after British rule – first after Partition, from East Pakistan (now Bangladesh), and then in the aftermath of the liberation of Bangladesh in 1971. This eventually led to an agitation during 1979-85, led by the All Assam Students Union. It culminated in the 1985 Assam Accord signed with the Rajiv Gandhi government, under which illegal migrants were to be identified and deported. Clause 6A was inserted in the Citizenship Act with special provisions for Assam.

        What are those provisions?

                 These take into account two cutoff dates – January 1, 1966 and March 25, 1971. Anyone who was a resident of Assam before the first date is a citizen. Migrants who entered on any day between these two dates, and remained there, would need to register with a Foreigners Tribunal. For 10 years, they would have all rights of a citizen except the right to vote which would be granted at the end of 10 years. Finally, migrants who entered Assam on or after March 25, 1971, are not eligible for citizenship.

           Is this not the cutoff date for NRC too?

                   Yes. For inclusion, applicants need to prove that they – or their parents, grandparents etc – were citizens before March 25, 1971. Those who could not prove this, as well as their offspring, have been excluded. Assam already has an NRC, prepared in 1951 with 80 lakh citizens, on the basis of that year’s Census. In 2003, the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules were amended for updating the NRC in order to identify genuine citizens.

        What was the mechanism for identifying migrants earlier?

                 When Indira Gandhi was Prime Minister, the government introduced the Illegal Migrants (Determination by Tribunal) Act, applicable only to Assam. Against the Foreigners Act that was in force elsewhere, the IMDT Act was seen as ineffective as the burden of proof of someone being a foreigner was on the accuser and not on the state or the accused. In 2005, the Supreme Court struck down IMDT Act on a petition filed by Sarbananda Sonowal, then an AGP leader, now Assam Chief Minister and a BJP leader.

          Before the NRC update, Assam was witnessing protests over the Citizenship Amendment Bill. What was this about?

                In 2016, the Centre introduced amendments to the Citizenship Act to grant citizenship to religious minorities (mostly Hindus and including other non-Muslims) from Pakistan, Bangladesh and Afghanistan who took shelter in India. The Bill relaxes norms for granting them citizenship by decreasing the residency requirement from 11 years to six years. In Assam, where the agitation was against migrants irrespective of religion, this has led to protests. The Bill is currently pending with a Joint Parliamentary Committee.

           Is there a similar situation for migrants in any other state?

                In Arunachal Pradesh, a demand for citizenship to Chakmas has been pending for decades. While the Centre is keen to grant them citizenship, it is being opposed by the state government. In Kashmir, West Pakistan refugees are allowed to vote in national elections but not in Assembly elections.

                                          It is heartening to note that amid an intensifying ugly political slugfest over Assam NRC, the Supreme Court on July 31 stated that the exercise for verifying the citizenship of residents of the state will be taken to its logical conclusion, even as it asked the Centre to frame a ‘fair and equitable’ standard operating procedure to adjudicate claims for Indian citizenship. A Bench of Supreme Court comprising Justices Ranjan Gogoi and RF Nariman made it plain that the exercise being conducted under the court’s aegis identifying alleged aliens residing in Assam will not stop, but nipped the fear of any immediate fallout for those who have not made it to the draft NRC by saying that no coercive steps will be taken against them. NRC coordinator Prateek Hajela told the Apex Court that, “Of the 40.07 lakh who don’t find their name in the list, applications of 37.59 lakh persons have been rejected and those of 2.48 lakh have been put on hold.”

                                          Truly speaking, Attorney General KK Venugopal said the ministry concerned would prepare a detailed SOP to receive and adjudicate claims and objections of those excluded from the NRC. Venugopal said that, “Given the magnitude of the human dimension of the problem, it would be appropriate if the SC assured the public against any coercive step on the basis of draft NRC.” The Bench said it gives no assurances but passes orders. The Bench said: “In this regard, the court would like to observe that what has been published being a draft NRC, it cannot be the basis for any action by any authority” thus allaying fears among members of the minority community that they could face immediate deportation proceedings.

                             Needless to add, the Bench also said: “Whatever be the modalities in the SOP, it has to be a fair procedure. Those who have been excluded from the draft NRC must get a fair opportunity. Whatever SOP you (the Centre) want to frame to govern this (claims and objections) must be a fair procedure.” Asked about a possible timeline, the AG said that it will depend on the total number of claims and objections received. However, Justices Gogoi and Nariman were firm to take to logical conclusion the long drawn exercise of preparation of draft NRC, credit of which largely goes to the Bench for its untiring monitoring of the process undertaken by a team of thousands of state government officers, led by IIT Delhi electronics graduate-turned IAS officer Hajela since 2013. The first draft NRC was published on December 31, 2017 when 1.9 crore of the 3.29 crore population of Assam was included in it.

                                         Simply put, the Bench asked the Centre to place the draft SOP for receiving and adjudicating claims and objections before the court on August 16 for vetting. Making clear its intention to finalise the draft NRC in due course, the Bench said: “We permit the concerned ministry of the Union government to frame modalities and place it before the court for dealing with claims and objections so as to enable publication of final NRC.” On August 16, the court said it would draw up the time schedule for this. Hajela told the court that the draft NRC would be on display at local registrar office from August 7 to permit public to verify their names. He also said that, “Those who have objections or claims against draft NRC, can file it with supporting documents before local registrar in 30 days from August 30 till September 28.”

                                       Interestingly enough, the Centre proposes to include Indian citizens who are not from Bangladesh and who moved to Assam from other parts of the country before or after March 24, 1971 in the National Register of Citizens (NRC) if their citizenship is proved beyond reasonable doubt. This is part of the SOP drawn up by the Centre to deal with claims and objections of those who have been left out of the draft NRC which is being prepared on the directions of the Apex Court. The government also suggested that the time for filing claims and objections regarding inclusion of names in the draft NRC be extended from the one month proposed initially to two months.

                                     It must be added here that the document pointed out that the Supreme Court in its July 21, 2015 order had said “…Indian citizens including their children and descendants, who may have moved to the State of Assam subsequent to 24th March, 1971 would be eligible for inclusion in the NRC on adducing satisfactory proof of residence in any part of the country (outside Assam) as on 24th March 1971.” The government, however said that in some cases, people have not been able to provide documents to prove their residence in any part of the country. For such people, it proposed to make provisions similar to Rule 4 of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 and Clause 3(3) of the Schedule.”

                                             Accordingly, government submitted that, “citizens of India who originate from other states in India and who do not have any origin in specified territory (Bangladesh) and have moved to State of Assam prior to 24th March 1971 or after will be included in the NRC if the citizenship of such persons is ascertained beyond reasonable doubt to the satisfaction of the authorities disposing of claims and objections. Cases of all such persons whether ordered for inclusion by the authority (disposing claims and objections), or for exclusion, will be examined first by the CRCR (Circle Registrar of Citizen Registration) and then by the DRCR (District Registrar of Citizen Registration). The final decision of inclusion or exclusion will be taken by the DRCR, who will issue a speaking order issued under his deal and signature” the SOP stated adding that “authorities examining the claim and the DRCR will exercise great caution to ensure that no illegal person’s name is included taking recourse to the above provisions.”

                                 Of course, the government also submitted that claims involving children of 14 years who have been left out from the draft NRC and whose parents have included in it “will be segregated and pre-claim verification undertaken by CRCR to ascertain the shortcomings in linkage documents or any inconsistencies thereof.” It said the DRCR concerned will ensure specific hearings for the composite family in respect of these children and oral and written evidences from parents will be available. This “special consideration” was needed, the government said, because adequate documentary evidence may not be available for children below age 14. “Claims where only married women are involved and have no linkage document other than Gaon Panchayat Secretary Certificate issued prior to August 2015 will be examined separately in accordance with the guidelines issued in its compliance to Hon’ble Supreme Court orders on the verification of Gaon Panchayat Secretary Certificate for married women,” it said.

                                      In essence, the Local Registrar of Citizen Registration (LRCR) will issue notices for hearing the objections raised to inclusion of any names including to the person against whom the objection raised. To “ensure fairness and objectivity”, the government said, “it is considered necessary that the officers who have decided the applications at the stage of draft NRC (LRCR) are not the decision-making authority at the stage of disposal of claims and objections”. Centre stated that the state had informed that it will be able to make available 1,500 to 2,500 Class I officers for this. The exact requirement will, however, depend on the number of claims and objections that are filed, the SOP said, adding that it was also proposed to appoint senior state government officers as observers to oversee the process of disposal of claims and objections.

                                As things stand, during the hearings, the state, in collaboration with UIDAI, will undertake biometric enrolment of applicants. Once the final NRC is published, those included in it will be given Aadhaar numbers. The SOP also provides a timeline for completing tasks. Accordingly, the period for receiving claims and objections will be from August 30 to October 28. The hearings will start from December 15 onward.  It may be recalled here that on July 31, a Bench of Justices Ranjan Gogoi and RF Nariman while allowing the government to draw up the SOP had said it would approve the same if the procedure adopted was fair, else it would correct it.

                                           It must be brought out here that the Registrar General of India (RGI) will not make public the reasons for excluding the names of 40 lakh people from the NRC, the final draft of which was just released. This will certainly give an opportunity to some to raise serious question marks over such secrecy especially those who are not at all happy with this historic move! The only exceptions to this are those who have been marked ‘doubtful’ voters by the Election Commission (voting rights of such people and their descendants already stand suspended) and those who have, at any point of time, been referred to Foreigners Tribunals and their descendants. These two categories of people, numbering 2.48 lakh already know that their names would not be included in the draft NRC until their names are cleared by the tribunals.

                                               It must also be brought out here that another 1.5 lakh people whose names were part of the draft published in December but have been excluded from the final draft, will be informed about the reason for their exclusion by a letter of information (LOI). These applicants were excluded for one of three reasons – either their names had been erroneously included, they were found to have submitted false claims or panchayat certificates submitted by them were found invalid. NRC State Coordinator Prateek Hajela submitted before the Supreme Court while seeking its permission which was subsequently granted that, “The LOI will have to be served to the rejected applicants within seven days from the date of publication of the complete draft. The LOI will explicitly state that the applicant has an opportunity to file a claim for inclusion in the NRC. The LOI will also inform the time schedule and place of submission for the claim.” The rest of the excluded persons will have to file a fresh application in a prescribed form with the local registrar of citizen’s registration between August 7 and September 28 to know the reason for exclusion. RGI Sailesh said that, “Each of the individuals will be given a letter citing the reason for exclusion.”

                                   All said and done, it is a herculean task to ensure that innocents are not harassed and illegal immigrants are not spared from being deported to their respective countries from where they entered illegally to India. Similarly all those who burn Indian flags and chant anti-Indian slogans must be deported from all across India! All political parties must refrain from indulging in petty politics as it concerns our national security and there can be no compromise on it! Rajnath Singh who is Union Home Minister very rightly cautioned parties against politicizing it. He said: “Whatever work is going on in the NRC, is happening under the supervision of the Supreme Court. To say that the government has done it, and it is inhuman and brutal…such allegations are baseless. It is not the right thing to say. Some people are unnecessarily trying to create an atmosphere of fear. I want to assure all that there is no need for any apprehension or fear. Some misinformation is also being spread.” Appealing to the House, Rajnath Singh again very rightly said that, “This is a very sensitive issue. Everyone should lend their support. I want to make it clear…you can express your anger…but let me tell you that the government is not doing anything…everything is being done under the supervision of Supreme Court.” Absolutely right! Rajnath also very rightly said that there is no question of any coercive action against anyone while stressing that NRC process is “being carried out with complete fairness and transparency”. He also made it clear that if anyone was not satisfied with the final draft of the NRC, that person would get an opportunity to file claims and objections as per provisions in the law and also approach the Foreigners Tribunal. He also clarified that, “Only after the disposal of claims and objections, will the final NRC be published.”

                                             On a concluding note, what is being done in Assam is truly laudable and should be emulated in all parts of India to ensure that illegal immigrants are first identified and then deported back to their native country! If this is not done, it is bound to have disastrous consequences on the unity and integrity of India. Also, all those who stay in India and repeatedly swear by Pakistan or any other foreign country must be first identified and then deported to the country of their choice without wasting anymore time because it goes without saying that, “You cannot be a Pakistani and an Indian at the same time because India and Pakistan are separate countries since 1947. You cannot claim fundamental rights under the Indian Constitution while believing in Pakistan and burning our flags and Constitution”. Same holds true for other countries as well. Those who burn Indian flags, Indian Constitution, insult national anthem and sing Pakistani anthem or anthem of any other country must migrate to their country of choice and if they don’t they must be deported at all cost and under all circumstances. Similarly those who stay in India and still attack army vehicles and slap our brave soldiers and throw their helmets in gutter must be deported without showing any leniency of any kind towards them irrespective of their religion, caste, creed or sex! Similarly if a person has no proof of citizenship but swears by India and demonstrates total loyalty for nation by doing exemplary acts of courage and promotes harmony must be rehabilitated in India at all cost and under all circumstances no matter what his/her religion, caste, creed, community or sex is!    

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

 “Though it is the responsibility of the state to bring the accused to law but in such process the actual sufferer of crime cannot be permitted to stay outside the law and to watch the proceedings from hindsight. It will be travesty of justice if the victims of such heinous crime are denied right to address their grievances before the courts of law.”

                                          Yes, this is exactly what the Division Bench of Madhya Pradesh High Court has held right at the very outset while delivering its landmark judgment on July 18, 2018 in the landmark case of Mahesh Pahade vs State of MP in Criminal Appeal No. 933/2014 (Order on 1A No. 6367/2017) and very rightly so! While holding this in no uncertain terms it relied upon Declaration of “Basic Principles of Justice of Victim for Crime and Abuse of Power” which was adopted in the 96th plenary meeting of the General Assembly on 29th November 1985. This is truly laudable!

                             Needless to say, a Bench of Madhya Pradesh High Court comprising of Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla held thus while considering the maintainability of an application seeking cancellation of an order of suspension of sentence filed by the victim in the criminal appeal preferred by the convict. The accused, who was convicted by the trial court for sexually exploiting his niece, had preferred appeal before the high court. The application filed by the accused seeking suspension of sentence was allowed by the high court.

                                   Going forward, the victim, then approached the high court contending that he was granted bail on the basis of additional document, which could not have been taken into consideration at the stage of consideration of the application for suspension of sentence and that too without giving any opportunity to the victim to controvert the allegation, which was pertaining to the age of the prosecutrix. The counsel for the accused-appellant questioned the very maintainability of such an application by the prosecutrix contending that even if a victim has been given right to file an appeal against an order of acquittal in terms of proviso to Section 372 of the Code, she does not become entitled to seek cancellation of bail. To buttress its stand, a recent judgment by the Apex Court in The High Court of Judicature of Hyderabad For The State of Telangana And the State of Andhra Pradesh vs Mahabunisa Begum & Others was also cited in support of its arguments. It was also contended that only the public prosecutor can file an application for cancellation of bail.

                                      To be sure, Chief Justice Hemant Gupta notes at the outset that, “The application (I.A. No. 6367/2017) is for cancellation of bail granted to the appellant on 09.12.2016 under Section 389 of the Code of Criminal Procedure, 1973 (for short “the Code”) on behalf of the prosecutrix. Further, in para 2, it is observed that, “The present appeal arises out of a judgment passed by the learned Sessions Judge, Mandla on 10.02.2014 convicting the appellant for an offence punishable under Section 376(2)(n) of the Indian Penal Code, 1860 (for short “the IPC”) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him to suffer imprisonment for life for an offence under Section 376(2)(n) of the IPC and fine of Rs 20,000/- in default of payment of fine, to further undergo rigorous imprisonment for two years.”

                                            Moving ahead, in para 3 it is pointed out that, “The allegation against the appellant is that he exploited the prosecutrix of 14 ½ years of age from October, 2010 to 10th February, 2013. The appellant is related to the prosecutrix being his uncle. The accused was a visitor to the father of the prosecutrix at their house and used fiduciary relationship to sexually exploit her. The learned Trial Court convicted the appellant for the offences charged and sentenced the appellant in the manner indicated hereinabove.” Also, it is brought out in para 4 that, “While considering the third application for suspension of sentence, this Court passed an order on 09.12.2016 admitting the appellant to bail. The appellant had relied upon additional document obtained under the Right to Information Act, 2005 that the date of birth as mentioned in Ex P-10 as 24.10.1998 does not belong to the prosecutrix and in fact, belongs to another person Dharamraj. In reply on behalf of the respondent, the stand of the appellant was denied, but, the Court found that certificate issued by the Authorities makes the document of age submitted by the prosecution as doubtful. It was observed that the prosecutrix being less than 18 years of age may not be correct if the benefit of three years on either side is considered. Thus the age arrived at by the learned trial Court on the basis of an ossification test conducted on 01.03.2013 in which she was found to be 13 ½ to 14 ½ years of age may not be justified.”

                            Simply put, para 5 brings out that, “In an application for cancellation of bail, it is pointed out that the registration number has been wrongly mentioned in the certificate (Ex P-10). The correct Serial No. is 1757 and actually she was born in village Ikalbihari and contents of Ex P-10 are correct. It is pointed out that the certificate cannot be said to be a forged document only on the basis of wrong registration number. It is also pointed out that even if the benefit of three years of age is given to the prosecutrix, still she does not attain the age of 18 years as the maximum age would be 17 ½ years. Thus, it is pointed out that the appellant has been granted bail on the basis of additional document, which could not have been taken into consideration at the stage of consideration of the application for suspension of sentence and that too without giving any opportunity to the victim to controvert the allegation, which was pertaining to the age of the prosecutrix.”

                                         As it turned out, in para 6, it was observed that, “Learned counsel for the appellant vehemently resisted the application for cancellation of bail and argued that such application is not maintainable, as in terms of Section 389 of the Code, it is only the Public Prosecutor who can file an application for cancellation of bail. Even if a victim has been given right to file an appeal against an order of acquittal in terms of proviso to Section 372 of the Code, she does not become entitled to seek cancellation of bail. Learned counsel for the appellant relies upon a judgment of the Supreme Court reported as (2015) 15 SCC 613 (Satya Pal Singh vs State of Madhya Pradesh and others) wherein it has been held that right to prefer an appeal to the High Court in terms of proviso to Section 372 of the Code can be exercised only after obtaining leave of Court as required under Sub-section (3) of Section 378 of the Code. It is, therefore, contended that the rights of the prosecutrix are not larger than that of a Public Prosecutor. The Public Prosecutor alone has been conferred right to seek cancellation of bail, therefore, the application for cancellation of bail at the instance of prosecutrix is not maintainable.”

                               Not stopping here, para 7 goes on to say that, “Learned counsel for the appellant also refers to a judgment of the Supreme Court reported as (2016) 10 SCC 378 (Dhariwal Industries Limited vs Kishore Wadhwani and others) to argue that the prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The role of the informant or the private party is limited during the prosecution of a case in a Court of Session. The counsel engaged by such person is required to act under the directions of the Public Prosecutor.”

                                    Now coming to para 8, it says that, “Learned counsel for the appellant also relies upon an order passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 2240/2018 (The High Court of Judicature of Hyderabad for the State of Telanagana and the State of Andhra Pradesh vs Mahabunisa Begum & others) on 14.05.2018, wherein, an order of High Court for the State of Telangana and Andhra Pradesh rendered in Criminal Petition No. 7108/2017 (Smt Mahabunnisa Begum vs State of Telanagana and 2 others) was set aside in the light of the decisions reported as (1999) 7 SCC 467 (Shiv Kumar vs Hukam Chand & Anr.) and Dhariwal Industries Ltd. (supra). It may be stated that before the High Court in Criminal Petition No. 7108/2017 (supra), the complainant sought permission to prosecute a criminal case registered on her complaint through a private Advocate. The petition was allowed and the complainant/victim was permitted to engage a private advocate and conduct prosecution by further examination of any witness in addition to the public prosecutor.”

                             Having said this, it would be apposite to now have a glimpse at what para 10 of this landmark judgment says. It points out that, “On the other hand, learned counsel for the prosecutrix invited our attention to the decisions of the Supreme Court reported as (1979) 4 SCC 719 (Rattan Singh vs State of Punjab); a Constitutional Bench decision reported as (1980) 3 SCC 141 (P.S.R. Sadhanantham vs Arunachalam and another); and (2000) 2 SCC 391 (R. Rathinam vs State by DSP). Learned counsel has placed a heavy reliance upon a decision reported as (2001) 6 SCC 338 (Puran etc. vs Rambilas and another etc.) and a recent decision of the Supreme Court reported as (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar and others). Learned counsel also relies upon the Declaration of “Basic Principles of Justice of Victim for Crime and Abuse of Power” adopted in 96th plenary meeting of the General Assembly on 29th November 1985. The declaration laid down the following for access to justice and fair treatment to the victims: –

     “4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm they have suffered.

      5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

      6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

      (a)  Informing victims of their role and the scope, timing and progress of the proceedings and of the deposition of their cases especially where serious crimes are involved and where they have requested such information;

      (b)  Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.

      (c) Providing proper assistance to victims throughout the legal process;

       (d)  Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

      (e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.” 

                                      Truth be told, para 12 states explicitly that, “The judgment referred to by the learned counsel for the appellant deals with the right of a victim to assist the public prosecutor during trial or the right of appeal under Section 372 of the Code but present is a situation where the prosecutrix is not seeking her right to engage an Advocate for prosecution of the accused or for filing an appeal. The accused stands convicted and is in appeal. The grievance of the prosecutrix is that the appellant has sought suspension of sentence on the facts, which were not on record and also by misrepresenting the factual situation. However, as mentioned above, we are not examining the merits of the prayer for cancellation of bail but only for the purposes of locus standi, this fact is mentioned.”

                                   Be it noted, para 13 further while pointing out deficiencies in our criminal law states that, “In Rattan Singh (supra), the Supreme Court held that it is a weakness of our jurisprudence that the victims of the crime and the distress of the dependents of the prisoner do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law and this is a deficiency in the system which must be rectified by the legislature.”

                             Truly speaking, para 21 which is the next most relevant para points out explicitly that, “The declaration of basic principles of justice for victims of crime issued by General Assembly of United Nations provides for victim to obtain redress through formal and informal procedures that are expeditious, fair, inexpensive and accessible. Such declaration contemplates that responsiveness of judicial and administrative processes to the needs of victims should be facilitated by informing the victims of their role and the scope, timing and progress of the proceedings including allowing the views and concerns of the victims to be presented and considered at the appropriate stages of the proceedings where their personal interests are involved. Therefore, though it is the responsibility of the State to bring the accused to law but in such process the actual sufferer of crime cannot be permitted to stay outside the law and to watch the proceedings from hindsight. It will be travesty of justice if the victims of such heinous crime are denied right to address their grievances before the courts of law.”

                              It cannot be lost on us that para 22 further brings out that, “The judgment in Puran’s case (supra) arises out of an order passed by the High Court cancelling bail granted by Additional Sessions Judge. The Court has drawn distinction when conditions of bail are being infringed such as interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner or when the cancellation of bail is sought when bail is granted by ignoring material evidence on record or a perverse order granting bail is passed in a heinous crime. Such an order was said to be against the principles of law. That was a case of an offence under Section 498 and 304-B of IPC. The Court noticed that such offences are on the rise and have a very serious impact on the society. The Court held that concept of setting aside unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts require such cancellation. The Court considered an argument that a third party cannot move a petition for cancellation of bail as the prosecution has not moved for cancellation. The Court held that an application for cancellation of bail is not by a total stranger but by the father of the deceased. Therefore, it was held that powers so vested in the High Court can be invoked either by the State or by an aggrieved party. The said power could also be exercised suo motu by the High Court. In view of the aforesaid judgment, which pertains to era prior to amendment in Section 372 of the Code giving right to a victim to file an appeal against the order of conviction, clearly gives right to the prosecutrix, a victim of heinous crime on her person to approach this Court for cancellation of bail.”

                                Now coming to the concluding part, the Bench in para 23 clearly enunciates that, “Once right of appeal has been given to a victim, it shall include all ancillary rights which are attached with the right to appeal. Such right to appeal will include right to seek cancellation of bail if the victim is aggrieved against such an order.” Finally and most importantly, the Bench of Madhya Pradesh High Court comprising of Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla comes to the logical and quite palpable conclusion as they concluded by observing categorically that, “In view of the above, we find that the victim has a right to seek cancellation of an order of suspension of sentence, as it is her rights and honour, which is in issue apart from the crime against humanity protected by the State.” Absolutely right! There can be no denying or disputing it!       

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.   

It has to be said right at the outset that in a remarkable and laudable judgment with far reaching consequences, the Delhi High Court in Harsh Mander & Anr v UOI & Ors in W.P.(C) 10498/2009 & CM Appl. 1837/2010 on August 8, 2018 decriminalised begging, striking down as “unconstitutional” the provisions which made it an offence. How can any law on earth punish a poor and hapless person who due to some reason is unable to earn as for instance those who lose their hands and legs and are not literate and are compelled to resort to begging due to no other option being left before them? This precisely is the reason why Delhi High Court too struck the right chord and struck down the provisions in a law that criminalises begging! I have really just no words and am falling short of words to express my utmost and unadulterated appreciation for this landmark judgment which must be read by all those who are literate and it must be emulated by all courts in all parts of the world and not just in India alone!

                                             To be sure, the Delhi High Court Bench comprising of Acting Chief Justice Gita Mittal and Justice C Hari Shankar who delivered this landmark judgment begins at the very beginning by first and foremost quoting from an article in The Guardian which says that, “…A society that sees legislating inequality and homelessness into invisibility has unquestionably lost its way…” Going forward, the Bench clearly held that, “The inevitable sequitur to our decision would be that all prosecutions, under the Act against persons alleged to have committed the offence of begging, would be liable to be struck down.” Very rightly said! There can be no denying it!

                          It must be revealed here that this landmark judgment came on a petition filed by activists including Harsh Mander, who was represented by senior Supreme Court advocate Colin Gonsalves. It said the provisions of the Bombay Prevention of Begging Act which treats begging as an offence cannot sustain constitutional scrutiny.

                                        Interestingly enough, while there is no central law on begging and destitution, several States have either adopted the Bombay Prevention of Begging Act, 1959 or have modeled their laws on it. The Act prescribes a punishment of detention for not more than three years if a person who was detained in a certified institution, is found begging and is convicted for the first time. All offences under the Act, except those under Section 11, are to be tried summarily. Section 11 which gives the opportunity of being heard to the accused, imposes a punishment of a minimum of one year and a maximum of three years imprisonment on those who cause others to beg or use them for begging.  

                                        It must be brought out here that the Act was made applicable to Delhi in 1960. The Delhi High Court was hearing two PILs – filed by social activists Harsh Mander and Karnika Sawhney – challenging the constitutionality and validity of all Sections, except Section 11 of the Act. They had alleged a violation of Articles 14, 19, 20, 21 and 22 of the Constitution of India by the impugned provisions. They had pointed out that the definition of “begging” under the Act violated Article 14, as it does not make any distinction between persons who solicit or receive money for authorized purposes and those who are singing, dancing or engaged in similar activities.

                                     In addition, they had further alleged that the Act was being arbitrarily applied. They submitted that, “While the Act unjustly restricts the movement of beggars, the application of the Act also limits the movement of a large number of no-beggars. Interviews with lawyers providing legal aid have revealed that 74% of persons arrested were from the informal labour sector such as those employed in small hotels, markets and construction, and 45% were homeless. It was observed that beggars were unaware of the reasons of arrest and were taken to the Beggars Court at the pretext of doing some work like cleaning.”    

                                         As things stood, the Bench agreed with the petitioners contentions and noted inter alia that the law does not in fact make any distinction between types of begging i.e. voluntary or involuntary. It further noted that the State was using homelessness and begging synonymously and termed this arbitrary. Besides, the Court considered the “futility” of lodging and detaining beggars in beggars home as a wastage of public funds, and highlighted the inadequacy of the impugned provisions, observing, “”If we want to eradicate begging, artificial means to make beggars invisible will not suffice. A move to criminalize them will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges and isolation.”

                                      Suffice it to say, the Bench said the inevitable consequence of this verdict would be that the prosecutions under the Act against those who are alleged to have committed the offence of begging, would be liable to be struck down. It held that, “The power to do so would, however, appropriately vest in the courts seized of such prosecutions, and we, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgment, and our observations and findings contained herein.”

                                 Needless to say, in her last judgment as the Acting Chief Justice of the Delhi High Court, Justice Gita Mittal who has been approved as the Chief Justice of Jammu and Kashmir High Court minced absolutely no words in stating clearly and categorically that, “People in this stratum do not have access to basic necessities such as food, shelter and health, and in addition criminalizing them denies them the basic fundamental right to communicate and seek to deal with their plight.” Absolutely right! No person in his right senses will ever disagree with what Justice Gita Mittal has said!     

                                          Be it noted, Delhi Prevention of Begging Rules 1960 formulated under the Bombay Prevention of Begging Act 1959, makes begging an offence. Under this offence, beggars were often picked up and produced before the courts from where they were sent to beggar homes. The 23-page landmark judgment came on two pleas, challenging various sections of the Bombay Begging Act which was adopted by the Union Territory of Delhi in 1960. Para 1 of this landmark judgment begins by pointing out that, “These writ petitions challenge the constitutionality and validity of all sections, except Section 11 of the Bombay Prevention of Begging Act, 1959 (hereafter referred to as the ‘Act’) as extended to the Union Territory of Delhi (now the NCT of Delhi) vide G.S.R. No. 638 dated 2nd June, 1960, published in the Gazette of India, pt. 11, Section 3(i), dated 11th June, 1960 on the ground that it violates the Fundamental Rights guaranteed under Articles 14, 19, 20, 21 and 22 of the Constitution of India.”

                                      Truth be told, the Bench of Delhi High Court said that they are spared the necessity of striking down the entire Act and dealt with 25 Sections which either treat begging as an offence committed by the beggar or deal with ancillary issues such as powers of officers to deal with the said offence among others. It held that, “These provisions either treat begging as an offence committed by the beggar, or deal with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence, the institutions to which such “offenders” could be committed and procedures following the awarding of sentence for committing the said offence.” It further went on to say that, “These provisions, in our view, cannot sustain constitutional scrutiny and deserve, therefore, to be struck down.”  

                                        Simply put, while striking down the legal provision criminalizing begging in the capital, the Bench of Delhi High Court observed that, “Begging is their last resort to subsistence; they have no other means to survive.” It also observed that, “People beg on the streets not because they wish to, but because they need to.” It also slammed the government for its failure to ensure the bare essentials of the right to life to all its citizens, even in Delhi, the national capital.

                                         As it turned out, the Delhi High Court Bench added that the state is at liberty to bring in an alternative legislation to curb any rackets of forced begging, after undertaking an empirical examination on the sociological and economic aspects of the matter. It also sent out a loud and clear message to the State by holding that, “If the State wishes to criminalise specific types of forced beggary, it has to first think out a clear factual basis and impact thereof to pass a well thought legislation after due application of mind and being mindful of the rights provided under the Constitution of India.”

                                     It must be reiterated that the Bombay Prevention of Begging Act, 1959 functions as the derivative figure for all state anti-begging laws. Several beggars have been thrown into jail in the capital under the law. Such laws must be struck down and in Delhi this is exactly what the Delhi High Court has opted to do!

                                 Truly speaking, the Delhi High Court very clearly and convincingly held that, “Begging is a symptom of a disease, of the fact that the person has fallen through the socially created net. The government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens.” It also said that, “We find reports of starvations deaths in the newspapers and ensuring education to the 6 to 14 year old remains a challenge.” Madhur Verma who is Delhi Police spokesperson while hailing this landmark judgment rightly said that, “It’s a welcome move as begging is more of a social menace. It requires a more inclusive approach. Arresting someone for begging was hardly ever a solution.”

                                  Until now, the police was empowered to arrest beggars. This was used to arrest many poor and hapless beggars which only further served to rub salt on their wounds! But this landmark judgment will certainly now act as the most potential deterrent in protecting beggars from being arbitrarily arrested and thrown behind bars just for begging! It has most certainly come as a real beacon of hope for these poor hapless beggars who feel their voice is unrepresented among the higher echelons of ruling class!  

                                    It cannot be lost on us that para 31 of this landmark judgment pulls back no punches in conveying it clearly and categorically that, “Criminalizing begging is a wrong approach to deal with the underlying causes of the problem. It ignores the reality that people who beg are the poorest of the poor and marginalized in society. Criminalizing begging violates the most fundamental rights of some of the most vulnerable people in our society.” Para 33 further observes that, “The State simply cannot fail to do its duty to provide a decent life to its citizens and add insult to injury by arresting, detaining and, if necessary, imprisoning such persons, who beg, in search for essentials of bare survival, which is even below sustenance. A person who is compelled to beg cannot be faulted for such actions in these circumstances. Any legislation, penalizing the people, therefore, is in the teeth of Article 21 of the Constitution of India.”

                       Conclusions

                                    In essence, para 40 of this landmark judgment says that, “When, in the backdrop of the above discussion, we examine holistically, the provisions of the Act, we find that, while most of the provisions contained therein directly deal with begging, treating it as an offence, or other provisions ancillary thereto, there are certain provisions which do not treat beggary per se as an offence and which therefore, may not be hit by the vice of unconstitutionality.” Para 41 further stipulates that, “We are, therefore, spared the necessity of striking down the entire Act, wholesale. The provisions which treat beggary/begging as an offence, committed by the beggar, or are ancillary thereto, would be Sections 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29.”

                                        Moving ahead, para 42 observes that, “These provisions either treat begging as an offence committed by the beggar, or deal with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence, the institutions to which such “offenders” could be committed and procedures following the awarding of sentence for committing the said offence. These provisions, in our view, cannot sustain constitutional scrutiny and deserve, therefore, to be struck down.” The next para 43 further says that, “The remaining provisions of the Act, which do not directly or indirectly criminalize begging, or relate to the “offence” of begging, such as Section 11 (which deals with penalty for employing or causing persons to solicit or receive alms, or using such persons as exhibits), Section 30 (which deals with seizure and disposal of animals exposed or exhibited for obtaining or extorting alms), and other provisions which deal with the nature of offences under the Act, appeals, the power to frame rules and removal of difficulties, would not be required to be struck down and are, therefore, maintained.”    

                                   Result

                                  Finally and most importantly, we now deal with what the Delhi High Court gave in its result. In para 44, it held that, “In the result, we declare Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Bombay Prevention of Begging Act, 1959, as extended to Delhi, as unconstitutional and strike down the said provisions.” In para 45, it held that, “The inevitable sequitur to our decision would be that all prosecutions, under the Act against persons alleged to have committed the offence of begging, would be liable to be struck down. The power to do so would, however, appropriately vest in the Courts seized of such prosecutions, and we, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgment, and our observations and findings contained therein.” In para 46, it also held that, “The state is always at liberty to bring in alternative legislation to curb any racket of forced begging after undertaking an empirical examination on the sociological and economic aspects of the matter.” Last but not the least, para 47 winds up by noting that, “Before parting with the case, we are reminded of the words of Krishna Iyer, J in the pronouncement reported at AIR 1981 SC 674 Gopalanachari v State of Kerala when he said that, “…If men can be whisked away by the police and imprisoned for long months and the court can keep the cases pending without thought to the fact that an old man is lying in cellular confinement without hope of his case being disposed of, Article 21, read with Articles 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation. Law is not a mascot but a defender of the faith. Surely, if law behaves lawlessly, social justice becomes a judicial hoax.”

                                            In the ultimate analysis, it is a landmark judgment which will ensure that beggars don’t land up in jail just because of begging. It is one of the finest judgment which must be read by every literate person! It will certainly not tantamount to an exaggeration from any angle to say that it is worthy of being emulated by all courts from top to bottom!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has to be stated before anything else that in a landmark judgment which is being considered as a huge blow to the AAP Government in Delhi, the Delhi High Court in its landmark judgment titled Federation of Okhla Industrial Association (Regd) v Lt Governor of Delhi and anr in W.P.(C) 8125/2016 & CM No. 3362/2016 reserved on 22 May and delivered finally on 4 August, 2018, quashed its much-touted March 2017 order revising the minimum wages for all classes of workmen in scheduled employment, opining clearly and categorically that the same was ultra vires Article 14 of the Constitution of India. The Bench of Delhi High Court comprising Acting Chief Justice Gita Mittal and Justice C Hari Shankar further opined that the impugned notification suffered from “non-application of mind”, was not based on any material and violated principles of natural justice. So it was but natural that it had to be quashed!   

                                Truth be told, the Bench also declared  explicitly that the constitution of the Minimum Wages Advisory Committee for all scheduled employments by the Government as ultra vires Sections 5(1) and 9 of the Minimum Wages Act, 1948, opining that the formation of this Committee was “completely flawed”. It should not have been set up at the first place! This Delhi High Court’s latest landmark judgment was issued primarily as a culmination of the petitions that were filed by employers – associations of traders, petrol dealers and restaurants – who had challenged the two notifications – one that was issued in September 2016 reconstituting the Minimum Wages Advisory Committee for all scheduled employments, and another issued in March 2017, revising the minimum rates of wages for all classes of workmen/employees in all scheduled employments.  

                                     Be it noted, para 2 of this landmark judgment states that, “An attempt to constitute a Minimum Wage Advisory Committee by an order dated 12th April, 2016, had already disrupted the course of wage revision once. Alas, even though the revision is sorely needed, the hurried attempt again, inter alia failing to comport with binding the statutory requirements, without relevant material and contravening principles of Natural Justice has unfortunately disrupted this course, yet again.” There can be no denying it!

                                      Going forward, para 3 further goes on to say that, “This batch of writ petitions, lays a challenge to the constitutionality of the Notification bearing no. F-13(16)/MW/1/2008/Lab/1859 dated 15th September, 2016 issued by the Lt. Governor of Delhi in exercise of powers conferred by Section 5(1) of the Minimum Wages Act, 1948 (hereafter referred to as ‘the Act’). By this notification, the respondents re-constituted the Minimum Wages Advisory Committee for all scheduled employments.” Para 4 further reveals that, “These petitions also challenge the constitutional validity of the Notification bearing no. F. Addl.LC/Lab/MW/2016 dated 3rd of March 2017 published in the Official Gazette on 4th March, 2017, again issued by the respondents, in exercise of power conferred by Section 5(2) of the enactment. By this Notification, minimum rates of wages for all classes of workmen/employees in all scheduled employments stand revised w.e.f. the date of the notification in the official gazette. The challenge rests, inter alia, on the plea of the petitioners that both these notifications are ultra vires the provisions of the enactment itself and that the respondents also violated the principles in issuance of the notifications.”

            Hurried Actions Of The Government

                                     It cannot be lost on us that this landmark judgment authored by Acting Chief Justice of Delhi High Court Gita Mittal begins by first and foremost quoting Lewis Caroll from Alice in Wonderland that, “The hurrier I go, the behinder I get” to assert emphatically that the quote “appropriately manifests the manner in which the hurried actions of the respondents would set back the entire workforce of the city.” It then goes on to note that while an attempt to revise wages was in fact “sorely needed”, the hurried attempt, without adherence to binding statutory requirements, without relevant material and in violation of principles of natural justice, disrupted the entire exercise.”  

            Crux of the Judgment

                                It would be in the fitness of things to now shell out the crux of this entire landmark judgment which will make the whole picture very clear as to what it implies. In other words, it can be safely said that it is the summary of the conclusions that Delhi High Court Bench held bare so explicitly. The key points as laid down in the concluding part of this landmark judgment are as follows: –

1.  The High Court under Article 226 of the Constitution of India can interfere with a notification fixing minimum wages only on “the most substantial grounds”.   

2.  The purport and object of the Act in fixing the minimum wage rate is clearly to prevent exploitation of labour. The hardship caused to individual employers or their inability to meet the burden of minimum wages or its upward revision, has no relevance.

3.  The object, intendment and provisions of the Minimum wages Act, 1948 are clear and unambiguous, and therefore, the applicability of the beneficent rule of interpretation is completely unnecessary.

4.   Minimum wages have to be more than wages at the subsistence level, have to take into consideration all relevant factors and prescriptions made after due application of mind and must take into consideration the norms and component as approved by the Supreme Court in the Reptakos judgment.

5.  The Supreme Court has rejected challenges to the constitutionality of the Minimum Wages Act, 1948 for the reason that the legislation has ensured the mechanism provided under Section 5, 7 and 9 of the enactment. This places the requirement of compliance with the provisions thereunder on an extremely high pedestal and they had to be strictly adhered to by the respondents.

6.  The appropriate government is required to take into account the report and advice rendered by the Committee/Advisory Board and to apply independent mind and take a balanced decision so far as fixation or revision of minimum wages is concerned. The Government is not bound by the recommendations of the Committee. It is open to the Government to accept (wholly or in part) or to reject the advice of the Board or report of the Committee.

7.  While there is no absolute prohibition on an employee of the Government being nominated as an independent member of the Committee under Section 5 of the Minimum Wages Act, an objection to such nomination has to be decided on the facts and circumstances of the case. It is only when minimum wages are under consideration for an industry in which the State may be vitally interested as an employer, that it may not be proper to nominate an official to the Committee treating him to be an independent member.

8. A defect in composition of the Committee under Section 5 would not per se vitiate either its advice or the decision taken thereon. A defect in the composition of the Committee would vitiate its advice, or the ultimate decision of the Government fixing the minimum wages, only if such illegality or defect has worked to the prejudice to a party, for example where the interest of a particular group of employer or employees has not been represented or has not been taken into consideration.

9. The Delhi Metro Rail Corporation is not an employer engaged in scheduled employment in Delhi and it could not have been appointed on the Committee under Section 5 as a representative of the employer.

10. Though the eligibility of the officers of the Labour Department or the Director of Economics & Statistics as members of the Committee cannot be faulted, however they failed to conduct themselves dispassionately and did not apply their independent minds. The respondent has appointed the very officials as independent persons on a Committee, which had already taken a view in the matter and made recommendations as members of a Committee in the year 2016, therefore, when appointed for the second time, they were clearly close-minded and proceeded in the matter in a predetermined manner.

11. The respondents have denied the statutorily mandated representation to the actual employers in scheduled employments in Delhi which tantamount to non-compliance of Section 9 of the Minimum Wages Act, 1948 and failure on the part of the respondents to constitute a Committee required by law to be constituted.

12. It is essential that under Section 5(1) of the MW Act, a Committee “properly constituted” is “genuinely invited” with an open (‘receptive’) mind to tender advice to the appropriate Government.

13. It has to be held that employers in the scheduled employments as well as employees with divergent views stand ousted from the consideration and their interests certainly compromised to their prejudice. This prejudice to the employers and employees would constitute a ‘most’ substantial ground (Ref : (2008) 5 SCC 428 (para 14), Manipal Academy of Higher Education vs. Provident Fund Commissioner) justifying interference by this court in exercise of jurisdiction under Article 226.

14. Clearly the Government of NCT of Delhi was aware of the requirement of law and consciously failed to comport to the same.

15. It is not open to a representative to insist on an oral hearing before the Committee appointed under Section 5 or the Advisory Board under Section 7 of the Minimum Wages Act, 1948.

16. The fixation of minimum wages in Delhi cannot be faulted simply because they are higher than the rates of minimum wages fixed in surrounding States and Towns.

17. The Committee in making its recommendations, as well as the respondents in issuing the singular notification for uniform minimum wages for all scheduled employments, have completely ignored vital and critical aspects having material bearing on the issue.

18. Any change in the prescribed rates of minimum wages, is bound to impact both the industry and the workmen. The respondents were bound to meaningfully comply with the principles of natural justice especially, the principles of fair play and due process. The representatives of the employers, had a legitimate expectation of being heard as the advice of the Committee was to inevitably affect them, which has been denied to them before the decision to revise minimum wages was finalized.     

19. The constitution of the Committee was completely flawed and its advice was not based on relevant material and suffers from non-application of mind. The Government decision based on such advice is in violation of express statutory provision, principles of natural justice, denied fair representation to the employers as well as the employees in fact without any effort even to gather relevant material and information.

20. The non-application of mind by the committee and the respondents, to the relevant material considerations, offends Article 14 of the Constitution of India.   

                              Having said this, it must be now stated that in para 365 of this landmark judgment, it is pointed out that, “The Notification bearing no. F-13(16)/MW/1/2008/Lab/1859 dated 15th September, 2016 issued by the respondents constituting the Minimum Wages Advisory Committee for all scheduled employments is ultra vires Section 5(1) and Section 9 of the Minimum Wages Act, 1948 and is hereby declared invalid and quashed.”

                                  Furthermore, in para 366, it is pointed out that, “The Notification bearing no. F. Addl. LC/Lab/MW/2016 dated 3rd of March 2017 issued by the respondents revising minimum rates of wages for all classes of workmen/employees in all scheduled employments is ultra vires Article 14 of the Constitution of India; of Section 3 & Section 5(2) of the Minimum Wages Act, 1948, of Rule 20 of the Minimum Wages (Central) Rules; appears from non-application of mind, is based on no material and is in contravention of principles of Natural Justice and is hereby declared invalid and quashed.” Also, para 368 says that, “The applications are disposed of as having been rendered infructuous.” Finally para 369 concludes the judgment by saying that, “No order as to costs.”  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Coming straight to the core issue, it has to be noted right at the outset that in a landmark judgment delivered on July 6, 2018 with far reaching consequences, the Uttarakhand High Court in Chandra Shekhar Joshi v State of Uttarakhand & others in Writ Petition (PIL) No. 71 of 2015 recently issued a slew of commendable directions for improving the functioning of Government Medical College, Haldwani and its associate hospitals. The Court was hearing a petition filed by one Chandra Shekhar Joshi who had highlighted the lack of basic facilities at the Government Medical College, Haldwani and its associate hospitals, Dr Sushila Tewari Memorial Hospital and Swami Rama Cancer Hospital and Research Centre. It is the “poorest of poor” who cannot afford to go to private hospitals who have to suffer the most which cannot be condoned under any circumstances!

                                      As it turned out, on the oral application of petitioner, the Medical Council of India is added as respondent no. 6 in the petition. Para 3 of this landmark judgment brings out that, “According to the averments made in the petition, the institution is plagued with absenteeism. The poor patients are not getting specialized treatment. Number of posts are lying vacant. Patients are not getting the medicines from the hospital. There is a tendency among the doctors to refer the patients to other hospitals.” This is most deplorable and depreciable! Why should patients be referred to other hospitals and not treated there only?

                                         To be sure, it is rightly highlighted in para 4 of this landmark judgment that the hospital does not fall under the administrative control of the Department of Medical Health & Family Welfare, Govt. of Uttarakhand. It falls under the control of the Department of Medical Education. For this reason, free medicines cannot be provided.

                                   Truth be told, para 5 points out that, “A startling revelation has been made that Swami Rama Cancer Hospital & Research Institute currently has the Department of Radiotherapy only. Here, the conventional radiotherapy is delivered and also Brachytherapy is done. Simple forms of chemotherapy are often performed but complex form of chemotherapy is not feasible due to lack of medical oncology department. There is no Surgical Oncology Department yet. The Department of General Surgery and ENT often perform cancer surgeries when possible. The Departments of Medical Oncology, Surgical Oncology are due to be brought in when the institute is upgraded to State Cancer Institute. There are no Neurology, Gastrology, Nephrology, Urology or Cardiology Departments in the hospital. There is no independent Cardiology Department.”

                                             Going forward, in para 8, it is rightly brought out that, “Government Medical College, Haldwani (formerly known as U.K. Forest Hospital Trust Medical College) is only medical college in Haldwani, Uttarakhand, India. It was established in 1997. The Government Medical College, Haldwani is the first post graduate college in Uttarakhand, recognized by the Medical Council of India and the Government of India. The Govt. Medical College Haldwani has two hospitals associated with it – Dr Sushila Tiwari Memorial Hospital and Swami Rama Cancer Hospital & Research Center. Swami Rama Cancer Hospital & Research Center was inaugurated on 22nd February, 2010. However, there is only one Department which is functional i.e. Radiotherapy. The lack of oncological disciplines of medical oncology, surgical oncology, haematological oncology, gynaecological oncology & pediatric oncology is acutely affecting the population of the state at present.”

                                  Needless to say, para 12 of this landmark judgment further brings out that, “There are no facilities like Neo-adjuvent, and Adjuvent for Cancer patients. Swami Rama Cancer Hospital & Research Institute has been established in the year 2010 but till date, the Oncology Department is not in existence. There is no Medical Oncologist, Surgical Oncologist, Gynecological Oncologist or Pediatric Oncologist in the medical college. Swami Rama Cancer Hospital & Research Institute is functional since 22.2.2010 and it is shocking that till date, no Specialists have been appointed except the opening of Department of Radiotherapy. Swami Rama Cancer Hospital & Research Center has virtually become defunct in absence of specialists.”    

                             Let me hasten to add here that in para 13, it was explicitly held that, “The time has come when the State Government should accord Swami Rama Cancer Hospital & Research Institute as the State Cancer Institute by providing it the latest state of art equipment including Positron Emission Tomography (PET), Magnetic Resonance Imaging (MRI), Computed Tomography (CT) Scan and Specialists namely medical Oncologists, Surgical Oncologists, Hematological Oncologists, Gynecological Oncologists and Pediatric Oncologists at the earliest. The facilities provided to the Cancer Hospital in a big building are confined only to the Concurrent and Palliative Chemotherapy. The posts in Clinical and Non-Clinical Branches are lying vacant. There are no details of the persons who applied and were selected pursuant to the advertisement issued by the Medical College. The posts are required to be filled up of Teaching as well as Non-Teaching Staff in all the Departments as per the Minimum Standard Requirements for the Medical College for 100 Admissions Annually Regulations, 1999. The Equipment is to be provided as per Schedule III of the Regulations at the earliest.”

                                      Furthermore, it is underscored in para 14 that, “The poorest of poor patients visit the medical college. They have a fundamental right to be treated by the Specialists. It is the duty cast upon the State Government to provide free medicines/drugs to the poorest of poor.” On similar lines, in para 27, the Bench of Justices Rajiv Sharma and Lok Pal Singh asserted vocally that, “Every citizen has a fundamental right to health. The State has the obligation to provide best medical services to its citizens. The poorest of poor cannot go to the private hospitals. Since the latest equipment is not available with the respondent – Medical College, the parents are referred to other hospitals including private hospitals.”

                                    While clearly and convincingly exposing the shortcomings, this landmark judgment in para 24 points out that, “A startling revelation has been made that 4 posts of Professors, 4 posts of Associate Professor/Reader, 1 post of Medical Superintendent, 1 post of Dean are lying vacant in the medical college. 29 posts of Tutor/Registrar/Sr. Resident and 68 posts of Junior Resident and 1 post of Deputy Librarian are lying vacant. In total, 129 posts in this category are lying vacant.” Para 25 goes on to further point out that, “There are 310 sanctioned posts of Staff Nurse out of which 142 have been filled up on regular basis and 64 posts have been filled up through UPNL. Nursing is the backbone of any medical institute. In all, 104 posts of Staff Nurse are lying vacant.” It is also conceded in para 26 that, “Now as far as the technical staff is concerned, 380 posts are lying vacant. These posts are required to be filled up on emergent basis. The hospitals cannot be left sick.”

                                  Bluntly put, para 28 observes astonishingly that, “It is surprising to note that the Medical College has no Department of Neurology, Gastrology, Nephrology, Urology or Cardiology. These Departments are essential for public health. The State Government is required to take immediate steps for creation of these Departments in the Govt. Medical College, Haldwani at the earliest. The surgeries of the cancer patients are required to be undertaken only by the Oncologists/Medical Surgeons from their respective branches.” As if this is not enough, it is further observed in para 29 that, “A startling revelation has been made in the daily edition of ‘The Pioneer’ dated 3rd July, 2018 that 61 Ambulances are lying idle in the compound of office of Director General (Health). The ambulances are required to be refurbished immediately to make them functional. Ambulances which have completed their maximum mileage are required to be replaced.”

                                    To top it all, para 30 further observes that, “It has also come into light that there is also acute shortage of doctors in Kumaon Division as per the daily edition of ‘Amar Ujala’ dated 3rdJuly, 2018. There is shortage of 267 doctors in Kumaon Region. The total posts sanctioned are 981 out of which only 714 doctors are working and 267 posts are lying vacant.” Worst of all, para 31 laments that, “There is no Trauma Center in the Medical College. The Trauma Center is required for the simple reason that due to the terrain and geographical conditions of the State, the fatal accidents do occur wherein the passengers receive serious injuries. They are required to be operated upon immediately by the Neurosurgeons. The Trauma Center is a must in every Medical College.”

                                         Needless to say, para 32 makes a scathing attack for not spending enough on purchasing the latest equipments. It says that, “Petitioner has also placed on record the details of the budgetary provision. A sum of Rs 23.00 crores was spent for the construction of Swami Rama Cancer Hospital & Research Center. The system cannot permit non-utilization/under utilization of building constructed at the cost of Rs 23.00 crores. The amount is contributed by the tax payers. The system is accountable for every pie spent by the government. Budgetary provisions are available for the medical college but still the latest equipment is not purchased for the reasons best known to the management of the Medical College.”

                                      Finally and most importantly, para 33 which is the concluding part of the judgment concludes by saying that, “Accordingly, the present petition is disposed of by issuing the following mandatory directions: –

A.  The respondent-State is directed to make Swami Rama Cancer Hospital & Research Institute fully functional by creating the posts of Medical Oncologists, Surgical Oncologists, Hematological Oncologists, Gynecological Oncologists and Paediatric Oncologists within three months from today by holding the walk-in interviews. The State is also directed to upgrade the status of Swami Rama Cancer Hospital & Research Institute to the State Cancer Institute within three months. The State is also directed to give incentives to the specialists to join premier institution in the State of Uttarakhand by giving them at least 15 advance increments, suitable accommodation and conveyance befitting their status.

B.  Since Swami Rama Cancer Hospital & Research Institute is the constituent hospital of Medical College, the State Government is directed to provide the latest state of art equipments/machinery required under the Minimum Standard Requirements of the Medical College for 100 Admissions Annually Regulations, 1999 for training and teaching of the MBBS and MD/MS students within two months.

C.  The respondent-State is directed to establish the Nephrology, Neurology, Urology and Cardiology Departments in the Medical College within three months. Thereafter, the posts shall be filled up within a further period of three months by holding the walk-in interviews.

D. The State Government is directed to establish the Trauma Center in Government Medical College, Haldwani and make it functional within three months from today as per the standard procedure.

E.  The State Government is directed to fill up all the posts of teaching staff as well as non-teaching staff, lying vacant in the Medical College, within three months from today to provide quality treatment to the patients. The first preference shall be given to the teaching faculty including clinical and thereafter to non-clinical and nursing.

F.   The State Government is directed to deploy 61 newly acquired ambulances after refurbishing them within one month from today.

G. The State Government is directed to fill up all the vacancies of Medical Officers in Kumaon Division within four months from today.

H. The State Government is directed to install the MRI/PET, Mammography and other states of art equipment for treatment of patients and training and teaching of MBBS and MD/MS students within three months from today.

I.     The State Government is directed to provide essential life-saving drugs/medicines to the patients free-of-cost.

J.    The Principal of the Medical College is directed to ensure absolute hygiene in the hospital and if necessary, by outsourcing the same.

K.   The State Government may consider constructing Inns/Sarays for the attendants of patients in the close vicinity of the hospital.

L.   The Medical Council of India shall carry out the inspection of the Medical College immediately after six months to ensure that all the parameters laid down by it are followed in letter and spirit by the respondent- Medical College failing which it shall be open to the MCI to take action, as envisaged under law, against the Medical College for non-fulfilling the minimum standards.”

                                    All said and done, it is a landmark judgment and its mandatory and laudable directions must be implemented in letter and spirit in totality. It will go a long way in ensuring that the poorest of poor who cannot afford to go to private hospitals get proper treatment for cancer. It is India which tops in world with maximum death from cancer at 2.2 million per year.

                                       To be sure, health spending has pushed 55 million Indians into poverty in a year as was published in ‘The Times of India’ on June 13, 2018. Cancer has the highest probability of resulting in ‘catastrophic expenditure’ for a household. But it can be checked if the landmark directives laid down in this landmark judgment are implemented in totality. It will also go a long way in ensuring that the Medical Colleges function as per the directives laid down. Not just this, it will also certainly go a long way in improving the functioning of Government Medical College and Associate Hospitals which is the crying need of the hour!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

It is most hurting to see that in India, the soldiers who hail from Jammu and Kashmir and who join forces either in Army or in CRPF or in BSF or in police or in any other forces against the will of majority of those who hate India and enjoy stone pelting at forces are being mocked at repeatedly by Centre by just not providing any security to them and their family! In just few days we keep hearing soldiers from Jammu and Kashmir having been abducted at gun point and then tortured and then killed! Centre proudly spends more than Rs 560 crore on Hurriyat leaders who just hate India and always rant against India and openly swear loyalty with Pakistan but is not prepared to spend even a small mount on safety of soldiers of Jammu and Kashmir! Soldiers of Jammu and Kashmir are being repeatedly abducted from their home itself and then killed after bring tortured yet we see neither Centre nor Opposition taking it seriously! 

Truth be told, the latest to be killed is police constable Mohammad Salim Shah who was killed by suspected militants after his abduction on night of July 20 from his house. His multiple bullet injuries was found on July 21 afternoon in Qaimoh village of South Kashmir’s Kulgam district! He was brutally tortured and he was videographed which was later sent to all news channels just like in case of earlier killings so that no one from Jammu and Kashmir join forces!

Be it noted, Salim had been recently promoted and was working as a Special Police Officer and was undergoing training in Kathua! He had come home in Muthalhama of Kulgam district on leave. He is the 25th policemen killed by militants in Jammu and Kashmir this year! 

What is most reprehensible to note is that Centre and Opposition both are not raising this and feel that there is nothing wrong in spending more than Rs 560 crore on security of Hurriyat leaders whom militants always hail and feel no need to provide security to soldiers of Jammu and Kashmir! As if this is not enough, even Supreme Court whom we all or at least I can say for myself consider as “Living God” too just says nothing on it even though it feels very angry on mob killing and mob lynching which certainly deserves to be condemned in the strongest terms! But why this deafening silence on soldiers killings and stone pelters who pelt stone in favour of terrorists?

To be sure, we all saw how earlier this month in July, another police constable Javed Ahmad Dar too was abducted from his vehicle at Vehil in Shopian district and killed after being tortured by militants yet Centre feels we should just relax because at least Hurriyat leaders are safe on whom crores are being spent for their security! As if this was not enough, in June an Army soldier Aurangzeb Khan was also abducted from a private vehicle when he was going home for Eid in Shopian. His body was recovered from a Pulwama village. He was killed after being tortured similarly as he fearlessly admitted that along with Major Shukla he was responsible for killing of many terrorists! 

Bluntly put: A brave and die hard nationalist like Aurangzeb Khan can never die. His life is the biggest offering that he himself voluntarily sacrificed for the nation! No weapon, no terrorist, no Pakistan, no China or any other country can ever kill the likes of brave soldiers like Aurangzeb of 44 RR who belonged to 4 Jammu and Kashmir Light Infantry at Shadimarg in Shopian and hailed from the village Salani in Poonch district of Jammu.

Any Indian who does not feel to salute Aurangzeb can never be a true Indian! What Aurangzeb has done so willingly cannot be done even by me and I candidly acknowledge this! No award, no Bharat Ratna, no Nobel Prize, no Paramveer Chakra or any other award can ever honour Aurangzeb because Aurangzeb stands tallest above all these petty awards!

Even after being captured by terrorists and even after being tied to a tree, he did not show any sign of fear nor did he plead to be spared. He voluntarily acknowledged his brave role in eliminating several terrorists along with Maj Shukla when cross questioned by terrorists without showing any sign of fear! He could have blamed others for killing terrorists and could have escaped being killed but he dared to confront them and didn’t fear for his life nor pleaded for mercy!

Aurangzeb is our national pride, national icon and no politician, no political party can ever mock at him by denying him any award because he stands above all such petty considerations and his supreme sacrifice is the biggest testimony to it. The biggest tribute that we can pay to Aurangzeb is by adopting zero tolerance policy towards terrorists and Pakistan! No license should ever again be given to Pakistan or terrorists in the name of Ramzan to kill our soldiers by ordering forces to take no action against them because this tantamount to mocking at Ramzan which under no circumstances can ever be associated with terrorists and Pakistan who leave no opportunity to slaughter our citizens and soldiers whenever they get any opportunity to do so! Why was this unfettered license given to Pakistan and terrorists knowing fully well what they do as they have done in past also and even former PM Atal Bihari Vajpayee was compelled to revoke this so called “Ramzan ka ceasefire”? Why Supreme Court also just says nothing on it?

How long will politicians plead ceasefire for terrorists, traitors and Pakistan? How long will politicians plead “talks and dialogues” with these rogues? How long will politicians refuse to learn anything from past experiences like the brutal murder of Lieutenant Umar Fayyaz and continue appeasing terrorists and Pakistan? How long will Most Favoured Nation (MFN) status for Pakistan continue since 1996 unilaterally like unilateral ceasefire till now? How long will Pakistan enjoy benefit of Indus Water Treaty will killing our citizens mercilessly?

Mohammad Haneef Khan who is Aurangzeb’s father who is himself an ex-serviceman stands perfectly justified when he says that, “I want to ask PM Modi if he’s listening to me, why are you appeasing stone-pelters and separatists? Punish the terrorists who killed my son. Why was Ramzan ceasefire announced? Terrorists have no religion, then why operations were stopped against them during Ramzan? Why Pakistani flags are allowed to be waved openly in India?” What Mohammad Haneef has said is perfectly right and no sane person will ever question this!

How can cases be withdrawn suddenly against more than 10,000 stone-pelters by J&K State Government? How can a crime be encouraged openly by a duly elected State Government? How can Centre too endorse it by doing nothing to stop this? Does Centre favour stone pelting on our soldiers! Never saw stone pelting on such a large scale as we are now seeing in PM Narendra Damodardas Modi’s Raj!Why even Supreme Court didn’t intervene and stop Jammu and Kashmir State Government led by former Chief Minister Mehbooba Mufti from acting against India’s national interests?

Why politicians never want Pakistan to be declared a “terror state” and named “Aatankistan” as demanded by Maulana Mehmood Madani who is leader of Jamiat Ulama-i-Hind and MP from Bangalore Rajeev Chandrashekhar even though they demand the same from world at very international forum like UN? What is the real mystery behind this? Why is free license given to “traitors, terrorists and Pakistan” to kill our brave soldiers and others during Ramzan? Is Ramzan meant to kill Indians? How long will leaders fool themselves and this nation?

What is happening now so brazenly in PM Modi’s time in Kashmir is most shocking and still he keeps appearing in fitness challenge along with his cabinet colleagues like Colonel Rajyavardhan Singh Rathore who inspite of having an Army background shamelessly does “fitness exercise” even as Pakistan kills many of our BSF soldiers in Samba along with an Assistant Commandant as also Aurangzeb and a senior journalist Shujaat Bukhari who was editor of “Rising Kashmir” and bombards our border areas forcing lakhs to migrate and here too many women and children are killed! Why is all this taken so lightly? We see Rahul and Modi hugging each other in Parliament even as soldiers from Jammu and Kashmiri soldiers are being slaughtered repeatedly as has happened just recently with Mohammad Salim Shah! Pakistan merges PoK with Pakistan but our politicians don’t have the guts to ensure the “full and final merger of J&K with India! Why can’t we also act similarly?

Former CJI JS Khehar while in office as CJI had rightly said that, “How can one country have two flags, two Constitutions, two laws and two citizenship?” Why can’t Centre abrogate Article 370 and Article 35A which are most discriminatory and forbids Indians from outside the state to settle there or even appear in any exam there? What have we gained by it? Flags of Pakistan and ISIS! For how long this disgraceful appeasement will continue? No law, no Constitution, no Judge, no Court not even Supreme Court can be above the unity and integrity of India which has to be ensured under all circumstances!

What message is Centre sending by caring a damn for the repeated killings of our brave soldiers and instead appearing in news channels to issue “fitness challenge” to heroes, heroines, and others? What message is Centre sending by celebrating “Yoga Day” and caring a damn for the anger of the families of our brave soldiers like Aurangzeb who got killed because of this Ramzan ceasefire? Is this the biggest tribute that is being paid to our soldiers? Should we be proud of it? No wonder, more and more soldiers from Jammu and Kashmir are being killed!

Lieutenant Umar Fayyaz who hailed from Kashmir was slaughtered by terrorists last year. DSP Mohammad Ayyub Pandit was posted for security of Hurriyat leaders but he was himself killed after the mob was provoked by some leaders! Stone pelters in Modi’s Raj attack our soldiers openly and their helmets are thrown in gutter after being slapped who still say nothing even while they are fighting terrorists yet Supreme Court says nothing on this even though it speaks about zero tolerance for human rights violations by forces in Manipur! Is this not double standard? Why Centre always want security forces to exercise restraint and restraint and cases are lodged against them for exercising right of self-defence but cases against stone pelters are withdrawn at the drop of a hat yet not just Centre but even Supreme Court just says nothing?

Who is the great military adviser who is advising and guiding our PM and Home Minister to resort to all such foolish and self-destructive actions like Ramzan ceasefire, continuing with MFN status for Pakistan unilaterally, retaining Article 370 and Article 35A, continue spending Rs 560 crore every year from taxpayers money on Hurriyat leaders who openly shout slogans favouring Pakistan while not spending a penny on providing security to soldiers from Jammu and Kashmir, continue allowing Pakistan to take advantage of Indus Water Treaty which Modi had earlier himself criticised and many more such foolish acts? On a concluding note, soldiers like Mohammad Salim and Aurangzeb and other such Jammu and Kashmir soldiers are national icon who inspite of being tortured and beaten brutally pledge loyalty for India and for this are killed finally needs no recommendation or citation or award or anything else from any leader or politician to be respected because every true Indian will salute him always for the supreme sacrifice that he has rendered without any hesitation! But Supreme Court must now speak up very strongly for them by ordering Centre to provide security to them and their family and if this is not done that day is not far when no one from Jammu and Kashmir will ever like to join forces for a thankless nation which believes in providing security for Hurriyat and separatists and spending crores on it but not spending a penny for soldiers who love India and join forces! The earlier this is done, the better it shall be in our national interests! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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

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

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

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

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

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

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

             On the State’s duty to maintain law and order

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

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

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

           On growing mob vigilantism

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

            Reference to American authorities

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

                     On rising intolerance

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

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

A.                Preventive Measures

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

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

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

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

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

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

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

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

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

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

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

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

B.            Remedial measures

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

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

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

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

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

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

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

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

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

C.                   Punitive measures

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

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

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

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

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

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

  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road,

Kankerkhera,

Meerut – 250001,

Uttar Pradesh.